SEIFSA Legal Services Protecting Companies from the repercussions of unfair dismissals.
One of the most important changes introduced by the Labour Relation Act 66 of 1995 relates to procedural fairness in dismissal. The unfair dismissal provision of the Act (Chapter VIII) and the code of Good Practice on Dismissal found in Schedule 8 to the Act (the Code) has attempted to provide greater clarity on unfair dismissals and has provided employers with a clear set of guidelines on procedural fairness.
The aim of this blog is to highlight the pre-dismissal procedure in the Code and showcase how SEIFSA assists employers to comply with these pre-dismissal disciplinary procedures when conducting disciplinary enquiries.
Labour Relations Act 66 of 1995: Unfair Dismissal
Section 185 in chapter VIII of the Act states that “every employee has the right not to be unfairly dismissed.”
The right not to be unfairly dismissed is supported by section 23(1) of the Constitution of South Africa. A dismissal will be unfair (section 188 of the Act) if the employer cannot prove that the reason for the dismissal was a fair reason and “that the dismissal was effected in accordance with fair procedure.”
Certain dismissals (section 187) are deemed by the Act to be automatically unfair, and should an employer dismiss an employee for any one of these reasons, the employee will not have to prove that the dismissal was unfair and the employer will not be provided the opportunity to prove that the dismissal was, in fact, fair. These would include an employee participating in a protected strike, reasons related to pregnancy and unfair discrimination.
Although Chapter VIII requires a dismissal to be effected in accordance with a fair procedure, it does not provide any definition of what constitutes a fair procedure and ultimately this is left to the guidance in the Code.
The Code of Good Practice: Dismissal
In an intentionally general manner, the Code of Good Practice on Dismissals provides a set of guidelines that requires employers to “take it [the Code] into account” (section 188[2] of the Act) rather than prescriptively to apply it. This has created the mistaken impression that there is no duty to follow these guidelines. Management must exercise caution before departing from the norms set out in the Code and be prepared to justify fully any deviation.
Section 188 (2) of the Act clearly states that “any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of practice issued in terms of this Act.” This means that an arbitrator will be required to determine the procedural fairness of a dismissal against the norms provided by the Code.
In any dispute arising from an alleged unfair dismissal, the onus will always rest with management to prove the fairness of any procedure that has been followed.
Pre-dismissal disciplinary procedure
The Code of Good Practice on Dismissal (paragraph 4[1]) requires that under normal circumstances an investigation should be conducted to determine whether there are grounds for dismissal, and that this “does not need to be a formal enquiry.” What the Code envisages is an investigatory fact-finding – rather than an adjudicatory – process.
The purpose of this process is two-fold. Firstly, it aims to ensure that employers make their decisions with the best possible information at hand. Secondly, it gives affected parties the opportunity to participate in the process, thus legitimising the outcome. Unlike an adjudicative process, it does not guarantee a correct decision, but what it does do is ensure a fair decision, one made upon an objective consideration of all the information at management’s disposal.
Conducting a disciplinary investigation
According to paragraph 4(1) of the Code, management is required to conduct an investigation to determine whether or not there are grounds for disciplinary action.
This preliminary investigation is not the disciplinary enquiry. The investigative stage of the disciplinary process is an opportunity for management to determine what misconduct, if any, has been committed. If the investigation reveals a breach of rules, the next step is to compile a list of objective facts and evidence that will be presented at the enquiry.
It is recommended that management conduct a PRE-DISMISSAL INVESTIGATION along the following lines:
- Determine if there are any witnesses to the alleged misconduct;
- Question each witness separately to obtain as much information as possible;
- Request witnesses to make signed written statements;
- Differentiate between factual evidence and evidence based on opinion or hearsay;
- Decide whether sufficient factual evidence has been collected to proceed with a disciplinary enquiry; and
NOTE: This is not tantamount to finding the employee guilty. It simply enables management to make a decision on whether to convene a disciplinary enquiry or not.
- Decide whether or not to proceed with a disciplinary enquiry.
This is a technical procedure, and that is why SEIFSA has two Admitted Attorneys to guide companies through this difficult process.
Management is required to notify the employee of the allegation using a form and language that the employee can reasonably understand. Employees are entitled to sufficient particulars to enable them to answer the case against them. Fairness requires that an employee be informed of the facts supporting the allegation, the alleged offence with which they are being charged and, importantly, the sanction that might be imposed.