Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. 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. NBCCI GUIDELINES: MISCONDUCT ARBITRATIONS 3 A: PURPOSE AND NATURE OF GUIDELINES Purpose 1 These guidelines are issued by the NBCCI in terms of section 155(2)(g) of the Labour Relations Act, 66 of 1995 (the LRA). Termination of employment as defined by section 36 Employment Labour Relations Act No. 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. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Sc hedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). Dismissal should be reserved for cases of serious misconduct or repeated offences. 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.Â. The Labour Relations Act (“LRA”) provides every employee with the right not to be unfairly dismissed. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. Guidelines in cases of dismissal for misconduct. In Legal Aid SA v Jansen (LAC), the employer appealed against the Labour Court’s decision whereby it held that the dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, on the basis of him suffering from depression. Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. Dismissal for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. All Rights Reserved. Misconduct is a ground for the termination of employment of the workers in an organisation or industrial concern. Copyright © 2020. a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. Other unfair dismissals 189. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. The employer should notify the employee of the allegations using a form and language the employee can reasonably understand. 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. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. Section 194 of the Labour Relations Act (LRA) allows arbitrators and judges to grant employees compensation for unfair dismissal where reinstatement is not appropriate. The law promotes the principle of progressive discipline. If misconduct is identified within a company, an employer should investigate the allegations against the employee. The employer is obliged to consult regarding measures to minimise the number of dismissals, and also to mitigate the adverse effects of dismissal. An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. Automatically unfair dismissals 188. Therefore, the true reason for the dismissal was the employee’s mental illness and not the alleged misconduct. A premium is placed on both employment justice and the efficient operation of business. Dismissals based on operational requirements 9.1 An employee who is dismissed shall be entitled to appeal against such.  Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA), The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, 2.This Act emphasises the primacy of collective agreements. dismissal was an appropriate sanction for not meeting the required performance standard. When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. Right not to be unfairly dismissed 186. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.Â. 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 of they do not comply with the ultimatum. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings.Â, 3. the circumstances of the infringement itself. 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.Â, 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. 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. 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. 2. 66 of 1995) to become effective on 1 january 2012 contents The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Incapacity on the grounds of ill health or injury may be temporary or permanent. Paragraph 9.5 is drafted in these terms as the procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation. the seriousness of the contravention of this Act; attempts made to comply with this Act; and. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is: a. one that amounts to an infringement of the fundamental rights of employees and trade unions, or. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Seminar 4 Misconduct.pptx - Dismissal in the workplace MS RB BERNARD 1 INTRODUCTION \u2022 Fair and unfair dismissals \u2022 Types of dismissal \u2022 Misconduct. The employee should be allowed the opportunity to state a case in response to the allegations. Before dismissal for misconduct can take place, the following questions must be answered: 1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure. When appropriate, an employer should give an employee whatever. However, like any other act of misconduct, it does not always deserve dismissal. Misconduct Disciplinary procedures prior to dismissal 9.2 Appeals must be noted in writing within five (5) days of the decision, 9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. Guidelines in cases of dismissal for poor work performance. 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