THIS week we will be taking an in-depth look at the issue of dismissals.

Larry Shear, a commissioner with the CCMA, discusses the issue of dismissals relating to unprotected strikes.

John Botha, Labour Relations Manager of Quest Personnel, examines the termination of employment for temporary and non-standard staff.

Rael Solomon of The Labour Consultancy looks at the required procedures for dismissing staff, especially whilst they are on probation.

DISMISSAL FOR PARTICIPATING IN A STRIKE WHICH IS NOT PROTECTED BY THE LABOUR RELATIONS ACT.

Mr Larry Shear, a Commissioner with the C.C.M.A comments on procedures to follow in the case of an unprotected strike.

Employees who participate in a strike which complies with the terms of the Labour Relations Act are protected from dismissal. However, participation in a strike that does not comply with the Act is a form of misconduct. But, like any other form of misconduct it does not mean automatic dismissal. The following factors must be considered before dismissal is considered, or if dismissal has occurred in considering if the dismissal was fair:

1. How serious was the contravention of the Act? e.g. if the strikers give 38 hours notice of their intention to strike, instead of 48 hours notice it may well not warrant a dismissal, or e.g. if there was a dispute as to whether the employees performed an essential service and the employers thought they did not whereas in fact they did. This would more than likely not warrant a dismissal;
2. What attempts were made to comply with the Act? i.e. if the employees totally disregarded or ignored the terms of the Act in every way, this would be regarded as a more serious misconduct. But, if they were unable for some good reason to comply with the Act, but tried to do so, this would be a less serious misconduct;
3. Was the strike in response to some unjustified conduct by the employer? Often, if an employer acts in an unacceptable or unfair manner, e.g. fires a group of employees for no reason this can lead to a sudden and spontaneous strike. The employer's conduct in acting as he did would be taken into account should the striking employees be dismissed.

1. the employer must contact the representative trade union in order to advise them of what steps they intend taking, and also to obtain the union's assistance in resolving the matter;
2. the employer must issue an ultimatum to the strikers which must be clear and unambiguous:

• the ultimatum must be in a language which the employees can understand, or must be explained to them to ensure that they can understand;
• the ultimatum must call upon the employees to cease the strike and return to work; and,
• the ultimatum must state clearly what sanction will be imposed if they do not comply with it. I.e. If the employer intends to dismiss the employees if they fail to comply, it must say so;
• the striking employees must be given enough and reasonable time to consider the ultimatum and to respond to it, i.e either to comply or reject it;
• sufficient time would depend on the circumstances, e.g. how many employees were involved, whether they were able to communicate with the union representatives, etc.

TERMINATING EMPLOYMENT: TEMPORARY AND OTHER NON-STANDARD STAFF John Botha, Labour Relations Manager of Quest Personnel comments In order to optimise the benefits of flexible staffing, it is paramount to ensure that certain fundamental issues are taken into cognisance. Failing this, costly litigation could ensue either as a result of being accused of unfair labour practice, unfair dismissal or unfair discrimination. Furthermore, even if you utilise the services of a Temporary Employment Service (T.E.S.) it is encumbent on you to ensure that the T.E.S. adheres to the principles discussed hereunder. This arises from the joint and several liability relationship between the T.E.S. and the client for contraventions by the T.E.S. of Basic Conditions of Employment. STEP 1: ESTABLISH RATIONALE FOR VACANCY, IDENTIFY JOB SPECIFICATION AND ROLE CLARITY In order to clearly communicate expectations of employment to the employee, the reason and purpose of the vacancy, duration and tasks to be conducted must be clarified and documented. This information should give an idea of: duration of contract purpose of assignment (e.g. time-based or project-based) remuneration termination needs STEP 2: COMPILING A FIXED-TERM CONTRACT (F.T.C) The most important clause herein is the communication of expectations surrounding duration and method of termination. Many F.T.C's have clauses stipulating that: "the employee acknowledges that he or she has no expectation of ongoing or permanent employment arising from this F.T.C". However, recent decisions confirm that while this is true at common law, the Labour Relations Act (1995) expressly provides that reasonable expectation is cause for unfair dismissal allegations and that employees (irrespective of the fact that they are non-standard) have the right to procedurally and substantively fair dismissals for reasons of misconduct, incapacity or operational requirements. Thus, to avoid the possibility of the non-standard employee gaining an expectation of ongoing employment and hence in order to terminate employment in line with operational business needs, the purpose of the F.T.C. should be clearly defined in terms of a specific time period (which then should be adhered to) or in the case of a project (the duration of which is uncertain) the exact work which is to be completed. Once this has been included in the F.T.C., the employee has an undeniable expectation that his or her employment will automatically terminate at the expiration of the time period or at the completion of the tasks described in the project. In this case, only statutory notification of termination need be given at best. STEP 3: TERMINATION FOR REASONS OTHER THAN EXPIRATION OF F.T.C The Labour Relations Act does not define a 'casual' employee, but certainly defines an 'employee'. It is clear that non-standard employees enjoy the same rights as permanent employees also with regard to procedurally and substantively fair dismissal for misconduct, incapacity or operational requirements. This means that: in order to terminate for misconduct, the provisions of a disciplinary code must be applied, including rights to notification, representation, call and cross-examine witnesses and to present evidence. termination for poor performance (incapacity) can only occur after being afforded evaluation, instruction, training, guidance, counselling and representation (see Schedule 8 of the LRA) retrenchments and operational changes can only occur after thorough consultation, disclosure of information and consideration of remedies short of severance In the Mediterranean Woolen Mills case, the common law view that a F.T.C. expired automatically at the end of its term and that the courts could not examine the fairness of non-renewal was eliminated. The Labour Appeal Court held that fairness of non-renewal was located within an examination of why the parties had entered into a F.T.C. in the first place! If the job was due to a bona fide project or a pure limited duration, non-renewal would be fair. However, if the objective of the F.T.C. is to assess performance or if the duration unfairly deprives the employee of permanent benefits by virtue of a non-temporary nature of job, the Courts are likely to frown on non-renewal as was the case in Wood vs Nestle. In a Natal Fire Protection Association case, a spotter pilot's F.T.C. was not renewed as a result of the pilot arriving late to douse a fire. The Court found that the real issue which resulted in non-renewal of contract was misconduct for which the employee had already been disciplined. Furthermore, since there was work available, for a following season, the employment relationship should have been extended under a new contract. Summary of Principles of F.T.C: Courts and the CCMA will consider fairness along with common law even more than in the past since Section 186 of the LRA (1995) specifically cites non-renewal of a F.T.C. as being a dismissal. Intention and motive in entering into a F.T.C. is paramount as to whether it is bona fide and justifiable, and if not renewed the Courts will consider whether the work was ongoing and if new employees had taken the place of former employees. Basically, fairness will depend on the reason for non-renewal and if the reason is misconduct or incapacity a procedurally and substantively fair procedure as defined in Schedule 8 of the LRA will have to be applied. Lapsing of a F.T.C. to get rid of employees without valid reason can never be legitimate (Employment Law).

PROCEDURES TO BE ADOPTED FOR DISMISSING AN EMPLOYEE - ESPECIALLY DURING PROBATION Rael Solomon of the Labour Consultancy comments 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 (Affirmative Action) 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 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: Evaluation Instruction Training Guidance and Counselling Dismissal during the probationary period should follow the procedures required for the dismissal of a "permanent" employee. The Act recognises only three grounds for a fair dismissal which are being unacceptable for "legal" reasons Conduct of employee Capacity of employee Operational requirements of the employer NB! Dismissal should be preceded by an opportunity for the employee to state a case in response to the case for dismissal assisted by a co-employee or trade union representative. Dismissal during the probationary period is usually due to Incapacity - Poor Work Performance; misconduct; incompatibility or a combination of these factors? ANY PERSON DETERMINING WHETHER A DISMISSAL FOR POOR WORK PERFORMANCE IS UNFAIR SHOULD CONSIDER: Did the employee meet a required work standard Was the employee aware of the standard Was the employee given a reasonably period to meet the required standard dismissal was an appropriate action DISMISSAL (B) FOR MISCONDUCT IN THE PROBATIONARY PERIOD: 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.

Times Media Limited disclaims all liability for any loss, damage, injury or expense however caused, arising from the use of or reliance upon, in any manner, the information provided through this service and does not warrant the truth, accuracy or completeness of the information provided. © Times Media Limited, 1996-7

Top of page