The Labour Relations Act (LRA) has a Code of Good Practice that deals with the dismissing of employees . The most common reason why employees are dismissed is misconduct. The Code has a very simple procedure to follow for misconduct dismissals.
Procedure to follow when dismissing employees for misconduct
Firstly, you need to determine the nature of the misconduct. Examples of serious misconduct are dishonesty and wilful damage to your property. However, each case should be determined according to its own unique context.
One of the most important factor – when dismissing an employee for misconduct – is the need to be consistent in your dismissal procedures. If you are not, you could face unfair dismissal proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA).
Case law illustrating a dismissal procedure
In Mathabathe v Nelson Mandela Bay Metropolitan Municipality [2016] 12 BLLR 1228 (LC) also reported at [2017] 26 LC 8.34 the employee was summarily dismissed after being found guilty of earning some extra money from a third party.
During the hearing, the employee requested a postponement. The chairperson ruled that the matter proceed by way of written affidavit so the process would not be delayed. Timeframes were set for the parties to make their written submissions.
It was noted that holding disciplinary proceedings by written submissions had been approved by the Labour Court (LC). The procedure adopted by the employer, in this case, was thus in accordance with the Code of Good Practice. Therefore, the dismissal did not constitute a breach of the employee’s employment contract.
In this case – and in others – the LC concluded that a hearing based on sworn statements is appropriate in certain circumstances and will meet the procedural requirements in the Code of Good Practice. The difficulty in dismissals is not procedural fairness but the substantive reasons for dismissal.
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