Individual Labour Law

LWLLA2-B33

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Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008
What will be covered in today’s lesson?

4.6 Identify and discuss what types of conduct

may be considered fair reason for dismissal
including, misconduct, incapacity and
impossibility of performance.

4.7 Refer to both the substantive and

procedural requirements that must be present
in order for the dismissal to be considered fair.

4.8 Practically apply theoretical knowledge to

practical scenarios.
Section 188 of the LRA
Section 188 of the LRA contains 3 fair
reasons for dismissal.
Conduct justifying a dismissal
 Misconduct
• The LRA requires an employer to prove that the reason for any
dismissal for misconduct is a fair reason.
• This generally requires a dual inquiry:
• The first is to determine the existence of facts that would
constitute a reason to dismiss; and
• The second to determine whether, regard being had to those
facts, dismissal is a fair penalty
The Code of Good Practice: Unfair Dismissal notes that whether or not a
reason for dismissal is a fair reason is determined by the facts of each
case and the appropriateness of dismissal as a penalty (item 2(1)).
Insofar as the latter is concerned, our courts have referred to the
principle of progressive discipline in terms of which a sanction short of
dismissal should initially be imposed, and that dismissal should be
reserved for recurring or persistent acts of misconduct or for a single
act of serious misconduct.
Before dismissing an employee, an employer should consider all
relevant factors.
Types of misconduct

This Photo by Unknown Author is licensed under CC BY

Class activity
• Divide students in groups
• Give each group 2/3 types of misconduct and let them discuss
what each type entail
• Groups need to give feedback to the set of the class
Substantive fairness:
means that there is a just, fair and
equitable reason for an employer to dismiss
the employee.
This is a subjective test
The guidelines provided by item 7 of the
Code of Good Practice are aimed at
Procedural fairness
means that the employer has followed a
fair and proper procedure before dismissing
the employee, even if the dismissal is
substantively unfair.
disciplinary inquiry that has to be held to
give the employee the opportunity to state
his or her defence
set out in schedule 8 of the Labour
Relations Act (LRA)
Substantive fairness for dismissals based on conduct
Item 7 of the Code of Good Practice: Dismissal, suggests that in determining whether a dismissal for conduct is unfair,
regard should be had to:

A. Whether or not the employee contravened a rule or standard regulating conduct in the workplace; and

B. If a rule or standard was contravened, whether or not:

1.The rule was valid

2.The employee was aware, or could reasonably be expected to have been aware, of the rule or standard

3.The rule or standard has been consistently applied by the employer

4.Dismissal was an appropriate sanction for the contravention of the rule or standard
In the Sidumo case the SCA held that commissioners must recognise that a discretion to impose a
sanction for proven misconduct rests in the first instance with the employer, and a commissioner should
intervene only if the decision was manifestly or demonstrably unfair (reasonable employer test)

The CC on the other hand, held that the role of the commissioner is to determine the dispute as an
independent adjudicator. Commissioners must thus decide whether the dismissal was fair and not what
the reasonable employer would think.
Class discussion

• This can be done in groups or just general

class discussion.
• What factors need to be considered by a
commissioner to determine fairness of a
dismissal.
Procedural fairness

notification • notification of the allegations against the

employee;

an opportunity • an opportunity for the employee to state a case in

response to the allegations

a reasonable • the employee ought to be entitled to a reasonable

time to prepare the response;

union representative • and may do so with the assistance of a union

representative

communicate the decision

 Re-opening a disciplinary enquiry
Is the Employer allowed to re-open the enquiry into an offence after the Employee has been
found not guilty of that offence?

Similar to “double jeopardy”

E.g. the manager gave you a warning and then the director had found that
approach too lenient so he reopens the enquiry and subsequently dismisses you.

Read p. 316
Questions for Discussion
1. What is meant by the term shop steward?

2. Can you institute action against shop stewards?

3. How and in terms of what can such action be instituted?

4. When may an employer dispense with an enquiry?

5. Explain the term crisis zone

Dismissals based
on capacity

(incapacity)
Incapacity
• The Code of Good Practice in Schedule 8 of the Act refers to two forms
that incapacity might assume:

• S 188(1) of the LRA recognises incapacity as a legitimate ground for

dismissal. The Act does not define the term but it has been held to refer to
an employee who is incapacitated in the sense of an inability to do the job
for which the employee was engaged.
Medical incapacity
The Code of Good Practice sets the following guidelines:

The employer must establish if the employee’s ill health or injury is of a permanent or temporary nature.
If temporary, but the employee is likely to be absent from work for In the case of permanent health/injury, the employer should
an unreasonably long period of time, the employer should consider the possibility of alternative employment or ways of
investigate all alternatives short of dismissal. accommodating the employee

The employee must be afforded an opportunity to respond to the investigation into his/her medical incapacity

When the cause of incapacity is drug or alcohol related, counselling and rehabilitation should be considered

Consideration should be given to an employee who is injured at work or is incapacitated due to a workplace related illness.
Questions for Discussion
1. Discuss how cases involving disability should be treated

What must be considered in a dispute about the fairness

2.
of a dismissal arising from medical incapacity?

Discuss the objective of the LRA and EEA insofar as

3.
disability is concerned

Discuss substansive and procedural fairness in a

4.
dismissal i.t.o incapacity
 Discuss how cases involving disability should be treated
Employers should be cautious in cases of disability. A dismissal that amounts to an act of unfair discrimination on the grounds of a
disability is an automatic unfair dismissal. A disabled employee must be dismissed for his/her failure to the required performance
standard and not the disability itself.

What must be considered in a dispute about the fairness of a dismissal arising from medical incapacity?
Whether or not the employee is capable of performing the work
If the employee is not capable of performing the work, the extent of which the employee is able to perform the work, the extent to which
the employee’s circumstances might be adopted to accommodate his/her disability/illness
The availability of alternative suitable work
Discuss the objective of the LRA and EEA insofar as disability is concerned
The objective of the LRA and EEA is to encourage employers to accommodate persons with disabilities in employment if possible.
In terms of the EEA Code of Good Practice on the Employment of People with Disability, the general concept of fairness requires of the
employer to consider whether reasonable accommodation could be made for the employee rather than to dismiss.
The EEA defines people with disabilities as people who have a long term or recurring physical or mental impairment which substantially limits
their prospects of entry into, or advancement in, employment.
Substantive fairness
1. the employer must make an informed decision
2. the employer must determine whether or not the employee is capable of performing the work, and
3. if the employee is not capable the employee must:
• determine the extent to which the employee is able to perform the work,
• the extent to which the employee’s work circumstances might be adapted to accommodate disability, or
• where it is not possible, the extent to which the employee’s duties might be adapted

Procedural fairness
1. that the employee gets an opportunity to respond and make suggestions (may be assisted by a union or co-
employee)
2. the employer must consult with the employee
3. the employer must consider the available medical information, and
4. the employer must attempt to accommodate the employee where reasonably possible
 This contemplates a dismissal of an employee who can’t meet the
required performance standard.
Employers are often faced with the dilemma of classifying the
employee’s conduct correctly.
If the source of the problem is misconduct-related, the appropriate
procedure is very different to one that is incapacity related.
In the case of the former, the employee would be subject to
disciplinary measures, while in the latter case the employer is
Poor work generally obliged to investigate the source and extent of the
problem, attempt to redress it and investigate the existence of
performance alternative measure prior to dismissing the employee.
The procedure to be followed in cases involving dismissal for poor
work performance:
1. Employee covered by LRA and BCEA
2. Thus entitled to Notice periods as stipulated in BCEA
3. Periods not limited to 3 months but to nature of JOB and
determined before hand.
• If the employee cannot do the work, the question is to what extent
the employer has to help employee.
There is a close link between the substance and procedure in cases of poor work performance.

The Codes of Good Practice requires:

1. An investigation into reasons for unsatisfactory performance

2. The employer must give appropriate evaluation, instruction, training, guidance and
counselling

3. The employee must be given reasonable time to improve

Before dismissal the following must be done.

1. evaluation, instruction, training, guidance or counselling needed to perform his/her duties during this period
2. the employer must make it clear to the employee what the performance standard is, and where he/she falls short
3. the employer must give the employee assistance and an opportunity to improve
4. the employer should measure the progress and give feedback
Read and study the application of “probabtion” page 323 - 327
Poor work v misconduct
Other forms of incapacity

Incompatibility

Lack of qualification

Dismissals at the behest of a third party