Requirements for a fair dismissal Flashcards
Dismissal for misconduct
Valid Reason: Refers to a lawful justification for dismissal based on common law, a contract of employment, or an agreement. Examples include theft, gross insubordination, assault, or any other serious breach of conduct.
Fairness Requirement: A lawful reason alone does not make a dismissal fair. Dismissal is fair only when the employment relationship has irreparably broken down, and no alternatives to dismissal exist.
Repeated Misconduct: Typically, repeated incidents of misconduct are required before dismissal is justified, unless the misconduct is severe enough to warrant immediate dismissal (e.g., fraud, assault, theft) or it destroys the trust relationship between the employer and employee.
Warning Requirement: There is no fixed rule on the number of warnings necessary before dismissal, but warnings should be issued consistently for the same or related offenses.
Consistency: Employers must treat similar cases of misconduct similarly, considering the substance of the offense and the circumstances under which it occurred.
Consideration of Circumstances: All relevant circumstances should be considered before deciding on dismissal, including the employee’s disciplinary record, length of service, any mitigating factors, the nature of the misconduct, and potential harm or prejudice to the employer.
Dismissal for incapacity
Extent of Inability to Perform: Assess the degree to which the employee is unable to perform their duties. For poor performance, evaluate whether the employee was aware of the required standard and if they had been given adequate support to meet it.
Likelihood of Recovery or Improvement: Consider the prospects for recovery from physical incapacity or improvement in performance through awareness, counseling, training, and support to meet required standards.
Impact on Employer’s Operations: Evaluate how the employee’s incapacity or poor performance affects the overall functioning of the employer’s operations.
Effect on Other Employees: Assess the impact on the welfare, safety, and morale of other employees within the workplace.
Employee’s Status and Record: Consider the employee’s status within the organization, their service record, and length of service when deciding on appropriate actions.
Period of Absence: For physical incapacity, determine whether the incapacity is temporary or permanent, whether the employee’s job can be adapted, or if alternative employment options are available.
Investigation of Causes: Conduct a thorough investigation to determine the underlying causes of the incapacity or poor performance.
Alcohol or Drug Addiction: Treat alcohol or drug addiction as an illness rather than misconduct, offering appropriate support and treatment options.
Dismissal for the employer’s operational requirements
