The correct reasons for dismissal
When do you dismiss an employee? This is the one question that an employer needs to ask when facing a situation where they are faced with a possible dismissal. It is very important to remember that an employee cannot be dismissed for no valid reason.
Dismissal is the final sanction that an employee may receive for misconduct or gross insubordination and should thus be taken very seriously.
Points to consider:
- An employer needs to establish if the sanction is applicable for the offense.
- Does your company have a code of conduct that is used to ensure that the employee knows and understands what sanctions they might be faced with if they commit any form of misconduct?
- If so are they aware of what is entails?
In most instances, the employer will list different incidents and what the sanction might be. this may vary from verbal warnings, final written warnings, and summary dismissal.
Once it has been established that dismissal is the appropriate sanction the employer may proceed to dismiss the employee.
NB: Warnings are discretionary and an employer may award as many warnings as they deem fit.
Always be prepared to go to the CCMA:
Employees often fail to understand the main purpose of the CCMA and feel that any matter may be referred to the CCMA even if their matter has no merit.
It is becoming a recurrence that if the employee refers the matter to the CCMA that the matter does not get settled, but instead gets referred to arbitration. The main reason for this is that the employers are implementing proper procedures and substantive reasons for dismissing employees.
It is common cause that the CCMA will assess 2 aspects of any given matter for unfair dismissal that appears in front of them.
- The procedure followed.
- The substantive reason for dismissal.
If the commission finds that the procedure was followed and the employer had a substantive reason to dismiss the employee, the commissioner dealing with the matter will not award compensation in favour of the employee, but will rather dismiss the claim made by the employee.
- Having the procedures in order and having a substantive reason to dismiss an employee, will ensure that the employer does not acquire unnecessary costs when attending the CCMA.
- It is always advised to consult a professional when deciding whether or not to dismiss an employee to ensure that the process followed is correct according to law.
The LRA stipulated exactly what needs to be considered when an employer wants to dismiss an employee. The LRA protects both the employer and employee, but it is important to note that if the employer follows the correct procedure and has a substantive reason for dismissing an employee, the CCMA or relevant bargaining council will not find in favour of the employee.