CODE OF GOOD PRACTICE: DISMISSAL
(1) This code of good practice deals with some of the key aspects of
dismissals for reasons related to conduct and capacity. It is intentionally general. Each
case is unique, and departures from the norms established by this Code may be justified in
proper circumstances. For example, the number of employees employed in an establishment
may warrant a different approach.
(2) This Act emphasises the primacy of collective agreements. This
Code is not intended as a substitute for disciplinary codes and procedures where these are
the subject of collective agreements, or the outcome of joint decision-making by an
employer and a workplace forum.
(3) The key principle in this Code is that employers and employees
should treat one another with mutual respect. A premium is placed on both employment
justice and the efficient operation of business. While employees should be protected from
arbitrary action, employers are entitled to satisfactory conduct and work performance from
2 Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason
and in accordance with a fair procedure, even if it complies with any notice period in a
contract of employment or in legislation governing employment. Whether or not a dismissal
is for a fair reason is determined by the facts of the case, and the appropriateness of
dismissal as a penalty. Whether or not the procedure is fair is determined by referring to
the guidelines set out below.
(2) This Act recognises three grounds on which a termination of
employment might be legitimate. These are: the conduct of the employee, the capacity of
the employee, and the operational requirements of the employer's business.
(3) This Act provides that a dismissal is automatically unfair if
the reason for the dismissal is one that amounts to an infringement of the fundamental
rights of employees and trade unions, or if the reason is one of those listed in section
187. The reasons include participation in a lawful strike, intended or actual pregnancy
and acts of discrimination.
(4) In cases where the dismissal is not automatically unfair, the
employer must show that the reason for dismissal is a reason related to the employee's
conduct or capacity, or is based on the operational requirements of the business. If the
employer fails to do that, or fails to prove that the dismissal was effected in accordance
with a fair procedure, the dismissal is unfair.
Disciplinary procedures prior to dismissal
(1) All employers should adopt disciplinary rules that establish the
standard of conduct required of their employees. The form and content of disciplinary
rules will obviously vary according to the size and nature of the employer's business. In
general, a larger business will require a more formal approach to discipline. An
employer's rules must create certainty and consistency in the application of discipline.
This requires that the standards of conduct are clear and made available to employees in a
manner that is easily understood. Some rules or standards maybe so well established and
known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or
progressive discipline. This approach regards the purpose of discipline as a means for
employees to know and understand what standards are required of them. Efforts should be
made to correct employees' behaviour through a system of graduated disciplinary measures
such as counselling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is
broken or a standard is not met. Informal advice and correction is the best and most
effective way for an employer to deal with minor violations of work discipline. Repeated
misconduct will warrant warnings, which themselves may be graded according to degrees of
severity. More serious infringements or repeated misconduct may call for a final warning,
or other action short of dismissal. Dismissal should be reserved for cases of serious
misconduct or repeated offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a
first offence, except if the misconduct is serious and of such gravity that it makes a
continued employment relationship intolerable. Examples of serious misconduct, subject to
the rule that each case should be judged on its merits, are gross dishonesty or wilful
damage to the property of the employer, wilful endangering of the safety of others,
physical assault on the employer, a fellow employee, client or customer and gross
insubordination. Whatever the merits of the case for dismissal might be, a dismissal will
not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal,
the employer should in addition to the gravity of the misconduct consider factors such as
the employee's circumstances (including length of service, previous disciplinary record
and personal circumstances), the nature of the job and the circumstances of the
(6) The employer should apply the penalty of dismissal consistently
with the way in which it has been applied to the same and other employees in the past, and
consistently as between two or more employees who participate in the misconduct under
4 Fair procedure
(1) Normally, the employer should conduct an investigation to
determine whether there are grounds for dismissal. This does not need to be a formal
enquiry. The employer should notify the employee of the allegations using a form and
language that the employee can reasonably understand. The employee should be allowed the
opportunity to state a case in response to the allegations. The employee should be
entitled to a reasonable time to prepare the response and to the assistance of a trade
union representative or fellow employee. After the enquiry, the employer should
communicate the decision taken, and preferably furnish the employee with written
notification of that decision.
(2) Discipline against a trade union representative or an employee
who is an office-bearer or official of a trade union should not be instituted without
first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the
reason for dismissal and reminded of any rights to refer the matter to a council with
jurisdiction or to the Commission or to any dispute resolution procedures established in
terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably
be expected to comply with these guidelines, the employer may dispense with pre-dismissal
5 Disciplinary records
Employers should keep records for each employee specifying the
nature of any disciplinary transgressions, the actions taken by the employer and the
reasons for the actions.
6 Dismissals and industrial action
(1) Participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does
not always deserve dismissal. The substantive fairness of dismissal in these circumstances
must be determined in the light of the facts of the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct
by the employer.
(2) Prior to dismissal the employer should, at the earliest
opportunity, contact a trade union official to discuss the course of action it intends to
adopt. The employer should issue an ultimatum in clear and unambiguous terms that should
state what is required of the employees and what sanction will be imposed if they do not
comply with the ultimatum. The employees should be allowed sufficient time to reflect on
the ultimatum and respond to it, either by complying with it or rejecting it. If the
employer cannot reasonably be expected to extend these steps to the employees in question,
the employer may dispense with them.
7 Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is
unfair should consider-
(a) whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have
been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the
(iv) dismissal was an appropriate sanction for the contravention of
the rule or standard.
8 Incapacity: Poor work performance
(1) A newly hired employee may be placed on probation for a period
that is reasonable given the circumstances of the job. The period should be determined by
the nature of the job, and the time it takes to determine the employee's suitability for
continued employment. When appropriate, an employer should give an employee whatever
evaluation, instruction, training, guidance or counselling the employee requires to render
satisfactory service. Dismissal during the probationary period should be preceded by an
opportunity for the employee to state a case in response and to be assisted by a trade
union representative or fellow employee.
(2) After probation, an employee should not be dismissed for
unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction,
training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee
continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an
investigation to establish the reasons for the unsatisfactory performance and the employer
should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard
and to be assisted by a trade union representative or a fellow employee.
9 Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance
is unfair should consider-
(a) whether or not the employee failed to meet a performance
(b) if the employee did not meet a required performance standard
whether or not-
(i) the employee was aware, or could reasonably be expected to have
been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required
performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the
required performance standard.
10 Incapacity: Ill health or injury
(1) Incapacity on the grounds of ill health or injury may be
temporary or permanent. If an employee is temporarily unable to work in these
circumstances, the employer should investigate the extent of the incapacity or the injury.
If the employee is likely to be absent for a time that is unreasonably long in the
circumstances, the employer should investigate all the possible alternatives short of
dismissal. When alternatives are considered, relevant factors might include the nature of
the job, the period of absence, the seriousness of the illness or injury and the
possibility of securing a temporary replacement for the ill or injured employee. In cases
of permanent incapacity, the employer should ascertain the possibility of securing
alternative employment, or adapting the duties or work circumstances of the employee to
accommodate the employee's disability.
(2) In the process of the investigation referred to in subsection
(1) the employee should be allowed the opportunity to state a case in response and to be
assisted by a trade union representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any
dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds
of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be
appropriate steps for an employer to consider.
(4) Particular consideration should be given to employees who are
injured at work or who are incapacitated by work-related illness. The courts have
indicated that the duty on the employer to accommodate the incapacity of the employee is
more onerous in these circumstances.
11 Guidelines in cases of dismissal arising from ill health or
Any person determining whether a dismissal arising from ill health
or injury is unfair should consider-
(a) whether or not the employee is capable of performing the work;
(b) if the employee is not capable-
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee's work circumstances might be
adapted to accommodate disability, or, where this is not possible, the extent to which the
employee's duties might be adapted; and
(iii) the availability of any suitable alternative work.