In which scenarios would dismissal be fair?
If based on an inherent requirement of job or if employee has reached agreed retirement age.
With regards to a strike, name 3 valid dismissals.
- Assault
- Malicious damage to property
- Operational requirements (retrenchment)
When would a dismissal that is not automatically unfair be considered unfair? (2)
- If employer fails to prove reason is fair and is related to employees conduct or capacity or based on operational requirements.
- If there was no procedural fairness.
Who is the onus on with regards to dismissal based on misconduct?
Onus on employer to prove dismissal was fair.
Name 7 serious scenarios in which dismissal could be justified on a first basis offence.
- Gross dishonesty
- Willful damage to property
- Willful endangering of the safety of others
- Assault and fighting
- Gross insubordination
- Sexual harassment
- Intoxication
What is the most common case of gross dishonesty?
Theft
What 4 things must be taken into account with regards to sexual harassment dismissals.
- Whether harassment is prohibited on grounds of sex/gender/orientation.
- Whether the sexual conduct was unwelcome.
- Nature and extent of the sexual conduct.
- Impact of the sexual conduct on the employee.
What will a dismissal on base of first offence with regards to intoxication depend on?
Depends on employees’ responsibilities.
How does onus work in dismissal cases? (3)
- As soon as dismissal taken place, employer must prove it is fair.
- A proper investigation has to take place that links employee with offence.
- Employer only needs to show on a balance of probabilities that employee committed the offence.
What are the 5 steps of procedural fairness?
- Employee must be notified of allegations against them timeously.
- Employee must be given an opportunity to respond to the allegations.
- Employee entitled to reasonable time to prepare response.
- After enquiry, employer should communicate the decision taken.
- Employer must allow employee to call witnesses and cross examine employers witnesses.
What 3 things will substantive fairness depend on with regards to dismissal on strikes.
- Seriousness of contravention of the LRA.
- Attempts made to comply with LRA.
- Whether or not strike was in response to unjustified conduct by employer.
What is the 3-step process prior to dismissal?
- Employer should at earliest opportunity, contact a trade union official to discuss course of action.
- Employer should issue an ultimatum that states what is required of employees.
- Employee should be allowed sufficient time to respond.
In respect of after probation, in which cases would employer be able to dismiss the employee for unsatisfactory performance? (2)
- Given the employee appropriate evaluation, instruction, guidance.
- After a reasonable period of time for improvement, employee continues to perform unsatisfactorily.
What 2 things should an employer consider with regards to permanent incapacity due to health.
- Possibility of securing alternative employment.
- Adapting duties or work circumstances of the employee to accommodate for their disability.
What 4 things should a person determining whether a dismissal for poor work performance is unfair consider?
- Whether employee failed to meet performance standard.
- If employee underperformed, whether or not the employee was aware or could reasonably be expected to have been aware of the required performance standard.
- Whether employee was given a fair opportunity to meet required performance standard.
- Whether dismissal was an appropriate sanction for not meeting required performance standard.
When would an employee not be entitled to severance pay?
If they unreasonably refuse employers offer of alternative employment.
What are the requirements for a substantively fair dismissal? (4)
- Dismissal was to give effect to requirement based on employers economic, technological, structural needs.
- Operationally justifiable on grounds of rational.
- There was proper consideration of alternatives to dismissal.
- Selection criteria was fair and objective.
What are the remedies if labour court/ Arbitrator find dismissal to be unfair? (2)
- Specific performance (either reemployed or reinstated)
- Pay damages.
In which cases would employer not be required to adhere to specific performance (4)
- When employee does not wish to be reinstated or re-employed.
- Circumstances surrounding dismissal are such that a continued employment relationship would be intolerable.
- It is not reasonably practicable.
- Dismissal is unfair only because employer did not follow fair procedure.
What are the compensation limits for unfair dismissal?
No more than 12 months remuneration.
What are the compensation limits for automatically unfair dismissal?
Not more than equivalent of 24 months remuneration.
