Approximately 50% of all arbitrated alleged unfair dismissal cases resulting in it being held that the dismissals were indeed unfair, thereby begging the question – what blocks must be ticked to render a dismissal fair?
The ten requirements for a fair dismissal are:
1. Does the employer having sufficient proof of misconduct? Simply put, an employer is required to be able to prove that the employee is ‘probably’ guilty of the alleged misconduct.
2. The employer must prove the employee can be held blameworthy for, and committed, the act/omission. Employers frequently overlook the fact that it is not merely the alleged act or omission that must be proved. In order for misconduct to be proved, it must be proved that the alleged act or omission occurred, and that the employee can rightfully be held blameworthy for the act or omission alleged. For example, an employee can never be held blameworthy (or guilty) for having contravened a company policy if it cannot be proved that the employee had knowledge of that policy.
3. Are witnesses available and agreeable to testifying, and is other evidence available? An employee can only be found guilty on that proved at the hearing; this may or may not correlate with what the employer knows to be true. Documentary evidence should be handed to the employee prior to the hearing for their perusal.
4. The allegation(s) must be furnished to the employee clearly. The misconduct allegation(s) must be communicated to the employee in a form and language that the employee can reasonable understand.
5. Reasonable prior notice of the hearing. The employee must be afforded reasonable time to prepare for a disciplinary hearing. In practice, no less than 2 working days notice is considered reasonable.
6. Employees have a right to an interpreter and representation. The employer must afford the employee the right to an interpreter when they deem this necessary, and the right to an internal representative.
7. Right to submit a defence and cross-examine. All employees have the right to reply to the allegation(s), and challenge employer evidence, normally by way of cross-examination.
8. Mitigating factors. Employees found guilty have the right to submit factors in mitigation, prior to a sanction being imposed, and the right to have these submissions carefully considered by the chairperson.
9. Appropriate sanction. Sanctions must be appropriate. Put differently, the punishment must fit the crime, taking “the totality of circumstances” into consideration. The Labour Court occasionally refers to this aspect of sanction selection by imploring employers not to select a sanction which makes the court “whistle”.
10. Reason for dismissal & the right to refer to the CCMA or a Bargaining Council. Employees should be provided with the reasons for their dismissal, and informed of their right to refer then dismissal to the CCMA or a Bargaining Council with jurisdiction, within 30 days of the dismissal.
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