Right not to be unfairly dismissed 186. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Employers should have a Disciplinary Code the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. MISCONDUCT CCMA Info Sheet: Misconduct(1) FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR THE CALL CENTRE ON 0861 16 16 16 INTRODUCTION Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. This means there should be efforts by the employer to correct employee’s behaviour by means of disciplinary actions. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. Guidelines in cases of dismissal arising from ill health or injury. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. The law promotes the principle of progressive discipline. Dismissals for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Other unfair dismissals 189. An employer might also seek to go straight to dismissal if an employee has committed an act of gross misconduct which has, or could have had, very serious consequences, or if they feel the employee is guilty of a fundamental breach of contract. Termination by an employee because the employer made continued employment intolerable. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. The Act recognises three grounds on which a termination of employment might be legitimate.Â. Dismissals based on operational requirements Copyright © 2020. On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct. 6. ACT. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. What must be realized is that the LRA recognizes only three circumstances under which a dismissal may be considered fair – misconduct, incapacity (including … When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. Some have argued that the Labour Relations Act undermines the flexibility required for the free market to exist. the circumstances of the infringement itself. Incapacity on the grounds of ill health or injury may be temporary or permanent. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. if a rule or standard was contravened, whether or not; the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Dismissal should be reserved for cases of serious misconduct or repeated offenses. However, like any other act of misconduct, it does not always deserve dismissal. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. 1.2 The objectives of this procedure are to: 1.2.4 assist the employer to apply corrective action where appropriate. 66 of 1995) to become effective on 1 january 2012 contents Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. Meaning of dismissal 187. This does not need to be a formal enquiry. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. Ø Failures or shortfalls in employee performance could arise from misconduct orincapacity. The law promotes the principle of progressive discipline. A compensation order is one that requires the employer to pay the employee an amount of money in recompense for unfair dismissal or an unfair labour practice. 5. Dismissal should be reserved for cases of serious misconduct or repeated offences. Only after it has established that there is a case for which the employee has to answer to, said employee must be notified of the allegations against him/her. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property. Misconduct is one of three grounds recognized by the Labour Relations Act 66 of 1995 as justifying the dismissal of an employee: the others being incapacitated or poor work performance and operational requirements (Grogan, 1999). 1.1 This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. In the absence of such evidence, it was found that the dismissal was unfair. As there is no agreement for the Court to arbitrate the applicant‟s alternative claim of unfair dismissal for misconduct under s158(2)(b) of the Labour Relations Act, 66 of 1995 („the LRA‟),in the event that the applicant fails in his primary claim that he was unfairly dismissed for operational reasons, resolution of this question will determine whether the matter may proceed in the Labour Court. 6 of 2004 and Rule (ELRA) may mean; A lawful termination under the Common law. 1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure. Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. In Legal Aid SA v Jansen (LAC), the employer appealed against the Labour Court’s decision whereby it held that the dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, on the basis of him suffering from depression. 2. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Sc hedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings.Â, 3. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. Misconduct is a ground for the termination of employment of the workers in an organisation or industrial concern. When appropriate, an employer should give an employee whatever. The employer is obliged to consult regarding measures to minimise the number of dismissals, and also to mitigate the adverse effects of dismissal. The Labour Relations Act (“LRA”) provides every employee with the right not to be unfairly dismissed. A Introduction: identifying the need for the application of a performance management process . Court’s evaluation Dismissal for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. Labour Law South Africa expert Articles on CCMA, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in Labour Relations Act and Amendments. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. b. if the reason is one of those listed in section 187. Labour Guide. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed of they do not comply with the ultimatum. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). 3. The LC set aside the CCMA’s award and ordered S’s reinstatement to the date of dismissal. Guidelines in cases of dismissal for poor work performance. whether or not the strike was in response to unjustified conduct by the employer. The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. dismissal was an appropriate sanction for the contravention of the rule or standard. for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances, including: the circumstances of the infringement itself. This means that an employer may not just willy-nilly dismiss an employee whenever s/he feels like it, the employer must have a fair reason for making the decision to dismiss and must follow a fair procedure. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. The degree of incapacity is relevant to the fairness of any dismissal. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.Â. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.Â. In the process, the employer should have the right to be heard and to be assisted by a trade union representative or a fellow employee. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. If misconduct is identified within a company, an employer should investigate the allegations against the employee. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. 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