When to dismiss an employee

Oct 2, 2019

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When is the best time to dismiss an employee? What can you do to ensure that you don’t get into trouble with labor unions? What is the correct procedure? Be sure to look at alternative measures before considering a dismissal. Here is a short list of what you need to know…

When can an employee be dismissed?

An employee may only be dismissed under the following circumstances:

  • Misconduct: If the employee(s) go against company rules prohibiting certain behaviors or actions; and the rule is reasonable and/or valid (according to the law) the employee may be called in for a disciplinary hearing of which the outcome may be dismissal (depending of the nature of the action as well as the company’s policies).
  • Incapacity (ability and availability): The inability or incompetence of an employee that he/she was employed to do. It can be as a result of poor performance or ill health. Whether the employee was aware of their performance standards, health conditions and doctor’s recommendations etc. It all needs to be considered.
  • Operational Requirements (Economic/structural): When the company cannot afford as many employees and need to retrench or restructure. There are many things to consider so be careful to rush into dismissals of this type.

What must be considered for the code of conduct?

  • Fairness: The time to prepare for a disciplinary hearing, evidence shared, notice of hearing, harshness of sentence etc. must be considered for the hearing to be fair;
  • Substantive: The hearing must be substantiated, meaning you must have evidence before the hearing can be called. Evidence must be provided and be available for the employee to use for the hearing;
  • Procedural: Procedure for disciplinary hearing must be followed for the hearing to be fair – times cannot be shortened, evidence withheld etc.
  • Acceptable outcome in the interest of the company, its vendors, customers and other employees.

What is unfair dismissal?

  • Dismissing employees who are in a protected strike;
  • Failure to perform the work of strikers during a strike (unless essential to prevent danger to life, personal safety or health);
  • Compelling the acceptance of a demand;
  • Exercising a right to LRA S187 Act;
  • Participating in proceedings against an employer;
  • (Intended) Pregnancy;
  • Discrimination of any kind (race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility);
  • Age (unless normal or agreed upon retirement age).

What to keep in mind?

  • Be sure to follow the correct procedures for the disciplinary hearing as well as harshness of sentence in order to minimize company liability against Labor unions;
  • Consider alternative methods than dismissal, but do not let bad behavior persist. If an employee breaks the rules and the charge therefore is dismissal, then it must be enforced to ensure fairness and future compliance for other employees;
  • Keep documentation of all employees’ misconducts etc. it might assist as evidence in hearings.
Please read our blog post about Disciplinary hearing for more information or contact Uphando Forensic and HR Services if you need any assistance or further information.

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