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.

In short and summarised align the information above with the information below as to how Sally's dissmissal was unfair

The substantive fairness of dismissal in these circumstances must be determined in the light of the facts
of the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to
discuss the course of action it intends to adopt.
The employer should issue an ultimatum in clear and unambiguous terms that should state what is
required of the employees and what sanction will be imposed if they do not comply with the ultimatum.
The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by
complying with it or rejecting it.
If the employer cannot reasonably be expected to extend these steps to the employees in question, the
employer may dispense with them.

Answer 1

Sally's dismissal from Company X raises significant concerns regarding both procedural and substantive fairness according to applicable labor legislation.

Substantive Fairness

Substantive fairness involves assessing whether the reason for dismissal is justified and proportional given the circumstances surrounding the behavior in question. In this case, the factors to assess substantive fairness include:

1. Seriousness of the Contravention:

   • Although Sally did violate company policy by setting aside ice cream without purchasing it first, the act must be considered in the context of her intentions. Sally did not intend to steal; she was planning to buy the ice cream before the end of her shift. Therefore, the contravention does not appear to reflect a serious intent to commit theft but rather a misunderstanding of policy in the rush of a clearance sale. Dismissing someone for such a minor infraction, particularly when there was no malicious intent, lacks proportionality.

2. Attempts to Comply:

   • Sally’s actions indicated that she intended to comply with company policy by planning to pay for the ice cream before the store closed. Her situation was exacerbated by the busy environment created by the clearance sale. There is no indication that she was attempting to avoid payment or hide her actions. Given that she had a clean record and had been employed for two years, her lapse in judgment should have been seen as a momentary error rather than a dismissible offense.

3. Response to Unjustified Conduct:

   • The manager's swift and severe reaction appears excessive. Sally was not given an opportunity to explain herself fully nor was there any indication of an unjustified conduct on her part. The environment and circumstances of the unprecedented sale should have been taken into consideration. An appropriate response would have been a warning or a discussion about the policy rather than immediate dismissal.

Procedural Fairness

In addition to examining the substantive fairness, it's crucial to evaluate the procedural aspects surrounding Sally's dismissal:

1. Lack of Disciplinary Hearing:

   • Labour laws typically require that employees are afforded a fair hearing before being dismissed. In Sally’s case, the manager did not hold a disciplinary hearing to assess the situation thoroughly. Without a chance for Sally to present her side, the decision lacks procedural fairness.

2. Communication with Trade Union:

   • There is no indication that the employer contacted a trade union official prior to taking dismissal action. This step would have ensured that Sally received fair representation and that due process was followed.

3. Ultimatum Requirement:

   • The employer failed to provide Sally with an ultimatum regarding her actions. Employees must be informed of what is expected of them and the consequences of non-compliance. There was neither a clear communication of expectations nor an opportunity for Sally to respond to any alleged misconduct.

4. Time for Reflection:

   • Sally was not allowed adequate time to reflect on her actions or acknowledge the company policy before facing the consequences of dismissal. Immediate termination without allowing her to clarify her intentions violates principles of fairness.

Conclusion

Taking into account the above aspects of both substantive and procedural fairness, Sally's dismissal appears to be fundamentally unfair. The company failed to properly assess her intent, rushed to judgment without giving her the chance to explain, and did not follow due process as mandated by labor laws. Such a dismissal not only undermines the principles of fairness but also sets a concerning precedent for employee treatment within the organization.