I have been dismissed by my employer. What now? How do I know if my dismissal is fair? What can I do to challenge my dismissal? These are some of the questions many readers may have asked themselves. This article will provide the readers with better insight into the Employee Employer relationship that is governed by the Labour Relations Act. Section 200A of the Labour Relation Act 66 of 1995 sets out the various factors that must be considered to regard a person as an employee within the workplace. Should a person satisfy any of the factors set out in sub section (a) – (g), he or she will automatically be regarded as an employee and the Labour Relations Act will govern such relationship between the Employer and employee. Once an employee employer relationship is established, we can deal with the following steps of the dismissal process.

STEP 1: DISCIPLINARY HEARING

The company is to serve upon the employee a Notice to attend a disciplinary hearing. The notice is to be served no less than 48 hours prior to the date of the hearing. The notice is to set out clearly and concisely the charge or charges against the employee and set out the employee’s rights in respect of the disciplinary hearing.

STEP 2: REFERRAL

In the event that the chairperson of the disciplinary hearing finds that the dismissal was fair and upholds the sanction, the employee may then refer the matter to the CCMA or relevant bargaining council to challenge the fairness of the dismissal.

STEP 3: TWO ASPECTS TO A DISMISSAL:

a.) Procedural Fairness

The Employ must be given at least 48 hours’ notice to attend the disciplinary hearing. This is so, to allow the employee to have sufficient time to prepare for the hearing. The employee must be given a charge sheet, in which it sets out the nature of the charge or charges against them with sufficient particularity. The employee must be informed of his/her rights at the disciplinary hearing, that is to call witnesses, and to have the opportunity to be legally represented. At the disciplinary hearing the employee must be given an opportunity to put forth his/her version of events and make out a case to the best of their ability. The Employee must be allowed to call witnesses to aid his version of events as well as be given the opportunity to cross examine any witnesses called by the employer to testify. The Chairperson at the disciplinary hearing is to be impartial and decide the matter before him on the facts and evidence led.

b) Substantive Fairness

Was the dismissal in line with the Company’s disciplinary code of conduct? The employer must ensure that they follow the Companies disciplinary code of conduct when deciding on the appropriate sanction to impose on the employee. The employer is often guided on what sanction to impose based on the companies’ disciplinary code of conduct and the severity of the employees conduct. Should the Employer not apply the code of conduct appropriately, it will result in the employees dismissal being substantively unfair.Was the sanction imposed too harsh? Even though the disciplinary code may stipulate the degree of sanction to impose, was dismissal the appropriate sanction. In terms of the facts of the matter and the charge against the employee was there an alternative sanction that could have been imposed on the employee. The employer could have the option to impose a verbal or written warning on the employee. The sanction of dismissal therefore needs to be the last resort. 

Has the sanction been consistently applied in the company? What is to be considered is if there may has been another employee in the company with the similar charge and whether they sanction imposed was the same sanction imposed on all employees. The employer is tasked to show that the sanction is applied consistently to other employees whom may have committed the same misconduct in the past.

Was there a breakdown in trust relationship? Did the alleged conduct of the employee destroy the working relationship between the Employer and the employee to such a degree that would render the working relationship intolerable. One would have to consider whether the Employer can trust the employee to continue to work in his employee or whether the employer has reservations of the employee’s trustworthiness towards the company. The chairperson must decide purely on the evidence led at the hearing on whether the sanction imposed was fair. The chairperson may not have a preconceived notion of the employee and must therefore decide the matter based on testimony led before them at the hearing.

The test is on a balance or probability, meaning that the employer and employee must make out a case to support their versions to persuade the chairperson to find in their favour. This is done by way of oral evidence and witness testimony. The party with the more believable version will aid the chairperson in coming to his decision.

STEP 4: CONCILIATION

At CCMA or the relevant Bargaining council, the first step would be conciliation. This is whereby the Employer and Employee attempt to mediate the matter and see how best they can come to a settlement. Should the parties not be able to resolve the matter the commissioner will issue a certificate of non-resolution and refer the matter to arbitration. At conciliation no legal representation is allowed.

STEP 5: ARBITRATION

At arbitration legal representation is not automatically allowed. The legal representative would need to bring a formal application for legal representation in terms of Rule 25 of the CCMA.

Rules.

The application for legal representation must set out four important factors. Firstly, complexity of the dispute. Secondly, the nature of the questions of law raised by the dispute. Thirdly, the public interest and fourth the comparative ability of the opposing parties or their representatives to deal with the dispute. An arbitration will be conducted as a any civil trial would be. Meaning the parties or their representatives must deliver an opening statement, lead their witnesses into evidence, cross examine the opposing parties’ witnesses and re-examine their own witnesses. Thereafter deliver their closing statements in person or in some instances the commissioner may request that the closing statements be submitted in writing for consideration. Thereafter the commissioner will consider all facts and evidence led before them and issue an arbitration award.

ONUS OF PROOF

Once the employee refers the matter to the CCMA or relevant bargaining council for an unfair dismissal, the onus of proof rests on the Employer to prove that the dismissal was fair.

Article by: Theuri Nayagar,

Attorney & Director at Naidoo Nayagar Inc.