Answer to a question from a reader

Is it legal to fire someone without a warning or a hearing?

The short answer

No, it is not legal to fire someone without a warning or disciplinary hearing in terms of the Labour Relations Act.

The whole question

Dear Athalie

Earlier this year, I had taken a day off to attend a ceremony. My supervisor changed the day but didn't tell me. When I came back to work, I noticed that I had been taken off the timetable. When I emailed my supervisor to ask why, he just ignored me. What can I do?

The long answer

The employer may fire you for misconduct, which is considered to be unacceptable behaviour by an employee, but they still have to follow the correct procedure. Being absent from work without permission, which may be how your employer sees it, is misconduct in terms of the Labour Relations Act. However, not all misconduct is serious enough to deserve dismissal. When looking at the seriousness of the misconduct, the following issues must be taken into account: 

  • Is there a rule about the particular misconduct that is set out in the disciplinary code or procedures?
  • Is the rule common knowledge to all the employees?
  • Has this rule been applied consistently to all the employees?
  • Is the misconduct serious enough to justify dismissal?

There has to be a breakdown of the trust relationship between employer and employee for dismissal to be considered an appropriate response.

Generally, the procedure for dealing with misconduct is to 

  1. Investigate to see if there is proof of the suspected misconduct;

  2. Make it clear to the employee what he or she is being charged with so that they can prepare for the disciplinary hearing;

  3. Give reasonable notice of the disciplinary hearing – usually 48 hours;

  4. If the employee is absent on the day of the hearing without a valid reason, the hearing may proceed without the employee being present;

  5. Give the employee an opportunity to respond to the suspected misconduct at the hearing and to give his or her side of the story. The chairperson of the hearing must hear both employer and employee evidence before coming to a decision;

  6. The employee must be given the right to be represented by a trade union or by a colleague;

  7. The employee must be allowed to give evidence in mitigation (to explain the circumstances in which the misconduct happened) as well as the employer being allowed to give evidence in aggravation (to explain why this was more serious misconduct than it appeared);

  8. The chairperson can decide if dismissal is appropriate in the circumstances or if some other sanction is more appropriate;

  9. The chairperson’s decision must be given to the employee, preferably in writing.

The most important issue is that even if there is not a formal disciplinary hearing, the employee must be given the opportunity to state his or her case before being dismissed.

An employee can refer an unfair dismissal to the CCMA within 30 days from the date of the dismissal.

If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices, Department of Employment and Labour and the CCMA website. (http://www.ccma.org.za/Advice/CCMA-Referral-Forms).

These are the CCMA’s contact details:

Call Centre: 086 116 1616

Email: [email protected]cma.org.za 

Wishing you the best,
Athalie

Answered on Jan. 10, 2022, 12:06 p.m.

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