3 Forms of Dismissal in SA Labour Law
1. Dismissal due to Misconduct
2. Dismissal due to Incapacity
3. Dismissal due to Operational Requirements
1. Dismissal due to misconduct – this is the most common form of dismissal. In this instance, the employee has done something wrong. The employee chose to carry out the misconduct and therefore this is known as a fault dismissal. In other words, it is the employees’ fault for doing the action or omitting to act in a certain way. When a misconduct has been done, the employer will turn to their disciplinary code for guidance as to how to handle the matter. The employee will either receive a warning – verbal, written or final – or if the transgression is serious enough, straight to a disciplinary hearing and possible dismissal. Examples of these transgressions would be theft, insubordination, absconding, abuse of sick leave etc.
2. Dismissal due to incapacity – this dismissal can take 2 forms – poor work performance or ill health. In the instance of poor work performance, the employee must have received training, assistance and guidance in order to learn how to complete the tasks expected of them. If they are however unable to learn the task, there would be a possibility of being dismissed for incapacity due to poor work performance. Ill health is the same principle. The employee is unable to perform their tasks due to their health conditions. The employer needs to show that they tried to assist the employee as much as possible, however there is no duty on the employer to keep an employee that is unable to perform their tasks to the standard expected by the employer. In the case of dismissal due to incapacity, the employee will not receive warnings or have a disciplinary hearing, but rather will have consultations with the employer to assertion whether a solution can be reached. This would be a no-fault dismissal as the dismissal is not due to the conduct of the employee.
3. Dismissal for operational requirements – retrenchments. This is also known as a no-fault dismissal as the employee will be dismissed due to no fault of their own. This form of dismissal is also not based on warnings and disciplinary hearings, but rather consultations. The employer will have to show that all alternatives were considered, and that there are no other options other than dismissing the employee. Reasons for retrenchment could be economical, technological or structural.
In all the above forms of dismissal the employee must be given an opportunity to state their side – if that is not done, the dismissal could be procedurally unfair.