- Misconduct
- Incapacity
- employer’s operational requirement
A dismissal should be procedurally and substantively fair.
How is substantive fairness established?
Did the employee contravene a rule?
- Is it a valid rule?
- Was the employee aware of the rule:
- Has the rule been consistently applied to all workers?
- Is dismissal the appropriate sanction
In respect of “misconduct” Item 4 of the Code of Good Practice: Dismissal requires that an informal “investigation” must be conducted at the workplace by the Employer to determine whether grounds for dismissal. This need not be a formal enquiry
The Code recognises two forms of incapacity that could justify dismissal:
- Poor work performance; and
- Ill health or injury.
Section 189 of the Labour Relations Act states the following:
(1) When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult— (a) any person whom the employer is required to consult in terms of a collective agreement; (b) if there is no collective agreement that requires consultation— (i) a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and (ii) any registered trade union whose members are likely to be affected by the proposed dismissals; (c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or (d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.”