Copyright © 2020. All Rights Reserved. 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. Participation in a strike that does not comply with the provisions of Chapter IV is 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. Employers should have a Disciplinary Code The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. Other unfair dismissals 189. 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. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. 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 LC set aside the CCMA’s award and ordered S’s reinstatement to the date of dismissal. Misconduct Disciplinary procedures prior to dismissal However, like any other act of misconduct, it does not always deserve dismissal. 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. This indicated that the LC accepted that misconduct had indeed been proven. The cause of the incapacity may also be relevant. Right not to be unfairly dismissed 186. Termination by an employee because the employer made continued employment intolerable. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.Â. Court’s evaluation b. if the reason is one of those listed in section 187. 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. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. 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. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Sc hedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. This does not need to be a formal enquiry. 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. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. 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