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.
discuss how Sally's dismissal was unfair, 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

Sally's dismissal from Company X raises concerns regarding both substantive and procedural fairness as outlined in applicable labour legislation, specifically relating to fair reasons for dismissal and adherence to a fair procedure.

Fair Reasons for Dismissal

1. Conduct of the Employee: Under the Labour Relations Act, dismissals can be based on the misconduct of the employee. However, for a dismissal to be justified on this basis, the employer must demonstrate that the employee's conduct warranted such a serious penalty as dismissal. In Sally's situation, her action of setting aside the ice cream in the fridge does not equate to outright theft; she had the intent to purchase the item before the shop closed. The manager's assumption of theft without allowing Sally to explain her actions or demonstrate intent to pay fails to consider all relevant facts. Thus, the employer lacks justification in characterizing her actions as misconduct warranting dismissal.

2. Proper Process and Substance: According to the legislation, a dismissal must relate to the employee's conduct, capacity, or operational requirements of the business. Sally had been a loyal employee for two years without previous disciplinary actions. The proper course of action for the manager, upon discovering the ice cream, would have been to investigate further, request clarification, or issue a warning rather than resorting to immediate dismissal. The employer’s approach failed to adhere to the principle of proportionality—dismissal is an extreme measure that should only follow serious misconduct.

3. Automatic Unfair Dismissal: While Sally's case doesn't automatically fall under the category of automatically unfair dismissals listed in Section 187 (such as discrimination or participation in lawful strikes), the failure to follow a fair procedure also puts the dismissal into question regarding its fairness. The lack of consideration of mitigating factors in her conduct, as well as the absence of a disciplinary hearing, undermines the substantive justification for termination.

Procedural Fairness

1. Right to a Hearing: Procedural fairness necessitates that any employee facing dismissal must be afforded the opportunity to respond to allegations against them. In this case, Sally was not given a chance to explain her actions or to defend herself; she was summarily dismissed without a proper investigation or a disciplinary hearing. This breach of her right to a fair process is a significant violation of the principles of natural justice and procedural fairness enshrined in labour legislation.

2. Lack of Warnings: Legally, employees are often entitled to receive warnings prior to dismissal, particularly if the misconduct in question is not severe and the employee has not previously engaged in similar conduct. In this case, there was no previous misconduct on Sally's part, and she did not receive any warning or opportunity for improvement before being dismissed.

3. Failure to Document and Follow Procedure: Company X’s failure to adhere to established disciplinary processes further complicates the issue. The dismissal should have followed a documented procedure that outlines the steps leading to termination, including an investigation and possible intervention prior to dismissal.

Conclusion

Sally's dismissal from Company X was fundamentally flawed both substantively and procedurally. The lack of a fair investigation, the absence of a disciplinary hearing, and the failure to provide her with an opportunity to explain her actions before termination constitute significant breaches of labour legislation regarding fair dismissal practices. Thus, her case can be construed as an unfair dismissal under the law, warranting potential remedies or reinstatement.