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.

Question

Assignment Topic
In Labour Legislation, fairness in dismissals is determined by procedural and substantive fairness. Considering the above case scenario, critically and briefly argue the unfairness of Sally’s dismissal by referring to:

Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is
serious and of such gravity that it makes a continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are
gross dishonesty or wilful damage to the property of the employer, wilfuly endangering of the safety of
others, physical assault on the employer, a fellow employee, client or customer and gross
insubordination.
Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the
requirements of section 188.
Comment : Section 188 states : a dismissal that is not automatically unfair (in terms of section 187) is unfair if the
employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the
employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance
with a fair procedure period. Any person considering whether or not the reason for dismissal is a fair reason or
whether or not the dismissal was effected in accordance with a fair procedure, must take into account any relevant
Code of Good Practice issued in terms of this act.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to
the gravity of the misconduct consider factors such as the employee's circumstances (including length of
service, previous disciplinary record and personal circumstances), the nature of the job and the
circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has been
applied to the same and other employees in the past, and consistently as between two or more
employees who participate in the misconduct under consideration.

Answer 1

Sally's dismissal from Company X raises significant concerns regarding both procedural and substantive fairness, as outlined in the relevant labour legislation. By analyzing her case through the lens of misconduct dismissals, we can argue that her termination was unjust.

Dismissals for Misconduct

1. Nature of Misconduct: The first point to consider is whether Sally’s actions constituted serious misconduct warranting immediate dismissal. According to the guidelines provided, serious misconduct includes gross dishonesty, willful damage to property, endangering safety, physical assault, and gross insubordination. Sally merely set aside an item for potential purchase during a busy sale; this act does not reach the threshold of serious misconduct. While it breached company policy, it cannot be categorized alongside the examples of serious misconduct outlined in the legislation.

2. First Offense Consideration: Generally, dismissals for first offenses are discouraged unless the misconduct is egregious enough to make continued employment intolerable. Sally's actions, while contrary to policy, were not severe enough to justify such a drastic measure. She had been a loyal employee for two years without a prior history of misconduct, indicating that her behavior was likely an isolated incident rather than a pattern. The absence of a warning or previous disciplinary record further supports the argument that dismissal was excessive.

Procedural Fairness

3. Failure to Follow Due Process: Section 188 of the legislation stipulates that dismissals must be conducted according to a fair procedure. In this case, Sally was dismissed immediately without a disciplinary hearing. The employer did not provide her with an opportunity to explain her actions, nor did they investigate the matter before arriving at a decision. This lack of due process constitutes a failure of procedural fairness and makes the dismissal legally questionable.

4. Contextual Factors: When determining the appropriateness of a dismissal, it is essential to consider the overall context. Sally had worked with Company X for two years, which reflects her commitment to the organization. Additionally, the circumstances leading to the alleged misconduct—being overwhelmed by a clearance sale—should have been taken into account. A more appropriate response from the management might have included counseling or a warning rather than an immediate termination.

5. Consistency in Disciplinary Action: The principles of fairness also dictate that the penalty should be applied consistently with how similar situations have been handled in the past. There is no evidence presented that other employees have faced similar consequences for comparable actions. Without a clear history of precedent, the dismissal appears arbitrary, which further undermines its fairness.

Conclusion

In summary, Sally’s dismissal from Company X can be argued as unfair on both procedural and substantive grounds. The alleged misconduct does not meet the threshold of seriousness required for immediate termination, particularly as it was a first offense without a prior history of similar issues. The lack of a disciplinary hearing and the failure to provide due process highlight significant procedural shortcomings. Therefore, it can be concluded that her dismissal was not in line with the principles of fairness as outlined in the relevant labour legislation.