FMPL19R
Labour
and
Employee
Relations
Table of Contents
GROUP ASSIGNMENT 01
1. Introduction
page 2
2. Code of Good Practice
page 3
3. Disciplinary procedures
Preceding to dismissal
page 4
4. The principle of
Progressive discipline
page 5
5. Dismissals for misconduct
page 5
6. Fair procedure
page 5
7. Substantive fairness
page 6
8. Procedural fairness
page 8
9. Disciplinary records
page 9
10. Dismissals and
Industrial action
page 9
11. Guidelines in cases of
Dismissal for misconduct.
12. Books , Legislation and
References
Due date: 15 April 2016
Team Members
Theuns Botha
Jean Aucamp
Rozanne De Beer
Jacqueline Naidoo
Laiken Bruwer
Page Count: 11
Word Count: 2893
Referencing: Harvard method
page 10
page 11
Page 1 of 11
Introduction
The day may come for any supervisor or manger that he or she had enough of an
employee who is perpetually coming late, has a bad attitude or commits petty pilfering
or constructs one too many products inaccurately.
By summarily firing the worker you will be setting yourself up for a heap of trouble, no
matter what the misconduct construed. You need to take proper cognisance of the
situation and evaluate. To act against misconduct more often than not goes with
oodles of emotion, and tempers often erupt. Any decision taken needs to be a rationale
one and not in the heat of the moment. Dismissals should be considered carefully.
Section 23(1) of the Constitution1 gives everyone the right to fair labour practices. The
Labour Relations Act 66 of 1995 (LRA) gives effect to this right and provides, amongst
other things, that an employee has the right not to be unfairly dismissed2.
In National Education Health & Allied Workers Union (NEHAWU) v University of Cape
Town and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC)
(6 December 2002) the Court voiced this right in the following terms:
“Security of employment is a core value of the LRA and is dealt with in Chapter
VIII. The Chapter is headed ‘Unfair dismissals’. The opening section, section
185, provides that ‘every employee has the right not to be unfairly dismissed’.
This right is essential to the constitutional right to fair labour practices. As
pointed out above, it seeks to ensure the continuation of the relationship
between the worker and the employer that are fair to both. Which the ensuing
sections are erected 3”
Chapter VIII Section 185 with the remaining provisions of the Labour Relations (LRA)
deals expansively with fair and unfair dismissals, differentiates between a fair reason
and a fair procedure;
Page 2 of 11
The purpose of this paper is to explore the requirements, to ensure compliance with
the Labour Relations Act 66 of 1995 for a dismissal based on the misconduct of an
employee.
Code of Good Practice: Dismissal
Labour Relations Act (Act 66 OF 1995 as amended)
Schedule 8
“(1) This Code of good practice deals with some of the key aspects of dismissals for
reasons related to conduct and capacity. It is intentionally general. Each case is
unique, and departures from the norms established by this Code may be justified in
proper circumstances. For example, the number of employees employed in an
establishment may warrant a different approach.
(2) This Act emphasises the primacy of collective agreements. This Code is not
intended as a substitute for the employer's disciplinary codes and procedures where
these are the subject of collective agreements, or the outcome of joint decision-making
by an employer and a workplace forum.
(3) The key principle in this Code is that employers and employees should treat one
another with mutual respect. A premium is placed on both employment justice and the
efficient operation of business. While employees should be protected from arbitrary
action, employers are entitled to satisfactory conduct and work performance from their
employees.4”
S186 – Labour Relations Act 66 of 1995 defines what a dismissal is:
S186 (1) (a-d) deals with termination by employer
S186 (1) (e+f) deals with termination by employee
S186 (1) (a) Employer has terminated a contract of employment with/without
notice
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Requirements:
1. Need a contract of employment
2. Termination by Employer
3. Notice
a. With Basic Conditions of Employment act and contract / collective
agreement
b. Without payment in lieu / summarily terminated (misconduct)
Some kind of conduct must have been committed by the employee, as an
example the employee absconds from employment. The dispute ascends when
the employer claims reciprocal termination, the employer in such an instance
must prove that there was some form of obvious act by the employer that ended
the employment contract.
Disciplinary procedures preceding dismissal
Employers should have a set of disciplinary rules which create the standard of conduct
required of their employees. Different rules will apply for different companies
depending on the size, sector and nature of the business. Rules should be clear and
constant, the employees should be able to access the rules and provided in a
language which is understood. Employees should be made aware of the rules, some
rules are common sense and established, and communication thereof not a necessity.
An example thereof would be assault of a fellow employee or manager.
The principle of progressive discipline
In relation to the belief of progressive discipline, it would not normally warrant a
dismissal for a first offense, unless the transgression is so serious or indefensible that
the employment relationship becomes unbearable. This principal is of the viewpoint
that discipline in the workplace is not castigatory, but it’s intended to secure a certain
level of work as required by the employer. Pure efforts should be chased to correct the
employee’s behaviour through counselling and warnings. Not all offences are
dismissible offenses. This principle allows the employer to deal with a large number of
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relatively negligible acts of misconduct by issuing warnings, for instance a verbal,
thereafter a written and then a final written warning.
Informal intervention is accepted as this is in most cases the most effective way to
deal with negligible acts. Serious or repeat offenders would often receive the harsh
consequence of a dismissal.
Dismissals for misconduct.
A dismissal is not appropriate for a first offence, except if it is serious. Most companies
do have a disciplinary code which ranks the different sanctions in relation to the
seriousness, which serves as a guideline. It is important to take note that this is not a
cast in stone document. The employer should always consider the following:
“gravity of the misconduct, consider factors such as the employee's circumstances,
including length of service, previous disciplinary record and personal circumstances,
as well as the nature of the job and the circumstances of the infringement itself“5
Fair procedure.
Substantive and procedural fairness of a dismissal for misconduct. Why mention
substantive fairness here under the heading “Fair Procedure”?
Assuming that the dismissed person is an employee, there was a dismissal in terms
of S186 and that the dismissal was not automatically unfair in terms of S187. It must
be determined whether or not the dismissal was otherwise substantively or
procedurally unfair on the basis of operational requirements, incapacity or misconduct
(S188). Explain the relevance of this comment.
S188 of the LRA deals with dismissals for misconduct, it provides that a dismissal is
unfair where the employer fails to prove:
that the reason for the dismissal is fair (substantive fairness) - ;
-
related to the employee’s conduct or capacity; or
-
based on the employer’s operational requirements
Page 5 of 11
that the dismissal was effected in accordance with a fair procedure.
In addition, S188 (2) provides that when determining whether a dismissal for conduct
was unfair, regard must be had to the Code of Good Practice on Dismissals for
Misconduct and Incapacity (not binding, but must be considered).
Section 192 provides that the onus is on the employer to prove that the dismissal was
substantively and procedurally fair. It is clear that you have no understanding of what is meant
by “fair procedure”.
Substantive fairness
The following should be considered in terms of item 7 of the code to determine whether
a dismissal for misconduct is substantially unfair, the following should be considered.
a. Whether or not the employee broke a rule or standard regulating conduct in, or
of relevance to, the workplace; and
In National Union of Mineworkers & others v East Rand Gold & Uranium Co.
Ltd (1986) 7 ILJ 739 (IC) the court held that where one employee assaulted another
employee after hours on a bus which belonged to the employer and while transporting
the employees to and from work, such assault amounted to misconduct which was of
relevance to the workplace. 7
In Van Zyl v Duvha Opencast Services (1988) 9 ILJ 905 the court held that where
one employee assaulted another (senior) employee after hours and not on the
employer’s premises, such assault amounted to misconduct which was of relevance
to the work place because the reason for the assault was something said in the
workplace and the assault took place in front of fellow employees. 7
if a rule or standard was contravened,
–
Whether or not the rule was a valid or reasonable rule or standard;
Page 6 of 11
–
Whether or not the employee was aware, or could reasonably be
expected to have been aware of the rule or standard (both subjective
and objective test);
–
Whether or not the rule or standard has been consistently applied by the
employer; and
Below two specific types of misconduct is considered; Petty theft and Insubordination
Petty Theft
The burning question here is if you can dismiss an employee for petty theft, in other
words is the value of an item relevant in determining whether a dismissal is for theft is
unfair. The case law indicate that the value of the item is not the most important but
rather the trust relationship between the employer and employee which is crushed.
In Nkomo v Pick ‘n Pay Retailers Lodge (1989) 10 ILJ 937 (IC) the employee stole
a pie and was subsequently dismissed. The court held that the dismissal was unfair
because the employer should have considered alternative punishment as well looked
at the employees personal circumstances such as the fact that the employee had
worked for many years and had a family to support.
8
In Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992)
13 ILJ 573 (LAC) an employee who worked in a restaurant stole a Fanta cold drink
and was dismissed. The court held that the dismissal was fair because the theft
resulted in a breakdown of trust between employee and employer and thus continued
employment became intolerable. In addition, the court held that the value of the item
does not matter as what is relevant is whether there has been a breakdown in trust
between employer and employee.9
What makes the difference between the Pick n Pay case and the Anglo American
Farms lies in the fact that Pick and Pay is a large national retailer with thousands of
employees whereas Anglo American Farms is a small business, the tipping point here
was the fact that trust weighed more and is considered more important and sensitive
in small business.
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Insubordination
Insubordination must be compared with insolence on the other hand both will get you
dismissed.
In Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a
Woolworths (Randburg) (1989)10ILJ 311 (IC). It was held that:
“the offence of insubordination is constituted by the following: When the employee
refuses to obey a lawful and reasonable command or request and the refusal
is wilful and serious (wilful disobedience), or when the employee's conduct poses a
deliberate (wilful) and serious challenge to the employer's authority.” 12
In Commercial Catering and Allied Workers Union of SA the court differentiated
between the two and held that insubordination is where an employee wilfully and
seriously refuses to obey a lawful and reasonable command or where an employee
deliberately and seriously challenges the authority of the employer. Insolence, on the
other hand, is where the employee is disrespectful, rude or cheeky.
In this case the employer asked the employee what she was doing and she said, ‘Do
you think I’m playing?’ She was given a final warning. Nine months later the employer
asked her about some things on the shelf and she said, ‘Why are you checking up on
me?” She was dismissed for insubordination. The court found that the employee was
not insubordinate, but rather that she was insolent. However, the court held that her
insolence was not of a sufficient degree to justify dismissal (she was only insolent
twice in 4 years and neither event was serious enough to warrant dismissal on its
own).
Procedural Fairness
Section 188(1) provides that a dismissal must be both substantively and procedurally
fair. Procedural fairness requires that the elements of natural justice be upheld such
audi alteram parte, nemo iudex in sua causa, etc.
Item 4 of the Code sets out guidelines on a fair procedure for dismissals. It provides
that:
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
The employer should conduct an investigation to determine whether there are
grounds for dismissal

The employer should notify the employee of the allegations using a form and
language that the employee can reasonably understand.

The employee should be allowed the opportunity to state his case in response
to the allegations.

The employee should be entitled to a reasonable time to prepare his response.
In Erasmus v BB Bread Ltd (1987) 8 ILJ 537 (IC) 544C) the court held that
where an employee was given 30 minutes to prepare his case, such time was
unreasonable, insufficient and not in accord with a fair procedure.

The employee should be entitled to the assistance of a trade union rep or a
fellow employee. An employee is entitled to legal assistance in 2
circumstances:

o
Where there is an agreement to such an effect
o
Where the chair of the disciplinary hearing allows such
After the enquiry, the employer should communicate the decision to the
employee in writing. If the decision is to dismiss the employee, the employee
must also be informed of any rights to refer the matter to the bargaining council
or the CCMA. 10
Disciplinary records
Proper record keeping is of cardinal importance, contained in each of the employees’
records. The following should be recorded:
-
specified nature of any disciplinary transgressions,
-
the actions taken by the employer,
-
the reasons for the actions.
“Generally, assault of a fellow employee warrants dismissal. It is unnecessary to
consider previous record. (FAWU v SA Breweries Ltd (1992) 1 LCD 35 (IC))” 7
Dismissals and Industrial action
Chapter IV labels participation in a strike as misconduct if the provisions is not
complied with. Similarly this does not at all times deserve a dismissal
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The substantive fairness of dismissal in these circumstances must be considered in
the light of the facts of the case, including:
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the
employer.11
(2) 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. The employer should
issue an ultimatum in clear and unambiguous terms that should state what is required
of the employees and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum
and respond to it, either by complying with it or rejecting it. If the employer cannot
reasonably be expected to extend these steps to the employees in question, the
employer may dispense with them.11
Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should
consider(a) whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or
standard.6
Page 10 of 11
BOOKS
Nel, PS, Swanepoel, BJ, Kirsten, M, Erasmus, BJ, Tsabadi, MJ. 2005. South African
employment relations: theory and practice. 7th edition. Pretoria: Van Schaik.
Brassey, M; Cameron, E; Cheadle, MH and Olivier, MP The New Labour Law (1987)
Juta Law, Cape Town
Anderman, SD Law of Unfair Dismissal (1985) 2nd ed, Butterworths, London
Landman, AA and Van Niekerk, A Practice in the Labour Courts and Labour Appeal
Court of South Africa (1998) Juta Law, Cape Town
Grogan, J Workplace Law (2001) 6th ed, Juta Law, Cape Town
Le Roux, PAK The South African Law of Unfair Dismissal (1994) Juta Law, Kenwyn
Rycroft A and Jordaan, B A Guide to South African Labour Law Juta Law, Kenwyn
Brassey: “Commentary on the Labour Relations Act” (1999) Vol 3 (Juta, Cape Town)
at A8: 1 Accessed 10/04/2016
Legislation
Constitution of the Republic of South Africa 200 of 1993
The Labour Relations Act 66 of 1995
References
The Constitution of the Republic of South Africa Act 108 of 1996
2
Section 185
3
http://www.saflii.org/za/cases/ZACC/2002/27.html Para 42 of the Nehawu judgement
Accessed 10/04/2016
4 http://www.labourguide.co.za/dismissals1
, Accessed 07/04/2016
5 http://www.labourguide.co.za/dismissals1
, Accessed 09/04/2016
6 http://www.ccma.org.za/Display.asp?L1=34&L2=69
7 http://www.henkbotha.com/Assaultsanction.htm,
8 www.paym.co.za/news/Dishonesty.pdf,
9
, Accessed 09/04/2016
Accessed 10/04/2016
Accessed 11/04/2016
http://www.worklaw.co.za/tour/TourFiles/Cases/A4.ASP, Accessed 10/04/2016
10
http://www.labourguide.co.za/dismissals1, Accessed 10/04/2016
11 http://www.labourguide.co.za/dismissals1,
Accessed 10/04/2016
12http://www.labourguide.co.za/most-recent/1866-insubordinate-or-insolent-
behaviour-will-get-you-dismissed
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