The American Economy it has been said is run on two words, “You’re Fired” this is certainly not the case here in South Africa and I am grateful for this fact. Having said this, the dismissal of an employee is very possible but not a step to be taken lightly. A ‘captain of industry’ once said to me “that the firing of an employee should be seen as a failure of the employer rather than a failure of the employee”. This statement has stayed with me as a reminder of the moral high ground that an employer should always take, often in difficult and very unpleasant circumstances. However the reality is that a sanction for an employee’s misconduct is often required and it is as important as the presence of boundaries in any relationship.
The process of dealing with misconduct in South African Law cannot be underestimated and the procedural aspects are as important as the substantive issues often to the detriment of the employer for reasons of their ignorance or hasty actions. According to the Labour Relations Act, a dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure. Procedural fairness in general terms refers to a disciplinary hearing that has to be held to afford the employee to state his or her defence, a rule of law exists (I will spare you the legal maxim), “let the other side be heard”, which is reasonable in itself. But Labour Law must not only be implemented, but seen to be implemented and this has been a stumbling block of many an employer.
The sting in the tail is that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, without a proper disciplinary hearing this is nigh impossible to prove. The process need not be a complicated one but does require certain minimum requirements.
As the owner or manager of a business be careful of being prosecutor, judge and jury of the disciplinary matter and as there is truth in the quote that “there is wisdom in many councillors” seek advice before using the words ‘you’re fired’ and save the possible costly expense of 12 months remuneration compensation for unfair dismissals and 24 months for automatically unfair dismissals.