Employers constantly complain that labour law does not allow them to fire employees for breaking the rules. However, employers need to understand that:
• Labour law definitely does allow employers to dismiss employees.
• The CCMA has frequently upheld the dismissal of employees fired for misconduct. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired.
• It is not the firing of employees that the law has a problem with. Instead, it is unfair dismissals that result in the employer being forced to reinstate the employee and/or being forced to pay the employee exorbitant amounts of money in compensation.
• In order to be free to fire employees who deserve dismissal employers need to understand and accept the difference between fair and unfair dismissal. This is because, if the employer has an employee who is causing mayhem or is costing the employer money or is otherwise undesirable, the employer cannot afford for the employee to be reinstated. The reason for this is that it is exceptionally difficult later to dismiss or discipline an employee who has been reinstated by the CCMA or other tribunal.
So while the law does allow dismissals it also requires the employer to be able to prove that the dismissal was both procedurally and substantively fair.
“Procedurally fair” relates to whether the employee was given a fair hearing.
Whether a dismissal is “substantively fair” relates to the fairness of the dismissal decision itself rather than to the disciplinary procedures. Specifically the employer would have to show that:
• The employee really did break the rule
• The rule was a fair one
• The penalty of dismissal was a fitting one in the light of the severity of the offence. AND
• The employee knew or should have known the rule.
Properly trained CCMA arbitrators consider all the above factors together with the circumstances of each individual case in deciding if a dismissal was fair and whether the employee should stay dismissed or should be reinstated.
In the case of Mundell vs Caledon Casino, Hotel and Spa (Sunday Times 15 May 2005) the employee was dismissed for two reasons. Viz:
• She distributed a R15000 tip amongst her colleagues
• She allowed a colleague to take home five cans of cool drink
It was reported that:
• The rule requiring employees to hand in tips to management to go into a monthly kitty had not been given to Mundell
• Mundell had no way of knowing that she was not allowed to distribute the tip money herself
• The tip had been given by the client at an open gathering
• A number of managers were involved in sharing out the tip
• The cool drinks had been intended by the client for consumption by the staff
• Giving the cool drinks to the employee was not serious enough to merit dismissal
• The employer’s failure to prove that the employee knew of this rule rendered the dismissal unfair
• The employer was required to pay the employee six months remuneration in compensation.
The outcome of this case proves that the inability of employers to make dismissals stick is not primarily because of the law but rather because of the lack of labour law expertise of many employers.
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting