According to the law, there are three legal grounds for a fair dismissal, which form the basis of a 'substantive fairness'. These grounds are:
1. Conduct of the employee;
2. The employee's ability to do his job; and
3. Operational requirements of your business (retrenchment).
A case study of unfair dismissal
In a classic case of an employer who ignores the very basic requirements in any disciplinary procedure, and which was brought to the CCMA, the employee, a manager for a security firm, testified he had been held up at gun point by robbers at the Qwa-Qwa branch of his employer's company, and they robbed him of his money and a company vehicle. He also opened a criminal case at the local police station.
Five days later, when he phoned the police station to enquire about the progress of the case, he was asked to wait where he was, at the premises of the employer. But when the police arrived they arrested him, apparently suspecting a link between him and the robbers. Furthermore, the employee was dismissed on the spot.
The investigation showed the employee was not guilty, so he returned to work only to find he was no longer working for the company.
Don't forget: the law favours the employee!
The CCMA Commissioner ruled in the favour of the employee, considering the dismissal as unfair, since the employer didn't dispute the employee's testimony at the CCMA arbitration hearing. And in addition, he chose to dismiss
the employee without a following the correct disciplinary procedure without even giving him a disciplinary hearing.
And the CCMA Commission awarded the employee 12 months' salary as compensation.
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Protect yourself from labour-related problems by using this practical tool
The comprehensive Labour Law for Managers Loose Leaf Service gives you all the details you need for maximum protection in labour-related problems. You will find, for example:
Information on the problem areas managers have to handle in the workplace daily, and appropriate solutions;
Valuable advice for employers, based on the ever-changing legislation;
Sample contracts, dismissals and warning letters, etc;
Numerous practical checklists; and
But you can prevent this from happening to you. Just make sure that you can prove all of the following tests to ensure a substantive fairness:
to make sure you're protected from labour issues…
And when you conduct the disciplinary hearing, in order for it to be considered effective and legally compliant you must follow these steps:
The accused employee did commit the misconduct.
The employee knew or should have known that the conduct was an infringement of your rules.
The rule or standard was valid or reasonable.
The rule was consistently applied.
The misconduct was serious enough to merit the harsh penalty of dismissal.
Investigate and prepare your case thoroughly before the hearing
Choose an unbiased and skilled chairperson.
Ensure the accused is given every chance to prepare and defend his case.
Base the outcome on facts.
Ensure the penalty is appropriate to the offence.
Record the hearing so you can prove you complied with the law.
So as you can see, the simplest way for you to avoid being brought before the CCMA is to follow the legal procedure when you decide to fire one of your employees on disciplinary grounds.