Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. Dismissals for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. Labour Relations Act. the extent to which the employee is able to perform the work; the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.Â. 2. Misconduct is one of three grounds recognized by the Labour Relations Act 66 of 1995 as justifying the dismissal of an employee: the others being incapacitated or poor work performance and operational requirements (Grogan, 1999). 9.2 Appeals must be noted in writing within five (5) days of the decision, 9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that. Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. A compensation order is one that requires the employer to pay the employee an amount of money in recompense for unfair dismissal or an unfair labour practice. All Rights Reserved. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. NBCCI GUIDELINES: MISCONDUCT ARBITRATIONS 3 A: PURPOSE AND NATURE OF GUIDELINES Purpose 1 These guidelines are issued by the NBCCI in terms of section 155(2)(g) of the Labour Relations Act, 66 of 1995 (the LRA). 3. Dismissal should be reserved for cases of serious misconduct or repeated offences. Copyright © 2020. Other unfair dismissals 189. Automatically unfair dismissals 188. In Legal Aid SA v Jansen (LAC), the employer appealed against the Labour Court’s decision whereby it held that the dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, on the basis of him suffering from depression. Labour Guide. As there is no agreement for the Court to arbitrate the applicant‟s alternative claim of unfair dismissal for misconduct under s158(2)(b) of the Labour Relations Act, 66 of 1995 („the LRA‟),in the event that the applicant fails in his primary claim that he was unfairly dismissed for operational reasons, resolution of this question will determine whether the matter may proceed in the Labour Court. The cause of the incapacity may also be relevant. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Sc hedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. Dismissals for misconduct (4) Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Labour Relations Act, 1995. The employer is obliged to consult regarding measures to minimise the number of dismissals, and also to mitigate the adverse effects of dismissal. b. in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct. Therefore, the true reason for the dismissal was the employee’s mental illness and not the alleged misconduct. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Meaning of dismissal 187. The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property. In the process, the employer should have the right to be heard and to be assisted by a trade union representative or a fellow employee. whether or not the strike was in response to unjustified conduct by the employer. The law promotes the principle of progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. Section 194 of the Labour Relations Act (LRA) allows arbitrators and judges to grant employees compensation for unfair dismissal where reinstatement is not appropriate. 2.The courts have endorsed the concept of corrective or progressive discipline. When appropriate, an employer should give an employee whatever. Misconduct means any act of the employee that is detrimental to the property and reputation of the employer as well as the business concern. In the absence of such evidence, it was found that the dismissal was unfair. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. A Introduction: identifying the need for the application of a performance management process . When may an employee be dismissed? If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. Misconduct is a ground for the termination of employment of the workers in an organisation or industrial concern. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum.Â, 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. The degree of incapacity is relevant to the fairness of any dismissal. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. Court’s evaluation 9.1 An employee who is dismissed shall be entitled to appeal against such. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.Â. Recent Case Law Relevant to Public Service Labour Law Amendments - July 2019.pdf. Dismissal should be reserved for cases of serious misconduct or repeated offences.Â. the possibility of securing a temporary replacement for the ill or injured employee. if a rule or standard was contravened, whether or not; the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and. Guidelines in cases of dismissal for poor work performance. If misconduct is identified within a company, an employer should investigate the allegations against the employee. Guidelines in cases of dismissal for misconduct. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.Â. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. 6. An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. the circumstances of the infringement itself. Termination of employment as defined by section 36 Employment Labour Relations Act No. dismissal to the [appropriate managerial structure]. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. This means there should be efforts by the employer to correct employee’s behaviour by means of disciplinary actions. 6 of 2004 and Rule (ELRA) may mean; A lawful termination under the Common law. Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice. Click to read dismissal was an appropriate sanction for the contravention of the rule or standard. (a) the date on which the contract of employment terminated; or, (b) the date on which the employee left the service of the employer.". The LC set aside the CCMA’s award and ordered S’s reinstatement to the date of dismissal. Labour Guide. This indicated that the LC accepted that misconduct had indeed been proven. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. In terms of section 138(6), a … a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. counselling the employee requires to render satisfactory service. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The Labour Relations Act (“LRA”) provides every employee with the right not to be unfairly dismissed. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed of they do not comply with the ultimatum. for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. Ø Failures or shortfalls in employee performance could arise from misconduct orincapacity. A premium is placed on both employment justice and the efficient operation of business. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. Dismissal should be reserved for cases of serious misconduct or repeated offenses. 66 of 1995) to become effective on 1 january 2012 contents If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). Seminar 4 Misconduct.pptx - Dismissal in the workplace MS RB BERNARD 1 INTRODUCTION \u2022 Fair and unfair dismissals \u2022 Types of dismissal \u2022 Misconduct. Whether or not the procedure is fair is determined by referring to the guidelines set out below.Â, 3. dismissal was an appropriate sanction for not meeting the required performance standard.  Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA), The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, 2.This Act emphasises the primacy of collective agreements. 5. Guidelines in cases of dismissal arising from ill health or injury. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. The law promotes the principle of progressive discipline. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. The employer should notify the employee of the allegations using a form and language the employee can reasonably understand. 1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure. date on which the employee is advised of the outcome of the appeal hearing. 4. c. the operational requirements of the employer's business. The employee should be allowed the opportunity to state a case in response to the allegations. the seriousness of the contravention of this Act; attempts made to comply with this Act; and. Dismissals based on operational requirements It was also ordered that S be issued with a written warning for the misconduct. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. Right not to be unfairly dismissed 186. This means that an employer may not just willy-nilly dismiss an employee whenever s/he feels like it, the employer must have a fair reason for making the decision to dismiss and must follow a fair procedure. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances, including: the circumstances of the infringement itself. Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. MISCONDUCT CCMA Info Sheet: Misconduct(1) FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR THE CALL CENTRE ON 0861 16 16 16 INTRODUCTION Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. Labour Law South Africa expert Articles on CCMA, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in Labour Relations Act and Amendments. Any person who is determining whether a dismissal for misconduct is unfair should consider: whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and. All Rights Reserved. Misconduct is prevalent in every workplace and its consequences may have far reaching implications. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is: a. one that amounts to an infringement of the fundamental rights of employees and trade unions, or. Only after it has established that there is a case for which the employee has to answer to, said employee must be notified of the allegations against him/her. b. if the reason is one of those listed in section 187. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.Â. Misconduct Disciplinary procedures prior to dismissal Dismissal for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Copyright © 2020. Paragraph 9.5 is drafted in these terms as the procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation. The scenario above the dismissal is for alleged misconduct. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings.Â, 3. What must be realized is that the LRA recognizes only three circumstances under which a dismissal may be considered fair – misconduct, incapacity (including … An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. ccma guidelines: misconduct arbitrations guidelines on misconduct arbitrations published by the commission for conciliation, mediation and arbitration in terms of section 115(2)(g) of the labour relations act, 1995 (act no. However, like any other act of misconduct, it does not always deserve dismissal. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. 1.1 This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. Employers should have a Disciplinary Code If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Before dismissal for misconduct can take place, the following questions must be answered: 1.2 The objectives of this procedure are to: 1.2.4 assist the employer to apply corrective action where appropriate. ACT. Unfair dismissal is now governed by the Labour Relations Act. Dismissal should be reserved for cases of serious misconduct or repeated offences. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. Some have argued that the Labour Relations Act undermines the flexibility required for the free market to exist. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. Termination by an employee because the employer made continued employment intolerable. An employer might also seek to go straight to dismissal if an employee has committed an act of gross misconduct which has, or could have had, very serious consequences, or if they feel the employee is guilty of a fundamental breach of contract. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. This does not need to be a formal enquiry. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. Incapacity on the grounds of ill health or injury may be temporary or permanent. If the employer has not implemented his/her own disciplinary code, the Labour Relations Act (Act 66 of 1995) makes provision by means of Schedule 8 of the Code of Good Business Practice, but it is generally accepted that this is only regarded as a guideline. 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. Disciplinary procedures prior to dismissal. When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. 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