How to dismiss an employee

Provided by Mota Africa

By Thabo Mohale

Topics Dispute Resolution | Labour Law

20 Oct 2022

Introduction

You need to dismiss an employee. The legal framework regulating a dismissal is vast and complex. Without expert, professional legal assistance, you can very quickly find yourself in a quagmire of legal uncertainty.

You may be wondering what constitutes a dismissal, how to implement it lawfully, and what are the consequences of failing to abide by the relevant laws. It is impossible to comprehensively answer those questions in this short piece, but we provide a brief outline.

What is a dismissal?

Common law

In a nutshell, a dismissal is a termination of the employment relationship at the insistence of the employer. This repudiation of the employment contract by the employer is what is recognised as a dismissal at common law.

The employee then has a choice to either accept the repudiation and sue for damages or hold the employer to the contract and sue for specific performance.

Labour Relations Act (LRA)

Under the LRA, a dismissal occurs where the employment relationship is terminated by any of the forms enumerated in Section 186(1) of the LRA, which briefly are:

an employer terminates a contract of employment with or without notice;
failure to renew a fixed term contract where the employee reasonably expected the contract to be renewed, but the employer fails to renew, or offers to renew on less favourable terms;
the employer refuses to allow an employee to return to work at the end of her maternity leave;
an employer dismisses a number of employees for the same or similar reasons but has offered to re-employ some to the exclusion of others;
constructive dismissal; or
pursuant to a business sale/transfer, the new employer provides the employee with less favourable conditions than those provided by the previous employer.

Categories of dismissals

Automatically unfair dismissals

Reasons for which an employee may not be dismissed are prescribed in Section 187 of the LRA. These reasons vary and are related to: an employee’s participation in Union actives, such as protected strikes; absence during maternity leave; race, gender, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status and family responsibility; a transfer of business; or a protected disclosure.

Once it is established that the employee has been dismissed for any of these reasons, it is deemed that the dismissal was unfair.

Conduct

These dismissals are generally known as ‘fault’ dismissals. They occur where the employee’s conduct breaches a material term of the employment contract or has destroyed the employment relationship, thus justifying a termination of the employment contract.

The essential questions asked in this category of dismissals, as recommended in Schedule 8 of the Code of Good Practice: Dismissal, are as follows:

Was an employer’s rule/policy contravened?
Is the rule/policy reasonable?
Was the rule/policy made known to the employee?
Was the rule/policy consistently applied?
Was the dismissal appropriate?

Capacity

These are the ‘no fault’ forms of dismissals, which generally arise from illness, injury and poor work performance. They also encompass situations where an employee has been incapacitated by the loss of a license, permit or enactment of legislation that disqualifies or creates a legal prohibition of employment.

Ill health and injury are treated distinctly from disability matters. Disability matters place more onerous requirements on the employer who seeks to dismiss a disabled employee.

Operational requirements

These are the so called ‘redundancy’ or ‘retrenchment’ forms of dismissals. Operational requirement is defined in section 213 of the LRA as “requirements based on economic, technical, structural or similar needs of an employer”.

The employer must follow procedures enumerated in section 189 of the LRA, which requires good faith negotiations between the employer and employees affected by the impending dismissals and/or their trade union representatives.

What is an unfair dismissal?

The question whether there was a dismissal under the LRA, if answered in the affirmative, is followed up with a deceptively set of complex questions designed to shed light on the fairness or otherwise of the dismissal. The question under the common law is whether the repudiation of the contract was lawful.

Substantive fairness

Arbitrators and judges utilise a two-pronged approach when assessing the substantive fairness of a dismissal. The first is to establish the reason(s) for the dismissal as proffered by the employer. The second is to assess the appropriateness of the dismissal as measured against the reason(s) for dismissal. This entails that there must be a strong correlation between the seriousness of the misconduct or incapacity, and the employer’s response thereto – i.e., the punishment must fit the crime, so to speak.

In cases of dismissals for misconduct, particularly in cases involving dishonesty or morally opprobrious conduct, the issue of fairness ultimately turns on whether or not the trust relationship has been breached.

In matters involving incapacity, the issue of fairness turns on whether the employer can reasonably be expected to continue the employment relationship, notwithstanding the employee’s inability to perform his or her contractual obligations.

In matters involving dismissals for operational reasons – i.e., retrenchments, the employer will have to demonstrate that the employee’s services had become superfluous to the employer’s need.

Procedural fairness

The requirement for procedural fairness entails that the employer must follow fair processes prior to making the decision to dismiss the employee. In cases of misconduct, the employer should conduct investigations into alleged misconduct and the employee must be given an opportunity to state his/her case against those allegations. The employee is entitled to a fair period to obtain representation and prepare a response.

Procedures to be followed during retrenchment proceedings are set out in Section 197 of the LRA. They require, among other things, that the employer initiates a good faith consultative process between itself and affected employees with the view to fashioning and implementing measures that may result in dismissals being averted.

Employees facing incapacity dismissals must also be afforded an opportunity to be heard. This takes the form of counselling sessions where the nature of the issue is discussed with the employee and remedial steps are suggested and undertaken. The process culminates with an incapacity hearing where the decision whether or not to dismiss the employee will be taken.

Consequences of an unfair dismissal

Being hauled before the CCMA, bargaining councils and the courts can have serious reputational and financial repercussions for your business. Unfairly dismissed employees may be granted a number of remedies set out in section 193 of the LRA. These include reinstatement with or without back-pay, re-employment or compensation. As compensation, the employer may be ordered to pay the employee a salary of up to 24 months.

In terms of Section 193(2)(d) of the LRA, an employee whose dismissal was only procedural unfair may not be reinstated but may receive compensation.

Here is what we can do for you and your business

Our team will help you circumnavigate the entire process of effecting fair dismissals. We can help you:

Put policies in place

It is crucial to lay out the ground rules in order to maintain discipline in the workplace. We have vast experience in drafting robust disciplinary codes and associated policies. We can help you streamline your policies and procedures to be in line with applicable legislation and your unique business needs.

Training

Having good policies is one thing. Effectively implementing them is another. We can hold training sessions for your managerial and Human Resources staff to ensure that your policies are correctly implemented.

Conduct internal investigations

A crucial step in the disciplinary process is investigating and gathering evidence. We will be with you throughout the process.

Initiate and chair disciplinary hearings

We can train your staff on how to prosecute a matter properly and effectively at an internal hearing, both from an initiating and chairing perspective. In more complex matters, we can perform those crucial tasks on your behalf.

Retrenchments

We will help you get the through the initial consultative processes with trade unions or employee representatives, all the way to effecting the dismissals.

Managing poor work performance and ill health

We will help you manage situations where your staff members are not in a position to fulfil their obligations to your organisation. From the counselling sessions all the way to the dismissal, we will ensure you do not miss a beat.

Representation at external forums

Should your matters be referred to external tribunals and/or courts, you can trust us to fight for and defend your rights.

Conclusion

At Mota Africa, we strive to be the preferred partner of businesses across the African continent. When you partner with us, you can rest assured that you have a strong dedicated team of legal experts guiding you through treacherous legal minefields related to the law of dismissals.