Dismissal, How To Deal With It
Dismissal is one of the thorniest aspects of employment. Losing one’s job or having to fire someone is never a comfortable experience, even before you consider dealing with the potentially complex implications.
South African Labour Law governs all types of dismissal in detail, with a focus on fair treatment of the employee. Of course, an employee may not consider being fired as fair, especially when it means they are suddenly without means of support or have been accused of unacceptable behaviour. This can leave the employer dealing with the complicated and time-consuming duty of proving that the dismissal was correct and fair to a third party.
We strongly advise all our clients to consult with us first before taking any action about a possible dismissal. Skilful handling of many dismissal cases over the years has taught us that preparation and carefully handled process are vital to a successful outcome in such cases.
Contact us first for advice on:
Correct Procedures For Dismissal
When employer or employee wishes to terminate the employment relationship, certain matters may need attention, including notice period, pay in lieu of notice , notice and accommodation, severance pay and a certificate of service. An employer who is considering dismissing an employee is required by law to consider factors like the employee’s length of service and disciplinary record, and whether the employee has committed an act of gross misconduct and if the misconduct is of such a grave nature that it makes continued employment impossible.
In the field of employment law, the general rule applies that, before any decision is made to dismiss, the employee must be heard. It is of paramount importance to have a disciplinary hearing or at least a discussion before any decision is made to dismiss to make sure both the employee’s rights and employer’s rights are protected.
- Common examples of an automatically unfair dismissal are dismissals related to:
- Participation in or support of a legal or protected strike or protest action
- Taking action or indicating an intention to take action against the Employer
- Direct or indirect discrimination against an employee
- A transfer of a business or a reason related to transfer
- Pregnancy or intended pregnancy
- A contravention of the Protected Disclosures Act
When a worker feels they have been unfairly dismissed they can contact the CCMA to refer an dispute within 30 days of the dismissal or the employer’s final decision to dismiss, such as when the employer rejects the employee’s appeal.
Constructive dismissal occurs when an employer makes the working environment impossible for the employee to endure, forcing the employee to resign. To prove a case of constructive dismissal an employee must show that:
- The employment circumstances were so intolerable that continuance of employment was impossible
- The unbearable situation must have been caused by the employer’s conduct
- The unbearable circumstances were the cause of the resignation of the employee
- There was no reasonable alternative but for the employee to resign to escape the circumstances
- The employer was in control of the unbearable circumstances
Whatever the perception of the employee, an unfavourable change in working environment or practice does not necessarily qualify as grounds for constructive dismissal. The employee must prove that their employment situation had become absolutely intolerable.
Summary termination of employment (dismissal without notice) is not necessarily illegal but, as with all dismissals, fair procedures must be followed and there must be a substantively fair reason for dismissal.
There are many situations which could lead to a summary termination of the employment relationship (e.g. assault, theft or a breakdown of the employment relationship), but the dismissal should be justified and carried out only after an investigation / hearing has taken place.
The law requires employers to consider a number of factors before retrenching employees. For information on the nature and correct approach to dismissal for operation requirements see our section on retrenchments.
The correct way is the best way
Whatever the reason for dismissal, we always remember that there is both a legal and human element to regard. The medical profession tells us the loss of a position can be equivalent to the stress caused by divorce. Our experience has confirmed that assertion many times.
While our job is to protect our clients legally, we always consider the individual and try to show that removal from one’s position isn’t as negative as it may first appear. Consequently, our human approach to dismissal makes the process easier on everyone involved and often resolves potential disputes early on.
For specific advice on how to deal with dismissals, feel free to contact us in confidence.