Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
Despite the fact that labour law favours employees, employers need to understand that:
- Labour law does allow employers to dismiss employees.
- The CCMA does uphold the dismissal of employees unless the dismissal is unfairly implemented.
- Thus employers need to understand and accept the difference between fair and unfair dismissal in order to avoid the employee being reinstated.
So while the law does allow dismissals it also requires the employer to be able to prove that the dismissal was both procedurally and substantively fair.
“Procedurally fair” relates to whether the employee was given a fair hearing.
Whether a dismissal is “substantively fair” relates to the fairness of the dismissal decision itself as regards whether:
- The employee really did break the rule
- The rule was a fair one
- The penalty of dismissal was a fitting one in the light of the severity of the offence AND
- The employee knew or should have known the rule.
Properly trained CCMA arbitrators consider all the above factors together with the circumstances of each individual case in deciding if a dismissal was fair.
In the case of Mundell vs Caledon Casino, Hotel and Spa (Sunday Times 15 May 2005) the employee was dismissed because:
- She distributed a R15000 tip amongst her colleagues
- She allowed a colleague to take home five cans of cool drink
It was reported that:
- The rule relating to the handling of tips had not been given to Mundell
- Mundell had no way of knowing that she was not allowed to distribute the tip money herself
- The tip had been given by the client at an open gathering
- A number of managers were involved in sharing out the tip
- The cool drinks had been intended by the client for consumption by the staff
- Giving the cool drinks to the employee was not serious enough to merit dismissal
- The employer’s failure to prove that the employee knew of the rules relating to tip distribution rendered the dismissal unfair
- The employer was required to pay the employee six months remuneration in compensation.
The outcome of this case proves that the inability of employers to make dismissals stick is not primarily because of the law but rather because of the lack of labour law expertise of many employers.
Details:
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