You can’t fire someone at will any more

You can’t fire someone at will any more

It’s amazing how many employers run into trouble because they think they can still fire someone just by giving them a letter of dismissal. The real picture is far more complicated.

Every employee has the right not to be unfairly dismissed. He is protected against arbitrary dismissal, being dismissal without substantive grounds and/or in a procedurally unfair manner.

There are three – and only three – legitimate categories of “Substantive Grounds”,

(a) Misconduct,
(b) Incapacity (itself divided into ‘inadequate performance’, ‘ill-health and injury’ and ‘incompatibility’) and
(c) ‘operational reasons’ (retrenchment).

Every dismissal, if it is to stand up to challenge, must be procedurally fair and substantively fair. What does this mean ?

Procedural Fairness: The holding of a disciplinary hearing (pre-dismissal hearing) is the most important procedure with which the employer must comply with to achieve procedural fairness, in instances of misconduct but also in cases of incapacity.

Prior to the disciplinary hearing, the employer should conduct an informal investigation to see if there is merit in the charges against the employee. If they are serious, the employee may be suspended on full pay during the investigation and until a disciplinary committee arrives at a decision.

The hearing must in general comply with ten basic requirements to satisfy the essential element of procedural fairness:

1 the employee must be fully and timeously informed about the charges prior to the hearing;

2 he must be informed as to when and where the hearing will take place so that he has a fair opportunity to prepare his case;

3 the hearing must be held within a reasonable time after the alleged misconduct or incapacity;

4 the employee must be allowed to be present at the hearing at all times – unless, of course, he refuses to attend. Where necessary, he must have an interpreter;

5 the employee is entitled to be represented by a co-employee or trade union official and, in serious and/or complex cases, by a legal representative;

6 the employee must be afforded a fair opportunity to state his case after the employer has presented its case. This means he is entitled to:

(i) full access to all evidence (including documents) to be used against him;

(ii) cross-examine the persons testifying against him;

(iii) give evidence and put forward his defence;

(iv) call witnesses in his defence; and

(v) make concluding representations;

7 the chairperson and the disciplinary committee must be unbiased and consider all relevant circumstances and facts objectively with a just and open mind;

8 should there be a finding of guilty, then before the imposition of a penalty, the employee must be able to lead evidence in mitigation of sentence; similarly the employer may adduce aggravating circumstances (previous warnings, disciplinary record etc.);

9 the decision and the reasons for the decision must be disclosed to the employee; and

10 the employee must be reminded that he may appeal, or refer the dispute to the CCMA or a bargaining council.

Retrenchment for Operational Requirements Requires a Different Procedure

Operational Requirements are those based on economic, technological, and structural or similar needs of the employer (ie a bona fide economic rationale) and are a legitimate grounds for dismissal, provided a fair procedure is followed;

Without into the details, it is sufficient to say that an exhaustive consultation with staff must take place in order to provide the employees affected with a fair opportunity to suggest ways in which job losses might be avoided or the effects of retrenchment as a whole be minimised.