In Part 1 the importance of and rationale behind devising company specific workplace rules and policies were accentuated. This led to the obvious question what kind of governance (if any) would apply in case of a labour dispute situation where there are no company specific workplace rules in place? In answering this question, Part 1 introduced you to the codes of good practice annexed to the Labour Relations Act (LRA) and in particular to Schedule 8 – Code of Good Practice: Dismissal, the latter providing generic guidelines in respect of dealing with dismissals in the workplace.
Where an employer therefore does not have its own company specific workplace rules and policies, the provisions of Schedule 8 apply by default. In Part 2, we are taking a closer look at Schedule 8, in order to understand what are the basic fairness requirements that are expected of you, as employer, when you may not have your own company specific workplace rules and policies or where the workplace rules and policies you do have do not address certain basic fairness requirements.
What does Schedule 8 – Code of Good Practice: Dismissal cover?
Introductory remarks – Generality of guidelines emphasised / Focusing on conduct and capacity as motivations for dismissal action taken by the employer / Schedule 8 not a substitute for collective agreements / The importance of mutual respect between employer and employee / The balance between employment justice and the efficient operation of the business.
Fair reason for dismissal – Fairness depends on having a fair reason to dismiss and following a fair process (Procedural & Substantive fairness) when doing so / Substantive fairness is judged on the facts of the case and the appropriateness of dismissal as sanction in the circumstances / The LRA focusing on the conduct of the employee, the capacity of the employee and the operational requirements of the organisation / Automatically unfair dismissals defined.
Disciplinary measures short of dismissal – All employers should adopt disciplinary rules that establish the standard of conduct required from employees / The form and content of these rules may vary according to the size and nature of the business / Standards of conduct must be clear and be made available to employees in a manner which they are able to understand / Rules must create certainty and consistency in application / The concept of corrective and progressive discipline reiterated / Not every infringement need to be subjected to a formal disciplinary process.
Dismissal for misconduct – Generally, dismissal at the first instance of a transgression will not be fair, unless the gravity of the offence warrants it / Examples of gross misconduct provided / The importance of considering the factors related to the gravity of the offence, along with factors related to the circumstances of the employee and the circumstances within which the transgression occurred / The importance of consistent application of discipline in the workplace.
Fair procedure – The necessity of investigating the matter, which could give cause for dismissal, beforehand / The notification of the allegations against the employee to be in understandable language (the charge) / Reasonable preparation time to be given to the employee to respond to the charge / Opportunity given to the employee to state a case against the allegations contained in the charge / Reasonable representation to be allowed / The issuing of a written notification of the decision taken at the disciplinary enquiry regarding guilt and sanction emphasised / Disciplining a trade union representative / Providing a reason for dismissal and alerting the employee to the right to refer the matter to a Bargaining Council with jurisdiction, to the CCMA or to any other dispute resolution procedure established in terms of a collective agreement / Exceptional circumstances allowing an employer to dispense with pre-dismissal procedures.
Disciplinary records – Records to be kept of each employee being disciplined, specifying the nature of any transgressions, actions taken by the employer and reasons for such actions taken.
Dismissals and Industrial Action – Participation in a strike which does not comply with the provisions of Chapter IV of the LRA, constitutes misconduct / The criteria against which the substantive fairness of a dismissal in these circumstances should be evaluated / Contact with the trade union (where applicable) prior to dismissals / The issuing of an ultimatum prior to dismissals and allowing employees sufficient time to comply with the ultimatum before dismissing the employees concerned / Exceptional circumstances allowing an employer to dispense with these pre-dismissal procedures.
Guidelines re dismissal for misconduct – The fairness of a dismissal depend on (1) whether a rule or standard applying within the workplace has been contravened (2) if so, whether the rule or standard is valid and reasonable, whether the employee was aware or could reasonably have been aware of the existence of the rule or standard, whether the rule or standard is consistently applied within the workplace and whether dismissal is an appropriate sanction for the contravention of the rule or standard.
Probation – A newly hired employee may be required to serve a probation period prior to his/her appointment being confirmed / The purpose of probation is for the employer to evaluate the performance of the employee before confirming the appointment / Probation is not to be used for the sole purpose of depriving the employee of the status of permanent employment / The period of probation should be predetermined and be of reasonable duration / The nature of the job and the time required to determine the employee’s suitability for the job are relevant to the duration of the probation / During probation, the employee should be given reasonable evaluation, instruction, training, guidance or counselling in order for the employee to render satisfactory service / The employee should be advised by the employer when the employee is considered to have failed to meet the required employment standards and/or is incompetent / The probation period may only be extended for a reason that relates to the purpose of probation / Before extending the probation period or dismissing the employee for failing to achieve the required performance standard, the employer has to invite the employee to make representations, which representations the employer should consider / Reasonable representation should be allowed / Before dismissing an employee on probation, the employer should investigate the reasons for the employee’s failure to attain the required performance standards and consider other ways, short of dismissal, to remedy the matter / When the employer has decided to extend the probation period or to dismiss the employee , the employer should advise the employee of his/her right to refer the matter to a Bargaining Council having jurisdiction or the CCMA / Reasons for a dismissal during probation could be less compelling than would normally be the case after the successful completion of the probation period.
Guidelines re dismissal for poor work performance – Considerations regarding the fairness of the dismissal include: Whether the employee (objectively) failed to meet a performance standard and if so (1) whether the employee was aware or could reasonably have been aware of the required performance standard (2) whether the employee was given a fair opportunity to meet the required performance standard and (3) whether dismissal is the appropriate sanction in the circumstances for not meeting the required performance standard.
Incapacity as result of ill health or injury resulting in dismissal – Such incapacity can be temporary or permanent / In case of temporary incapacity, the employer should investigate the extent of the incapacity and if the incapacity is likely to last for an unreasonably long period, possible alternatives short of dismissal should be considered, taking into account factors such as the nature of the job, the period of absence, the seriousness of the illness or injury and the prospect of securing a temporary replacement for the ill or injured employee / In case 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 latter’s disability / In the process of investigating the extent of the incapacity and considering remedies, the employee should be allowed the opportunity to state a case in response and be assisted by a trade union representative (of a formally recognised trade union) or a fellow employee / The degree of incapacity, as well as the cause of the incapacity are relevant when the fairness of an incapacity dismissal is evaluated / The duty on an employer to accommodate the incapacity of the employee is more onerous where the employee was injured at work or was incapacitated as result of work-related illness.
Guidelines in cases of dismissal arising from ill health or injury – Considerations regarding the fairness of the dismissal include: Whether the employee (objectively) is incapable of performing the work he/she was employed for and if so (1) assessing the extent to which the employee may still be able to perform the work, if applicable (2) assessing the extent to which the employee’s work circumstances might be adapted to accommodate the disability, alternatively, the extent to which the employee’s duties might be adapted (3) considering the availability of suitable alternative work.
In providing the above synopsis of Schedule 8, annexed to the LRA, I summarised, paraphrased and truncated certain parts of its contents in order to present it, concisely, as a central reference in this part of the article. To access a more complete text of the contents of Schedule 8, it needs to be consulted, as it is annexed to the LRA. However, should there be any discrepancy between the synopsis given in this part of the article and the actual wording of Schedule 8, the latter will prevail.
Evaluate your specific situation against what is contained in Schedule 8, being the basic fairness requirements and try to ascertain what the “gap analysis” could be (if any) between where you are currently at in this regard and where you ought to be as far as the legally required basic fairness requirements are concerned. In Part 3 we will take it a step further, capitalising on what is contained in Schedule 8.