Three of these requirements are: the employer should first consider factors such as the employee’s length of service and disciplinary record; the misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and an employee should be dismissed only if he/she has been found guilty of gross misconduct after proper procedures in terms of the principle of natural justice.
Employers must comply with the general principles of natural justice and fair procedures: that employee grievances are fairly examined and processed; that details of any allegations or complaints are put to the employee concerned; that the employee concerned is given the opportunity to respond fully to any such allegations or complaints; that the employee concerned is given the opportunity to be represented during the proceedings; that the employee is given sufficient time to prepare for the hearing/meeting; that the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf, of the employee and any other relevant or appropriate evidence, factors or circumstances.
These principles require that the allegations or complaints to be set out in writing, that the source of the allegations or complaint is given and that the employee concerned be allowed to confront or question witnesses. Two essential or critical elements of natural justice should be religiously observed that is: No man shall be Judge in his own cause and both sides shall be heard, (or audi alteram partem).
The other principles which have been stated to constitute elements of Natural Justice are: The parties to proceedings must have due notice of when the matter will be heard and the Disciplinary authority must act honestly and impartially and not under the dictation of other persons to whom authority is not given by Law.
Managers, when confronted with complaints, would be well advised to seek advice from their Human Resources Department and to follow any established or written guidelines laid down between the employer and employee/trade union. It does not matter if the employee concerned is not a member of any union; the principles of natural justice still apply. Therefore, they should still be afforded the rights to representation if they so wish, which could be a colleague or fellow worker or a lawyer. Do not rush to judgement. Take time to consider the case, be fully informed before a decision is made and resist any pressure to reach a quick decision.
Where the Company or organisation has got a registered Code of Conduct, it’s advisable that the employer follow procedures as per that Code. Any deviations for whatever reasons from that Code will lend you in trouble. In OK Zimbabwe v Soko (SC108/2000), Soko was dismissed for loss of crates, due to his failure to supervise properly.
This offense in terms of the Code of Conduct required that there be evidence of aggravation to warrant dismissal. No evidence of aggravation was led and the Supreme Court did not uphold the dismissal. Employers are advised not to lose sight of the finer procedural points of their registered Codes. Never forget that every dismissal may be tested for procedural fairness at the level of Labour Court and Supreme Court. Compliance with one’s own Code of Conduct is an inescapable requirement.
In the Gova v Zimasco case (HB1/1998), the Code laid down every clear and particular sequence of events to be followed in an investigation and a subsequent hearing. This was not followed by the company and the High Court held that the Code was not followed and ordered Gova‘s reinstatement.
Employers who adhere to their registered Codes will not in any way face problems. Even if aggrieved employees try to bend the Code, they will not succeed. In Watoka v Zupco (Northern Region) SC87/2005, under the Code Watoka was dismissed from employment.
There was no provision for appeal to a Labour Officer, but not withstanding this he appealed to a labour Officer. From there Zupco then appealed to Senior Labour Officer and then Labour Court. On appeal to the Supreme Court, the Court held that, where a Code of Conduct was registered, an employ could only refer the matter to the Ministry of Labour if the hearing was not concluded within 30days.
There was no provision for such referral once the case has been completed. The appeal route laid by the Code must be followed. However if the matter is not resolved within 30 days then employee can take the matter to the Ministry and the Code ceases to function as the matter will now be resolved via conciliation , mediation and arbitration.
Managers should desist from inducing offences so as to get read of certain employees who, “all of a sudden are no longer required by the organisation”. In Makovere and Zvimba RDC (LC/H/330/2003), Makovere was absent for 5 days without reasonable excuse.
Council officials variously suspended Makovere pending a disciplinary hearing, lifted the suspension , transferred him and required him to pay 75% of the value of missing parts(the subject of the hearing),responded to his objection by telling him not to report for duty, changed the transfer destination at two days notice (on a Friday , with transport to the new station arranged for Sunday), tore up his leave application forms submitted on that Friday on the grounds that he was back on suspension, and finally responded to the employee’s letter of objection written the following Tuesday by seeking (5 days later) to dismiss him on the grounds that he was absent for five days without reasonable excuse from the workplace to which he had been transferred.
The Labour Court held that it was clear that Makovere did not absent himself from work without reasonable excuse. His employer officially sent him home resulting in him not reporting for duty on the days in question. As such it should not be allowed to rely on misconduct it had induced as a basis for dismissal. Another classical case is that of Larcombe v Natal Nylon Industries (Pvt) Ltd, the employee’s dismissal after alleged fallout with members of the employers’ management team was ruled unfair.
Mr Larcombe alleged incompatibility arose from a tiff with another member of the management team, which led the Managing Director to the conclusion that one of them would “have to go”. The Court held that this was a totally inadequate reason for getting rid of Larcombe. So too was the dismissal at issue in Joslin v Olivetti Systems and Networks Africa.
Mr Joslin was fired because he had conducted himself in a manner considered unbecoming for one of the company’s management team. His offending actions consisted of, among other things, walking about with a fistful of pens crammed into his shirt pocket, promoting a “yes” vote in a national referendum and on one occasion wearing a Springbok cap to work. The Court found out that the applicant’s behaviour, though odd was merely a “mild form of exhibitionism” not warranting dismissal.
However incompatibility can give rise to very serious problems, including the spectre of industrial action. Such was the case in Amalgamated Industries (Pty) Ltd v Jonker and also in SA Quilt Manufacturers v Radebe. In both cases workers demanded the dismissal of employees concerned: Jonker for allegedly informing of workers in previous job; Radebe because she had allegedly intimidated and harassed her subordinates to an extent that 80% of employees demanded her dismissal, failing which they threatened to strike.
Jonker was granted generous compensation and for Radebe the employer complied with the workers’ demand and after disciplinary hearings, counseling and offering Radebe a transfer, which she declined, and was dismissed. The Court accepted in principle that an employee could be dismissed on the grounds of incompatibility, although Radebe was awarded compensation. Whilst the principles of “natural justice” are important, particularly at the end of a process such as dismissal, they are less critical in minor or trivial matters such as the first incidence of poor time keeping or the first incidence of absenteeism.
This principle was also highlighted by the Court in Morrin Morrin& Malone (The Barge) and A Worker (CD/03/945). Here the Court stated that it “is satisfied that the claimant was not given a fair and reasonable opportunity to state his case at the meeting”. They also found that “the dismissal was an excessively harsh punishment for any misdemeanours he may have committed” and awarded the claimant €3,500 in compensation. Similarly in John Casey Limited and a Worker (CD/05/596), the claimant stated that she was called into the office and was summarily dismissed by the management.
The management at this meeting made a number of allegations about her work performance, which she believed were merely created as a justification for dismissing her. Management for its part produced a list of errors, which they stated had been brought to her notice and that she had been warned on a number of occasions about her shortcomings in relation to her job. However, the Court found that “it is not acceptable for the Company to send for an individual without indicating the seriousness of the meeting, without offering any representation, and then to summarily dismiss the person’ and recommended that the employer pay the claimant €20,000 in compensation.
One of the core principles of natural justice, along with the right of reply, is the right to representation. The Labour Court has noted time and again that such a right cannot be denied to the employee. This was noted in Morin et al, in John Casey et al (CD/05/596) and again in Cellular World and a Worker (CD/01/718). In the Code of Practice, such a representative includes a colleague of the employee’s choice including a person from a registered Trade Union or Workers Committee.
This right should be included in the organization’s Grievance and Disciplinary procedures. The Code excludes ‘any person or body unconnected with the enterprise”. However, in Burns and Hartigan V Governor of Castlerea Prison ( IEHC 76), the High Court found that due to the gravity of the sanction that faced the employees, a legal representative should be allowed at disciplinary hearings.
As a general rule, the Code of Best Practice requires that, where any performance or behaviour deficiencies are identified, companies should not proceed straight to a disciplinary procedure but should attempt to resolve any issue first through a coaching and support process. Dismissing for the sake of dismissing will lend you in trouble with the law
Disclaimer: I do accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.Business