There comes a time that every employer will probably have to attend a matter at the Commission for Conciliation, Mediation and Arbitration (CCMA) or possible other Bargaining Council at some point in their ownership of a company.
This is not something anyone wants to deal with but, unfortunately, cannot be left in the hope that it will go away. The CCMA is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). The principle of audi alteram partem (“listen to the other side”) must always be observed when considering a decision to dismiss an employee.
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. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.
The employer must prove the dismissal was substantively fair at a disciplinary inquiry and must ensure that the following requirements have been proven.
Firstly, Did the employee break a workplace rule or standard? The employer will need to prove that a rule/standard existed.
Secondly, was the rule or standard valid or reasonable? Evidence will need to be presented to support the breach of the rule/standard.
Thirdly, the legitimacy of the rule. Was the employee aware or could reasonably be expected to have been aware of the rule or standard? Even when it has been proven that a rule existed and the employee had contravened it, the chairperson still needs to apply his/her mind to whether the rule was valid or reasonable.
Fourthly is Consistency. The employer must be able to prove that he/she applied the rule consistently.
Lastly, the sanction must be appropriate. Was dismissal an appropriate sanction for the contravention? You cannot dismiss someone for reporting late for duty if it constitutes a first-time offence. However, if an employee was dishonest and has perhaps stolen from the employer, should sufficient evidence be present to support the breach of the rule, that employee can be dismissed even in the case of a first-time offence.
If the answer is ‘yes’ to all the above and the employer can prove the same in the hearing or arbitration, the employer can rest assured that the dismissal is substantively fair.
Article by: Marco Horak
Dispute Resolution Official – CEO Cape Town