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 making use of sectional acts of labour law in south Africa.

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

Title: Analysis of the Fairness of Sally's Dismissal

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

Table of Contents

1. Introduction and Background
2. Discussion
   1. Procedural Fairness
   2. Substantive Fairness
3. Conclusion

---

1. Introduction and Background

The Labour Relations Act in South Africa provides a framework to ensure that dismissals within the workplace are executed in a fair manner, embedding principles of procedural and substantive fairness. The case at hand involves Sally, a cashier at Company X, who was dismissed under disputed circumstances after it was believed she intended to steal a 2-litre ice cream by placing it in the lunchroom fridge without a purchase slip. This incident raises questions about the appropriateness of the dismissal in light of South African labour law.

2. Discussion

A. Procedural Fairness

According to the Code of Good Practice under the Labour Relations Act, a dismissal must follow a fair procedure. In Sally’s case, the circumstances of her dismissal raise significant concerns about procedural fairness. The principles mentioned in Section 188 of the Labour Relations Act stipulate that an employee must be given a fair hearing before dismissal, including the opportunity to present their case.

In Sally’s situation, the manager failed to hold a disciplinary hearing prior to her dismissal. Instead, the manager acted impulsively by terminating her employment immediately and without any prior notification or investigation into her actions. This lack of a hearing contravenes the principles set by the Labour Relations Act, which emphasizes the necessity of an employee's right to respond to any accusations before a decision is made regarding the termination of their employment.

Additionally, Section 188 (1) (c) of the Labour Relations Act further reinforces that an employee may only be dismissed for a fair reason. The dismissal procedure must provide employees with a chance to defend themselves against allegations, which was not afforded to Sally. Hence, the dismissal did not align with established procedural fairness as mandated by the Act.

B. Substantive Fairness

Substantive fairness assesses whether the reason for dismissal is valid and justified. In this case, the assertion of misconduct (i.e., intended theft) must be scrutinized. Sally had indicated that her intent was to purchase the ice cream before the end of the working day, suggesting she was not actively trying to steal the item. The manager's immediate conclusion that Sally was a thief seems to lack a thorough examination of the facts.

Additionally, according to the Code of Good Practice, the severity of the response (dismissal) must align with the alleged misconduct. The appropriate response to conduct that may be questionable, but does not amount to theft, would likely be a lesser penalty, such as a warning or reprimand, rather than an outright dismissal.

The principles of substantive fairness, as referenced in Section 67 of the Labour Relations Act, require that any disciplinary action, including a dismissal, must be proportionate to the misconduct. Since Sally did not possess any malintent as evidenced by her claimed intent to pay for the ice cream, the application of dismissal is disproportionately harsh.

3. Conclusion

In summary, the dismissal of Sally from Company X is deemed both procedurally and substantively unfair in accordance with the Labour Relations Act. Procedurally, Sally was deprived of her right to a disciplinary hearing before termination, which contravenes the requirements set out in the Act. Substantively, the manager's assumptions regarding Sally's intentions lacked sufficient evidence and resulted in an excessively punitive response. Employers are obliged to ensure fairness before terminating employment, and in Sally’s case, her dismissal fails to meet the legal standards required, leaving her vulnerable to an arbitrary action that is discouraged by South African labor law.

---

References

• Labour Relations Act 66 of 1995
• Code of Good Practice on Dismissal
• Relevant case law and literature on labour relations in South Africa.

(Note: Please ensure to add or modify any specifics based on requirements or study materials, including any case law that may be applicable.)