Dismissal is a difficult and often emotionally charged process, but it's a reality that employers in South Africa must face. To ensure that you're on the right side of the law, it's essential to understand the proper procedures for dismissing an employee. In this article, we'll provide a detailed guide on how to dismiss an employee lawfully in South Africa. Under the Labor Relations Act of 1995, employers must follow a fair process when dismissing an employee. This includes providing the employee with a valid reason for the dismissal, giving them an opportunity to respond, and giving them access to representation.
What is a Dismissal?
A dismissal is when the contract of employment between an employer and employee is terminated by the employer.
What is an Unfair Dismissal?
Firstly, it's important to note that there are two types of dismissals in South Africa: fair and unfair. A fair dismissal is when the employer has a valid reason to terminate the employment contract, such as misconduct or incapacity. An unfair dismissal, on the other hand, occurs when the employer terminates the employment contract without a valid reason or without following the proper procedures. A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment.
In the Labour Relations Act (“LRA”) there are instances where a dismissal is deemed to be automatically unfair (this happens when the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions).
Grounds for Dismissing an Employee?
There are 3 grounds for dismissing an employee, namely:
misconduct
incapacity
operational requirements
Misconduct Dismissal Explained
A dismissal is misconduct would occur where the employee has committed an offence or act of misconduct e.g. breaking company rules, theft, or dishonesty. Employers must provide the employee with clear guidelines on what constitutes misconduct and provide them with the opportunity to respond to any allegations made against them.
Incapacity Dismissal Explained
Incapacity includes grounds like poor work performance, illness, etc. Employers must provide the employee with clear performance standards and provide them with the opportunity to improve before dismissing them. It's important for the employer to follow a fair process, like providing the employee with written warnings, giving them a chance to improve, and giving them an opportunity to respond to any allegations of poor performance.
Operational Requirements Dismissal Explained
Retrenchment, which is the process of dismissing an employee due to financial constraints, is also a valid reason for dismissal in South Africa. Employers must provide the employee with a valid reason for the retrenchment, provide them with notice and access to representation, and follow the procedures outlined in the BCEA.
It's important to note that employers must provide the employee with the necessary notice before dismissal, as outlined in the BCEA. This can be either one week's notice for employees who have been employed for six months or less, or four week's notice for employees who have been employed for more than six months.
Steps to Follow for a Fair Dismissal
Here are the steps you should follow to ensure a fair dismissal:
Follow the Correct Procedures
The first step in dismissing an employee lawfully is to ensure that you follow the correct procedures. The Labour Relations Act (LRA) sets out specific procedures that must be followed to ensure a fair dismissal. These procedures include giving the employee notice of the intention to dismiss, providing the employee with an opportunity to respond to the allegations and conducting a fair and unbiased hearing if necessary.
Determine the Reason for Dismissal
Before you dismiss an employee, you need to determine the reason for the dismissal. This will determine whether the dismissal is fair or unfair. If the reason for dismissal is misconduct, you need to have proof of the misconduct and follow the correct procedures for a disciplinary hearing. If the reason for dismissal is incapacity, you need to follow the correct procedures for a medical incapacity hearing.
Give the Employee Notice
Once you have determined the reason for the dismissal, you need to give the employee notice of the intention to dismiss. The notice must be in writing and must state the reason for the dismissal. The notice period will depend on the employee's contract of employment, but it must be at least the minimum notice period prescribed by law.
Give the Employee an Opportunity to Respond
After giving notice, you must give the employee an opportunity to respond to the allegations. The employee must be given sufficient time to prepare their response and they must be allowed to bring a representative to the meeting.
Conduct a Fair Hearing
If the employee disputes the allegations, you must conduct a fair and unbiased hearing. The hearing must be conducted by an impartial chairperson and both parties must be given an opportunity to present their case. The employee must also be given an opportunity to cross-examine any witnesses and to bring their own witnesses.
Make a Decision
After the hearing, you must make a decision on whether to dismiss the employee or not. The decision must be based on the evidence presented at the hearing, and it must be a fair and reasonable decision. If you decide to dismiss the employee, you must inform them of the decision in writing and provide them with the reasons for the dismissal.
In conclusion, dismissing an employee is never easy, but it's a necessary part of running a business. To ensure that you do it lawfully, you must follow the correct procedures and determine whether the dismissal is fair or unfair. By following the steps outlined in this article, you can dismiss an employee lawfully in South Africa while minimizing the risk of legal action. It is recommended to seek legal advice from a specialist in employment law to ensure that the dismissal process is done legally, fairly and in compliance with the laws of South Africa.
Barter McKellar’s labour law attorneys have experience sitting as independent chairpersons for disciplinary hearings, representing parties at the CCMA, Labour Court and Labour Appeal Court.
