What is a dismissal?

• A dismissal is when a contract of employment between an employer and employee is terminated by the employer.

When may an employee be dismissed?

• An employee may be dismissed if the employer has a valid and fair reason to dismiss the employee.
• That is to say that there must be substantive and procedural fairness when dismissing an employee.
• The employer must follow a fair procedure by affording an employee an opportunity to state his/her case before dismissing him/her.

What is misconduct?

• Misconduct refers to any behaviour or action by an employee that violates company policies, ethical standards, or legal regulations.
• There must be a valid/ lawful reason for a fair dismissal in the case of misconduct, and procedural fairness must be applied where the employee is notified of the allegations against him/her, what his/her rights are and when the hearing will take place.
• A lawful reason is not necessarily a fair reason. This means that a reason could be seen to be fair if a continued employment relationship is impossible.
• Other alternative methods of punishment should be considered
• Misconduct can encompass a wide range of inappropriate behaviors, including but not limited to:

1. 1. Harassment: This includes sexual harassment, bullying, discrimination, or any other form of behavior that creates a hostile work environment for others.
   2. Theft: Taking company property or resources without permission, including stealing physical items, intellectual property, or data.
   3. Fraud: Engaging in deceptive practices for personal gain or to the detriment of the company, such as falsifying records, expense reports, or financial statements.
   4. Substance abuse: Being under the influence of drugs or alcohol while on the job, which can impair performance, endanger oneself or others, or violate company policies.
   5. Violation of company policies: Breaching rules or regulations set by the company, such as misuse of company resources, conflicts of interest, or disregarding safety protocols.
   6. Insubordination: Refusing to follow instructions from supervisors, failing to meet job requirements, or displaying a lack of respect or cooperation towards colleagues or
   7. Engaging in behavior that undermines the reputation of the company, such as gossiping, spreading rumors, or engaging in inappropriate social media activity related to work.

Overall, misconduct in the workplace can have serious consequences, ranging from disciplinary action such as warnings, suspension, or termination, to legal repercussions depending on the severity and nature of the misconduct. Employers typically have policies and procedures in place to address and mitigate instances of misconduct to maintain a positive and productive work environment.

What is incapacity?  

• Incapacity refers to the situation where an employee is unable to carry out or perform to his/her contracted obligations due to the inability on the part of the employee.
• This incapacity could be due to ill health.
• Incapacity is different from misconduct and discipline in that in the case of incapacity the employer does not have to prove ‘fault’ or; blame’ on the part of the employee.
• Dismissal due to incapacity would be considered fair if the employer cannot fairly be expected to continue with the employment relationship bearing in mind the merits of the case/ circumstance of the employee’s incapacity. Secondly, if the employer can ensure that he has taken reasonable steps to assist the employee in terms of affirmative action.

When is a dismissal considered fair and what procedure is followed leading to dismissal?

• Two requirements must be complied with to ensure that a dismissal is fair. There must be substantive fairness and procedural fairness.
• Substantive fairness refers to a valid and fair reason for an employer to dismiss an employee. A valid reason refers to a lawful reason that justifies dismissal.
• The reason is lawful if it is in accordance with common law, statute law, a collective agreement or the contract of employment.
• Procedural fairness is when the employer affords the employee an opportunity to state his case and to bring mitigating circumstances to the employer’s notice.
• The procedure is as follows.
• The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need a formal inquiry.
• Employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
• The employee should be allowed the opportunity to state a case in response to the allegations.
• The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee.
• The presiding official at the hearing should be unbiased and should make a fair ruling on the matter and determine an appropriate sentence.
• The presiding official and any other members of the tribunal should not have been involved in the investigation of the matter.
• After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

What remedy does an employee have if s/he has been unfairly dismissed and how can s/he report the case?

• If it is an unfair dismissal, the employer must provide remedies to the employee. There are primarily three remedies for this, reinstatement, re-employment, and compensation.
• Any party to the dispute may refer the dispute in writing to the Labour Commissioner for mediation.
• The person who refers the dispute must satisfy the Labour Commissioner that a copy of the notice of a dispute has been served on all other parties to the dispute.
• Should mediation fail at the District Labour Office and application can be for proceeding to carry on to the Industrial court for determination. Eligible parties include those aggrieved whose matters weren’t resolved at mediation.
• To initiate the process:

1. 1. Obtain a referral certificate from the District Labour Office.
   2. Complete a statement of case form, providing a detailed account of the dispute.
   3. Attach relevant supporting documents such as computations and letters.
   4. File and serve the application on the respondent(s).
   5. Wait for a response from the respondent(s) within the specified timeframe.
   6. If no response, the matter proceeds to default hearing; if a response is received, it must be served on the applicant.
   7. The case undergoes case management by the judge.
   8. A hearing date is set by the court.
   9. The court makes its determination based on the evidence presented.

Supporting documents required include referral certificates, referral forms, failure to reach settlement forms, referral letters, statement of case forms, computations confirmed by the District Labour Office, and any other relevant documents pertaining to the claim.