Sunil Hansjee.

Opinion - Similar to a Shakespearean character entangled in a quandary, employers too are now faced with a similar challenge when deciding if they should dismiss their employees because of fear that an eventual dismissal may be overturned at arbitration at a later stage and that the employee returns to work.

One cannot escape the reality that any employer’s primary objective is to make a profit and run a successful business. 

However, this is only possible with the support of employees who contribute their service for remuneration. 

We are far long down the line from the master-servant relationship, and now the employment relationship has evolved into one that is built on fairness and equality.

However, there is still a degree of subservience in the current employment relationship. 

Although an employer’s main objective is to make a profit, like any human relationship, the employer-employee relationship ought to be built on trust and mutual respect, thereby maintaining a harmonious working environment and a pleasant employment relationship.

In order to achieve this, an employer must maintain discipline in the workplace, which should coincide with the principles of fairness by consistently applying discipline equally among all employees who commit the same misconduct. 

Further, legislation, in particular the Labour Relations Act 66 of 1995, sets out mechanisms employers can utilise to maintain discipline in the workplace, follow procedures set out therein and eventually have fair reason to impose a dismissal as a sanction.

Employees must be made aware of the standards of behaviour that is expected of them in the workplace. These standards must be reasonable, and which are consistently applied, and, if breached, attracts dismissal which would be an appropriate sanction.

Our law does not prohibit dismissal. However, there are consequences for employers who unfairly dismiss employees. 

Therefore, the Labour Relations Act, together with the Codes of Good Practice issued under the Labour Relations Act, contain guidelines for employers to follow when disciplining employees, which, if followed, would likely be determined as a fair dismissal.

Employers would have fair reason to dismiss employees for misconduct, incapacity and operational requirements. 

These fair reasons are further sub-categorised as, for example, different species of misconduct: theft, dishonesty, insubordination, insolence and so forth.

For each of these reasons, the Labour Relations Act sets out procedures which employers ought to follow which would assist them in fairly complying with the procedural aspects of a dismissal.

For an employer to prove the fairness of a dismissal, it must prove that a fair procedure was followed and the employer had a fair reason to dismiss.

The same principle mentioned above would apply to other disciplinary sanctions such as written warnings, final written warnings and the like.

The employee must be given a fair opportunity to be heard, before any decision, or sanction is imposed. It is advisable that employers conduct some kind of investigation into allegations before proceeding with any disciplinary action.

Although it is not required for an employer to conduct a formal in-depth investigation, it is advisable that an employer ought to have, at the very least, basic evidence to support the allegations before deciding to proceed with any disciplinary action.

Employers should also ensure their disciplinary policies, procedures and codes of conduct are consistently applied, which can be read in conjunction with any Code of Good Practice under the Labour Relations Act. 

It has been highlighted in numerous cases that if an employer has elaborate disciplinary policies and procedures, then the employer must follow these elaborate policies and procedures to ensure procedurally fair disciplinary action.

Therefore, employers should invest in proper training of those individuals who are responsible for administering disciplinary action in their organisation to ensure a fair dismissal.

Employers often make the mistake of following a simple “tick box” approach and source an external chairperson to “chair” a disciplinary hearing who eventually provides an employer with a desired outcome. 

Employers should be wary with following this approach as arbitrating commissioners are trained and would be able to see right through this kind of farce.

The repercussion could result in the reinstatement of the employee, together with backpay or payment of compensation to the employee up to a maximum of 12 months for unfair dismissal.

Employers should always adequately prepare for any disciplinary hearing or arbitration, as to adequately defend their ultimate decision.

Although employers may have good prospects of succeeding in their dismissals, the majority of the time, awards are not made in their favour because of the lack of adequate preparation by employers at arbitrations.

In addition, employers often do not succeed because of their lack of knowledge pertaining to rules relating to arbitration proceedings.

Although there is no expectation on any party to become an expert in arbitration proceedings, the lack of knowledge and preparation can turn the fortune of a good case into a bad case.

One should also be mindful that each dismissal is to be assessed on its own merits, and although discipline should be consistently applied, an employer must apply his/her mind to the facts of each case and consider similarities or distinguishable factors before treading down a particular path.

Unfortunately, this is not a one size fits all approach because regard must be had to the principles of fairness and this could differ in each and every case. 

In addition, when proceeding with a sanction of dismissal, employers must consider whether “the punishment fits the crime”. Here the employer must consider factors such as the employee’s disciplinary record, length of service, factors surrounding an incident and so forth. One must ask whether dismissal is a fair sanction?

In Labour and Employment Law, fairness is the central theme and main consideration in any dismissal.

* SUNIL HANSJEE is a partner in Cox Yeats Attorneys

(Disclaimer: This writing should not be used as a substitute for legal advice)

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