UNFAIR DISMISSAL IN SOUTH AFRICA
CHECKLISTS: UNFAIR DISMISSAL for MISCONDUCT
Schedule 8 of the Labour Relations Act (the “LRA”) provides Guidelines of the factors which the CCMA and Bargaining Council Commissioners must consider when making decisions on the fairness of dismissals for misconduct. These are summarized as Checklists of questions to consider when preparing for an arbitration in the CCMA or Bargaining Council about a claim for unfair dismissal for misconduct.
WHAT IS UNFAIR DISMISSAL?
Unfair dismissal is the termination of employment without good cause or a fair procedure or both. The principle of “fairness” is unique to labour law. It’s not applied in other areas of law such in the laws of contract, property, finance, etc. They apply the principle of “lawfulness”.
Fairness provides a wider scope of factors to consider in making decisions – such as procedural fairness and substantive fairness. In contrast – lawfulness is confined to a much narrower scope of possible factors to consider – such as the well-established principles of contract and the rules of interpretation of statutes.
The law of unfair dismissal in South Africa is based on the assumption that an employer is in an inherently stronger position of power than an employee. This applies especially to employees at the lower skills levels who don’t have strong bargaining power or the support of a union to protect themselves from unfair working conditions.
Without regulation, an employer would easily be able to exploit vulnerable employees. They could simply dismiss employees for no cause or reason whatsoever. The labour law of unfair dismissal changed this imbalance in the power relationships. An employer can no longer dismiss for no cause. Since the LRA was introduced in 1979 an employer can only dismiss for good cause and after following a fair procedure. This is what the law of unfair dismissal in South Africa is all about.
GENERAL PRINCIPLES ON MISCONDUCT & NEGLIGENCE
Misconduct involves fault by the employee. The fault may have been caused intentionally or negligently. If intention is alleged – the employer must prove that the employee committed the act deliberately.
If negligence is alleged – the employer must prove objectively that the employee’s act was not one which a reasonable person would have committed in the same circumstances.
The finding could be ordinary negligence (less serious) or gross negligence (more serious). The penalty or sanction for a first or even a second offence of ordinary negligence could be something short of dismissal such as a warning. But the usual sanction for gross negligence for a first offence is dismissal.
THE ONUS OF PROOF: PROVING THE FAIRNESS OF DISMISSAL
The employer bears the onus in a misconduct case to prove that the dismissal was substantively fair and procedurally fair. The employer must produce evidence of sufficient weight to discharge the onus on a balance of probabilities. To discharge the onus of unfair dismissal successfully, the employer must discharge the onus on all the questions on the checklist. The dismissal would be substantively unfair dismissal if it fails to discharge the onus on any one or more of the guidelines.
UNFAIR DISMISSAL: PROCEDURAL FAIRNESS
WHAT IS PROCEDURAL FAIRNESS?
Procedural fairness is the process which gives the employer and the employer an equal opportunity to present their versions about a work-related issue to a neutral chairperson to decide whether disciplinary action is justified. There are different procedures for cases of misconduct, incapacity (poor-performance or ill health), and retrenchment.
The procedure for an alleged act of misconduct such as assault or theft is the disciplinary procedure. These acts involve the fault of the employee. The steps in this procedure are similar to the steps in a criminal trial. The purpose is firstly to establish whether the employee is guilty of committing the act of misconduct. If guilt is proved – the second step is to determine the appropriate disciplinary sanction or penalty. This could be dismissal for a serious offence or something short of dismissal such as a warning for a less serious offence. A dismissal must be both procedurally unfair and substantively unfair to qualify as an unfair dismissal in South Africa.
PREPARATON & PROCEDURE: PROCEDURAL FAIRNESS
The procedure for a misconduct case is the disciplinary enquiry. The process is similar to an adversarial court trial. The idea in the original LRA (which has not changed) – is that the enquiry should be informal and focussed on giving the employer and the employee a fair opportunity to state their cases and to question each other’s cases.
Unfortunately, a practice has evolved which has morphed enquiries into formal court like processes in which parties attack each other on technical procedural and other legal points. This makes it necessary to consider and prepare for all sorts of legal points which could crop up in the cut and thrust of prosecuting or defending an allegation of misconduct.
The person who chairs the enquiry should be as neutral as possible. He or she should be able to conduct the enquiry fairly and be able to consider the evidence objectively. The chairperson is most often a manager in the business. This sometimes causes suspicion in the employee’s mind that the chairperson is biased in favour of the employer’s version. But this should not stop the chairperson from conducting the enquiry if there is no good reason to show possible bias.
The enquiry must be conducted in line with the employer’s disciplinary policy and procedures read with the Guidelines in the CCMA Code of Good Practice. Legal representation is not a right in internal disciplinary enquiries – but it may be allowed by agreement or in exceptional circumstances.
The checklists which follow should point you to the range of possible legal issues which could arise in your case – and hopefully, they’ll help you to prepare your case as fully as possible.
REMEMBER the golden rule for success – 90% preparation + 10 presentation!
CHECKLIST FOR PROCEDURAL FAIRNESS
- Was there a prior investigation?
- Who chaired the enquiry?
- Was the enquiry chair neutral?
- Was notice to attend with charges given?
- How many days’ notice was given?
- Did the employee have time to prepare?
- Was the employee reminded of his rights?
- Was the employee able to state his case?
- Was the employee notified of the outcome?
RULES OF EVIDENCE
The law of evidence in South Africa is a big subject and can get quite complex. The best evidence is information which comes directly from first source – such as a witness who saw or heard something personally. The information must be probable and credible to add value to the weight.
Less weighty evidence includes hearsay or second-hand evidence. For example, something you heard or was told to you by someone else or a document which contains disputes of fact. The author of a document must testify to confirm the truth of the disputed contents in a document – even if it’s a sworn affidavit.
It’s advisable to take written statements from witnesses in your preparations for alleged unfair dismissal and misconduct cases. You need to know what they will say and how their evidence will fit into your version of the facts. Relevant documentary evidence should be sorted and arranged in date or chronological order in a “bundle” or indexed file of documents.
UNFAIR DISMISSAL: SUBSTANTIVE FAIRNESS
WHAT IS SUBSTANTIVELY UNFAIR DISMISSAL?
Substantively unfair dismissal is the termination of employment for no good cause or acceptable reason. The “substance” refers to the merits of the reason for dismissal. An employer must produce enough evidence to prove that there is good reason to dismiss an employee.
The evidence is measured on a scale referred to as the “balance of probabilities”. In other words, the employer’s evidence must carry more weight than the employee’s evidence. This is not a 49% – 50% test. It’s more like the employer’s case should be about 70% more believable than the employee’s version.
SUBSTANTIVE FAIRNESS & MISCONDUCT CASES
This is about the merits of the case. Did the employee commit the alleged act of misconduct?
In a misconduct case, the employer must be able to produce enough weighty evidence to prove on a balance of probabilities that the employee breached a workplace rule. It must also prove that –
- the rule existed,
- it was a reasonable rule,
- the employee was aware of the rule;
- the employee breached the rule; and that
- the rule has been consistently applied.
The employer must prove all of these elements for the dismissal to be substantively fair. It will be a substantively unfair dismissal if the employer fails to prove any one or more of these factors.
Assessing the balance of probabilities in the context of substantive fairness and dismissal is an inexact science. As a rough estimate, the proverbial scales of justice should tilt about 70% + in favour of one party or the other. A close 51% – 70% would usually not be persuasive enough to find the employee guilty.
The CCMA Code of Good Practice sets out the essential elements for determining substantive fairness. An employer must prove all the elements to succeed in a case of alleged unfair dismissal for misconduct. It will be an unfair dismissal if the employer fails to prove any one of the elements.
CHECKLIST FOR SUBSTANTIVE FAIRNESS
- What rule was allegedly breached?
- What evidence proved breach?
- Was the rule well known?
- Was the rule reasonable?
- Was the rule consistently applied?
UNFAIR DISMISSAL: APPROPRIATENESS OF THE SANCTION
The sanction should be proportional to the severity of the misconduct and in line with the employer’s Code of possible offences and sanctions. If there is no Code, the decision should be based on generally accepted notions of a scale of acts ranging from minor to very serious offences.
The principle of progressive discipline which considers disciplinary action as corrective rather than punitive should also be applied to the facts of each case.
CHECKLIST FOR DETERMINING THE APPROPRIATE SANCTION
- Did the employee have current warnings?
- Were factors on sanction requested?
- What mitigating factors were considered?
- What aggravating factors were considered?
- Was the trust relationship damaged?
- Was the sanction proportionate and appropriate?
CHECKLISTS WHEN PREPARING FOR AN ARBITRATION IN THE CCMA OR BARGAINING COUNCIL ABOUT A CLAIM FOR UNFAIR DISMISSAL FOR MISCONDUCT
CHECKLIST OF POSSIBLE CHRONOLOGY & DOCUMENTS FOR MISCONDUCT
[Notes: Add others as necessary in date sequence. For multiple pages in doc, use – D1.1, D1.2, etc.]
|Disciplinary Code||Policy & Code of Conduct|
|Act of misconduct||Statements, docs|
|Suspension||Notice of suspension|
|Notice of Enquiry||Notice to Attend & Charges|
|Enquiry hearings||Attendance, minutes, notices etc.|
|Findings on Guilt||Written findings|
|Hearing on sanction||Factors considered|
|Appeal||Notice of Appeal|
|Final outcome||Written outcome|
|CCMA referral||Form 7.11 Referral of Dispute|
|CCMA hearing||CCMA Notice of Set-Down|
1.2 Correspondence [Note: Letters, emails, memo’s etc.]
|12.08.17||Letter from Ajax (employer) to Smith (employee)|
|15.08.17||Email string between Ajax and Smith to 22.08.17]|
1.3 Employee Documents
|Letter of service|
- OTHER RELEVANT SUPPORTING DOCUMENTS
Employer business profile
CHECKLIST FOR CONDUCTING A FAIR MISCONDUCT ENQUIRY
| 1. INTRODUCTIONS
2. PRELIMINARY POINTS
[Examples: Condonation, Jurisdiction, Legal Representation, Discovery of Documents, Recusal etc.]
3. OPENING STATEMENTS
3.1 Context – description of the employer’s business
3.2 Employment – date, job description, duties etc.
3.3 Employer’s HR policies and procedures
3.4 Reasons and date of employee’s termination
4. NARROWING THE ISSUES (FACTUAL & LEGAL)
4.1 Procedural or substantive unfairness or both
4.2 Issues that are common cause
4.3 Issues that are in dispute
4.4 Issues that the arbitrator is required to decide
5. INDEXED BUNDLES OF DOCUMENTARY EVIDENCE
6. EMPLOYER’S CASE ON THE EVIDENCE
6.1 Introduce Witness
6.2 Witness Statements
6.3 Cross- examination by employee
6.4 Re-examination on new issues raised in cross-exam.
7. EMPLOYEE’S CASE ON THE EVIDENCE
7.1 Introduce Witness
7.2 Witnesses Statements
7.3 Cross- examination by employer
7.4 Re-examination on new issues raised in cross-exam.
8. CLOSING STATEMENTS
8.1 Summary of the evidence
8.1.1 Applicant’s version
8.1.2 Respondent’s version
8.2 Facts which prove or disprove the issues in dispute
8.3 Why those facts are the more probable version.
8.4 The consequences of the misconduct.
8.5 Legal principles, authority or case law
9. RESULT CLAIMED
9.1 Dismissal of case; or
9.2 Reinstatement & back-pay; or
9.3 Re-employment with no or limited back-pay; or
9.4 Compensation no reinstatement or re-employment if –
9.4.1 Employee does not wish to be reinstated ;or
9.4.2 Continued employment intolerable; or
9.4.3 Not reasonably practicable.
You may also be interested in:
- CONSTRUCTIVE DISMISSAL: When will a claim for “forced resignation” succeed?
- DOUBLE DIPPING: Can an employee claim compensation for unfair dismissal and unfair discrimination in the same case?
- REINSTATE OR COMPENSATE? Will it be impractical to order reinstatement because an unfairly dismissed employee behaved badly in the arbitration?
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