In our last article, “Some insight into unfair dismissal”, we covered some basic outlines in what constitutes unfair dismissal within the confines of the Basic Conditions of Employment Act and the Labour Relations Act. Today we’re going to dive a little deeper into this and look into some grey areas, and slightly more complex situations.

One of the questions that often comes up pertains to grey areas of unfair dismissal, so here’s an example. A common grey area would be an incident of theft. Many employers would call the accused thief and behind closed doors threaten him/her. A common conversation would be “I’m going to give you the option to resign and we won’t press charges”. Employers do this as they want for the accused thief to be off their property and out of their business as soon as possible.  Theft in the workplace can cause massive damage and loss to a business. This practice, however, is risky and has the potential to backfire which will cause further loss and ruin to the business owner. The accused employee could resign on the spot as suggested by the employer, but refer the matter to the CCMA for Constructive Dismissal. That is “I was forced to resign”. Therefore, be cautious of this practice, because it’s not a recommended solution.

Another complex situation is around provisions outlined in an employment contract which determine reasons and methods for termination. Many employers believe that this is a safeguard, allowing them to dismiss employees on their own terms. However, you can not sign away your rights. The BCEA prescribes the minimum conditions of Employment. Regardless of what has been signed or verbally agreed upon, if it is less than what is stipulated in the BCEA it is not valid regardless of signature.

Here’s a rather controversial and commonly debated situation that many South Africans assume are cut and dry. If an offer letter is issued out and the company later decides to withdraw the offer letter, say within a week prior to commencement, is this also deemed as unfair dismissal? This is a difficult one. According to Ivan Israelstam, a lawyer specialising in labour law, the law does not prescribe or make provision with the instance whereby an individual has been made a job offer and it has been revoked/withdrawn prior to commencement of the job. The unfortunate predicament being that no doubt the said person had resigned from his/her current job and now finds himself/herself unemployed. Neither the Basic Conditions of Employment Act, nor the Employment Equity Act, nor the Labour Relations Act shed any light on the recourse of a person who finds him/herself in this unfortunate situation. In the case of a contract being signed one would have more recourse, as the person in question could sue for breach of contract. This would be an expensive and time-consuming exercise as the individual would have to make use of the civil court system.

Let’s talk about punitive measures applied to an employer that may have been found guilty of unfair dismissal. The first is a question of whether the severity of the motive behind the dismissal determines the severity of the punitive measures on the employer? “The punishment must fit the crime”. When it doesn’t the Employer will be found to be substantively unfair even if he/she followed the prescribed procedure.

The Labour Law encourages and supports that disciplinary action is focused on “correcting the behaviour” opposed to being punitive. Refer to Item 3(2) & (3) of Schedule 8 of the Labour Relations Act (LRA) 66 of 1995.

Progressive Discipline is comparable to climbing a flight of stairs as opposed to hopping from one type of stepping stone to the next in a linear fashion (taking into account that every misconduct has its own flight of stairs to climb to reach the figurative top – dismissal).

For example:

The employee makes use of dirty & insulting language in the workplace.                                        

• 1st Step: Verbal Warning Valid for three months.
  • The employee repeats the same misconduct IE makes use of foul & offensive language within the preceding three months from the verbal warning being issued.
• 2nd Step: Written Warning Valid for six months. 
  • The employee repeats the same misconduct IE makes use of dirty & insulting/ foul language within the preceding six months from the Written Warning being issued.
• 3rd Step: Final Written Warning Valid for 12 months.
  • The employee repeats the same misconduct IE makes use of dirty & insulting/ foul language within the preceding 12 months from the Final Written Warning being issued.
• 4th Step: Notice to Appear at a Disciplinary Hearing.
• 5th Step: Hearing is held & the chairperson issues a sanction of a very Final Written Warning after hearing held or suspension or demotion or dismissal.

The second question is, should it be found, at the CCMA, that an employer has unfairly dismissed the employee, and they are instructed to reinstate that person’s employment, is it fair to institute a performance assessment shortly after the employee has been reinstated?

It depends on what the grounds are/reasons are for performance management. It will also depend if the entire department or company is undergoing performance management or if it is specifically and only for the reinstated employee. For example, if it is the Company’s usual/normal quarterly performance management evaluations for all of their employees or for department X, then no, it would not be considered unfair, it would be “business as usual”. It is important for Employers to understand that they cannot prejudice, victimise, target or discriminate against an employee who has been reinstated.

I hope you’ve found this article insightful and helpful in understanding the various complexities around unfair dismissal. There are many other situations that may unfold, leading to this unfortunate practice, and if you do have any further questions, be sure to email me, or simply leave a note in the comments on your questions or thoughts.