Seminar 4 Misconduct.pptx - Dismissal in the workplace MS RB BERNARD 1 INTRODUCTION \u2022 Fair and unfair dismissals \u2022 Types of dismissal \u2022 Misconduct. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. All Rights Reserved. for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice. 1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure. 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. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). 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. Paragraph 9.5 is drafted in these terms as the procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. Dismissal for misconduct 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. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. 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. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. c. the operational requirements of the employer's business. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. The cause of the incapacity may also be relevant. a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. As there is no agreement for the Court to arbitrate the applicant‟s alternative claim of unfair dismissal for misconduct under s158(2)(b) of the Labour Relations Act, 66 of 1995 („the LRA‟),in the event that the applicant fails in his primary claim that he was unfairly dismissed for operational reasons, resolution of this question will determine whether the matter may proceed in the Labour Court. Labour Relations Act, 1995. the extent to which the employee is able to perform the work; 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. When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. 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 of they do not comply with the ultimatum. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings.Â, 3. Incapacity on the grounds of ill health or injury may be temporary or permanent. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. This means there should be efforts by the employer to correct employee’s behaviour by means of disciplinary actions. Dismissal should be reserved for cases of serious misconduct or repeated offenses. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. Copyright © 2020. Only after it has established that there is a case for which the employee has to answer to, said employee must be notified of the allegations against him/her. Dismissals based on operational requirements 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.Â. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.Â. dismissal was an appropriate sanction for not meeting the required performance standard. Labour Law South Africa expert Articles on CCMA, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in Labour Relations Act and Amendments. Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. Click to read If the employer has not implemented his/her own disciplinary code, the Labour Relations Act (Act 66 of 1995) makes provision by means of Schedule 8 of the Code of Good Business Practice, but it is generally accepted that this is only regarded as a guideline. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. 5. The employee should be allowed the opportunity to state a case in response to the allegations. On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct. 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. 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. 6 of 2004 and Rule (ELRA) may mean; A lawful termination under the Common law. Section 194 of the Labour Relations Act (LRA) allows arbitrators and judges to grant employees compensation for unfair dismissal where reinstatement is not appropriate. Dismissal should be reserved for cases of serious misconduct or repeated offences.Â. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted. Misconduct is one of three grounds recognized by the Labour Relations Act 66 of 1995 as justifying the dismissal of an employee: the others being incapacitated or poor work performance and operational requirements (Grogan, 1999). Dismissals for misconduct 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. dismissal was an appropriate sanction for the contravention of the rule or standard. Labour Relations Act. 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.Â, 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. 9.1 An employee who is dismissed shall be entitled to appeal against such. 3. Misconduct is prevalent in every workplace and its consequences may have far reaching implications. This means that an employer may not just willy-nilly dismiss an employee whenever s/he feels like it, the employer must have a fair reason for making the decision to dismiss and must follow a fair procedure. 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. 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. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Some have argued that the Labour Relations Act undermines the flexibility required for the free market to exist. Meaning of dismissal 187. 2. Recent Case Law Relevant to Public Service Labour Law Amendments - July 2019.pdf. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. Misconduct means any act of the employee that is detrimental to the property and reputation of the employer as well as the business concern. Employers should have a Disciplinary Code Disciplinary procedures prior to dismissal. Copyright © 2020. Guidelines in cases of dismissal for poor work performance. 6. A Introduction: identifying the need for the application of a performance management process . Labour Guide. Dismissal should be reserved for cases of serious misconduct or repeated offences. Termination of employment as defined by section 36 Employment Labour Relations Act No. 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. b. if the reason is one of those listed in section 187. 4. (a) the date on which the contract of employment terminated; or, (b) the date on which the employee left the service of the employer.". An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. 66 of 1995) to become effective on 1 january 2012 contents In Legal Aid SA v Jansen (LAC), the employer appealed against the Labour Court’s decision whereby it held that the dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, on the basis of him suffering from depression. 2.The courts have endorsed the concept of corrective or progressive discipline. Guidelines in cases of dismissal for misconduct. ccma guidelines: misconduct arbitrations guidelines on misconduct arbitrations published by the commission for conciliation, mediation and arbitration in terms of section 115(2)(g) of the labour relations act, 1995 (act no. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. 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. date on which the employee is advised of the outcome of the appeal hearing. The Act recognises three grounds on which a termination of employment might be legitimate.Â. 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. 9.2 Appeals must be noted in writing within five (5) days of the decision, 9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. All Rights Reserved.  Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA), The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, 2.This Act emphasises the primacy of collective agreements. 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