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How to dismiss an employee without getting into trouble with CCMA

by , 11 March 2015
From a legal point of view, dismissals are seen as either "fair" or "unfair". The Labour Relations Act states that there are only three reasons for dismissal to be considered to be "fair". But bear in mind, if you don't follow the correct procedure, even a dismissal with due cause will be seen as unfair and you'll eventually end up at the CCMA.

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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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:

  1. The accused employee did commit the misconduct.
  2. The employee knew or should have known that the conduct was an infringement of your rules.
  3. The rule or standard was valid or reasonable.
  4. The rule was consistently applied.
  5. The misconduct was serious enough to merit the harsh penalty of dismissal.
And when you conduct the disciplinary hearing, in order for it to be considered effective and legally compliant you must follow these steps:
  1. Investigate and prepare your case thoroughly before the hearing
  2. Choose an unbiased and skilled chairperson.
  3. Ensure the accused is given every chance to prepare and defend his case.
  4. Base the outcome on facts.
  5. Ensure the penalty is appropriate to the offence.
  6. 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. 

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