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THE CODE OF GOOD PRACTICE: DISMISSAL
SCHEDULE 8 – LABOUR RELATIONS ACT.
1 Introduction
(1) This code of good practice deals with some of the key aspects of dismissals for reasons related to
conduct and capacity.
It is intentionally general.
Each case is unique, and departures from the norms established by this Code may be justified in proper
circumstances.
For example, the number of employees employed in an establishment may warrant a different (comment :
less formal or less onerous ) approach.
(2) This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute
for disciplinary codes and procedures where these are the subject of collective agreements, or the
outcome of joint decision-making by an employer and a workplace forum.
(3) The key principle in this Code is that employers and employees should treat one another with mutual
respect.
A premium is placed on both employment justice and the efficient operation of business.
While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct
and work performance from their employees.
2 Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even
if it complies with any notice period in a contract of employment or in legislation governing employment.
(Comment : this means that even if the employment contract contains wording like ‘this contract may be terminated
by either party for any reason recognized in law as being sufficient’, the employee may still not be dismissed until
proper and fair procedure has been followed.)
Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the
appropriateness of dismissal as a penalty.
Whether or not the procedure is fair is determined by referring to the guidelines set out below.
(2) This Act recognises three grounds on which a termination of employment might be legitimate.
These are: the conduct of the employee, the capacity of the employee, and the operational requirements
of the employer's business.
(3) This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that
amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is
one of those listed in section 187 (of the Labour Relations Act.).
The reasons include participation in a lawful strike, intended or actual pregnancy and acts of
discrimination.
(4) In cases where the dismissal is not automatically unfair, the employer must show that the reason for
dismissal is a reason related to the employee's conduct or capacity, or is based on the operational
requirements of the business.

By also referring to the information above and Labour relations in brief complete the assignment below making use of sectional acts of labour law in south Africa. Also state the procedures that should have been followed

Sally is employed on a permanent basis with Company X as a cashier. She has worked there for 2 years. Company X is a food and beverage company that sells to the local community. Company X had a clearance sale and there was a special on their 2litre ice cream which was selling out fast. Sally had intentions of buying a 2litre ice cream but because they were so busy due to the clearance sale she had decided to put a 2litre ice cream aside for herself in the lunch room fridge that she was going to buy before they closed the shop. This goes against Company X policies which all employees are aware of. A manager of Company X visited the lunch room and found the 2litre ice cream left in the fridge and asked whose it was. When Sally indicated it is hers, the Manager asked for her purchase slip. Sally indicated she does not have one as yet as she planned to pay for it before they closed. The manager became very angry and said Sally wanted to steal the ice cream and is a thief. The manager asked her to leave her cash register, pack her belongings and leave the premises immediately and not return back to work again. She subsequently was fired without pay and no disciplinary hearing was held.
Assignment Topic
In Labour Legislation, fairness in dismissals is determined by procedural and substantive fairness. Considering the above case scenario, critically argue the fairness OR unfairness of Sally’s dismissal by referring to applicable labour legislation.

Due Date: Friday, 23 August 2024 @16:30pm strictly
GUIDELINES – Please take note of the following guidelines
NO late assignments will be accepted.
The assignment must be 2 typed pages, excluding cover page, table of contents and reference list.
You will be penalized for exceeding the page limit=minus 5 marks per exceeded page.
Cover/Title page: Title of paper, student names & student numbers, course, date of submission, name of lecturer.
Short introduction:
Introduction & Background
Discussion
Address the assignment topic
Conclusion at the end of assignment:
In your conclusion, you have to summarize the most important information in your assignment briefly

Answer 1

Assignment Topic: Fairness in Dismissals in Labour Legislation

Cover Page

Title: The Fairness of Sally’s Dismissal: An Analytical Perspective
Student Name: [Your Name]
Student Number: [Your Student Number]
Course: [Your Course]
Date of Submission: 23 August 2024
Name of Lecturer: [Lecturer's Name]

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Table of Contents

1. Introduction
2. Background of the Case
3. Discussion of Fairness in Dismissals
   • 3.1 Procedural Fairness
   • 3.2 Substantive Fairness
4. Conclusion

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1. Introduction

The labour environment in South Africa is structured around specific protective laws that ensure fairness for both employees and employers. In cases of dismissal, the Labour Relations Act (LRA) serves as a guiding framework to ensure that dismissals are not only justified but that the processes leading to them are fair. This assignment will critically analyze the dismissal of Sally, a cashier at Company X, through the lens of procedural and substantive fairness as defined by South African labour legislation.

2. Background of the Case

Sally was employed as a cashier at Company X for two years. During a busy promotional sale, she set aside a 2-litre ice cream in the lunchroom fridge with the intention of purchasing it later. Upon discovery by a manager, Sally was accused of theft for not possessing a purchase slip. The manager, in a fit of anger, dismissed her immediately without a disciplinary hearing or proper procedure, a move that invites questions of legality under the LRA.

3. Discussion of Fairness in Dismissals

3.1 Procedural Fairness

The LRA emphasizes that for a dismissal to be fair, it must follow a reasonable procedure, which includes the right to a hearing (Schedule 8, Clause 3). In this case, Sally was not given the opportunity to present her side of the story or defend her actions before the dismissal took place. The lack of a disciplinary hearing contravenes sections 188 and 189 of the LRA, which stipulate that an employee must be informed of the charges against them and provided an opportunity to respond.

This scenario highlights a significant breakdown in procedural fairness, as the manager's immediate dismissal of Sally without investigating the circumstances shows arbitrary action rather than an adherence to fair process guidelines. No efforts were made to explore the intent behind Sally's actions or to confirm whether she genuinely intended to purchase the ice cream.

3.2 Substantive Fairness

Substantive fairness refers to the underlying justification for the dismissal itself. According to the LRA, dismissals for misconduct must be based on valid and substantial evidence. In this case, the manager accused Sally of theft without conclusive proof and based solely on circumstantial evidence. Setting aside an item for later purchase, without a clear intention to deprive the company, does not fit the legal definition of theft.

Furthermore, the code of good practice regarding dismissals states that an employer must consider a range of factors before deciding to dismiss, including the employee's previous conduct and the severity of the offense. Sally had a clean record over her two years of service, and a mere intent to purchase does not equate to theft. Therefore, the dismissal lacks substantive justification and appears to be disproportionate to the alleged misconduct.

4. Conclusion

The dismissal of Sally raises several concerns regarding both procedural and substantive fairness as delineated in the Labour Relations Act. Without a proper disciplinary hearing and an investigation into the context of her actions, the decision to terminate her employment appears arbitrary and unjustified. The critical elements of fair dismissal procedures were overlooked, leading to the conclusion that Sally's dismissal was indeed unfair. Upholding the principles of fairness in the workplace not only protects employees but also fosters a culture of mutual respect and accountability in employment relationships.

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References

• Labour Relations Act, No. 66 of 1995
• Code of Good Practice on Dismissals (Schedule 8 of the Labour Relations Act)
• [Any additional references you may use]

(Note: Ensure that your references section lists any additional materials or legal texts referenced throughout your assignment.)