Do you know how to legally dismiss your employee?

Legally, dismissals are either 'fair' or 'unfair'… And there are only three reasons for a ‘fair’ dismissal. And, even if you dismiss with due cause, if you don't follow the correct procedure, you'll end up at the CCMA for sure!

Use the tips, advice and checklists from the Labour Law for Managers Loose Leaf Service to ensure your dismissals are watertight.

 

3 Grounds for fair dismissal

  1. Conduct of the employee
  2. Capacity of the employee (his ability to do his job)
  3. Operational requirements of your business (retrenchment)

The above three reasons for dismissal form the basis of 'substantive fairness'. However, if you dismiss someone for fair reason, but don’t follow the proper procedure, your dismissal will be unfair. 
 

5 Vital elements of substantive fairness if you dismiss for misconduct

Warning: The dismissal should pass (and you must prove) all of the following tests to ensure substantive fairness:

  1. The accused employee committed the misconduct.
  2. The employee knew, or should've known, the conduct was an infringement of your rules.
  3. The rule or standard was valid or reasonable.

There're two other points that warrant substantive fairness in dismissal on the grounds of misconduct. Turn to the chapters dealing with the CCMA in your Labour Law for Managers Loose Leaf to read more!

Procedural fairness is where it gets tricky…

Refer to the Labour Law for Managers Loose Leaf  for more details on when to give warnings. Find out when they’re not needed, how to present evidence at a disciplinary hearing; finding a verdict based on the ‘balance of probabilities’; aggravating and mitigating circumstances, dealing with the appeal and so much more…

Use this checklist when you hold your next disciplinary hearing

  • Inform your employee of the allegations against him in writing. The allegations should be clearly set out, identifying exactly what he allegedly did wrong.
  • Give your employee reasonable time to prepare for the hearing, which will depend on the nature and complexity of the allegations.

TIP: It’s common practice to give 24 hours’ notice of a hearing.

However, in many cases the circumstances will require you to give longer advance notice. Especially if there are numerous charges, or your employee will have problems accessing data to prepare for the hearing.

  • Allow your employee a representative if he wants one.
  • Present your employee with the facts that support your allegations and give him an opportunity to state his case in response.

Get all the sample forms and contracts you need

The remaining tips can be found in the Labour Law for Managers Loose Leaf, which provides all the information you require about dismissal and discipline.

It includes: Sample written warnings and disciplinary policies; how to avoid the most common mistakes that lead to unfair dismissal; the appropriate sanctions for different types of offences; how to prepare for a hearing; the nine steps of a procedurally correct hearing; plus much more.

Plus information on:

  • How to issue warnings
  • How to avoid the most common mistakes that lead to unfair dismissal
  • Appropriate sanctions for different types of offences
  • Effective ways to discipline your employees
  • Six key elements of an effective and legally complainant disciplinary hearing
  • The latest on legal representation at hearings
  • How to prepare for a hearing
  • Nine steps of a procedurally correct hearing