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Dismissal

An employer cannot just dismiss you without a fair and impartial disciplinary hearing.

Last week; we received the following email inquiry.

“I was recently fired as a manager of a retail clothing company. The company held me responsible for a certain stock theft that happened under my watch, claiming that I was negligent in my duties. I was asked to leave without any prior verbal warnings, written warnings or even a disciplinary hearing.  Surely, I should at least have been given a fair opportunity to give the company my side of the story and to and show them that I was not negligent in any way in the execution of my duties and that I was in fact innocent. Please advise.”

You are absolutely correct.

In terms of our labour legislation, an employer cannot just dismiss you without a fair and impartial disciplinary hearing. Generally, employees can be dismissed for one of three reasons, namely misconduct, incapacity and operational requirements. In your case, the dismissal is for alleged misconduct. 

Once misconduct is identified, the employer should conduct an investigation into the allegations against the employee and once it has been established that there is a case for the employee to answer to, the employee must be informed of the allegations against him/her and invited to present his/her side of the story in response to the allegations. This provides both parties with an opportunity to state their respective cases. The employee should also be informed of his/her rights at the hearing which include, among others, the right to be represented by a co-worker or shop steward and the right to call witnesses in his/her defence. 

At the disciplinary hearing, an independent chairperson must be appointed by the employer with the role to direct the hearing process to ensure that both parties have an opportunity to present their case, and after having heard all the evidence, make a finding on whether the employer has proven that the employee is guilty of the alleged misconduct as well as the disciplinary sanction to be applied.

If this process has not been followed and provided there are no exceptional circumstances to justify dispensing with a hearing, you have the right to challenge the dismissal for procedural unfairness and that you were deprived of an opportunity to defend yourself in response to the reasons for your dismissal. The bottom line is that our labour law requires every dismissal to be procedurally and substantively fair and you must, therefore, have an opportunity to plead to the charges, to respond to the allegations against you; and the allegations must be proven by the employer at the disciplinary hearing on a balance of probability.

If this was not the case, you may challenge your dismissal at the CCMA or the Bargaining Council under whose jurisdiction your employer may fall within 30 days from the date of your dismissal failing which you can ask the CCMA/Bargaining Council to pardon your late referral. It may also be prudent to obtain the assistance of a labour specialist to assist you with the referral, should you decide to continue to challenge your dismissal.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

 

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