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 argue the fairness OR unfairness of Sally’s dismissal by referring to applicable labour legislation.

.align the information above with the information below as to how Sally's dissmissal was unfair

(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 significant concerns regarding both procedural and substantive fairness, as outlined in the relevant labor legislation. Below, I will critically argue why Sally’s dismissal can be deemed unfair by referring to the applicable legal frameworks.

1. Substantive Fairness

Fair Reason for Dismissal

Substantive fairness dictates that a dismissal should be based on a valid and fair reason. As stated in the Labour Relations Act, the grounds for dismissal may include the employee's conduct, capacity, or the operational requirements of the employer's business.

In this scenario, the manager accused Sally of theft due to her actions of setting aside a 2-litre ice cream. However:

• Lack of Intent to Steal: Sally's intention was to purchase the ice cream before the store closed; she merely set it aside due to the busyness of the clearance sale. Setting aside an item with the intention to purchase it does not equate to theft, which would require clear evidence of intent to permanently deprive the employer of the property.

• First Offense: If Sally had a clean record during her two years of employment, this isolated incident should have been addressed with corrective measures rather than an immediate dismissal. Dismissal should only be the last resort, particularly for a first offense of minor misconduct.

Appropriateness of Dismissal

The severity of the penalty must be proportional to the alleged misconduct. Dismissing an employee for a potential theft where no actual malicious intent can be demonstrated may be excessive. Procedural fairness would typically expect a progressive disciplinary approach where minor infractions are dealt with through warnings or other less severe measures.

2. Procedural Fairness

Fair Procedure

Procedural fairness requires that the employee must be given an opportunity to present their side of the story and for the employer to conduct a fair investigation. Sally’s dismissal was characterized by the absence of a disciplinary hearing, depriving her of her right to defend herself against the allegations:

• Lack of Disciplinary Hearing: Dismissing Sally without a formal disciplinary process constitutes a significant breach of procedural fairness. The Labour Relations Act stipulates that an employee should be given the opportunity to be heard before being dismissed for misconduct.

• Immediate Termination: The sudden decision to terminate Sally’s employment on the spot, without prior consultation or a chance for her to explain her actions, indicates that Company X did not uphold proper procedures in line with labor legislation.

Furthermore, no written warnings or documented instances of previous misconduct were presented in Sally’s case, which points to a lack of adherence to fair procedures.

3. Automatically Unfair Grounds

Though the circumstances of Sally's dismissal do not directly relate to the automatically unfair grounds noted in the legislation, the lack of fair treatment raises broader concerns about the employer’s obligation to uphold the fundamental rights of employees at work.

Conclusion

In conclusion, Sally’s dismissal from Company X appears to be both substantively and procedurally unfair under the relevant labor legislation. The accusation of theft lacks a foundational basis given her intent to purchase the item, a distant violation from actual theft. Moreover, the absence of an established disciplinary procedure and the immediate termination without a chance for recourse violate the principles of fair labor practices. Therefore, Sally has a strong argument against the fairness of her dismissal, which could result in significant challenges for Company X in any subsequent legal scrutiny or arbitration on the matter.