Prepared by Rael Solomon and
The Labour Consultancy.
THIS week, Rael Solomon examines how the CCMA is getting tough with employers and looks at dismissal and retrenchment.
Employers are fast learning to live in trepidation of the Commission for Conciliation, Mediation and Arbitration. Employers who ignore the implications of new labour legislation do so at their own risk. The ease with which employees may refer their disputes, usually for unfair dismissal, to the CCMA is having a real effect on how employers handle dismissal and is hitting them where it hurts the most, in their pockets.
The CCMA claims 80% of all disputes are resolved at the mediation stage - the main reason being the spectre of arbitration hanging over employers' heads as the next step to failed mediation. Employers must attend arbitration hearings or risk them proceeding in their absence.
Arbitration decisions handed down are final and binding and may not be appealed against, unless it can be proved that the commissioner was guilty of misconduct. An analysis of some decisions make for interesting reading.
A R30-a-day, once-a-week domestic worker was summarily dismissed by her employer after eight weeks. The employer claimed that the worker had stolen a petticoat, coffee mixer and two cups. She refused to pay her for the last four weeks she had worked (R120) and kicked her off the premises.
The employer did not turn up for the mediation process and was subpoenaed to attend an arbitration, which she also failed to attend. The hearing was held in her absence.
The commissioner found that the worker had been procedurally and substantively unfairly dismissed and said she was entitled to the maximum compensation she could impose. She was awarded 52 weeks compensation at R30 a week, a total of R1 560
The owner of a superette did not turn up for a conciliation hearing at the CCMA , nor for the subsequent arbitration.
The employee of the superette claimed that she had been dismissed because her employer had a fight with her husband. When the employer did not turn up for arbitration, the commissioner accepted the employee's version of what had transpired. It was found that the dismissal was procedurally and substantively unfair and an award of R2 800 in compensation was made.
An employee claimed unfair dismissal on the grounds the employer had not held a formal disciplinary hearing. The commissioner disagreed, holding the view that too rigid procedural rules could be counterproductive. The feedback given to the employee had been informal but adequate.
The employee had been set a sales target for the three-month probationary period which she had accepted as being realistic. When she fell short of this target by the end of the second month she was dismissed. The commissioner held the view that the dismissal was substantively unfair because the employee was not given a fair opportunity to complete her probationary period and to show her full capability of meeting a performance standard. She was awarded one month's salary (R5 500) in compensation.
Dismissing employees in the probation period used to be relatively simple, but with new legislation employees' rights to fair procedures are not nullified during probation.
The Act states that "if the dispute arbitrated is about the fairness of a dismissal and one of the parties has alleged that the reasons for dismissal relates to the employee's conduct or capacity the parties are not entitled to legal representation without the agreement of the commissioner and both parties".
In this case the applicant claimed unfair dismissal on the grounds that no full reason was given for his dismissal and requested that he be represented by an attorney. The employer objected to the employee having legal representation and the lawyer was allowed to participate only as an observer. The commissioner suggested that the parties resolve the dispute through conciliation. The employer finally agreed to two months' net compensation of R10 000 and to pay the tax on the settlement.
An employee of a mail order company was reported by a co-worker of openly taking home a second hand paint roller worth R2 or R3. A disciplinary enquiry was held and the employee was dismissed. the employee knew he had to get the permission to remove any company property from the premises. It was found that the company's position with regard to theft was consistently applied top all offenders and that the employee had been aware of their attitude to theft. The commissioner found that while it was regrettable and perhaps harsh to dismiss an employee in those circumstances for a first offence, the dismissal was fair. Note: the case did however take two visits to the CCMA by the employer.
An article on the issue of dismissal from the June 8, 1997 edition of Business Times has drawn a tremendous response - nearly all of it directly related to the question of dismissals and retrenchments. Labour Guides responds today with opractical advice to some of the questions and concerns raised by users. The advice given should not be considered comprehensive and it is advisable to consult a professional before taking dismissive action against an employee.
The Labour Relations Act states that every employee has the right not to be dismissed. The procedures to be followed are very clearly outlined in terms of Schedule 8 - Code of good Conduct : Dismissal - of the Labour Relations Act 66 of 1995.
In terms of the Act, dismissed employees may be able to ascertain if their dismissals were fair and take action. Disputes should be referred to the Council for Conciliation, Mediation and Arbitration within 30 days of the date of dismissal.
The following factors should be taken into account before dismissing an employee:
A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job and the time it would take to determine if the employee would be suitable for continued long term employment. A period of one to three months is the norm. Longer probationary periods may mean added problems if the employer decides to dismiss the employee.
Before employing a new employee. ensure that the position for which they are being employed is clearly defined and that the employee is fully au fait with the job description. The terms and conditions of employment should be contained in a written contract.
It is the applicant’s obligation to give the true facts of his experience and knowledge. There is however a responsibility on the employer to properly screen candidates as to their suitability. In situations where particular skills are required, a practical test may be given to an applicant.
NB! During the probationary period the employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. A probationary employee may be fairly dismissed for misconduct, or such reasons which are good, valid and fair. The most common reason is for Incapacity:- poor work performance. The procedures adopted should be the same as for a "permanent" employee.
If it becomes apparent during the probationary period that, for personal but non-discriminatory reasons, the employer and the employee are not compatible, and ensuring all the above criteria have been met and that fair procedures are followed, the employee may be dismissed.
The Act states that every employee has the right not to be dismissed, unless the reasons are good, valid and fair. With few exceptions it is expected that employment is for an indefinite period of time and is usually open-ended. The Act restricts the reasons for dismissal to:-
- Employer's operational requirements.
- Employer has terminated a contract of employment. This may be with or without notice.
- If in the case of a fixed period contract the employee had fair reasons to believe that the contract would be renewed but that the employer failed to do so.
- An employee is entitled to maternity leave in terms of the Act and if she returns to work within eight weeks of the birth of her child and her position is no longer available she has been dismissed.
- If an employer dismisses two or more employees for similar reasons but employs some of them but refuses to employ the others, it may be taken that the others have been dismissed.
- If an employer makes employment intolerable for an employee to the extent that the employee is forced to terminate his employment it is known as constructive dismissal.
Compensation for unfair dismissal
Note: Compensation is in addition to any other amount which may be due to the employee in terms of the Law and/or their contract.
- If a dismissal was unfair only because the procedures followed in dismissing the employee were not procedurally correct the compensation will be at the employees rate of remuneration at the time of dismissal, based on the period from the date of dismissal to the date of adjudication or arbitration of the case.
- If the dismissal was itself unfair the compensation will be not less than in (1) above and not more than the equivalent of 12 months remuneration.
- If the dismissal was automatically unfair in terms of the Act, compensation may be up to 24 months remuneration.
In terms of the draft bill of Basic Conditions of employment 1997:
- If an employee has worked for four weeks or less the notice period is 24 hours under the existing legislation. When the new bill becomes law this will be one week.
- For less than one year the notice period is two weeks.
- If the employee has been continuously employed for one year or more, the notice period is 30 days.
- Domestic workers who have been employed for longer than 4 weeks, the notice period is one month.
1. The first step in avoiding legal problems is to follow all the correct procedures in employing the employee in the first place.
- Obtain a complete and full C.V. from the applicant.
- Check all references. The applicant has rights - respect them (Discrimination)
- Interview to check:
- Suitability for the position
- Compatibility with superiors and colleagues
- Ability - suitable tests can be used if special skills are required. Eg. Use of a computer to accomplish a required task
- d) There should be a precise and definitive "Job" description incorporated into the probationary contract.
2. A probation period, that is reasonable given the circumstances of the job, is recommended. 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. Where appropriate the employee should receive:
- Guidance and Counselling
Dismissal during the probationary period should follow the procedures required for the dismissal of a "permanent" employee.
3. Fair Dismissal
The Act recognises only three grounds for a fair dismissal:
- Conduct of the employee
- Capacity of the employee to do the job
- Operational requirements of the employer
Any person determining whether a dismissal for poor work performance is unfair should consider the following:
- Did the employee meet a required work standard?
- Was the employee aware of the standard?
- Was the employee given a reasonable period to meet the required standard?
- Was the dismissal an appropriate action?
Dismissal for misconduct:
- Was a rule or standard contravened?
- Was the rule a valid or reasonable rule?
- Was the employee reasonable expected to be aware of the rule or standard?
- Was dismissal appropriate for the contravention?
NB! In all cases involving dismissal the employee should be given the opportunity to state a case and to be assisted by a trade union representative where appropriate or co-employee. If the employee is a union member try to advise the union timeously of the intended disciplinary action or at least make sure the employee is aware of his rights.
Misconduct: Disciplinary procedures prior to dismissal
- All employers should adopt disciplinary and Codes of Conduct rules that clearly establish the standard of conduct required for an employee
- The employers rules must create certainty and consistency in the application of discipline
- Discipline should be consistent and applied in the same manner for all employees.
- Some rules or standards may be so well established that it not necessary to communicate them eg. theft, gross insubordination.
- Graduated discipline should be used to correct employees behaviour
- Formal procedures do not have to be involved every time a rule is broken or standard not met. Written warnings should be given when deemed appropriate.
- It is usually not appropriate to dismiss an employee for a first offence except for gross and serious misconduct:
- Theft - gross dishonestly
- Gross insubordination
- Wilful damage to property
The employer should consider factors such as:
- employees circumstances
- previous disciplinary record
- the circumstances surrounding the reasons for dismissing the employee.
If dismissal is deemed appropriate the employee should be asked to state their case at a disciplinary hearing assisted by a trade union representative or co-employee. The reasons for the dismissal should be given in writing., Arrangements must be made for payment of pro-rata holiday pay, notice pay (unless dismissal is summary), unpaid wages. The U.I.F. card, where necessary must be completed and given to the employee. It is stressed that each dismissal is a very serious step and professional advice should be considered.