This article deals with the termination of employment. There must be fair reasons for the dismissal by way of procedural and substantive fairness. Fair procedure includes guilt and sanction. With regards to guilt, there are five factors that needs to be present for substantive fairness to be present. On the other hand, procedural fairness consists of three steps. Finally, suspension prior to a hearing should be as short as possible.

Section 186 of the Labour Relations Act (“LRA”) deals with how you would fairly dismiss an employee. This section states that there must be fair reasons for the dismissal, by way of procedural fairness and substantive fairness. Firstly, substantive fairness is regulated by section 188 of LRA and this states that dismissal must be for a valid reason and that a fair procedure should be followed.

Fair procedure has two legs, guilt and sanction. To prove guilt, there are five questions that needs to be shown. They are the following:

1.    Was there a rule in the company:  Was there a set of rules and procedures that the employee was expected to know?

2.    Was the employee aware of the rule: There should be some sort of evidence that creates an obligation that the employee should be aware or at least reasonably aware of the rule. This usually goes with the first step. The employee should have read their contract or if they attended a meeting, they should be present on the attendance register.

3.    Did the employee break the rule: This is an evidence issue. The onus of proof is on a balance of probabilities (“BOP”). At the CCMA and Labour Court, an employer must prove on a BOP, which also supports indirect evidence.

4.    Was the rule lawful and valid:  The employer must be able to justify that the rule is reasonable and that there is an operational need for the rule.

5.    Was the company consistent: Does the employer treat everyone equally? All employees should be treated equally when it comes to misconduct. The rule can be relaxed depending on the circumstances.

If one factor is not complied with, then there is no substantive fairness.

Dismissal is the most severe sanction, but the employer must lead evidence that the trust relationship has irretrievably broken down. Procedural fairness consists of three steps. The three distinct steps are:

1.    The entire process needs to be examined. Starting at the first complaint to the disciplinary hearing, the reason for this is to establish that a fair procedure has been followed by the employer. Also, that the accused has not been experiencing unfair actions by the employer. At the Commission for Conciliation, Mediation and Arbitration (“CCMA”), the employer will have to prove that a fair procedure was followed. It is important to note that the chairperson should not even have the option of "guilty or not guilty" in his mind before it has been established that a fair procedure has been followed.

2.    In the case where a fair procedure has indeed been followed, then the chairperson can consult the minutes and the evidence accessible to ascertain guilt or innocence.

3.    If the employee is found guilty, the chairperson should decide on a sanction. Several facts must be considered by the chairperson in addition to the evidence. The chairperson must consider how long the accused has been working at the company, his previous disciplinary record, his personal circumstances, whether the sanction of dismissal would be consistent with previous similar cases and the circumstances surrounding the breach of the rule.

With regards to suspension of the employee, suspension must always be with pay during an investigation or pending the hearing. However, suspension without pay can only be used as a sanction where the employee was found guilty.

The two requirements for suspension are, firstly, that there must be good reason dependent on the circumstances and secondly, where the charge is of a serious nature.

Suspension prior to a hearing should be as short as possible, therefore the investigation should be as quick as possible. Once the investigation is completed and the employee is found guilty and sanction is provided, the employer must inform the employee that they have 30 days in which to refer the matter to the CCMA. This can be verbal as there is no legal rule stating it must be in writing.