Read the below case study and address the assignment topic that follows:

Question

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
unfairness of Sally’s dismissal by referring to applicable labour legislation.
do this firstly and breifly in regard to ;
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.
If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair
procedure, the dismissal is unfair.

Answer 1

In analyzing Sally's dismissal from Company X, it's vital to assess the situation against the framework of procedural and substantive fairness as outlined in labour legislation.

Fair Reasons for Dismissal

1. Fair Reason

For a dismissal to be considered fair, it must be predicated on justifiable reasons related to the employee's conduct, capacity, or operational requirements of the business. In this case, the alleged reason for Sally's dismissal was a breach of company policy regarding the reserving of products for personal purchase. While her action of placing the ice cream aside was indeed against company policy, it is crucial to evaluate whether this misconduct warranted immediate termination.

• Assessment of Conduct: The act of setting aside the ice cream can be interpreted as improper conduct; however, it does not necessarily equate to theft, particularly considering her intention to purchase the item. There was no evidence presented of malicious intent to deprive the company of the ice cream. Dismissal for an isolated incident of conduct—especially when no theft occurred—generally is viewed as harsh.

• Appropriateness of Dismissal as a Penalty: The severity of the punishment must fit the offense. In most cases of minor misconduct, especially those that lack clear intent to cause harm (such as poor judgment in a hectic sale), dismissal without warning or a chance for correction is often disproportionate. Therefore, in light of her two years of loyalty and the absence of previous disciplinary actions, the decision to terminate her employment could be viewed as excessively punitive.

2. Procedural Fairness

Beyond establishing a fair reason for dismissal, the procedural fairness surrounding the dismissal plays a crucial role.

• Absence of Disciplinary Hearing: A critical aspect of procedural fairness is the right of an employee to be heard before facing dismissal. In this case, Sally was not given a chance to explain her actions adequately to a managerial committee or during a formal disciplinary hearing. The abrupt nature of the dismissal, coupled with the absence of a structured procedure, violated her right to fair process.

• Proper Investigation: The manager’s immediate reaction was to treat the situation as theft without conducting a proper inquiry or investigation into the circumstances. There was no opportunity for Sally to present mitigating factors, such as her intent to pay for the ice cream, or the context of the employees’ overwhelming workload during the sale.

3. Assessment Against Labour Legislation

According to the Labour Relations Act:

• Conduct Related to Dismissal: Although employee conduct can justify dismissal, it must be approached with moderation. A reasonable person framework suggests that appropriate disciplinary measures should be considered before employing termination, especially for less severe incidents.

• Failure to Meet Fair Procedure Requirements: Company X failed both to establish the necessity of termination based on Sally’s conduct and to observe due process by not conducting a disciplinary hearing. The decision to terminate was taken in a highly emotional context, suggesting a lack of objectivity.

Conclusion

Sally’s dismissal from Company X appears to be fundamentally unfair under the principles of labour legislation. The reason for her dismissal lacked substantive justification, as her actions did not constitute theft, and procedural fairness was grossly neglected due to the absence of any disciplinary hearing or opportunity to respond to the allegations. Therefore, this case highlights significant failures in both the grounding for the dismissal and the procedures followed, qualifying it as an unfair dismissal that should be contested.