In this Editorial we will be handling summary termination, i.e.: dismissal without notice. The law does allow the employer to dismiss employees summarily and without notice. It should be noted that no termination can take place unless there has been a fair procedure. In certain circumstances it is impossible to undergo the procedure as the employee refuses to attend a hearing or the employee has disappeared or the situation would make is extremely uncomfortable to conduct a hearing. However, in the majority of cases a termination must be preceeded by a hearing of some nature and it must be shown that this hearing was fair and allowed the employee to present his side of the story and to challenge the employer’s side of the story. Obviously the right to terminate does exist and especially when there has been a material breach of the employment contract.
The Basic Conditions of Employment Act does state that notice must be given in normal circumstances but when this material breach has occurred and after hearing the employee’s version of events, the employer might accept a recommendation of a chairperson to summarily terminate the employment relationship. I essence this means that the employer is stating that he is no longer bound by the employment contract and tells the employee to immediately desist from any further work.
There are many situations which could lead to a summary termination of the Employment Contract and in law it could be justified, but once again, only after an investigation has taken place. There are many instances outlined in various disciplinary codes, leading to summary termination, such as assault, theft or a breakdown of the employment relationship. Obviously it is incumbent upon the employer to outline other instances which could lead to summary termination due to the nature of the business or to the nature of the relationship. If there has not been that fundamental breach, the employer can still choose to pay out the notice period and ask the employee not to continue working.
It is also important for the employer to note that if there has been a fundamental breach of the employment relationship, the suspension hearing should take place prior to disciplinary hearing so as not to enable the employee to argue thereafter that the employer, despite knowing the fundamental breach allowed the employee to continue.
Obviously the monies owing to the employee at the time of the fundamental breach are already accrued to the employee and payment up until the date of the summary termination is due and payable including any outstanding leave pay. Other monies or services that might be owing to that employee will become due and payable and issues such as accommodation and the use of Company’s goods, such as cell phone and motor vehicle must be sorted out at the time of the disciplinary hearing.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)