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Obey these two rules and you won't land at the CCMA for unfair dismissal

by , 24 December 2014
The CCMA receives over 13 000 cases a month, 3 333 cases a week and 667 cases every day.

And unfair dismissal cases lead the pack.

In the most recent stats, the CCMA says 79% of the cases it deals with are unfair dismissal cases.

So what are these employers doing wrong? Why are so many of them landing at the CCMA for unfair dismissal?

The truth is they probably don't obey the two simple rules of dismissing employees. As a result, they lose their cases at the CCMA and they end up paying thousands in compensation (in some instances up to 24 months' salary).

But you can avoid the same fate.

Read on to find out what two rules you must obey when you dismiss to avoid becoming a statistic.


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To avoid landing at the CCMA for unfair dismissal, obey these two rules

 
Rule #1: You must ensure your employee's dismissal is substantively fair
 
Substantive fairness simply means there's a fair or valid reason for you to dismiss your employee, says the Labour Law for Managers Loose Leaf Service.
 
You mustn't take the decision to dismiss your employee lightly. In fact, South African labour law stresses that you must use dismissal as the last resort.
 
To ensure your dismissal always passes the 'substantive fairness test', we recommend you follow these guidelines:
 
  • Find out if your employee broke your rules;
  • Find out if he was aware of your rules in the first place;
  • Apply your rules consistently;
  • Establish if the sanction you want to impose is fitting; and
  • Find out if the rules apply outside of your workplace.
 
But it doesn't end here.
 
Having a valid reason to dismiss isn't enough to avoid landing at the CCMA for unfair dismissal.
 
And this is where rule number two comes in…

 
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Rule #2: You must ensure your employee's dismissal is procedurally fair
 
In addition to ensuring you have a valid reason to dismiss, you must follow a fair procedure.
 
According to labourguide.co.za, procedural fairness 'may in fact be regarded as the rights of the worker in respect of the actual procedure to be followed during the process of discipline or dismissal.'
 
As you know, there are three legal reasons you can use to dismiss your employee:
They are:
 
  1. The conduct of your employee;
  2. The capacity of your employee; and
  3. The operational requirements of your business.
 
To ensure dismissal is procedurally fair, you must hold a disciplinary hearing when dealing with your employee's conduct.
 
When dealing with incapacity, for example, poor performance, you must counsel, train, provide guidance and give your employee the opportunity to meet the standard you require before you dismiss. If, for example you're dealing with incapacity that relates to illness, you must get medical reports and talk to your employee about light duties or alternative jobs he could do before you dismiss him.
 
When dismissing for operational reasons, for example, you're retrenching, you must implement retrenchment in a legal manner.

Dismissing your employee can be an expensive exercise if you don't do it right. Don't take chances.
 
Make sure you obey these two rules to avoid landing at the CCMA for unfair dismissal and paying thousands in compensation.
 
PS: For more information on handling dismissals correctly, check out 'You're fired!' Your guide to substantively and procedurally fair dismissals.

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