A dismissal is unfair if it is not effected for a fair reason (substantive fairness) and in accordance with a fair procedure (procedural fairness).[1] There are three grounds on which a termination of an employee might be legitimate, namely conduct, capacity and operational requirements.[2] The Code of Good Practice provides for guidelines relating to dismissals relating to conduct and capacity, but it is crucial that the dismissal is correctly categorized. Failure to categorize the dismissal correctly could result in an unfair dismissal.

Dismissal for poor work performance (Incapacity) and misconduct are by definition two distinct and diverse concepts.[3] Incapacity relating to poor [work] performance is prevalent where an employee has persistently failed to meet certain performance standards. In such a case the employee would potentially lack the skills, knowledge or competencies to meet the employer’s standards.[4] In other words, an employee simply cannot meet the performance standard.

In contrast, a dismissal for misconduct is based on the employee’s [conduct in respect of which fault may be attributed to the employee, for instance the] intentional or negligent non-compliance [with] company rules or standards. A degree of blameworthiness is therefore ascribed to the employee.[5]This can arise where an employee was able to do what was required but deliberately and intentionally failed to do what was required.[6] In other words, the employee could not be bothered to meet the performance standard. An example of misconduct that is often mis-categorized as poor work performance in insubordination.[7] Insubordination includes the refusal on the part of the employee to obey a reasonable instruction.

Substantive Fairness

Poor Work Performance (Incapacity)

In order to ascertain whether a dismissal for poor work performance will be substantively fair, the employer should consider:

  1. Whether or not the employee failed to meet a performance standard; and
  2. If the employee did not meet the required performance standard whether or not-
  3. The employee was aware, or could reasonably be expected to have been aware, or the required performance standard;
  4. The employee was given a fair opportunity to meet the required performance standard; and
  • Dismissal was an appropriate sanction for not meeting the required performance standard.”[8]

If all of the above questions are answered in the affirmative, only then will a dismissal for poor work performance be substantively fair.

Misconduct

In order to ascertain whether a dismissal for misconduct will be substantively fair, the employer should consider:

  1. Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
  2. If a rule or standard was contravened, whether or not-
  3. The rule was a valid or reasonable rule or standard;
  4. The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
  • The rule or standard has been consistently applied by the employer; and
  1. Dismissal was an appropriate sanction for the contravention of the rule or standard.”[9]

If all of the above questions are answered in the affirmative, only then will a dismissal for misconduct be substantively fair.

Procedural Fairness

The following guidelines should be followed in order to ensure that a fair procedure is followed for both categories of dismissals.

  1. All employers should adopt disciplinary rules that establish the standard of conduct required by employees, which create certainty and consistency in the application of discipline. The standard of conduct must be made available to employees in an easily understandable format, for instance, posting disciplinary rules on a notice board that is accessible to all employees or incorporating the disciplinary rules into the employment contract;
  2. Efforts should me made to correct employees’ behavior through a system of graduated disciplinary measures such as counselling and warnings;
  3. Formal procedures need not be invoked every time a rule or standard is broken, however, repeated offences will warrant written warnings.[10]
  4. Employers should keep record of each employees’ disciplinary transgressions, actions taken by the employer and reasons for doing so;
  5. The employer should conduct an investigation to determine whether there are grounds for dismissal;
  6. The employer must notify the employee of the allegations in a way that the employee can understand, namely a clearly worded charge sheet;
  7. The employee must be given the opportunity to state a case in response to the allegations;
  8. The employee should be provided with reasonable time to prepare a response;
  9. The employee is entitled to the assistance of a trade union or fellow employee;
  10. The employer must communicate the decision taken to the employee after the enquiry in writing; and
  11. If dismissed, the employee should be given reasons for the dismissal and informed of their right to refer the matter to a council, commission or dispute resolution forum.[11]

These guidelines provide the process which should be followed in order for a dismissal in both categories to be considered a procedurally fair dismissal. If this procedure is not followed, the dismissal will be deemed to be an unfair dismissal. It is also recommended that a disciplinary hearing is held, in accordance with the guidelines for procedural fairness set out above.[12] Procedural fairness also includes appropriateness and consistency of sanction, taking into account mitigating and aggravating circumstances and the appointment of an unbiased chairperson.

The following sub-headings provide additional procedural steps necessary to enact a fair dismissal, specifically dealing with each of the categories.

Poor Work Performance (Incapacity)

When dealing with the dismissal of an employee for poor work performance after their probation period has ended, the following procedural steps should be followed, in addition to the guidelines provided above:

  1. The employer must give the employee appropriate evaluation, instruction, training, guidance or counselling;
  2. The employer must conduct an investigation to establish reasons for the poor work performance;
  3. The employee must be given a reasonable period of time for improvement of their work performance;
  4. The employer must consider other ways, short of dismissal, to remedy the matter; and
  5. During this process, the employee has the right to be assisted by a trade union representative or fellow employee.[13]

Misconduct

When dealing with a dismissal of an employee for misconduct, the following procedural steps should be followed, in addition to the guidelines provided for above:

  1. It is generally not appropriate to dismiss an employee for a first offence, unless if the misconduct is so serious that it makes the continued employment relationship intolerable;
  2. When deciding whether to impose a penalty of dismissal, the employer must consider the employees length of service, previous disciplinary record and personal circumstances; and
  3. The employer should apply the sanction of dismissal consistently.

Conclusion

It is clear from the above discussion that the substantive and procedural fairness requirements differ, depending on the nature of the offence. It is very common for the mis-categorization of an employee’s actions, which can lead to the dismissal being judged to be unfair, purely because the employer has failed to follow to correct guidelines when dismissing the employee.[14] Therefore, the employer must be certain of which category of offence has been committed, either poor work performance (incapacity) or misconduct. This will assist in identifying which substantive and procedural requirements must be met in order to bring about a fair dismissal.

[1] Item 2(1) of Schedule 8 “Code of Good Practice: Dismissal” of the Labour Relations Act 66 of 1995 (Code of Good Practice)
[2] Sec 188 of the Labour Relations Act 66 of 1995; Item 2(2) of the Code of Good Practice.
[3] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 2014 1 BLLR 20 (LAC)
[4] Professor B. Jordaan “Poor Work Performance (Incapacity) v Misconduct” Maserumule Consulting, September 2009
[5] Professor B. Jordaan “Poor Work Performance (Incapacity) v Misconduct” Maserumule Consulting, September 2009
[6] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 2014 1 BLLR 20 (LAC) para 30.
[7] Item 3 (4) of the Code of Good Practice.
[8] Item 9 of the Code of Good Practice.
[9] Item 7 of the Code of Good Practice.
[10] Item 3 of the Code of Good Practice.
[11] Item 4 of the Code of Good Practice.
[12] The Law of South Africa , Third Edition, 24 Part 2 (Labour Law) Para 74.
[13] Item 8 of the Code of Good Practice.
[14] Damelin (Pty) Ltd v Solidarity OBO Parkinson & Others 2017 7 BLLR 672 (LAC)