Fairness in dealing with misconduct and poor performance

Is a criminal-style inquiry necessary in workplaces? Should management determine tolerable conduct based on its operational impact? Are employees truly treated as adults when subjected to adversarial, criminal-style processes for workplace rule violations?

Section 23 of the Constitution guarantees everyone's right to fair labour practices, covering both employees and employers. The Labour Relations Act, 1995 (LRA), enforces this right, ensuring employees are entitled to fair dismissal and protection from unfair labour practices.

With reference to dismissals, fairness means that there must be a fair reason for the termination and that the employer must follow a fair process before termination. The reasons are trite: employee misconduct, employee poor performance, employee ill health or injury and the operational requirements of the employer.

The Code of Good Practice:

Dismissal in Schedule 8 of the LRA provides additional guidelines. For misconduct, fairness requires that the employee breached legitimate workplace rules, which should be known, valid, and reasonable. Dismissal is appropriate if these conditions are met.

For poor performance, fairness is determined by whether the employee was aware of performance standards, given a fair chance to meet them, and still failed to do so. If these conditions aren't met, dismissal is substantively unfair, risking reinstatement or compensation for the employee.

As regards poor work performance, fairness will be determined if the employee has failed to meet a performance standard this is only if the employee was aware or could have been expected to be aware of the standard and If the employee was given a fair opportunity to meet the standard then dismissal is the appropriate response. Where the employer cannot satisfy these requirements, a dismissal will be substantively unfair and the employer will be at risk of a reinstatement order as the primary remedy, or compensation.

Employers should take good care to comply with the requirements for substantive fairness. Schedule 8 of the LRA provides guidance, our suggestion is that the employer should conduct an investigation to determine whether there are grounds for dismissal. 

Employers must comply with substantive fairness requirements. Schedule 8 suggests investigating dismissal grounds without a formal inquiry, notifying the employee of allegations, allowing time to prepare a response, and offering representation. The employer must communicate the decision and reasons for dismissal in writing.

Schedule 8 also states that for poor performance, dismissal should follow appropriate evaluation, training, and a reasonable improvement period. Employers should investigate reasons and consider alternatives before dismissal. Formal misconduct or performance hearings aren't required.

In our view these alternative processes ensure fairness to both parties: the employer's right to handle workplace rule breaches effectively and the employee's right to fair treatment and dismissal.