An employee’s unacceptable conduct or behaviour may give reason for an employer to dismiss the employee. Where certain conduct such as lawful participation in a strike should not lead to dismissal as this may be an automatically unfair dismissal. For a dismissal to be fair there must be a fair reason for dismissal and a fair procedure must be followed. Each case should be judged on its own merits. The Code of Good Practice on Dismissal advocates for a progressive approach to discipline which means that the employer should first try to correct an employee’s behaviour by using disciplinary action as an alternative to dismissal. This could include counselling, verbal warnings and written warnings.
Generally it is inappropriate to dismiss an employee for a first offence except where the misconduct is so gross that a continued relationship is impossible. Examples are:
- gross dishonesty, theft and fraud
- wilful damage to property belonging to the employer
- physical assault on the employer, a fellow employee, client or customer
- gross insubordination
- gross negligence
An employee may also be dismissed for less serious misconduct such as late coming or absenteeism, if such behaviour is repeated and corrective action has been unsuccessful. The person deciding whether to dismiss an employee for misconduct should consider the following questions:
- Did the employee break a relevant workplace rule or standard?
- Is the rule or standard valid or reasonable?
- Was the employee aware of the rule or standard or should he or she have been reasonably aware of the rule or standard?
- Has the employer consistently applied the rule or standard to all employees?
- Is dismissal the appropriate or correct sanction?
There are mitigating or aggravating factors for the employer to consider as well such as employer’s disciplinary record, length of service and personal circumstances.
Apart from having a valid reason, employer must follow a fair and simple procedure prior dismissal obey its own disciplinary code and procedure. The following requirements should be met:
- Employer has conducted an investigation into the alleged misconduct. The employer needs to inform the employee about the allegations in a simple, but clear manner. The employee should be given a reasonable chance to respond and be given the opportunity to be assisted by a trade union representative or a co-worker.
- Once both sides have been provided with a chance to give their versions, the employer should notify the employee of the decision preferably in writing.
- Where there is dismissal, employer of his or her right to refer the matter to the relevant Bargaining Council or CCMA within 30 days of receipt of the final decision to dismiss.
- Discipline against a trade union representative or an employee who is an office bearer or official of a trade union should not be instituted without first informing and consulting the trade union. In exceptional circumstances where the employer can’t reasonably be expected to follow these guidelines, the employer may dispense with pre-dismissal procedure.