CODE OF GOOD PRACTICE: CONDUCT AND CAPACITY
1 Introduction to the
labour law: conduct and capacity
(1) This code of good practice
deals with some of the key aspects of dismissals for reasons
related to conduct and capacity in the labour law. It is
intentionally general. Each case is unique, and departures from
the norms established by this Code may be justified in proper
circumstances. For example, the number of employees employed in
an establishment may warrant a different approach.
(2) This Act emphasises the primacy
of collective agreements. 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.
(3) The key principle in this Code
is that employers and employees should treat one another with
mutual respect. A premium is placed on both employment justice
and the efficient operation of business. While employees should
be protected from arbitrary action, employers are entitled to
satisfactory conduct and work performance from their employees.
2 Fair reasons
for dismissal
(1) In terms of the labour law, a
dismissal is unfair if it is not effected for a fair reason and
in accordance with a fair procedure, even if it complies with
any notice period in a contract of employment or in legislation
governing employment. 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. Whether or not the
procedure is fair is determined by referring to the guidelines
set out below.
(2) This Act recognises three
grounds on which a termination of employment might be
legitimate. These are: the conduct of the employee, the capacity
of the employee, and the operational requirements of the
employer's business.
(3) This Act provides that a
dismissal is automatically unfair if the reason for the
dismissal is one that amounts to an infringement of the
fundamental rights of employees and trade unions, or if the
reason is one of those listed in section 187. The reasons
include participation in a lawful strike, intended or actual
pregnancy and acts of discrimination.
(4) 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. 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.
3 Misconduct
Disciplinary
procedures prior to dismissal
(1) All employers should adopt
disciplinary rules that establish the standard of conduct
required of their employees. The form and content of
disciplinary rules will obviously vary according to the size and
nature of the employer's business. In general, a larger business
will require a more formal approach to discipline. An employer's
rules must create certainty and consistency in the application
of discipline. This requires that the standards of conduct are
clear and made available to employees in a manner that is easily
understood. Some rules or standards may be so well established
and known that it is not necessary to communicate them.
(2) The courts and the labour law
have endorsed the concept of corrective or progressive
discipline. This approach regards the purpose of discipline as a
means for employees to know and understand what standards are
required of them. Efforts should be made to correct employees'
behaviour through a system of graduated disciplinary measures
such as counseling and warnings.
(3) Formal procedures do not have
to be invoked every time a rule is broken or a standard is not
met. Informal advice and correction is the best and most
effective way for an employer to deal with minor violations of
work discipline. Repeated misconduct will warrant warnings,
which themselves may be graded according to degrees of severity.
More serious infringements or repeated misconduct may call for a
final warning, or other action short of dismissal. Dismissal
should be reserved for cases of serious misconduct or repeated
offences.
Dismissals for
misconduct
(4) 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. 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. 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.
(5) 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 length of service, previous
disciplinary record and personal circumstances), the nature of
the job and the circumstances of the infringement itself.
(6) 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.
4 Fair
procedure
(1) Normally, the employer should
conduct an investigation to determine whether there are grounds
for dismissal in terms of the labour law. This does not need to
be a formal enquiry. The employer should notify the employee of
the allegations using a form and language that the employee can
reasonably understand. The employee should be allowed the
opportunity to state a case in response to the allegations. The
employee should be entitled to a reasonable time to prepare the
response and to the assistance of a trade union representative
or fellow employee. After the enquiry, the employer should
communicate the decision taken, and preferably furnish the
employee with written notification of that decision.
(2) 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.
(3) 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.
(4) In exceptional circumstances,
if the employer cannot reasonably be expected to comply with
these guidelines, the employer may dispense with pre-dismissal
procedures.
5 Disciplinary
records
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.
6 Dismissals
and industrial action
(1) In terms of the law,
participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. However, like any other
act of misconduct, it does not always deserve dismissal. The
substantive fairness of dismissal in these circumstances must be
determined in the light of the facts of the case, including-
(a) the seriousness of the
contravention of this Act;
(b) attempts made to comply with this
Act; and
(c) whether or not the strike was
in response to unjustified conduct by the employer.
(2) 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 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 if they do not comply with the
ultimatum. The employees should be allowed sufficient time to
reflect on the ultimatum and respond to it, either by complying
with it or rejecting it. If the employer cannot reasonably be
expected to extend these steps to the employees in question, the
employer may dispense with them.
7 Guidelines
in cases of dismissal for misconduct
Any person who is determining
whether a dismissal for misconduct is unfair in terms of the
labour law should consider-
(a) whether or not the employee
contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
(b) if a rule or standard was
contravened, whether or not-
(i) the rule was a valid or
reasonable rule or standard;
(ii) the employee was aware, or
could reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has been
consistently applied by the employer; and
(iv) dismissal was an appropriate
sanction for the contravention of the rule or standard.
8 Incapacity:
Poor work performance
(1) A newly hired employee may be
placed on probation for a period that is reasonable given the
circumstances of the job. 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. When
appropriate, an employer should give an employee whatever
evaluation, instruction, training, guidance or counseling the
employee requires to render satisfactory service. 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.
(2) The labour law provides that
after probation, an employee should not be dismissed for
unsatisfactory performance unless the employer has-
(a) given the employee appropriate
evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of
time for improvement, the employee continues to perform
unsatisfactorily.
(3) 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.
(4) In the process, the employee
should have the right to be heard and to be assisted by a trade
union representative or a fellow employee.
9 Guidelines
in cases of dismissal for poor work performance
Any person determining whether a
dismissal for poor work performance is unfair in law should
consider-
(a) whether or not the employee
failed to meet a performance standard; and
(b) if the employee did not meet a
required performance standard whether or not-
(i) the employee was aware, or
could reasonably be expected to have been aware, of the required
performance standard;
(ii) the employee was given a fair
opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate
sanction for not meeting the required performance standard.
10 Incapacity:
Ill health or injury
(1) The law provides that
incapacity on the grounds of ill health or injury may be
temporary or permanent. If an employee is temporarily unable to
work in these circumstances, the employer should investigate the
extent of the incapacity or the injury. 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. When alternatives are
considered, relevant factors might include the nature of the
job, the period of absence, the seriousness of the illness or
injury and the possibility of securing a temporary replacement
for the ill or injured employee. 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.
(2) 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.
(3) The degree of incapacity is
relevant to the fairness of any dismissal. The cause of the
incapacity may also be relevant. 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.
(4) Particular consideration should
be given to employees who are injured at work or who are
incapacitated by work-related illness. The courts have indicated
that the duty on the employer to accommodate the incapacity of
the employee is more onerous in these circumstances.
11 Guidelines
in cases of dismissal arising from ill health or injury
Any person determining whether a
dismissal arising from ill health or injury is unfair in terms
of the labour law should consider-
(a) whether or not the employee is
capable of performing the work; and
(b) if the employee is not capable-
(i) the extent to which the
employee is able to perform the work;
(ii) 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
(iii) the availability of any
suitable alternative work.
DISPUTES
Labour law disputes over a dismissal based on conduct and capacity must be
referred immediately to the CCMA/ Bargaining Council. Should you need
assistance, call Labour Protect on
0860 522687
and you will be automatically routed to the nearest labour expert on the
network...
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