With all the changes to the labour laws and fines that employers are served, many managers are of the view that the laws favour employees and therefore it is difficult to dismiss an employee. As a result many acts of misconduct and poor work performance are being overlooked by managers who want to avoid having to spent the time in following the correct procedures and possibly having to face reinstatement of the dismissed employee or having to pay the employee for an unfair dismissal.
There are some myths relating to dismissals that need to be dispelled.
Myths about Dismissals
1. The labour law makes it impossible to dismiss an employee
The Labour Relations Act lays down processes that employers must follow when an employee is to be dismissed. This is to make sure the process is fair. It is not there to make employers keep an employee on who is not performing or who commits misconduct.
2. Three warnings must be given before the employer can dismiss
It depends on the offence. Some acts of misconduct carry at least a final written warning penalty or summary dismissal for the first offence.
3.The dismissed employee will take revenge or become violent
Make sure the employee is given counselling. Take the time to make sure he knows what will happen if he is dismissed. The Unemployment Insurance Fund (UIF) gives some benefits to employees who are dismissed. This must be explained to the employee.
4.The CCMA is biased against employers
The CCMA has to be objective. It must listen to the case and decide on the merits of what the employer presents to it. If it is felt that the Commissioner is biased, a complaint must be lodge against him/her to the Labour Court.
5. Employees cannot be given bad references when dismissed
It is not true that an employee can sue an employer for giving a bad reference. No one can successfully sue the employer if the employer tells the truth. Any prospective employer would also want to know if an employer dismissed a potential employee. If an employee was dismissed for theft, it is fair to give this information to a prospective employer.
6. Employers have to wait for the outcome of a criminal case before a disciplinary hearing can be held
In a disciplinary hearing the employer must prove the probability that the employee is guilty of the offence. Because of this, there is a breakdown in trust between the employer and the employee. A criminal case has to prove beyond doubt that the employee was responsible for the act. Criminal cases can take months to go to court and often do not even reach prosecution because of technicalities.
If an employee is not guilty in a criminal court, the CCMA will accept that continued employment is not possible. Sometimes they use the disciplinary report as evidence in the criminal case, so the employer should conduct a hearing.
7. Employers must wait for a formal complaint before taking action against an abusive employee
The employer has a duty to ensure that its employees are protected from harassment or any form of discrimination (Employment Equity Act and the Code of Good Practice for Handling Sexual Harassment Cases).
An employer must take action if it is find out an employee is being harassed, even if the employee does not lay a formal complaint. If the employer does not take action, it could end up with a case at the CCMA and possible civil action against the employer.
8. An employee cannot be dismissed for an illegal or unsafe act if he is acting on an instruction from a manager
The employer can dismiss an employee who commits an illegal or unsafe act. The evidence needs to be assessed to determine if it would be reasonable under the circumstances for the employee to refuse the instruction.
A manager cannot force an employee to commit an illegal or unsafe act. It is the employee’s right to refuse to do so. The employee has a duty to report such instructions using the employer’s internal grievance procedure. If the employer does not take any action, the employee can take the grievance to the Department of Labour’s Inspectors or the CCMA.
These myths must not make an employer to think it does not have rights as the employer. Employers should not turn a blind eye to an employee who commits misconduct or perform poorly. Action needs to be taken and such employees need to be disciplined.