THE CODE OF GOOD PRACTICE: DISMISSAL

Question

SCHEDULE 8 – LABOUR RELATIONS ACT.
1 Introduction
(1) This code of good practice deals with some of the key aspects of dismissals for reasons related to
conduct and capacity.
It is intentionally general.
Each case is unique, and departures from the norms established by this Code may be justified in proper
circumstances.
For example, the number of employees employed in an establishment may warrant a different (comment :
less formal or less onerous ) approach.
(2) This Act emphasises the primacy of collective agreements. This Code is not intended as a substitute
for disciplinary codes and procedures where these are the subject of collective agreements, or the
outcome of joint decision-making by an employer and a workplace forum.
(3) The key principle in this Code is that employers and employees should treat one another with mutual
respect.
A premium is placed on both employment justice and the efficient operation of business.
While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct
and work performance from their employees.
2 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.

By also referring to the information above and Labour relations in brief complete the assignment below

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

Due Date: Friday, 23 August 2024 @16:30pm strictly
GUIDELINES – Please take note of the following guidelines
NO late assignments will be accepted.
The assignment must be 2 typed pages, excluding cover page, table of contents and reference list.
You will be penalized for exceeding the page limit=minus 5 marks per exceeded page.
Cover/Title page: Title of paper, student names & student numbers, course, date of submission, name of lecturer.
Short introduction:
Introduction & Background
Discussion
Address the assignment topic
Conclusion at the end of assignment:
In your conclusion, you have to summarize the most important information in your assignment briefly.

Answer 1

The Dismissal of Sally: A Critical Analysis of Fairness in Light of Labour Legislation

Student Name: [Your Name]
Student Number: [Your Student Number]
Course: [Your Course]
Date of Submission: [Current Date]
Name of Lecturer: [Your Lecturer's Name]

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Introduction

The dismissal of an employee is an action that has significant legal and ethical implications. In South Africa, the Labour Relations Act (LRA) outlines that dismissals must be both substantively and procedurally fair. In this assignment, I will analyze the case of Sally, a cashier at Company X, who was dismissed without a disciplinary hearing after attempting to reserve an ice cream for purchase during a busy sales period. I will critically argue the fairness or unfairness of her dismissal, referencing the provisions laid out in the LRA.

Background

Sally had been an employee of Company X for two years when she decided to set aside a 2-litre ice cream in the lunchroom fridge for her intended purchase. Although Sally intended to pay for the ice cream, her actions contravened Company X's policies regarding employee purchases. The manager’s reaction to Sally's actions was extreme; he accused her of theft and terminated her employment without following the requisite disciplinary procedures. This scenario raises critical questions about procedural and substantive fairness as outlined in the Labour Relations Act.

Discussion

Procedural Fairness

According to the Labour Relations Act, employees are entitled to fair procedures before dismissal. Procedural fairness involves ensuring that an employee is given an opportunity to respond to allegations against them, as well as being informed of their rights and the potential consequences of their actions.

In Sally's case, the most glaring procedural flaw is the absence of a disciplinary hearing. Company X's management did not afford Sally the opportunity to explain her actions adequately or to defend herself against the accusations of theft. The basic tenet of procedural fairness is violated here; Sally was dismissed on the spot without a fair chance to present her side of the story. The Act stipulates that dismissals should only follow a fair and thorough investigation into the conduct or capacity of the employee.

Substantive Fairness

Substantive fairness pertains to the reasons behind the dismissal. A dismissal must be based on a fair reason related to the employee’s conduct, capacity, or the operational requirements of the employer's business.

While Company X's policy may prohibit employees from reserving items, Sally's intentions were to purchase the ice cream. This distinction is vital; the act of setting aside the ice cream can be viewed as an intention to buy rather than theft. The manager's assumption of theft is not only a misunderstanding of Sally's actions but also an overly severe reaction to a situation that warranted further investigation.

Section 188 of the Labour Relations Act states an employee can only be dismissed for reasons related to their action or capacity. Here, dismissing Sally because of a misinterpretation of her intentions cannot be seen as a fair or reasonable action. Furthermore, given that Sally had been a compliant employee for two years with no prior incidents, the punitive measure taken by Company X appears excessive and can be viewed as unjust.

Automatic Unfair Dismissals

The Act outlines specific circumstances under which a dismissal can be deemed automatically unfair, such as discrimination or abuse of power by an employer. While Sally's case might not fall directly under the automatically unfair dismissals category, the manager's aggressive response indicates a potential abuse of power, suggesting a lack of mutual respect as mandated by the Code of Good Practice.

Conclusion

In conclusion, Sally's dismissal by Company X raises significant concerns regarding both procedural and substantive fairness. The absence of a disciplinary hearing denies her the opportunity to defend herself, violating her rights as outlined in the Labour Relations Act. Additionally, the severity of the punishment imposed based on a misunderstanding questions the appropriateness of the managerial response. Thus, it can be conclusively argued that Sally’s dismissal was both procedurally and substantively unfair, warranting reconsideration of the evidence and the decision-making processes within Company X. Ensuring fairness in dismissal processes is essential not only for maintaining justice in the workplace but also for fostering a respectful and productive work environment.

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