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Checklist for substantive fair dismissal

Many employers want or need to dismiss an employee, but are not sure if it is substantively fair. The following needs to be done to avoid having to face an unfair dismissal dispute at the CCMA.

Substantive fairness means there is a fair or valid reason for the employer to dismiss an employee.

If the employee is dismissed and the reason is automatically unfair, the employer may be ordered to reinstate the employee to his position. Or the employer can be ordered to pay compensation equal to a maximum of 24 months’ remuneration calculated at the employee’s rate of remuneration at the time of dismissal.

To ensure that employee’s dismissal is substantively fair, employers need to follow the five rules below.

Is the employee’s dismissal substantively fair?

It is suggested that employers use this checklist to make sure they follow the rules of substantive fairness before they dismiss an employee

  1. Did the employee break a workplace rule or standard of conduct?
  2. Was the rule or standard valid or reasonable?
  3. Was the employee aware, or could reasonably be expected to have been aware of the rule or standard?
  4. Did the employer apply the rule or standard consistently?
  5. Was dismissal an appropriate sanction for the contravention?

If the answer is ‘yes’ to all of the above, the employer can rest assured the dismissal is substantively fair and can avoid being taken to the CCMA.

Procedural fairness is also important. It means that the employer has followed a fair or proper procedure before dismissing the employee, even if is substantively fair. However, procedural fairness is a subject for another article at another time.