The Labour Relations Act, 1995 (LRA) gives effect to this right and provides, among other things, that every employee is entitled to a fair dismissal and the right not to be subjected to an unfair labour practice.
Fair dismissals and fair labour practices are permitted.
With reference to dismissals, fairness means that there must be a fair reason for the termination (substantive fairness), and the employer must follow a fair process before terminating (procedural fairness). The reasons are trite: employee misconduct, employee poor performance, employee ill health or injury and the operational requirements of the employer. This article focuses on misconduct and poor performance.
The Code of Good Practice: Dismissal as contained in Schedule 8 to the LRA provides additional guidelines for what constitute fair reasons and a fair process. Insofar as misconduct is concerned, the requirements for substantive fairness are that the employee must have acted in breach of a legitimate workplace rule that is consistently applied. What must be established are the following:
· there exists a rule – some rules are so basic that they do not need to be written down in a policy, such as the prohibition against theft and assault, or competing with the employer’s business;
· that the employee knew about the existence of the rule, or should reasonably have known that the rule exists;
· that the rule is legitimate/ valid/ reasonable;
· that the employer has consistently applied the rule;
· that the employee acted in breach of the rule; and
· that dismissal is the appropriate employer-response to the breach of the rule.
As regards poor work performance, substantive fairness will be established if the employee has failed to meet a performance standard, and:
· the employee was aware or could reasonably have been expected to be aware of the standard;
· the employee was given a fair opportunity to meet the standard; and
· dismissal is the appropriate response to the employee’s poor performance.
Where the employer cannot satisfy these requirements, a dismissal will be substantively unfair and the employer will be at risk of a reinstatement order as the primary remedy, or compensation in an amount of up to 12 months’ remuneration.
In our experience, employers take good care to comply with the requirements for substantive fairness. Where they experience great challenges, however, is what process ought to be followed.
Again, Schedule 8 of the LRA provides guidance. With reference to misconduct, item 4 states:
‘Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry.’