Those that know me will know I always say, “Winning at the CCMA depends on what you have done before you appear at the CCMA.” Many of my clients enter into debates with me when they have reached the end of their tether and are ready to dismiss an employee for very justified reasons, however, have not followed the appropriate procedure and their plans are likely to fail followed by severe repercussions at the CCMA.
For a dismissal to be considered fair in terms of the law the principles of substantive fairness (a fear reason) and procedural fairness (the correct procedures) need to be followed. Very often the employers are justified in their reason for dismissal but have not followed the correct procedure. Only satisfying one of the fairness requirements will result in the CCMA finding against the employer and deeming the dismissal unfair. The CCMA will award in favour of an employee in the case of an unfair dismissal which could result in the employer having to reinstate or reemploy the employee (even if they have stolen from you) or compensating the employee up to 12 months’ salary or if the dismissal deemed an automatically unfair dismissal up to 24 months’ salary.
There are three ways of legally terminating an employment contract being dismissal for misconduct, dismissal for incapacity, and dismissal for operational requirements and each of these has its own very specific procedure that is required to be followed.
Misconduct is an action taken by an employee that breaches your rules. For minor offences, the employer should issue warnings and for repeated offences of a similar nature, the employer would apply progressive discipline in an attempt to change the employee’s behaviour. After progressing from warnings to final written warnings the employer will progress to a disciplinary hearing as all avenues have been exhausted. In the case of serious misconduct, where the employee’s actions have resulted in the trust relationship between employer and employee being broken down the employer can proceed to a disciplinary hearing at the first occurrence of such an act, examples of these offences would be sexual harassment, theft, fraud and assault (There are maybe others). There is a common myth that employees are entitled to three warnings before they are dismissed, this is not the case and when you progress to a disciplinary hearing depends entirely on the circumstances surrounding the misconduct as well as the employer’s individual policies and procedures.
Incapacity refers to the employee’s inability to provide the services rendered in their contract. There are two forms of incapacity - poor work performance and ill health.
Incapacity Poor work performance is where the employee is unable to meet the requirements of their position. The employer is obliged to assist the employee to try and meet the standards required, through training, evaluating, providing guidance to help the employee achieve their objectives. The employer should document all discussions with the employee, provide clear objectives and provide the employee with a reasonable period of time to correct his/her behaviour. If the employee is unable to achieve their objectives the employer may proceed to an incapacity hearing. Incapacity is deemed a no-fault dismissal, where the employee cannot achieve their objectives. Where an employee simply will not perform their duties, this needs to be treated as a misconduct.
Incapacity Ill-health is where an employee is legitimately ill and cannot present themselves to work to fulfil the role the employee is contracted to do. In terms of legislation, the employer must investigate whether the incapacity is permanent or temporary, whether there is any accommodation that can be made to the employees' job to allow them to attend work, whether there is another position that the employee can be accommodated in within the organisation. Where the employee has been injured on duty the onus is greater on the employer to find alternatives for the employee. Should the employer be unable to find alternatives for the employee the employer may proceed to an incapacity ill-health hearing and this could potentially lead to dismissal of the employee.
Retrenchments are another form of dismissal, based on financial, structural and technical factors facing employers where a reduction in the workforce is required. It’s not merely a case of calling in employees and stating we are in financial difficulty and have to get rid of staff or just closing a business. A very specific process needs to be followed, where employees have to be invited to consult (all the requirements with regards to notifying employees and which criteria to consult on as legislated in the Labour Relations Act). My advice is if you are considering retrenchments get professional assistance don’t go into this process alone, if you get it wrong the financial implications of awards at the CCMA are huge and it could ultimately lead to your cash strapped business closing down for good, the CCMA will have no sympathy if you had not followed procedure. Due to the nature of how the CCMA operates an employee will allege an unfair dismissal the employer is presumed guilty until proven innocent, it’s in your best interest as an employer to have evidence in place that you followed the necessary procedures, and that dismissal was fair.
Should you be facing any of the above situations and require advice or would like to chat more about these concepts please get in touch. We also offer Workplace Discipline training to employers should you be interested in such training please let us know.
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