DISCIPLINE

AND DISMISSAL

PART C : Unit 6
DISCIPLINE AND DISMISSAL

Management’s Disciplinary Authority

• The employer has a right to maintain
discipline in the workplace.
• This right is recognized in the LRA,
which contains a Code of Good Practice.
• The question is:
• What is the role of discipline and
function of discipline in the workplace
The role of
discipline
• Grogan: the function of discipline in the
workplace is to ensure that employees
contribute efectively and efciently to the
goals of the Institution.
• Since an employer and employee have a
contractual bond, the employer, through
discipline, will monitor and control the
behaviour of the employee so that the goals
and objectives of the institution are adhered
to.
• The employer has the right to ensure that an
employee adheres to reasonable standards
of efciency and conduct.
• The only way through which an employer
may ensure that employees’ conduct
conform to the required standards, is to
enforce discipline
• The Code of Good Practice: Dismissal
endorses two approaches to discipline,
namely corrective or progressive discipline.
• The important one is corrective approach
which requires that both employee and the
supervisor share the responsibility for
solving the problem.
• The fact that the problem has emerged does
not mean that the employee is a problem
therefore has to be punished. It should
rather be viewed as a challenge facing both
the employee and the supervisor.
• It may be possible that an employee has committed a
misconduct, for example reporting late for duty and be so
charged.
• There may be circumstances beyond this employee’s
control which may have caused him/her to act in that
particular way.
• Those problems should be considered as problems and
need to be addressed by both the supervisor and the
employee concerned.
• Corrective discipline does not reject the application of
disciplinary sanctions, however, it maintains that a
disciplinary sanction should be aimed at correcting the
employee’s behaviour and not to remove him/her from the
institution.
Disciplinary Rules
and Standards
• Schedule 8 of the Act, Code of Good practice:
Dismissal, further states that when enforcing discipline,
dismissal should be imposed as a last resort.
• The employer has a right to exercise discipline against the
employees in the workplace.
• The Code of good Practice: Dismissal ofers guidance to
employers on the procedural and substantive
requirements for a fair dismissal. Item 1(3) of the Code
provides as follows:
• “employers’ and employees should treat each other with
mutual respect. A premium is placed on both employment
justice and the efcient operation of business. While
employees should be protected from arbitrary action,
employers are entitled to satisfactory conduct and work
performance from the employees.”
• Item 7 of the code of Good Conduct: Dismissal.

• It is required that any person who is determining whether the

dismissal for misconduct is fair or not should consider-
• whether or not the employee contravened a rule or standard
regulating conduct in, or relevance to, workplace; and
• if a rule was a rule or standard was contravened, whether or not –
• the rule was a valid or reasonable rule or standard;
• the employee was aware, or could reasonably be expected to
have been aware, of the rule or standard;
• the rule or standard has been consistently applied by the
employer; and
• dismissal was an appropriate sanction for the contravention of
the rule or standard.
Procedures (Sanctions)
p135
• Disciplinary Procedure
• The procedure is drafted on the assumption that an
employer will apply progressive discipline on the
understanding that discipline should be corrective
rather than punitive.
• Under normal circumstances disciplinary action will
be applied progressively. This implies that repeated
similar or related ofences may result in more serious
disciplinary action. However, it is important to note
that depending on the nature and seriousness of the
transgression, it is possible that a frst transgression
can result in serious disciplinary action.
• This means that the employer should endeavor to frst
correct an employee's behaviour, such as by issuing:
• Warnings (general, informal, written fnal)
• · verbal warnings for minor transgressions;
· written warnings for consistent misconduct; and
• · fnal warnings for persistent misconduct. P – 135
• Denial of privileges,
• . Suspension, - p 140
• . Demotion’ – is considered an acceptable alternative
to dismissal
• . Dismissal
Validity duration of warnings

• A verbal warning will usually be valid

for three months.
• Written warnings will usually be valid
for a period of six months.
• At the expiry of warnings, the warning
must be removed from the employee's
personnel records
• Dismissal should be considered as a last
resort.
• The procedure provides that before an employer
issues a warning (written warning or fnal written
warning) to an employee, the employer must
meet with the employee concerned.
• The purpose of this meeting is for the employer
to hear the employee before the employer issues
the written warning.
• The procedure is intended to provide a framework
for parties to use in drafting their own disciplinary
procedure.
DISMISSAL
:

PART B: UNIT 7
WHAT IS DISMISSAL
• Lindiwe, Willem and Nata are employed by the
same company. Lindiwe resigns because she is
on a fxed-term contract of employment for one
year and leaves after the expiry of the term.
Nata sufers from after divorcing her husband.
After becoming aware of Nata’s condition, the
employer treats her in an abusive and inhuman
manner as a result of which she resigns.
• Can any of these employees claim that they
have been dismissed?
Who can be
dismissed?
• The LRA’s approach in respect of unfair dismissal can be
summarized in the following questions:
• (1) Is the worker an employee? – only employees can be
dismissed as they are the only employees protected by the
LRA.
• The courts and CCMA now often have to decide whether there
was a contract of employment at the time of the breach of
contract.
• In Wyeth v Manqele, the LAC held that employees who
concluded a contract of employment that was terminated by an
employer before actual employment commenced are also
covered by the LRA’s dismissal provisions.
• However, where the contract is subject to a condition, there is
no contract and thus no employee until the condition is fulflled.
• In Phera v Education Labour Relations
council, phera was employed on condition
that permission to commence work was
obtained from the DoE. Prior to being
granted permission he started teaching. The
LC has to decide whether phera had ever
been an employee. The LC held that phera’s
employment had been subject to unfulflled
condition. Held he was not an employee,
cannot claim unfair dismissal.
• (2) Has there been dismissal? - the
answer to this question will entail ftting the
termination of employment into one of the
six categories of ‘dismissal’ as defned in
s186(1).
• (3) Is the dismissal substantively and
procedurally unfair? – in this regard the
reason for dismissal (conduct, capacity or
operational requirements) will be a decisive
factor.
DEFINITION OF
DISMISSAL : S186 (1)
• The Act defnes “dismissal” in s 186 (1) as:
a) Termination of a contract of employment with or
without notice;
(b) Failure to renew a fxed-term contract on the same or
similar terms where the employee ‘reasonable
expected’ the employer to do so;
© Refusal to allow a female employee to resume work
after taking maternity leave in terms of law, contract
or collective agreement;
(d) Refusal to re-employ an employee who was dismissed
for the same or similar reasons as other employees,
where the employer has ofered to re-employ the
latter (‘selective non-re-employment’);
• (e)Termination of contract by an employee
where the employer has made continued
employment intolerable (‘constructive
dismissal’);
• (f)Termination of contract by an employee,
with or without notice, because the ‘new’
employer, after a transfer of a business in
terms of section 197 or 197A, provided the
employee with conditions or circumstances
at work that are substantially less favourable
than those provided by the ‘old’ employer.
186 (1) (a) - Termination of a
contract with or without a notice
• Section 186 (1) (a) describes a standard form of
dismissal.
• The core of this form of dismissal being that the employer
terminates the contract either by giving the employee
notice of termination or by way of summary termination.
• Summary termination by an employer may be justifed if
an employee has committed a serious or a fundamental
breach of a material term of the contract.
• If an employee terminates the contract, this will
constitute a resignation and not a dismissal , unless the
termination was a constructive dismissal in terms of
s186(1)(e).
• There are many cases where employee
claims to have been dismissed but the
employer claims that the employee
resigned.
• [see Ouwerhoud v Hout Bay Fishing
Industries (2004) 25 ILJ 731 (LC).
• Another important issue arisen relates to
when employment starts- is it at the time
the contract was concluded or at the
point the employee starts working.
• In Whitehead v Woolworths (Pty) Ltd
(1999) 20 ILJ 2133 (LC) at 2137
• in Jack v Director-General Dept of
Environmental Afairs [2003] 1 BLLR 28
(LC),
• Wyheth SA (Pty) Ltd v Manqele &
others [2003] 7 BLLR 734 (LC)
186 (1) (b): Non-renewal
of fxed-term contracts
• EMPLOYER X employs all staf on fxed term
contracts of three months at a time, after which
contracts are normally renewed. During the 9th
month of employment Employer X is involved in
an argument with an employee, Nomsa Mokwena.
• He informs Nomsa that the contract will not be
renewed. Nomsa alleges that this is unfair
dismissal, as she had an expectation that the
contract would be renewed and the employer did
not follow proper procedures. Does she have a
case?
• At common law a fxed term contract of employment
expires automatically when the time period as agreed
in the contract comes to an end or when a specifc
project is completed.
• Section 186(1) (b) relates to a situation where an
employer fails to renew a fxed term contract and the
employee had a ‘reasonable’ expectation that it would
be renewed.
• The Labour Relations Act says the non-renewal of a
fxed term contract or the ofer to renew it on less
favourable terms can be regarded as a dismissal.
• This would be the case if the employee reasonably
expected that the contract would be renewed.
• When establishing whether the non-renewal of a fxed term contract
constitutes dismissal, the terms of the contract remain relevant, the
contract itself is an important indication that the parties in fact
intended the contract and to terminate it on the date mentioned.
• A term in a contract that the employee should have no expectation of
renewal is simply one of the factors to consider when determining the
reasonableness or otherwise of the employee’s expectations.
• A fxed term contract containing such a term is repeatedly renewed an
expectation of renewal may thus be reasonable.
• The identity of a person who created the expectation is also relevant.
In SA rugby Players Ass v SA Rugby, the LAC held that an
expectation created by an outgoing national rugby coach could not
bind the employer since it widely known that a new coach may prefer
diferent players.
• When someone is claiming an unfair dismissal,
section 192 requires that:
• the employee have to prove the existence of a
reasonable or legitimate expectation, that is, that special
circumstances justifed such an expectation, for instance
the previous regular renewals of his contract of
employment, and so forth; and
• If the dismissal is established then the employer must
show that the dismissal was fair.
• The test of whether the employee was entitled to have such a
reasonable expectation is an objective test: would a reasonable
person anticipate renewal?
• Where an employer uses fxed term contracts as a means to
assess employee performance or as a backstop in the event
of employee misconduct, the employer will most certainly
face problems if challenged upon the termination of the
contract.

• Getting back to Nomsa’s case: Although the onus would be

on Nomsa to prove that she had a reasonable expectation
that her contract would be renewed, she is likely to succeed.
If the employer wanted to dismiss her after the argument,
the employer would have had to follow procedures. Failing
to do so would at least be procedurally unfair. The basic
principle is therefore not to enter into or terminate fxed
term contracts for the wrong reasons.
• This provision is primarily aimed at employers who have a
permanent need for an employee, but who seek to avoid
appointing that employee permanently and instead ofer the
person a series of consecutive short-term contracts.
• In SACTWU v Cadema Industries, the employee had
been employed for 4 years with the same employer in terms
of numerours short-term contracts (many of which had been
of no more than a month or two duration)
• When the employment was terminated the employee
claimed that, in view of the repeated previous renewals, she
had had a reasonable expectation of renewal.LC upheld her
claim that she was in fact dismissed.
• SEE Bronn v University of Cape Town
(1999) 20 ILJ 951 CCMA
• Malandoh v SA Broadcasting
Corporation (1997) 18 ILJ 544 (LC)
• Dierks v University of South Africa
(1999) 20 ILJ 1277 (LC),
• McInnes v Natal Technikon (2000) 21 ILJ
1138 (LC).
Termination on grounds of pregnancy or
maternity leave
s 186 (1) ©

• Julia , an employee of XYZ fell pregnant. Her employer agreed to her

taking once months leave after birth of her child. She gave birth to
twins. The twins were in a poor state of health and Julia requested
another month’s leave to attend to them. The company declined her
request but was prepared to grant her an extra two weeks' leave. She
declined the ofer, and her services were terminated. Julia approached
the Labour Court contending that her dismissal was automatically unfair
in terms of s187 (1) € of the Labour Relations Act because she has been
dismissed for reasons related to her pregnancy. The employer argued
that Julia’s dismissal was not related to her pregnancy. Decide whether
Julia was dismissed, and her dismissal was automatically unfair.
• A female employee is entitled to at least four consecutive months'
maternity leave, and may commence maternity leave-
• at any time from four weeks before the expected date of birth,
unless otherwise agreed; or
• on a date from which a medical practitioner or midwife certifes that
it is necessary for the employee's health or that of her unborn child.
• No employee may work for six weeks after the birth of her child,
unless a medical practitioner or midwife certifes that she is ft to
do so. An employee who has a miscarriage during the third
trimester of pregnancy or bears a stillborn child is entitled to
maternity leave for six weeks after the miscarriage or stillbirth,
whether or not the employee had commenced maternity leave at
the time of the miscarriage or still birth.
• The efect of s186 (1) © is to ofer a protection to employees for
the period of her maternity leave.
Selective re-employment
s186(1) (d)
• Where the employer dismissed employees
for the same reason.
• The employer must have been ofered to re-
employ one or more of the previously
dismissed employees while at the same time
refusing to re-employ one or more of the
previously dismissed employees.
Constructive dismissal

• Section 186 (1) (e) of the Labour relations act

states that in circumstances where "an
employee terminated a contract of employment
with or without notice because the employer
made continued employment intolerable for the
employee", constitutes a dismissal - in this
context, a constructive dismissal.
• Where an employee resigns his employment
because he alleges that the employer has made
continued employment intolerable, the onus is
on the employee to establish the fact of
dismissal.
• In Solid Doors v Theron NO, the LAC held
that 3 requirements must be present in
order to establish constructive dismissal:
• 1. the employee terminated a contract of
employment;
• 2. the reason for termination must be
because the employer made continued
employment intolerable for the employee;
• 3. it was the employer who made continued
employment intolerable.
• See- Jooste v Transnet Ltd t/a South African
Airways (1995) 16 ILJ 629 (LAC),
• Pretoria Society for the Care of the Retarded v
Loots (1997) 18 ILJ 981 (LAC) @ 985,
• Beets v University of Port Elizabeth [2000] 8
BALR 871 CCMA,
• Ntsabo v Real Security CC (2003) 24 ILJ 2341
(LC)
• Grobler v Naspers BPK & another [2004] 5
BLLR 455 (C),
• Onus and proof
• Where an employee alleges that he/she has been
dismissed by way of constructive dismissal, the
employee bears the onus of establishing that a dismissal
was unfair. An employee is required to prove that:
• (i) His/her situation had become so intolerable that
he/she was unable to work;
• (ii) He/she would have continued working indefnitely had
the employer not created the unbearable situation;
• (iii) He/she resigned because she did not believe that the
employer would reform or abandon the pattern of
creating an unbearable work environment.
S 197 dismissals / transfer/sale
of business s 186 (1) (f)

• The law provided for the automatic transfer of

contracts of employment when the whole or part of
a business is transferred as a going concern from
one employer to another.
• If an employee whose contract of employment is
transferred with substantially less favorable
conditions or circumstances of work, this would
constitute a constructive dismissal.
• The employee will have to prove that the conditions
or circumstances ofered by the new employer are
substantially diferent and not just minor.
Termination by operation of
law/ Terminations that do
not constitutive dismissals
• Not every termination falls within the statutory defnition of dismissal.
• In some cases contracts expire by operation of law. Other forms are:
• (i) ‘Deemed’ dismissals - In many situations in the public sector there are provisions that
provides that an employee is ‘deemed’ to have been dismissed if they are absent from
work without leave for longer than a specifed period.
• In HOSPERSA & another v MEC for Health [2003] 12 BLLR 1243 (LC) the court
held that such a deeming provision applies only when the employee has disappeared
without trace.
• (ii) Expiry of the agreed period
• (iii) Completion of the specifed task
• (iv) Repudiation
• (v) By Mutual agreement
• (vi) On the death of either party
(vii) By Insolvency
(viii) By supervening impossibility of performance
(ix) By state action
(x) Exercise of executive powers
(xi)Transfer of business
(xii)termination pursuant to collective agreement
(xiii) Unlawful dismissals
(xiv)Suspensive conditions
(xv) Resolutive conditions.
Dismissals
under LRA

PART C : CODE OF GOOD

PRACTICE