LABOUR RELATIONS 314
TUTORIALS 1, 2 AND 3
TUTORIAL 1: DISCIPLINE AND DISMISSAL
TASK A: MOTIVATE WHETHER YOU AGREE OR DISAGREE WITH
THE STATEMENTS
1. STATEMENT – An employee cannot be dismissed for misconduct unless he has
already received at least one written warning.
✓ Disagree
✓ Because it will be on the specific circumstance of the case of the misconduct.
An employee can be dismissed for misconduct without receiving a written
warning, but that will probably be a case of serious misconduct.
✓ Labour Relations Code Good Practice, Paragraph 3, Subsection 3 and 4:
Disciplinary procedures prior to dismissal
(c) Formal procedures do not have to be invoked every time a rule is broken,
or a standard is not met. Informal advice and correction is the best and most
effective way for an employer to deal with minor violations of work discipline.
Repeated misconduct will warrant warnings, which themselves may be graded
according to degrees of severity. More serious infringements or repeated
misconduct may call for a final warning, or other action short of dismissal.
Dismissal should be reserved for cases of serious misconduct or repeated
offences.
Dismissal for misconduct
(d) Generally, it is not appropriate to dismiss an employee for first offence,
except if the misconduct is serious and of such gravity that it makes a continued
employment relationship intolerable. Examples of serious misconduct,
subject to the rule that each case should be judged on its merits, are gross
, dishonesty or wilful damage to the property of the employer, wilful endangering
of the safety of others, physical assault on the employer, a fellow employee,
client or customer and gross insubordination. Whatever the merits of the case
for dismissal might be, a dismissal will not be fair if it does not meet the
requirements of section 188.
2. STATEMENT – An employee who resigns, with or without notice, because the
employer made continued employment intolerable, has been dismissed.
✓ Agree
✓ This counts as dismissal [NB - When we talk about dismissal, we are talking
about section 186 of the Labour Relations Act]
✓ Section 186 (1)(e) states – A dismissal means that an employee/terminated
employment with or without matters because the employer made continued
employment intolerable.
✓ Constructive dismissal – This is a situation in the workplace where an
employee resigned because they had no other option but to resign because
continued employment relation was intolerable.
✓ Constructive dismissal [official] – This is where and employee terminates
the contract of employment with or without notice because the employer made
continued employment intolerable for the employee.
✓ Implications of Constructive dismissal:
➢ You must resign as an employee
➢ Required the employee to prove that there was a constructive dismissal,
before the employer must prove that the dismissal was fair.
➢ If the dismissal is found to be unfair the employee is entitled to the
remedies set out in the Labour Relations Act 55 of 1995 for unfair
dismissals
3. STATEMENT – An employer’s refusal to allow an employee to resume work after
she took maternity leave, is defined as a dismissal
✓ Agree
✓ Look at Section 186 (1)(c), of Labour Relations Act
, ➢ An employer refused to allow an employee to resume work after she
took maternity leave in terms of any law, collective agreement or her
contract of employment.
➢ Moreover, the dismissal MUST NOT BE CONFUSED WITH
AUTOMATICALLY UNFAIR DISMISSAL where the reason for the
dismissal is directly related to the employee’s pregnancy or planned
pregnancy.
➢ Another Example – If an employee is guilty or dismissed for
misconduct and this employee happens to be pregnant. She can’t claim
unfair dismissal or automatically unfair dismissal because she was not
dismissed due to her pregnancy, she was dismissed for reasons related
to her misconduct.
Basic Conditions of employment - A maternity leave can be taken anytime for 4
weeks prior to the expected delivery.
An employee is entitled to 4 months unpaid maternity leave.
4. STATEMENT – A disciplinary enquiry/hearing must be held in all cases of
alleged misconduct.
✓ Disagree
✓ It is not a MUST. There is a big difference between must and should. Code of
good practice uses ‘should’ a lot.
✓ An employee is entitled to a disciplinary hearing, but it is not a must.
✓ Code of Good Practice, paragraph 3, subsection 3: [to guide your
answer]
➢ Disciplinary procedures prior to dismissal
(c) Formal procedures do not have to be invoked every time a rule is
broken, or a standard is not met. Informal advice and correction are the
best and most effective way for an employer to deal with minor violations
of work discipline. Repeated misconduct will warrant warnings, which
themselves may be graded according to degrees of severity. More
serious infringements or repeated misconduct may call for a final
warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated offences.
, ✓ Can also look at paragraph 4, subsection 1 COGP
➢ Fair Procedure
(a) Normally, the employer should conduct an investigation to
determine whether there are grounds for dismissal [Answer]. This
does not need to be a formal enquiry. The employer should notify
the employee of the allegations using a form and language that the
employee can reasonably understand. The employee should be
allowed the opportunity to state a case in response to the
allegations. The employee should be entitled to a reasonable time
to prepare the response and to the assistance of a trade union
representative or fellow employee. After the enquiry, the employer
should communicate the decision taken and preferably furnish the
employee with written notification of that decision.
Also, when talking about a dismissal, mention COGP paragraph 2, subsection 1.
2. Fair reasons for dismissal
(a) A dismissal is unfair if it is not effected for a fair reason and in accordance with a
fair procedure, even if it complies with any notice period in a contract of employment
or in legislation governing employment. Whether or not a dismissal is for a fair reason
is determined by the facts of the case and the appropriateness of dismissal as a
penalty. Whether or not the procedure is fair is determined by referring to the
guidelines set out below.
[Always reference the sections]
Procedural fairness – Fairness of the process (fairness of the procedure)
Substantial fairness – The fairness of the reason. Is the reason of dismissal fair?
TUTORIALS 1, 2 AND 3
TUTORIAL 1: DISCIPLINE AND DISMISSAL
TASK A: MOTIVATE WHETHER YOU AGREE OR DISAGREE WITH
THE STATEMENTS
1. STATEMENT – An employee cannot be dismissed for misconduct unless he has
already received at least one written warning.
✓ Disagree
✓ Because it will be on the specific circumstance of the case of the misconduct.
An employee can be dismissed for misconduct without receiving a written
warning, but that will probably be a case of serious misconduct.
✓ Labour Relations Code Good Practice, Paragraph 3, Subsection 3 and 4:
Disciplinary procedures prior to dismissal
(c) Formal procedures do not have to be invoked every time a rule is broken,
or a standard is not met. Informal advice and correction is the best and most
effective way for an employer to deal with minor violations of work discipline.
Repeated misconduct will warrant warnings, which themselves may be graded
according to degrees of severity. More serious infringements or repeated
misconduct may call for a final warning, or other action short of dismissal.
Dismissal should be reserved for cases of serious misconduct or repeated
offences.
Dismissal for misconduct
(d) Generally, it is not appropriate to dismiss an employee for first offence,
except if the misconduct is serious and of such gravity that it makes a continued
employment relationship intolerable. Examples of serious misconduct,
subject to the rule that each case should be judged on its merits, are gross
, dishonesty or wilful damage to the property of the employer, wilful endangering
of the safety of others, physical assault on the employer, a fellow employee,
client or customer and gross insubordination. Whatever the merits of the case
for dismissal might be, a dismissal will not be fair if it does not meet the
requirements of section 188.
2. STATEMENT – An employee who resigns, with or without notice, because the
employer made continued employment intolerable, has been dismissed.
✓ Agree
✓ This counts as dismissal [NB - When we talk about dismissal, we are talking
about section 186 of the Labour Relations Act]
✓ Section 186 (1)(e) states – A dismissal means that an employee/terminated
employment with or without matters because the employer made continued
employment intolerable.
✓ Constructive dismissal – This is a situation in the workplace where an
employee resigned because they had no other option but to resign because
continued employment relation was intolerable.
✓ Constructive dismissal [official] – This is where and employee terminates
the contract of employment with or without notice because the employer made
continued employment intolerable for the employee.
✓ Implications of Constructive dismissal:
➢ You must resign as an employee
➢ Required the employee to prove that there was a constructive dismissal,
before the employer must prove that the dismissal was fair.
➢ If the dismissal is found to be unfair the employee is entitled to the
remedies set out in the Labour Relations Act 55 of 1995 for unfair
dismissals
3. STATEMENT – An employer’s refusal to allow an employee to resume work after
she took maternity leave, is defined as a dismissal
✓ Agree
✓ Look at Section 186 (1)(c), of Labour Relations Act
, ➢ An employer refused to allow an employee to resume work after she
took maternity leave in terms of any law, collective agreement or her
contract of employment.
➢ Moreover, the dismissal MUST NOT BE CONFUSED WITH
AUTOMATICALLY UNFAIR DISMISSAL where the reason for the
dismissal is directly related to the employee’s pregnancy or planned
pregnancy.
➢ Another Example – If an employee is guilty or dismissed for
misconduct and this employee happens to be pregnant. She can’t claim
unfair dismissal or automatically unfair dismissal because she was not
dismissed due to her pregnancy, she was dismissed for reasons related
to her misconduct.
Basic Conditions of employment - A maternity leave can be taken anytime for 4
weeks prior to the expected delivery.
An employee is entitled to 4 months unpaid maternity leave.
4. STATEMENT – A disciplinary enquiry/hearing must be held in all cases of
alleged misconduct.
✓ Disagree
✓ It is not a MUST. There is a big difference between must and should. Code of
good practice uses ‘should’ a lot.
✓ An employee is entitled to a disciplinary hearing, but it is not a must.
✓ Code of Good Practice, paragraph 3, subsection 3: [to guide your
answer]
➢ Disciplinary procedures prior to dismissal
(c) Formal procedures do not have to be invoked every time a rule is
broken, or a standard is not met. Informal advice and correction are the
best and most effective way for an employer to deal with minor violations
of work discipline. Repeated misconduct will warrant warnings, which
themselves may be graded according to degrees of severity. More
serious infringements or repeated misconduct may call for a final
warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated offences.
, ✓ Can also look at paragraph 4, subsection 1 COGP
➢ Fair Procedure
(a) Normally, the employer should conduct an investigation to
determine whether there are grounds for dismissal [Answer]. This
does not need to be a formal enquiry. The employer should notify
the employee of the allegations using a form and language that the
employee can reasonably understand. The employee should be
allowed the opportunity to state a case in response to the
allegations. The employee should be entitled to a reasonable time
to prepare the response and to the assistance of a trade union
representative or fellow employee. After the enquiry, the employer
should communicate the decision taken and preferably furnish the
employee with written notification of that decision.
Also, when talking about a dismissal, mention COGP paragraph 2, subsection 1.
2. Fair reasons for dismissal
(a) A dismissal is unfair if it is not effected for a fair reason and in accordance with a
fair procedure, even if it complies with any notice period in a contract of employment
or in legislation governing employment. Whether or not a dismissal is for a fair reason
is determined by the facts of the case and the appropriateness of dismissal as a
penalty. Whether or not the procedure is fair is determined by referring to the
guidelines set out below.
[Always reference the sections]
Procedural fairness – Fairness of the process (fairness of the procedure)
Substantial fairness – The fairness of the reason. Is the reason of dismissal fair?
