Many dismissals in which we have been involved have been upheld by the CCMA. It is not the firing of employees that the law has a problem with. It is not dismissals that raise the ire of CCMA arbitrators. 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 threatening the security of the business 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, for the dismissal to be adjudged to be substantively fair, 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 White vs Pinnacle Point Investments (Pty) ltd (2008, 1 BALR 91) White took up a post with the employer as CEO. Thereafter the employer discovered that White was in dispute with his previous employer which also happened to be the bank used by the new employer. The new employer then dismissed the employee claiming that the reason for the dismissal was the employee’s refusal to divulge the true reason for the dispute with the old employer. It also claimed that it had failed to hold a disciplinary hearing because of exceptional circumstances. The arbitrator decided that:
- There were no exceptional circumstances justifying the failure to hold a hearing. Believing the outcome to be a fait accompli does not exempt the employer from giving the employee an opportunity to be heard.
- The reason for the dismissal was not that the employee had failed to divulge the true reason for his dispute with the bank. Instead, the true reason was pressure from the bank on the employer to fire the employee.
- The employer had not held its own investigation into the bank’s allegation that the bank’s money had found its way into the employee’s bank account.
- The dismissal was procedurally and substantively unfair.
- The employer was to compensate the employee for the unfair dismissal.
The outcome of this case shows that employers will lose if they merely take the word of a third party as to the guilt of an employee or if they succumb to pressure from the third party to dismiss the employee.
To access our expert debate on thorny labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top menu.