28 Experts Warn Against Pitfalls When Firing an Employee
In terms of the Labour Relations Act (1995), which makes provisions for employee rights, the termination of an employee’s employment must be fair under the South African constitution. This applies to both the reason for dismissal (substantive fairness) and the dismissal process (procedural fairness).
It is the compulsory statutory function of The Commission for Conciliation, Mediation and Arbitration (CCMA) to conciliate workplace disputes. Based on the endless number of unfair dismissal disputes brought before the CCMA (and awarded), it is clear that employers often do not comply with the provisions of the LRA.
We asked the experts of labour relations and labour law: “What are the biggest mistakes employers make when firing employees?”
Ian Webster, Simply Communicate
Kyle Torrington, Legal Legends
Anton Brüne, SEESA
Bradley Workman-Davies, Werksmans Attorneys
Roché Houman, Express Employment Professionals
Pieter Human, Labourwise
Stella Inggs, The Smallest Seed
James van den Heever, Scheepers Pretorius Attorneys
Charles Kinnear, Abcorlaw Inc
Hennie van Graan, WHM Labour Law Advisors
Simone Zanetti, Allos
Ivan Israelstam, Labour Law Management Consulting
Desrae Connold, Connold & Associates
Bernard Reisner, Cape Labour & Industrial Consultants
Almie Fourie, Robin Twaddle and Associates Attorneys
Jessica Miller-Merrell, Workology
Aimee Nel, Solidariteit
Bartley Joseph, Highveld
Jonathan French, Quyn Outsourcing Group
Glen Sampson, Attibility Human Capital Services
Tania Brand, TaniaBRANDconsulting
Francois Crous, Christo Dippenaar Attorneys
Alta Marais, Master Human Resource Services
Nic Nortje, NKR
David Woolfrey, David Woolfrey Attorneys
Danie Lemmer, DJJ Lemmer Labour Relations Services
Abe Bosman, Ad Labour Law
Karlien Badenhorst, Consolidated Employers Organisation
Ian Webster, Consultant at Simply Communicate
Since employers lose some 60% of cases referred to the CCMA, serious mistakes are being made. Two of the biggest are:
1. Failure to decide the real reason for dismissal
According to Chapter 8 of the Labour Relations Act (LRA), there are only three legitimate grounds for dismissal: misconduct, incapacity (which includes poor performance) and the employer’s operational requirements. Since the Code of Good Practice: Dismissal (LRA Schedule 8) prescribes different procedures for each of these, it is essential to know what the reason for dismissal is. Incorrect procedures are just as fatal to one’s case as invalid findings.
2. Acting too quickly
Failure to act when an employee misbehaves or performs poorly is a serious mistake. However, rushing to a disciplinary hearing because the manager is angry and feels betrayed is even more so. A proper investigation is essential. It will show:
- what actually happened or didn’t happen;
- who was involved;
- what rule was broken or performance standard was not met and whether (and how) the employee knew about the rule or standard;
- what evidence the employer has (what can be proved); and
- which procedures to follow – based on incapacity (poor performance) or misconduct.
Kyle Torrington, Co-Founder of Legal Legends and Director of Taylor Torrington and Associates Law Firm
The biggest mistake is that employers do not tend to follow the necessary procedures as set out in Schedule 8 of the Code of Good Practice pertaining to dismissals. If a dismissal is conducted without fair procedure being followed, it is unfair.
As per the Code,
- The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry, however;
- 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 a case in response to the allegations;
- The employee should be entitled to a reasonable time (minimum 2 clear working days) to prepare the response and to the assistance of a trade union representative or fellow employee; and
- After the enquiry, the employer should communicate the decision taken and, preferably, furnish the employee with written notification of that decision.
Anton Brüne, National Manager at SEESA Labour
South Africa’s Labour Laws are some of the most stringent in the world. The Commission for Conciliation, Mediation and Arbitration (CCMA) is the largest dispute resolution body of its kind in the world.
In the 2015/2016 financial year, the CCMA received a staggering 179 528 referrals. Of these, a massive 74% ended up in settlement agreements between the parties. It, therefore, goes without saying that employers have to be extra careful in the way they approach and execute workplace discipline.
10 common employer mistakes:
- Failing to put in place a fair Disciplinary Code that sets out workplace offences and provides guidelines on sanctions. This Code must be made known to all employees.
- Failing to carefully investigate alleged transgressions before proceeding with a formal disciplinary hearing. It often happens that pertinent facts only come to light during a disciplinary hearing that would have influenced the employer’s decision on whether or not to proceed with the hearing in the first place.
- Failing to give the employee adequate notice to attend a disciplinary hearing. The notice must include enough details of the alleged offence to enable the employee to properly prepare for the hearing.
- Failing to act consistently. Employers have a duty to treat all breaches of its workplace rules in a consistent manner and they must consistently apply the same rules to all employees.
- Failing to follow progressive discipline. All disciplinary offences are not equal in severity and do not necessarily justify a sanction of dismissal. Progressive discipline with verbal, written and final written warnings is often the correct approach.
- Failing to delegate the responsibility of chairing disciplinary hearings to sufficiently senior and experienced staff members.
- Failure to hold a procedurally fair hearing. The requirements here are not as strict as in a criminal trial, but the basics have to be in place: the employer must state its case by submitting evidence and calling witnesses, and the employee must be allowed to state his case by submitting evidence and calling witnesses. Both the employer and the employee then also have the right to cross-examine each
- Failure to keep a proper document trail of the entire disciplinary process. Many employers lose CCMA cases simply because they are unable to produce the necessary documentary proof when required.
- Failure to continuously train relevant staff members and keep them updated on the latest changes in labour legislation.
- Failure to make use of professional assistance. As mentioned, the South African labour legislation is stringent and complex. Utilising the services of a professional labour consultancy from the very beginning of a potential labour dispute is often the difference between success and failure at the CCMA.
Bradley Workman-Davies, Director at Werksmans Attorneys
South African law requires that an employer must have an objectively defensible reason for dismissing an employee and that a fair process must be followed before a decision is taken to dismiss for the purported reason. The categories for an allowable reason to dismiss are limited to misconduct, incapacity (poor work performance or medical incapacity) or a need to retrench.
What is critical to appreciate, however, is the process which must accompany the reason. An employee must always be allowed an opportunity to make representations to the employer about why he/she should not be dismissed before the employer takes any decision. If an employer has evidence that an employee has committed misconduct, the employer must allege the misconduct, provide the employee with its evidence and allow the employee (after a reasonable period – never less than 48 hours’ notice) an opportunity to defend himself against the allegation.
Only after considering the employee's defence should the employer make a decision. Even then, the employer must consider if
The worst mistake an employer can make is to fail to afford the employee his right to be heard before a decision is taken. Even if the employee's conduct is later found to have justified action by the employer, the lack of process means the dismissal or sanction would be unfair.
Roché Houman, Human Resources Manager at Express Employment Professionals
One of the biggest mistakes we have identified over the years is that HR fails to properly train their Line Managers to take corrective disciplinary measures in accordance with the set procedures as per their own disciplinary policy or disciplinary code.
Managers tend to take shortcuts by deviating from their disciplinary code. This may lead to a CCMA award against the company. Only in exceptional circumstances will deviation be condoned by the CCMA or Labour Court. However, our best advice is to follow your disciplinary code.
Pieter Human, Director of Labourwise
Some mistakes employers make when dismissing employees:
- Not following proper procedures;
- Reacting in anger/emotional when confronted about employee’s conduct;
- Making impulsive decisions;
- Not knowing what constitutes a fair reason for termination of services;
- Not putting disciplinary systems/procedures in place prior to termination of services;
- Not having a disciplinary code in place that clearly sets out the expectations in terms of acceptable conduct.
- Employers don’t understand the difference between incapacity/poor work performance and misconduct and may follow incorrect procedures when dealing with these matters; and/or
- Employers do not understand how probation works.
Inggs, Founding Director of The Smallest Seed
First up, South African Labour Law 101: as a Manager/Employer you have to ask yourself two VERY important questions before you do anything related to the employment relationship:
- Was it for a fair reason?
- Was a fair procedure followed?
South African labour law is pretty straightforward about what you need to do. First, you need to have a fair reason for dismissing (firing) an employee. Firing someone just because you do not like them will not fly. However, firing someone for theft or fraud (gross dishonesty) would be deemed as a fair reason.
Secondly, not only do you need to have a fair reason for dismissing someone, you also need to follow a fair procedure. The labour laws give you a step by step instruction manual on how to do this, called Schedule 8 of the Labour Relations Act: The Code of Good Practice on Dismissals.
At the smallest seed we like to KISS (Keep It Simple, Silly). As management, you do not have the time or energy to feel overwhelmed by your staff issues. Therefore, when approaching all disciplinary matters (especially when firing someone) make sure you read through The Code of Good Practice on Dismissals. If in doubt, contact the CCMA call centre toll-free on 0861 16 16 16 or visit www.ccma.org.za. The South African Labour Guide is also a gem of a resource for all things labour law related: www.labourguide.co.za.
James van den Heever, Attorney at Scheepers Pretorius Attorneys
The biggest mistake employers and managers make
The rights of employees and the law regulating the fair treatment of employees fall under the provisions of the Labour Relations Act (LRA). The LRA specifically regulates the termination of an employee’s services. The LRA requires that a dismissal must be for a fair reason and with a fair procedure.
These dismissals include dismissals for misconduct, capacity (e.g. poor work performance) or retrenchment. Schedule 8 to the LRA, the Code of Good Practice: Dismissal, provides guidelines for such fair procedures.
Charles Kinnear, Chief Executive Officer of Abcorlaw Inc
Labour law should not be an afterthought
South African labour relations have, over time, become dominated by a large number of advisors. It is important that an organisation guard against poor advice which, once implemented, will result in unintended risk and cost to business down the line. Adding to the problem is the fact that many employers/organisations do not seem to believe labour law is very important.
Most common areas of mistakes include (but are not limited to):
- Probation (how to handle and terminate the relation);
- Suspension or no suspension (how to deal with it);
- Formulating allegations (“charges”);
- Emotional employers (not removing emotion when disciplining an employee);
- Failing to properly investigate a misconduct; and
- Failing to prove the allegation/s (charges) against the employee.
Dismissals are a very sensitive and problematic area. This often requires going through a very elaborate process and using extensive resources.
Many jurisdictions require employers to have just cause for terminating employment and to follow a fair preceding procedure. The prescribed local procedure varies from merely allowing the employee an informal opportunity to state a case, on the one extreme, and a quasi-judicial process involving presiding officers, employer-prosecutors, extensive leading of evidence and cross-examination, on the other end of the spectrum. However, critical in most disciplinary inquiries are the fundamental questions of (1) did the employee do something wrong and, if so (2) what sanction should be imposed?
In respect of the first question, we often see or read in the law reports of employees adopting an attitude of "Well, prove it." The difficulty with this approach is that employees fail to appreciate the difference in proving matters using the civil
A presiding officer or manager considering whether an employee broke workplace rules has to evaluate the evidence and argument available, and then determine which version is more probable. There may still be reasonable doubt as to whether the employee committed the misconduct, but based on the probabilities the manager or presiding officer should be comfortable that the employee probably committed the offence.
Employees folding their arms, waiting for the employer to prove the case against them, are regularly surprised when the chairperson of the inquiry rules against the employees. Where the employer puts up a plausible case, the employees are obliged to present a version that is more probable if they wish to escape a finding that they committed misconduct.
The next common mistake made by many employees in internal hearings is an unwillingness to acknowledge their mistakes or wrongdoing. Dismissing employees is the final act in managing the risk posed by errant employees to the business. Where an employee is found to have committed misconduct, the presiding officer has to consider the risk posed to the organisation of the employee repeating the misconduct. If employees are unwilling to acknowledge wrongdoing and recommit themselves to the values of the company, the lingering doubt will be whether the employee will contravene the rule again in future.
In practice, it is difficult to convince an employer to take a chance on the employee and extend a lifeline when the employee remains steadfast that he/she did nothing wrong – even after the hearing's finding to the contrary. Showing true remorse and pledging full support to ensure that such behaviour is not repeated can go a long way in comforting an employer that retaining the employee in service will not result in undue risk.
Perhaps, when we hear Harvey Spectre advising his clients to say: "Sorry, I made a mistake and will never do that again," we will see employees changing their approach during internal disciplinary matters. Clever tactical defences may look spectacular on the big screen or television but
The public sector is a particularly striking example of the dismissal paralysis that has developed with time. We know the obvious examples in recent times. There are also numerous examples of individuals who are placed on suspension, with pay – at the taxpayers’ expense, and remain on suspension for a long time before any action is taken. This is an unnecessary expense to the state.
This is contrary to the intentions of the Labour Relations Act (1995), which was intended to simplify internal processes and do away with the complex ones that had existed prior to 1995. The old processes were intended to be dismantled and it was expected that it would become easier for business to conduct itself and deal with disciplinary issues. The intention was for the processes to move out and fall into the province of the Commission for Conciliation, Mediation and Arbitration (CCMA) and other labour tribunals. However, this has not always happened and the public sector is a classic example.
The problem is not with the Act but rather the way that people have applied the Act. The Act was designed to encourage an internal process that is quick and fair. Should the dismissal still be in dispute the matter should be dealt with by the CCMA so that an independent third party can adjudicate the dispute.
Time and effort were meant to be spent post-dismissal as opposed to pre-dismissal. One of the reasons for this failure is that the mindset has not necessarily transformed from the perspective of trade unions and there was no incentive for them to make the change. For example, trade unions conclude agreements with municipalities, universities and even private business that provide for certain internal processes that need to be complied with before a dismissal.
That constitutes a process that must be complied with in addition to the requirements of the law. This means that you have lawyers unnecessarily involved in internal processes and a ‘criminal’ style process that
All too often these “further obligations” are historic in that they were put in place prior to 1995 or simply persisted with because of a failure to receive appropriate practical advice. While the courts are trying to unravel the tangled threads, agreements that are concluded with unions or that are provided for in employment contracts come back to create more of these unnecessary and undesirable processes.
This is something, in my experience, employers do not fully appreciate and they need to re-examine their current position, update employment contracts and bring them into line with the current law…the Labour Relations Act must be the foundation upon which labour relations are conducted.
Another example that illustrates that both the public and private sectors need to take labour law very seriously is the fact that strike action and its consequences often stem directly or indirectly from unsatisfactory labour relations. Furthermore, strikes have become increasingly violent and costly.
Strikes often reflect not just the dispute but also underlying social issues and they are characterised by violence rather than a peaceful withdrawal of labour as a part of the negotiation process. In addition, these strikes can result in mass dismissals which are then disputed and take years to conclude in court.
The costs in back wages for say 200 "blue collar" workers that are adjudged unfairly dismissed four years ago can run into millions of Rand and will certainly play havoc with a company’s profitability or a public sector entity’s budget. This is a reality.
Perhaps labour law should not be an afterthought.
Hennie van Graan, Senior Partner at WHM Labour Law Advisors
- A medical certificate stating “medical condition” you do not need to pay out.
- A medical certificate stating “according to my opinion” you do not need to pay out.
- You can investigate any suspicious medical certificate.
- If you doubt the authenticity of the medical certificate you may ask for a full sworn affidavit from the doctor stating the exact capacity problem of the employee.
- Any person absent for three or more days without proof should be disciplined.
- Any pattern forming absenteeism can, with progressive discipline, lead to the employee’s dismissal.
- Never accept a typed resignation letter. It should always be handwritten by the employee him-/herself.
- Never write an affidavit, statement or any report on behalf of the employee. It should always be handwritten by the employee him-/herself.
- If you do offer a probationary contract, ensure that your performance management systems are in place. This can otherwise be seen as an unfair dismissal.
- Do not offer fix term contracts more than twice. You are creating a reasonable expectation of permanent employment.
- REMEMBER: The burden of proof is always that of the employer. The employee does not need to prove anything.
- REMEMBER: The employee can never dismiss him-/herself. You must always follow due process or have a hearing.
- REMEMBER: You should always have a disciplinary hearing even though you caught the employee stealing from you.
- REMEMBER: Always formulate your charges on your notification/charge sheet for the employee – in minute detail – to avoid any further litigation.
- Never serve a notification for a disciplinary hearing and not follow it up to ensure that an enquiry is conducted.
- Never apply different sanctions to different people for the same transgression.
- Never start with disciplinary action and stop in the middle of it – with no conclusive
paper workor reasons.
- Never transfer your ownership of maintaining discipline in your area of responsibility to the Human Resource department.
- Never allow the employee, who is served with a notification for a disciplinary action, not to understand the contents thereof.
- Never charge an individual with an offence and lead evidence that is not exactly connected to the charge.
- A probation clause in your employment contract without a performance management and performance appraisal system is worthless.
- An employment contract is for the protection of the employer.
- An employee working eight hours a week with an employer is permanent.
- If the employee’s work is subject to the control or direction of another person an employee is permanent.
- If the employee’s hours of work are subject to the control or direction of another person an employee is permanent.
- If the employee has worked for the employer an average of at least 40 hours per month over the last three months the employee is permanent.
- If the employee is economically dependent on the other person for whom that person works or renders services the employee is permanent.
- If the employee is provided with tools of trade or work equipment by the other person the employee is permanent.
- An employee is absconding from work if he/she is absent for three or more days. The AWOL procedure must be followed.
- The big five dismissible offences are
assault; any act of dishonesty; gross negligence; gross insubordination and absconding.
- Ensure that your charges are always correctly formulated by using the principle of What, When, Where, Why/How and Who (if needed). EXAMPLE: WHAT: sleeping on duty; WHEN: on the 15th of January 2015, at 12h45; WHERE: in the store room of
xyzhotel; WHY/HOW: by making a bed under the desk or lying in a relaxed body posture and closed eyes on the sofa; WHO: will be applicable only if there is more than one alleged offender.
- It is also of great importance to ensure that when involved in disciplinary hearing you have sufficient evidence to prove your case.
- NEVER USE HEARSAY EVIDENCE IN ANY DISCIPLINARY ACTION. Hearsay evidence is evidence which is tendered by a person who recounts what was not observed or perceived through one of the persons’ own sense, but what was heard from someone else (the originator).
- The manager must always explain to the employee for what and why he/she is charged for.
- Discipline also has the largest influence when it is given immediately after the offence. If a worker arrives late for work on a Monday it is senseless to warn him about it on
- Discipline is always impersonal: discipline the behaviour, not the person.
- The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in assessing appropriate penalty for later misconduct. Therefore, the retention of warnings – even after expiry – is important; it all forms part of the employee’s previous disciplinary record.
- Disciplinary action should always be substantively and procedurally fair. The disciplinary procedure must always be followed rigidly (Procedural Fairness). The sanction applied to the offence must also be suitable and correct in the light of the nature and circumstances of the specific offence (Substantive Fairness).
- Any evidence in disciplinary action must be relevant. The basic rule is that, in order to be admissible, evidence must be relevant.
Simone Zanetti, Chief Executive Officer of Allos
If it gets to a point where there is a need to fire an employee, the biggest mistake has been hiring him/her in the first place. The better the employment process, the fewer chances there are to be in the position to fire an employee. We treat employees like family members and, in 13 years, we kept a very good track record with minimal employee churn.
There are always two sides of a person: the professional skill level and the personal, more human side. It's difficult to measure the first, but even more challenging to evaluate the second, which has a great influence on any team.
We perform multiple rounds of interviews – with the team that the person will work with. We want to make sure that the candidate is excited about what we do and that the team is happy to welcome a new team member. Personally, I have a rule: I don't hire a person that I would have dinner with.
Ivan Israelstam, Chief Executive Officer of Labour Law Management Consulting
There are a number of very serious mistakes that employers make when firing employees. However, the single biggest mistake employers make is failing to follow the statutory pre-dismissal procedures. These include, for minor offences, the giving of warnings for first-, second- and sometimes third offences. For serious offences, or in cases where a minor offence has been repeated a number of times despite warnings, the law requires the employer to give the employee a proper opportunity to prepare a defence and to answer to the charges.
Even where the employer has proved to the CCMA that the employee did deserve to be fired, failure to follow the above procedures will render the dismissal unfair. As the implementation of these procedures is difficult, employers are advised to contact a reputable labour law professional before firing any employee for any reason.
Desrae Connold, Human Resource Practitioner at Connold & Associates
The problem most managers have is in not fully understanding the disciplinary process. There are a number of fundamental mistakes that they make:
- Most managers believe that the employee must have several warnings before they can be dismissed. They don’t understand that it depends on the offence. We don’t give warnings for theft, fraud or other gross misconducts.
- They don’t formulate the charges correctly. Often we find that an employee is guilty of gross misconduct, such as gross insubordination or gross negligence, but the charge is not appropriate and the employee cannot be dismissed for it.
- The chairperson is not sufficiently independent. The requirement is not that the chairperson
bean external person, but that they beunconnected with the case. This is often very difficult if the chairperson is employed in a small company.
- The chairperson is not sufficiently objective. Often, even when using an external chairperson, managers want to give the chairperson an explanation of what has happened before the hearing starts. The chairperson is supposed to have no knowledge of the incidents leading up to the hearing prior to the hearing.
- Managers do not realise that the employee has a right to defend themselves and refuse to give the employee copies of the evidence they are going to produce prior to the hearing. This delays the process and can lead to an allegation of
unfairprocedure. They compound this by refusing employees the right to record the meeting, bring witnesses (especially clients) and by generally preventing a fair hearing from taking place.
- Managers don’t prepare their witnesses properly and often don’t prepare sufficiently. They don’t have paper evidence available for the chairperson to consider and hardly ever bring copies for the employee. They seem to believe that verbal evidence is sufficient. It often is not.
- Very few managers have any understanding of the role the CCMA plays and how to defend a case at arbitration.
Bernard Reisner, Sole Proprietor of Cape Labour & Industrial Consultants
The biggest mistake that employers make when firing an employee unlawfully is to not have a substantive reason to dismiss the employee nor to convene a disciplinary hearing preceding the employee’s termination of services on the grounds of misconduct.
Failure to comply with the above may result in the employee being reinstated in the employ of the employer – with retrospective back-pay and/or compensation of up to 12 months’ remuneration.
Almie Fourie, Senior Associate at Robin Twaddle and Associates Attorneys
The biggest mistake employers make when dismissing an employee is when they don’t comply with the substantive and procedural requirements. A dismissal of an employee is unfair if it is not done for a fair reason (substantive requirement) and in accordance with a fair procedure (procedural requirement).
The substantive and procedural requirements, as per the Labour Relations Act, are as follows:
- The employer should conduct an investigation to conclude whether there are grounds for disciplinary action in the event of misconduct
- When determining whether an employee is guilty of misconduct, the proper test is proof on a “balance of probabilities” and not that of "beyond a reasonable doubt".
- If a rule has been broken, the following needs to be determined:
- if the rule was valid and fair;
- if the was rule consistently applied;
- did the employee know about the rule or could the employer reasonably expect the employee to have known about the rule; and
dismissalis an appropriate sanction for breaking the rule.
- The employee should be notified of the charges in writing and in a language that the employee can reasonably understand. He is entitled to a reasonable time to prepare for the hearing.
- This notice should set out the charges in detail so that the employee can understand the charges and be able to defend himself against it.
- The notice should set out all the rights the employee will have during the hearing.
- The employee is entitled to be assisted during the hearing by a trade union representative or a fellow employee and an interpreter.
- If the employee is found guilty, he has the right to present mitigating factors to the chairperson to be considered before a sanction is given.
- Within a reasonable time after the hearing, the employer should advise the employee of the outcome of the hearing and provide the employee with written reasons for the decision that was taken.
Accordingly, procedural fairness refers to a disciplinary hearing that must to be held and substantive fairness refers to fair reasons that must exist prior to dismissing an employee.
Jessica Miller-Merrell, Founder & Chief Innovation Officer of Workology
The biggest mistake employers make when firing employees
As employers, we like to quickly place the blame on the employee who is exiting the organisation. However, I believe that the leaders are equally if not more responsible for the employee's failure to perform or succeed in the organisation.
Talent is not a commodity and each termination should be seen as a lesson for the entire organisation and especially the leader. It's time we hold ourselves more accountable.
Aimee Nel, Junior Litigant at Solidariteit
In my opinion, the biggest mistake we come across when dealing with matters of unfair dismissal is the process-related errors an employer makes when terminating an employee’s services. The fair termination of an employee’s services consists of two elements: procedural fairness and substantive fairness.
Procedural fairness relates to the specific process that needs to be followed by an employer. The prescribed process differs based on the reason for the termination of services – either retrenchment in terms of section 189 of the Labour Relations Act; dismissal based on misconduct; poor work performance; incapacity and so forth.
It is important for employers to follow the correct process when terminating an employee’s services as a flawed process is grounds for a referral to the CCMA, Labour Court or other applicable forums.
Bartley Joseph, Managing Director at Highveld
Process, process, process…we at Highveld cannot emphasise enough the importance of following the correct procedures.
Our law states that, in order for a dismissal to be fair, the substantive
That being said, the ever-important rule of thumb is the “Audi
Therefore, it should be noted that even if an employee is guilty of a serious transgression, and all the evidence gathered confirms this, one still need to provide the employee with an opportunity to answer to the allegations. The same applies with dismissal by way of retrenchments – each with their own “set of procedures” to be followed.
Jonathan French, External Operations Director of
Quyn Outsourcing Group
The final step of firing an employee must always be the last option – and one only
Though we may have fulfilled the 3 Golden Guidelines of:
- Can I substantiate the evidence before me to a point where any other person, of sound labour knowledge and mind, would comfortably arrive at the same sanction?
- Have I followed sound process – having ensured that corrective training, mentoring, counselling, alternate approaches and coaching (if applicable) have been followed? Has this process been well documented and sufficient opportunity given for the employee to take corrective steps for their misconduct or lack of performance? Have supervision or direct management done what can be fairly expected of them to try and prevent this final step? Having assessed case history containing relevant circumstances, company policies and codes as well as precedence that may have been set (common business practice), am I now comfortable that this is the end of the road for the organisation in this employment relationship?
- Would a person of sound labour knowledge/experience and a sound mind,
havingweighed the evidence, have no alternative but to believe that the sanction of dismissal is fair? This, unfortunately, is the bare minimum and should never be the only grounds on which we base dismissal.
We also need to take some time to consider the consequences within the organisation. One has to be aware of the message this sanction sends to other employees and all role players. Additionally, the impact of the loss of certain “know-how,” intellectual property, technical- and other skills; as well as how this could damage client relations.
Should we, after having considered all of these factors, still feel we have no alternative but to dismiss, then perhaps you are acting appropriately. Should you have issues with making such a call, because of one of these factors, you equally have to check your motives. The easier option is rarely the correct one. Your actions set
In closing, the sanction of dismissal is not one to be taken lightly. If unsure, one should have knowledgeable sounding boards or professional advisers to ensure that you make the right decision.
Glen Sampson, Founder of
Attibility Human Capital Services
Based on my 20+ years of holding management positions, I can safely say there are a few caveats that, if not adhered to, can lead an employer into trouble when dismissing someone:
- Policies and procedures (Do these exist? Are they visible? Have they been communicated and has staff been trained and signed an acknowledgement of them?)
- Clear, concise and understood job effectiveness profiles (Did the employee know exactly what they were expected to do and deliver and have they been trained to do so?)
- Continuous and consistent performance evaluation and management (Does the organisation have a PM system that is well communicated trained and consistently and transparently applied to all employees?)
- Disciplinary policies and procedures (Do employees know of these and have managers been adequately trained in the application of disciplinary processes?)
- Following the process (Often managers do not follow the process and record all incidents along the way. This builds or breaks a case against an employee who has committed an offence.)
- Planning (When deciding to initiate discipline planning is vital. What are we hoping to achieve by this process? Who needs to be involved? What questions need to be asked? What witnesses need to be included? What evidence is required to prove the case?)
- Training (Managers and chairpersons must be trained rigorously on hearing processes, investigations and the collation of evidence to prove a case. This training should be regularly held and part of any manager's training and development pathway as early in their career as possible.)
Tania Brand, Owner of TaniaBRANDconsulting
Often a client would approach me, frantically asking me to help “fire” an employee. I would ask: “What has the person done and what process have you followed?” And then the dreaded answer: “He/she just cannot do his/her job. There have been disciplinary problems/they just don’t fit in with our culture/etc., etc. No, we have not followed any process. What process? Just get rid of the person!”
The single biggest mistake employers make when “firing” (or trying to) employees is to not follow due process in terms of the Labour Relations Act – exposing themselves to an immediate unfair dismissal dispute.
Crous, Director of Christo Dippenaar Attorneys
The biggest mistake that employers make (especially employers of domestic workers and gardeners, as well as employers who conduct their labour relations in a very informal manner) is that, when an employee makes him-/herself guilty of misconduct, the employers still fail to ensure that a disciplinary hearing takes place.
A disciplinary hearing may sound like a very formal process that needs to be followed by employers when dismissing employees, but employers who employ for example domestic workers, gardeners or builders do not need to invest in a very formal disciplinary hearing when dismissing employees.
The CCMA requires employers to give employees a fair chance to give their side of the story and to state their case. Which means that should an employer of a domestic worker, for example, have video evidence to show that the domestic worker stole money from the employer’s wallet; the employer must still give the employee a chance to state her case and to give her version of what happened.
The problem is that in many cases employers would immediately dismiss employees who make themselves guilty of misconduct like theft. They believe that, due to the fact that they’ve got sufficient evidence that the theft took place, the dismissal would be fair without a disciplinary hearing. Unfortunately, this is not the case. Even if an employee makes him-/herself guilty of misconduct, like theft, and the employer has video evidence to show that the theft took place the employer still needs to invest in a disciplinary hearing.
A very important tip for employers is that they must remember that, regardless of the type of misconduct committed by the employee, they have to give the employee a fair chance to present their version of events and defend themselves. The employer must then consider the employee’s version and only dismiss the employee if their explanation is not satisfactory.
Employers must always remember that dismissal must be both procedurally and substantively fair. This means that the dismissal of an employee should be for a fair reason and also that the employee was afforded a fair chance to state their case.
Alta Marais, CEO of Master Human Resource Services
Think beyond the emotional moment – prepare for the “what if’s”
There are 3 types of dismissals.
- Misconduct (your fault)
- Incapacity (not your fault)
- Operational Requirements (Economy)
To determine whether a dismissal is fair (or unfair) consider the following:
- Did the employee contravene a rule or standard regulating conduct in the workplace (was a rule broken)?;
- Was the rule a valid or a reasonable rule or standard?;
- Was the employee aware, or could reasonably be expected to have been aware, of the rule or standard?;
- Was the rule or standard consistently applied by the employer?; and
- Is the dismissal the appropriate sanction for the contravention of the rule or standard?
These guidelines are aimed at establishing substantive fairness. They are intended to assist the decision maker in weighing the two components of the guilt and sanction.
Facts on the table
Most likely conclusion, probability, or prove beyond reasonable doubt. The commissioner can only look or make decisions on the facts or documents presented to him/her.
- Hearsay (he said she said) can’t prove anything.
- Drunk at work can reasonably be proven (can be bloodshot eyes, smell, wobbly). There is a reason to believe the employee is under the influence.
Rules, policies and procedures
Rules, policies and procedures must always be in place. Situations will always change. It is therefore important to review and update these policies. Your house (company), your family (your employees)…your rules.
Generics might be the same but your company will have a specific set of rules that are applicable to your industry or culture. Employees must know of the rule, it must be a fair rule and the rules must be the same for all.
Keep in mind it also means to dismiss a person that broke a rule with previous offences is fair. If an offending employee has 15 years of experience or service – with no record – giving them a final warning is fair.
The employer’s rules must create certainty and consistency in the application of discipline. To this end, rules should be clear and made available to employees in a manner that is easily understood.
- Warnings or a Dismissal must be an appropriate sanction for the contravention of the rule or standard.
- Corrective discipline should be aimed at righting rather than retribution.
- Progressive discipline is a system of disciplinary measures such as counselling and warnings.
- Informal advice and correction are the best and most effective ways for an employer to deal with minor violation of work discipline and repeated misconduct warrants warnings.
- The employer’s tolerance threshold is, however, recognised. Dismissal should be reserved for cases or serious misconduct or repeated offences.
- When deciding whether or not to impose the penalty of dismissal, the employer should, in addition to the seriousness of the misconduct, consider factors such as the employee’s circumstances (length of service, previous disciplinary record, personal circumstances) and the nature of the work.
Nic Nortje, Director of NKR
The number one mistake made by managers/employers when dismissing employees is acting on emotion rather than reason. This is often in misconduct cases where the employee allegedly committed an act of misconduct – usually not serious enough in and of itself to warrant dismissal. Because of a historically poor relationship, littered with warnings for this and that, this is the last straw for the manager/employer. They simply cannot tolerate it any longer and they dismiss the employee in a fit of anger and frustration.
Fast forward to the arbitration award issued by the CCMA and the employer is forced to reinstate the employee or pay compensation of several months’ salary. A dear price to pay for something that could have been avoided by taking a deep breath and thinking it through instead of acting instantaneously and, largely, emotionally.
Tied to this mistake is the second most common error made, which is made by an insufficiently experienced chairman of a disciplinary enquiry who does not fully appreciate that there are two steps to the process and not just one. First, there is the decision on guilt, which must be based solely on the facts of the case. Only if the answer is yes and the employee is found guilty does the second step kick in, which is a decision on an appropriate sanction. This is not a thumb suck decision but one that should be based also on fact – but facts of a different kind.
The chairman must first consult the disciplinary code to determine the standard penalty for what the employee has been found guilty of. Once done, the chairman must take into account mitigating and aggravating factors. These can increase or decrease the standard penalty. This is critical because three employees who are found guilty of the same offence can end up with three different penalties and this would be fair.
Third on the list of common errors is the failure to measure performance objectively before deciding to dismiss. The perception of poor performance by an employee is often influenced by assumptions made rather than information gathered. One often hears broad generalisations, like “he has been sitting there doing the filing for hours and hours” when in fact it has only been 45 minutes.
Ask any manager whether they would be comfortable to remove the fuel gauge from their cars. They would immediately say: “No, it is insane to drive around without knowing the fuel level in the tank at all times. What if you run out of petrol far from home late at night?” The same managers would happily employ people, pay them salaries every month, but never measure accurately what exactly they do with the eight hours you pay them for.
David Woolfrey, Attorney at David Woolfrey Attorneys
I am going to assume, for the purposes of this piece, that we are writing for managers who are completely ignorant of basic labour law requirements. If I were writing for such managers, my answer would be that they omit the basic requirement of a fair hearing and then try, unsuccessfully, to patch up afterwards.
In most cases, however, the biggest failing is the absence of a proper investigation of the issue prior to commencing formal disciplinary proceedings. The purpose of a pre-hearing investigation is largely three-fold:
- to determine whether the facts (gleaned through evidence) support a disciplinary charge and, if so, what charge;
- to determine whether there is sufficient evidence to prove the charge and, if there is, to determine what sanction to pursue; and finally
- to begin the preparation for the potential hearing (and subsequent potential CCMA hearing) by making sure that all witnesses are interviewed and properly prepared and that documentary evidence is collected.
Failure to follow the above steps often leads to
- poorly drafted charges;
- insufficient evidence; and
- a consequent waste of time and resources.
Danie Lemmer, Labour Relations Consultant at DJJ Lemmer Labour Relations Services
From the unfair dismissal arbitrations that I have dealt with, I believe that one can safely say that not following a fair procedure during the dismissal process is most likely the most common mistake made by employers who do not make use of professionals to conduct their disciplinary hearings.
Issues such as insufficient notice of the hearing; badly drafted charges; denial of basic rights (such as those relating to interpreters); explanation of the charges; allowing cross-examination; representation; etc. very often cause problems for employers during arbitrations.
Inconsistency in the application of dismissal is another issue. Employees who committed the same offence should be treated the same. Proper recordkeeping of previous disciplinary hearings and sanctions is therefore important.
The irony is that all of these issues are avoidable if done correctly. I, therefore, prefer to deal with such matters from the outset (disciplinary hearing stage). Unfair procedures cannot be cured at arbitration stage.
As far as substantive fairness is concerned, the employer has to show that the sanction implemented was fair under the circumstances – fair reason for dismissal. Proper documentation and policies (Disciplinary Procedure & Code) are helpful in this regard.
The provisions of the Code of Good Practice: Dismissal (Schedule 8) published in terms of the Labour Relations Act should be followed.
Abe Bosman, Labour Consultant at Ad Labour Law
Management between a rock and a hard place
Managers, more than often, fail to stay objective when it comes to facts and merits during the disciplinary process – especially when the instruction to dismiss is given by senior management.
The mistake some managers make is to investigate and/or conduct the disciplinary hearing themselves. In most cases, the pressure from senior management (in some cases, fellow employees) will most likely lead to a manager not being objective. With objectivity out of the picture, the procedure will just be a formality. The chance for the accused employee to state his case and present evidence will bear little to no weight in the finding and sanction of dismissal.
In all fairness to the managers, there might only be a few that will get tough with the person signing their paycheck each month. For the rest, it will be advisable to acquire the services of a third party who is neutral and, most importantly, someone who will stay objective during the proceedings.
Karlien Badenhorst, Dispute Resolution Specialist at Consolidated Employers Organisation
Dismissal of an employee during the probation period
The generally accepted idea in the employment market is that employers may use a probation period as a way to test an employee’s capability to perform their duties. Employers frequently contract staff on a permanent basis – providing a clause in the employment contract stipulating the permanency thereof is subject to the performance of the employee during the first three months of employment.
Failing to meet the expectations of the employer, the employee is terminated before or directly after the probation period has come to an end. However, employers fail to realise that proper procedures still need to be followed and a general lack of awareness is evident regarding the provisions of the Labour Relations Act (LRA).
The Code of Good Practice on Dismissal, contained in Schedule 8 of the LRA states that:
1) “A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment.”
The code also states that:
"When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee."
The code continues by stating that:
2) “After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.”
It is very clear that there are requirements that need to be followed before dismissing employees during their probation period. The employer must make sure that they follow proper procedure and inform the employee of their performance if it is not satisfactory – allowing for improvement or accommodating the employee with the necessary counselling, training or assistance.
Poor work performance meetings would be ideal during the three months’ probation period and a clear record should be kept. If the employer is satisfied that they have done everything to try and improve the employee’s performance during probation, the employer may dismiss the employee after a formal poor work performance hearing.
Employers should also not confuse misconduct with poor work performance and each case must be dealt with individually. It is therefore crucial that companies seek legal advice when dealing with these complex matters as it might save them a costly award at the CCMA or Labour Court.
It is clear from the expert advice that employers’ biggest mistakes when dismissing an employee relate to procedural fairness. They often make mistakes relating to the disciplinary hearing of an employee who committed misconduct.
Before a hearing takes place, employers neglect their investigation and fail to gather evidence. They also regularly fail to understand that the purpose of the hearing is to provide the employee with an opportunity to defend themselves.
It is the advice of the experts that a company formulate and abide by a strict, internal disciplinary code to avoid issues with procedural fairness. Employing the services of these experts can prevent foreseeable problems when attempting to fire an employee.