Dismissal – The importance of rules in the workplace – Part 1

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To rule or not to rule

Is it not true that where a group of persons congregate in a certain defined space, striving towards a common goal, this common goal has the best prospect of being achieved if these people operate within a set of common rules?

Furthermore, the prospect of achieving the common goal would be optimal if all of those involved know and understand the rules that apply in the circumstances and more importantly, understand why these rules are there in the first place.

By way of an analogy, think of a rugby match – the rules concerned are pivotal to the degree of success the team is likely to achieve during the match. If a team member breaks a rule, the team member, and the team, in general, is penalised, ostensibly for jeopardising the team’s prospects of winning the match. One also cannot play rugby in accordance with e.g. tennis rules and vice versa – the commonality of the rules is important, for obvious reasons.

Without common rules governing those concerned with the reason for striving together, everyone within the group is likely to devise his/her own rules, which will have a devastating effect on the efficiency and cohesive functioning of the group.

Now let us apply these universal truths to the workplace.

Rules governing the working environment, are designed to enhance and ensure the optimal efficiency of both the business and employees, striving towards the common goal of a productive and successful enterprise. This will ensure delivering of benefits, commensurate with the performance of the business and the workforce, for all stakeholders. These rules, preferably established through the process of consultation, are much more likely to be accepted, adopted and internalised, than rules that are unilaterally imposed by the employer.

What happens in case of a labour dispute situation where there are no common rules?

Firstly, the absence of common rules governing the workplace, is conducive of setting the stage for a crisis management scenario, where the employer is likely to stumble from one labour crisis to another, reactively putting out fires along the way, simply because there is no clear governance in

The drafters of the Labour Relations Act (LRA) anticipated scenarios where a workplace does not have common rules governing the labour practices of the organisation, for whatever reason, and hence the said drafters annexed certain codes of good practice to the LRA, operating as useful guidelines for employers in general and specifically for these employers.

The guidelines contained in the codes of good practice annexed to the LRA, strictly speaking, do not constitute mandatory statutory provisions, like those we find in the body of the LRA. However, the expectation of using the good practice guidelines annexed to the LRA in order to judge the overall fairness of a dismissal/termination of employment by the employer, is emphasized as a legal requirement in section 188(2) of the LRA.

Consequently, commissioners at the CCMA, as well as judges presiding in the labour courts, have consistently referred to the guidelines contained in these codes of good practice in their pronouncements and have indicated that they expect employers to apply these good practice guidelines in the interest of fairness in the workplace.

The following codes of good practice are annexed to the LRA:

  • Schedule 8 – Code of Good Practice: Dismissal
  • Code of Good Practice on Picketing
  • Code of Good Practice on the handling of Sexual Harassment cases
  • Code of Good Practice on dismissal based on Operational Requirements

While all these codes of good practice contain useful guidelines for employers, the guidelines in Schedule 8 are likely to be more frequently needed by employers, especially those who have not devised their own company specific rules and policies. I will therefore single out Schedule 8 for purposes of this article. (More to come in Part 2 of this article when I will summarise the application of Schedule 8 in support of good governance)

Evaluate your particular situation against what is stated above by assessing whether you have already devised your own company specific workplace rules and policies and to what extent it works for you or whether the fairness of your labour practices depends largely on the adherence to the generic guidelines contained in Schedule 8 annexed to the LRA.

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