What is a dismissal?
Employers and employees enter into an employment relationship when an employee performs services for an employer in exchange for compensation (for example, money).
Usually, the terms and conditions of that employment relationship are contained in a contract of employment.
So, what does the law say? Do you have to get a warning first or can you be dismissed immediately?
Each employee is protected from unfair dismissal by the Labour Relations Act (“LRA”).
Rather than simply firing employees when they feel like it, employers must justify their decision and follow fair procedures after firing.
In terms of our labour legislation, an employer cannot just dismiss you without a fair and impartial disciplinary hearing.
Generally, employees can be dismissed for one of three reasons, namely misconduct, incapacity, and operational requirements
Misconduct
Misconduct by the employee, for example, can warrant a dismissal. This can be if the employee is guilty of theft, being absent without authorisation, refusing to obey the employer’s instructions and so on.
With the misconduct, there’s something called procedural fairness and substantive fairness.
Under procedural fairness, the company must investigate the misconduct and give you a fair hearing. Providing you with an opportunity for you to put forward your defence to it.
For example, if you’ve been coming late to work, and it’s your first or second time, chances are you will receive a warning, followed by a second warning, followed by a final warning from your company.
When we deal with Substantive Fairness, the warning or dismissal part comes in, depending on the offence that you committed, you can be dismissed immediately without the need for a warning. So it all depends on the offence. This could be seen where an employee has committed dishonesty like stealing thousand of rands from petty cash.
In the event of suspected misconduct, the employer should investigate the allegations against the employee. If there is reason to suspect that the employee has a case to answer, the employee should be informed of the charges against him/her and invited to respond to the charges.
As a result, both parties have an opportunity to present their cases.
Additionally, the employee should be informed of his/her rights at the hearing, including the right to be represented by a co-worker or shop steward and the right to call witnesses for defence.
When making judgments on company sanctions, a good guide is to look at the company code and disciplinary procedure that outlines all the different offenses and what the penalties are. You will find that the company sanction should match both the charge and the offence.
