Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The degree of incapacity is relevant to the fairness of any dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. NBCCI GUIDELINES: MISCONDUCT ARBITRATIONS 3 A: PURPOSE AND NATURE OF GUIDELINES Purpose 1 These guidelines are issued by the NBCCI in terms of section 155(2)(g) of the Labour Relations Act, 66 of 1995 (the LRA). When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted. 5. This does not need to be a formal enquiry. Misconduct is one of three grounds recognized by the Labour Relations Act 66 of 1995 as justifying the dismissal of an employee: the others being incapacitated or poor work performance and operational requirements (Grogan, 1999). What must be realized is that the LRA recognizes only three circumstances under which a dismissal may be considered fair – misconduct, incapacity (including … Dismissals based on operational requirements As there is no agreement for the Court to arbitrate the applicant‟s alternative claim of unfair dismissal for misconduct under s158(2)(b) of the Labour Relations Act, 66 of 1995 („the LRA‟),in the event that the applicant fails in his primary claim that he was unfairly dismissed for operational reasons, resolution of this question will determine whether the matter may proceed in the Labour Court. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. An employer might also seek to go straight to dismissal if an employee has committed an act of gross misconduct which has, or could have had, very serious consequences, or if they feel the employee is guilty of a fundamental breach of contract. A premium is placed on both employment justice and the efficient operation of business. If the employer has not implemented his/her own disciplinary code, the Labour Relations Act (Act 66 of 1995) makes provision by means of Schedule 8 of the Code of Good Business Practice, but it is generally accepted that this is only regarded as a guideline. Employers should have a Disciplinary Code While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. When may an employee be dismissed? dismissal to the [appropriate managerial structure]. c. the operational requirements of the employer's business. Some have argued that the Labour Relations Act undermines the flexibility required for the free market to exist. Guidelines in cases of dismissal arising from ill health or injury. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.Â. The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property. whether or not the strike was in response to unjustified conduct by the employer. Click to read Dismissals for misconduct (4) Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Meaning of dismissal 187. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. the circumstances of the infringement itself. The cause of the incapacity may also be relevant. 9.2 Appeals must be noted in writing within five (5) days of the decision, 9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that. Section 194 of the Labour Relations Act (LRA) allows arbitrators and judges to grant employees compensation for unfair dismissal where reinstatement is not appropriate. Incapacity on the grounds of ill health or injury may be temporary or permanent. date on which the employee is advised of the outcome of the appeal hearing. This indicated that the LC accepted that misconduct had indeed been proven. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. Labour Law South Africa expert Articles on CCMA, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in Labour Relations Act and Amendments. Dismissal for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The scenario above the dismissal is for alleged misconduct. Unfair dismissal is now governed by the Labour Relations Act. Dismissal should be reserved for cases of serious misconduct or repeated offences. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). Copyright © 2020. for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. dismissal was an appropriate sanction for the contravention of the rule or standard. The Act recognises three grounds on which a termination of employment might be legitimate.Â. In the process, the employer should have the right to be heard and to be assisted by a trade union representative or a fellow employee. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. The employee should be allowed the opportunity to state a case in response to the allegations. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.Â. Misconduct is prevalent in every workplace and its consequences may have far reaching implications. Automatically unfair dismissals 188. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. Dismissal should be reserved for cases of serious misconduct or repeated offences. Therefore, the true reason for the dismissal was the employee’s mental illness and not the alleged misconduct. 66 of 1995) to become effective on 1 january 2012 contents Right not to be unfairly dismissed 186. 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