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Written by Amanda Devine | 26 October 2009

The process of dismissing staff

When it comes to disciplining or dismissing staff, most experienced managers will shudder with fear; more often than not, they have had to answer to the CCMA due to a disgruntled employee and this can be a time consuming and draining process.

So how do you as a small business owner avoid the often costly mistakes that others have made?

The CCMA (Centre for Conciliation, Mediation and Arbitration) is the first place most employees turn to if they feel that they have been unfairly dismissed, and you would be forgiven for thinking that the CCMA favours employees above all others. However, it is very important to remember that Labour law is not the same as Criminal law due to one very pertinent fact. As a victim of crime you have to prove that the crime occurred whilst the accused remains in neutral status, in labour law, the “victim” of unfair dismissal (the employee) does very little besides raising the issue and the accused (the employer) is obligated to prove that proper processes were followed and that there was a justifiable reason for dismissal.

And therein lies the downfall of most employers, for the law and the dismissal process are actually very simple, especially for Micro enterprises that have minimal staff and a simple employment structure.

GOOD REASON

As an employer, you are perfectly within your rights to dismiss a member of staff for a GOOD REASON. To identify what is deemed a fair and just reason the indiscretion/s must fall into one of the following categories:

Misconduct – For example, your sales assistant assaults you

Incapacity – For example, your driver loses his driver’s license due to a driving ban

Operational Requirements – Computerisation replaces your manual machine operator

Now obviously, there are actions required in any given situation, that must be performed prior to dismissal, but essentially, that brief paragraph is the basis of a GOOD REASON for dismissal; the remainder of the obligations of an employer, fall under GOOD PROCESSES!

GOOD PROCESSES

If a staff member commits an act worthy of dismissal, it should be addressed immediately.

As a manager, you will naturally, want to speak to them to find out the cause of the indiscretion or error of judgment, and it goes without saying that we all have daily challenges that could impact on our job in one way or another. Judgment about what is right or wrong depends on your moral values, on the action of the employee and upon the law, so you will have to assess accordingly; but if it contravenes the law, the contract of employment or your company policy then dismissal is possible – if the proper process is followed!

An employee has 30 days in which to initiate a case of unfair dismissal against an employer; this is a long time when you are a busy entrepreneur, so the most important thing to remember about managing staff issues is to put everything in writing!

Keep notes when meeting, jot dates and times and people present down as this type of information is vital if a case is ever issued against you and is also the type of information that you might forget. It doesn’t matter if the notes you take are neat, and it doesn’t matter if you have to write on a serviette! Any notations pertaining to an employee situation can prove vital when it comes to justifying accountability or implying deceit.

Hopefully this article will help ensure that any staff dismissals are handled adequately from the outset thus preventing any claims by disgruntled employees. However, the Labour Act is certainly worth a read for more detailed information and is one piece of legislature that, unlike most legal documents is written “by the people” and in a manner that is simple to understand!

Useful links:

CCMA - Centre for Conciliation, Mediation & Arbitration
The Labour Act