Dismissal

Fair reason, fair process. Both, every time.

Every dismissal in South Africa is measured against two questions: was there a good enough reason, and was it arrived at properly. An employer who has one without the other loses, and an employee who has neither does not win by wanting to.

021 000 0000 What happens at the CCMA

The four grounds

There are only four, and one of them is not really a dismissal.

This part of the law is identical whichever side you are on, so it is set out once.

Misconduct

The employee did something. Theft, dishonesty, insubordination, absence without leave. The employer must show the rule existed, that the employee knew it, that it was breached, that the rule is applied consistently, and that dismissal is an appropriate sanction for this breach by this employee.

Incapacity — poor performance

The employee cannot do the job to standard. The employer must show the standard was communicated, that the employee was given a fair chance to meet it with support, and that no alternative short of dismissal was workable.

Incapacity — ill health

The employee cannot attend or perform because of illness or injury. The nature, degree and likely duration matter, and so does whether the work can be adapted. Dismissing somebody for being ill without investigating adaptation is where most of these fail.

Operational requirements

Nobody did anything wrong. This is retrenchment, it runs under a different section with a consultation process of its own, and calling it anything else does not change what it is.

Four things, twice each

Where these are actually won and lost.

The hearing is not a formality, and it shows when it is treated as one.

If you are the employer

Notice of the allegation in writing and in enough detail to answer. Enough time to prepare. The right to state a case, to call witnesses and to question the employer’s. A chairperson who has not been involved in the investigation. Get one of those wrong and the reason stops mattering.

If you are the employee

You are entitled to all of that, and to a representative from the workplace or the union. If you were told about the hearing that morning, or the chairperson was the person who reported you, write it down at the time. It is evidence later.

Consistency is the ground employers most often lose on.

If you are the employer

If two employees did the same thing and one was dismissed, you will be asked why. Historical inconsistency — the manager who was warned three years ago for the same conduct — is raised more often than you expect and it is usually in the employee’s bundle before it is in yours.

If you are the employee

If somebody else did what you did and kept their job, say so at the hearing rather than at the arbitration. It is one of the strongest arguments available and it is weakened by arriving late.

Probation is not a free pass.

If you are the employer

A probationary employee may be dismissed on a lower standard, but not on no standard. You must have given evaluation, instruction, training or guidance, and a reason that relates to performance. "It did not work out" is not a reason.

If you are the employee

You have rights on probation. They are lesser rights, and the CCMA will not expect the same process as for a five-year employee, but a dismissal with no evaluation and no warning is still challengeable.

Resignation under pressure is sometimes a dismissal.

If you are the employer

If an employee resigns because you made continued employment intolerable, that is a constructive dismissal and you will be defending it as one. "She resigned" is not an answer if the resignation was engineered.

If you are the employee

Constructive dismissal is hard to prove and it is often advised too readily. You must show the conduct was intolerable, that you had no reasonable alternative, and usually that you tried to resolve it first. Take advice before you resign, not after.

A pair of working hands resting on an open printed document, one finger holding a place partway down the page.

The same advice to both of you

Write it down while you still remember it.

Dates, who said what, who was in the room, what was handed over and when. Eighteen months later the arbitration will turn on details neither of you can recall, and the party with the contemporaneous note is believed. That is not a legal principle, it is just what happens.

Send us the notice, the minutes and the outcome.

Whichever side you are on, those three documents tell us most of what we need to say whether this is worth running.

021 000 0000 What it costs