The substantive fairness of dismissal in these circumstances must be determined in the light of the facts

Question

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.
7 Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to,
the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
8 Incapacity: Poor work performance
(1) A newly hired employee may be placed on probation for a period that is reasonable given the
circumstances of the job. (the employer decides on the duration of the probation period.)
The period should be determined by the nature of the job, and the time it takes to determine the
employee's suitability for continued employment.
When appropriate, an employer should give an employee whatever evaluation, instruction, training,
guidance or counseling the employee requires (but obviously within reason) to render satisfactory service.
Dismissal during the probationary period should be preceded by an opportunity for the employee to state
a case in response and to be assisted by a trade union representative or fellow employee.
(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the
employer has-
(a) given the employee appropriate evaluation, instruction, training, guidance or counseling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the
unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy
the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union
representative or a fellow employee.
from the above information state out the Elements of substantive fairness

Answer 1

The elements of substantive fairness in the context of dismissal, as derived from the provided information, can be summarized as follows:

1. Seriousness of the Contravention: The seriousness of the employee's violation of the relevant Act or workplace rules should be assessed. More serious violations may warrant harsher disciplinary actions.

2. Attempts to Comply: An evaluation of the attempts made by the employer to comply with the relevant Act and to follow proper procedures prior to the dismissal.

3. Response to Employer Conduct: Consideration of whether the employee's actions, such as participating in a strike, were in response to unjustified conduct by the employer.

4. Clear Communication: The employer must provide an unambiguous ultimatum that clearly states the expectations of the employees and the consequences of non-compliance.

5. Sufficient Reflection Time: Employees should be given adequate time to consider the ultimatum and respond, whether by compliance or rejection.

6. Awareness of Rules: Determining if the employee was aware or could reasonably have been expected to be aware of the workplace rules or standards they allegedly contravened.

7. Validity and Reasonableness of Rules: The rules or standards in question need to be valid and reasonable.

8. Consistency in Application: It must be determined whether the employer has consistently applied the rules or standards to all employees.

9. Appropriateness of Sanction: Assessing whether dismissal or other disciplinary measures were appropriate given the nature of the contravention.

10. Provision of Support and Guidance: Employers are expected to give employees guidance and support to improve performance, especially during the probationary period.

11. Opportunity to Respond: Employees should be given the opportunity to explain themselves and present their case before dismissal, and they may be represented by a trade union representative or a fellow employee.

12. Investigation of Performance Issues: An investigation into the reasons for unsatisfactory performance should occur, and alternatives to dismissal should be considered.

In summary, these elements ensure that dismissals are conducted with fairness and due process, considering both the actions of the employee and the conduct of the employer.