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HR IIB (Labour Relations) Chpt.4 - Workplace Discipline and Dismissal
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Procedural and substantive fairness
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Human Resources Management IIB by ProfessorBurgerQueenWorkplace Discipline and Dismissal
- Dismissal means:
- An ER has terminated the contract of employment with or without notice;
- An EE reasonably expected the ER to renew a fixed term contract on the
same or similar terms, but the ER did not renew it or renewed it on less
favourable terms;
- An ER who has dismissed a number of employees for the same or similar
reasons has offered re-employment to one or more of them but refused to
re-employ another;
- An ER refused to allow an EE to resume work after:
- she took maternity leave,
- was absent from work for up to four weeks before the expected date,
and up to eight weeks after the actual date, of the birth of her child;
- An EE terminated a contract of employment with or without notice because
the ER made continued employment intolerable for the EE; and
- An EE terminated a contract of employment with or without notice because
the new ER, after a transfer in terms of section 197 or section 197A, provided
the EE with conditions or circumstances at work that are substantially less
favourable to the EE than those provided by the old ER
- It is constituted to automatically be an unfair dismissal if:
- Participating or supporting or indicating participation in a protected strike;
- Refusal to do the work of another who was participating in a protected strike
at the time or was locked out;
- Compelling an EE to accept a demand in respect of any matter of mutual
interest between EE and ER
- That the EE took action, or indicated an intention to take action, against the
ER by:
- exercising any right conferred by the LRA; or
- participating in any proceedings in terms of the LRA;
- The EE's pregnancy, intended pregnancy, or any reason related to her
pregnancy;
, Human Resources Management IIB by ProfessorBurgerQueen
- Unfair discrimination, directly or indirectly on any arbitrary ground including,
but not limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility;
- A contravention of the Protected Disclosures Act, 2000, by the ER, on
account of an EE having made a protected disclosure defined in that act.
Code Of Good Practice: Schedule 8 Of The LRA
1. Existence of a disciplinary code/rules
2. Corrective or progressive discipline
- (Counselling, verbal warning, written warning, final written warning, dismissal)
3. Informal advice and correction is the best and most effective way
- Fair dismissal = substantive fairness + procedural fairness
Procedural Fairness
- Investigation into alleged misconduct (possible suspension)
- Notify the EE in writing – disciplinary charge sheet and notice to attend the
disciplinary hearing
- Grant the EE sufficient time to prepare for enquiry
- Opportunity to state case in the enquiry
- Other rights of EE in enquiry (interpreter, call witnesses and cross examine ER’S
witnesses, provide evidence, representation)
- Decision to dismiss should be in writing (EE right to appeal)
Substantive Fairness
1. Contravention of a rule?
2. Is it a valid or reasonable rule?
3. Awareness of the rule?
4. Consistent application of the rule?
5. Dismissal appropriate sanction?
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