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:

" Fair procedure"
(1) Normally, the employer should conduct an investigation to determine whether there are grounds for
dismissal.
This does not need to be a formal enquiry.
The employer should notify the employee of the allegations using a form and language that the employee
can reasonably understand.
The employee should be allowed the opportunity to state a case in response to the allegations.
The employee should be entitled to a reasonable time (minimum 2 clear working days) to prepare the
response and to the assistance of a trade union representative or fellow employee.
After the enquiry, the employer should communicate the decision taken, and preferably furnish the
employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a
trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of
any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute
resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these
guidelines, the employer may dispense with pre-dismissal procedures.

Answer 1

Sally's dismissal from Company X raises significant concerns regarding procedural fairness, particularly in the context of labour legislation. Analyzing the situation through the lens of fair procedure reveals several critical flaws in the way her termination was handled.

1. Lack of Investigation

Firstly, the employer did not conduct any form of investigation to assess the validity of the manager's claims against Sally. An investigation is a fundamental step in ensuring fairness, as it allows the employer to gather facts and evidence before making any decisions on dismissal. In this case, the manager’s immediate conclusion that Sally intended to steal is based solely on the presence of the ice cream in the fridge without exploring the context or Sally's intentions. This lack of due diligence suggests a reckless approach to an allegation of significant consequence.

2. Notification of Allegations

Sally was not adequately notified of the specific allegations against her. While the manager accused her of wanting to steal the ice cream, there was no formal communication regarding the allegations using a clear and reasonable language that Sally could understand. Such notification is crucial as it allows the employee to comprehend the charges they face, thus making an informed response possible.

3. Opportunity to Respond

Procedural fairness mandates that an employee be given the opportunity to state their case concerning the allegations. In Sally's situation, she was not allowed to explain her actions or present her side of the story prior to her termination. Instead of a conversation about the situation, she was confronted with an ultimatum. The absence of a sound platform for her to respond or defend herself demonstrates a failure to observe basic fairness principles.

4. Preparation Time and Support

In accordance with fair procedural guidelines, an employee should have a reasonable amount of time to prepare a response to allegations, typically two clear working days. Sally was not afforded this opportunity. Additionally, she was denied the right to assistance from a trade union representative or a fellow employee during such a critical moment. This further undermines the fairness of the process, as employees often benefit from support in navigating conflict situations.

5. Communication of Decision

After the purported investigation (or lack thereof), the employer did not communicate the decision taken in a manner consistent with fair procedural practice. Sally was dismissed without a formal announcement of the decision, nor was she provided with a written notification outlining the reasons for her termination. Such communication is essential to ensure that employees understand the reasons behind disciplinary actions and are informed about their rights for dispute resolution or the possibility to appeal the decision.

6. Exceptional Circumstances

While it is acknowledged that an employer can sometimes dispense with procedural guidelines in exceptional circumstances, no such rationale is evident in Sally's case. Her situation—simple miscommunication about a frantically busy clearance sale—does not constitute an exceptional circumstance that justifies bypassing procedural fairness.

Conclusion

In summary, Sally's dismissal from Company X appears grossly unfair, given the clear violations of procedural fairness principles. The absence of any investigative procedure, lack of notification and opportunity to respond, and failure to communicate the decision properly all point to a dismissive approach that undermines the values of fair treatment in the workplace. This demonstrates a significant disparity from the expected standards of fair procedure as outlined in labour legislation and emphasizes the importance of adhering to these guidelines to foster a safer and more equitable work environment.