When, why and the reasons you are allowed to dismiss

This article examines the law surrounding dismissal of staff

When, why and the reasons you are allowed to dismiss

Source: Practical Guide to Human Resources Management by Fleet Street Publications (Pty) Ltd

Before you act

Check if there are regulations in the employment contract, in a union agreement or company agreement that might deviate from the legal requirements.

Formal regulations

You are required to give notice in writing.

Tip: Let a written notice be given by two messengers: on to hand it over, and one to act as a witness.

Avoid sending a notice by registered mail, or even registered with record deliver; if the employee is not at home and discards the notification, he can claim not to have received the notice!

Periods of notice and deadlines

When the employee has been working with you for a long time, extended periods of notice will be applicable. Look at the table below for the notice periods you must give, depending on length of service. When the first day of the notice period is a Saturday, Sunday or a public holiday, you must ensure delivery before this day.

Protection against wrongful dismissal  

Only if the worker is a genuine independent contractor does the law on protection not apply.

You may only give notice to employees who are not on leave (maternity, sick, holiday) or who are not about to go on leave.

Notice for operational reasons

You must first check, in consultation with the employees, if you could secure employment by cutting overtime, transfers, retraining or short-time work. If that is not possible, you will have to select possible retrenchees based on agreed or fair and objective criteria, i.e., you need to consider, for example, retraining employees with many years of service or those who have the skills necessary for jobs in the organization.

Tip: Through careful retrenchment planning and expert negotiation you may be able to avoid losing your most valued employees due to job cuts.

Notice for reason of illness or disability

You may only consider giving notice because of frequent, short illnesses if there is a negative medical prediction for the future. All working hours lost through absenteeism should be recorded meticulously. In the case of an extended illness, it is always assumed the employee requires a high degree of pr9otection. Only concrete facts and figures can prove that the illness of the employee caused excessive damage to the company.

Notice for reasons of improper conduct

Before you give notice for reason of improper conduct you must – as a rule – have warned the employee previously, perhaps more than once Exception: Extreme offences like violence, betrayal of company secrets, acceptance of bribes, etc., may not require prior warnings depending on the circumstances.

Frequently occurring breaches of duty include reporting late for work, violation on non-smoking or no-alcohol regulations, sexual harassment, political agitation in the factor, etc. Discuss the incident with the employee without delay and then try to issue a letter o warning (where merited) no later than two days after the incident.

Tip: If there were several cases relating to different types of offence, issue a separate letter of warning for each.

Tip: Never take any steps towards dismissing any employee for any reason including illness, poor performance, redundancy or misconduct before consulting an expert in labour law.

Notice of Dismissal

LEGAL PERIODS OF NOTICE

Length of Service Period of Notice
Six months One week
More than 6 months but less than a year Two weeks
One year or more Four weeks

Important: Periods of notice during a probationary period do not differ from the above.

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