What is Fair Dismissal?
A dismissal is considered fair, if it is for a fair reason, and in accordance with fair procedure.
There are 3 grounds for fair dismissal:
- The conduct of the employee
- The capacity of the employee
- Operational Requirements (retrenchment)
Dismissals are automatically unfair if:
- The dismissal infringes the rights of employees and trade unions
- The reason is listed in section 187 (including but not limited to participation in a protected strike, pregnancy or acts of discrimination.)
How do you determine a fair sanction when a rule is broken or a standard is not met?
- Was the rule/ standard reasonable?
- Was the employee aware of, or can reasonably be expected to be aware of, the rule/ standard?
- The importance of the rule/ standard in the workplace
- The harm or damage caused by the contravention
- Whether the rule/ standard has been consistently applied in the past.
The Importance of Consistency in Dismissals
As a general rule, the employer should apply the sanction of dismissal in the same way in which it has been applied to other employees in the past, and consistent as between two or more employees who participate in the same misconduct under consideration. Consistency is a key factor to be considered in assessing the fairness of dismissal. However, inconsistency does not necessarily mean that the dismissal is unfair if the misconduct renders the continuation of the employment intolerable.
Download a full copy of the New Code of good conduct on Dismissals 040925
The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation
