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Eight urban myths about dismissals - and how to overcome them

by , 31 August 2015
With all the fines and changes to labour laws, you're probably too afraid to even say 'boo' to an employee without worrying about being taken to the CCMA.

But today I want to dispel some of the urban myths about dismissals so you can confidently get rid of employees without worrying about facing an unfair dismissal case!

Keep reading to find out what they are...

Eight urban myths about dismissals – and how to overcome them…
1. The Labour Law makes it impossible to dismiss an employee
The Labour Relations Act lays down processes you must follow when you want to dismiss an employee. This is to make sure the process is fair. It isn't there to make you keep an employee on who isn't performing or who commits misconduct.
2. You must give three warnings before you can dismiss 
It depends on the offence. Some acts of misconduct carry at least a final written warning penalty or summary dismissal for the first offence.
3.If you dismiss the employee he will take revenge or become violent
Make sure you give your employee counselling. Take the time to make sure he knows what will happen if you dismiss him. The Unemployment Insurance Fund (UIF) gives some benefits to employees you dismiss. Explain that to him.
4.The CCMA is biased against employers
The CCMA has to be objective. It must listen to the case and decide on the merits of what you present to it. If you feel the Commissioner is biased, lodge a complaint against him to the Labour Court.

Fact: The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.

5.You can't give a bad reference to an employee you dismiss
It isn't true that an employee can sue you for giving a bad reference. No one can successfully sue you if you tell the truth. You would also want to know if an employer dismissed a potential employee. If you dismiss an employee for theft, it's fair to give this information to a prospective employer.
6. You have to wait for the outcome of a criminal case before you can hold a disciplinary hearing
In a disciplinary hearing you must prove the probability that the employee is guilty of the offence. And because of this, there's a breakdown in trust between you and the employee. A criminal case has to prove beyond doubt that the employee was responsible for the act. Criminal cases can take months to go to court and often don't even reach prosecution because of technicalities. 
If an employee isn't guilty in a criminal court, the CCMA will accept that continued employment isn't possible. Sometimes they use the disciplinary report as evidence in the criminal case, so you should conduct a hearing. 
7. You have to wait for a formal complaint before taking action against an abusive employee
You have a duty to ensure you protect employees from harassment or any form of discrimination (Employment Equity Act and the Code of Good Practice for Handling Sexual Harassment Cases). 
You must take action if you find out an employee is being harassed. Even if he doesn't lay a formal complaint. If you don't, you could land up with a case at the CCMA and possible civil action against the company.
8. You can't dismiss an employee for an illegal or unsafe act if he's acting on an instruction from a manager
You can dismiss an employee who commits an illegal or unsafe act. Assess the evidence to see if it would be reasonable under the circumstances for the employee to refuse the instruction. 
A manager can't force an employee to commit an illegal or unsafe act. And it's in his rights to refuse to do so. He has a duty to report such instructions using the company's internal grievance procedure. If you don't take any action, he can take the grievance to the Department of Labour's Inspectors or the CCMA. 
Don't let these myths think you don't have rights as the employer. Take discipline and act against unscrupulous employees!

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