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Use these five rules to ensure your employee's dismissal is substantively fair

by , 12 December 2013
News reports state that former Cape Times editor Alide Dasnois is considering legal action following her dismissal from the newspaper. It was reported on Friday that Dasnois had been fired and that she was informed of her dismissal the same day. The matter has cast the spotlight on dismissals. Here are the five rules you can use to ensure your employee's dismissal is substantively fair.

In a News24 report, Dasnois says 'in my opinion, I was unfairly dismissed from my position at the Cape Times.'

'I have taken legal advice and we are considering referring a dispute to the CCMA [Commission for Conciliation, Mediation and Arbitration] or the Labour Court.'

According to the report, the National Editors'Forum (Sanef) and Cape Town Press Club believe Dasnois may have been fired after the newspaper ran a story which painted Sekunjalo in a negative light.

The story was about a Public Protector finding that the awarding of a fisheries tender by the agriculture, forestry, and fisheries department to Sekunjalo Marine Services Consortium was improper. The consortium is a subsidiary of Sekunjalo Holdings and acquired a controlling share in Independent News and Media SA (INMSA).

It will be interesting to see how this legal dispute will play out.

Since prevention is better than cure, make sure you avoid a similar situation in your company.

How do you do this?

Follow these five rules to ensure dismissal is substantively fair

Rule #1: Establish if your employee broke your rule

Use the facts of each case and the evidence you have against your employee to check if he has broken your rules, says the Labour Law for Managers Loose Leaf Service .

'Take into account the standard of proof. You're only required to prove your employee's guilt on a balance of probabilities. This means you must show it's not only possible, but probable your employee committed the offence.'

The chairperson of the disciplinary hearing can only make this decision once he's analysed all the facts in the disciplinary enquiry.

Rule #2: Establish if your employee was aware of your rules

You must establish that your employee knew about your policy and rules, or that it was so obvious he must have known about it, or it could be reasonably expected of him to have been aware of the rule that was in place stating his misconduct was against your company policy.

Use your written disciplinary policy to prove that what he did amounts to misconduct and that he broke your rules. You must also show that you made the policy available to all your employees, and that they're aware of its contents.

Rule #3: Make sure you apply your rules consistently

Make sure you're not guilty of these two types of inconsistencies and acting unfairly towards your employees:

  1. Historical inconsistency. This is where you don't normally take action against employees for breaking a particular rule, but then take disciplinary action at a later stage without telling employees you're now going to enforce the rule.
  2. Contemporaneous inconsistency. This is when you treat employees who have committed the same or similar offences at the same time, differently. It's also when two employees who've committed the same offence are both disciplined, but receive different penalties.

Make sure you always act consistently when you dismiss employees. Always follow your disciplinary policy or code for disciplinary measures so you aren't caught acting unfairly.

Rule #4: Establish if the sanction is appropriate

When disciplining an employee, you must consider any aggravating and mitigating factors to decide on the appropriate sanction or punishment, after your employee's been found guilty.

Rule #5: Establish if the rule applies outside of the workplace

Your employees' conduct outside of the workplace or working hours might still be relevant to your employment relationship. But this doesn't mean you can take into account all conduct outside of the workplace.

It must either affect, or be in some way relevant to your business, your reputation, relationships between employees, or the relationship between you and your employees.

The bottom line: Your employee's dismissal must be substantively fair. You must have a fair or valid reason to dismiss. Follow these rules to ensure a dismissal is substantively fair and that you can defend yourself at the CCMA if necessary.

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