Labour Law Consultants and Lawyers on the Topic of Dismissal for Employee Misconduct
It is imperative that an employer becomes informed regarding dismissal procedures and allowable reasons for dismissal. If unsure about the allowable reason or the procedure to follow, rather get in contact with labour law consultants or attorneys for more information.
Every dismissal is evaluated regarding the reason and the procedures followed. Every employee has the right to a fair hearing before being dismissed for misconduct. The employer must investigate the issue and only if sufficient reason for dismissal exists can the employer proceed to initiate a hearing. The hearing doesn’t have to be formal, but it must provide the employee the opportunity to state their case. Even in such an instance it is still essential to consider the length of service, service history and the employee’s personal circumstances before dismissing the employee.
The dismissal for misconduct is fair if the employee ignored a reasonable workplace rule and knowingly broke it. Note that it must be a vital rule and the employer must apply the same disciplinary action for breaking the rule to all employees. If other employees had previously broken the rule without being dismissed, then the employer cannot initiate dismissal of the particular employee. The misconduct must be of such a nature as to be sufficient for dismissal and not mere disciplinary action or a warning.
If the action of the employee was not sufficient to warrant the extreme step of dismissal, corrective disciplinary action must be taken. The action is aimed at helping the employee to not repeat the misconduct and the disciplinary action can progress in the severity of the penalties if the employee for a second or third time breaks the same rule. Unless the misconduct is of a serious nature, such as wilfully damaging the property of the employer, it is not acceptable to dismiss the employee if it is their first offence.
A valid reason for dismissing an employee for misconduct is when the employee has participated in an illegal strike. However, in such an instance, the employer should at the very least inform the worker’s organisation of the intended dismissal and provide an ultimatum and deadline for returning to work. Note that the deadline must be reasonable.
It is imperative for the employer to consider the circumstances surrounding the misconduct, the nature of the employee’s work and the employee’s personal circumstances, in addition to the factors mentioned earlier. To ensure fair procedure, the employer must have adequate records of the previous offences which include the nature, circumstances, and procedures followed in disciplinary action and outcomes. The employer should provide the employee with a final warning in writing before dismissing the employee.
The Disciplinary Hearing
The employee must be given enough time to prepare for the disciplinary hearing and the employer should provide the employee with the asked documents related to the misconduct. The employee has the right to cross examine witnesses from the employer and to call their own witnesses. Finally, the employee must also be given the opportunity to motivate why the disciplinary action should not include dismissal. The employer should provide the employee reasons for the decision outcome.
Smaller businesses don’t have to follow the full procedures, but must be consistent in their application of disciplinary action. Here too the expertise and guidance of labour law consultants and lawyers is vital to ensure that correct procedures are followed.
An employee has the right to refer the dismissal matter to the CCMA if he/she is not happy with the outcome of the disciplinary hearing.
Ensure correct procedures are followed, whether you want to dismiss an employee for misconduct, incapacity or redundancy. For professional assistance get in contact with the labour law attorneys from Allardyce & Partners at reception@www.allardyce.co.za or call 011 234 2125.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.