Neither the ILO Convention 1982 [158 of 1982] nor the Labour Relations Act 66 of 1995 prevent employers from dismissing employees even when there is no fault attributable to the employee.  But there is the ‘fundamental principle of justification’.  There has to be a valid and fair reason.  An employee’s conduct and capacity are accepted as valid and fair reasons.   But Article 11 of the ILO Convention, and our common law and the BCEA, clearly provide that only ‘serious misconduct’ deprives employees of their right to reasonable notice, or payment instead thereof.   A few years ago the ILO clarified what is meant by  ‘conduct’ in article 4 of the Convention.

‘Misconduct’, as interpreted by the ILO, could justify a dismissal, such as inadequate performance, but employees only forfeit their right to reasonable notice when the misconduct is improper or serious.

An act of ‘misconduct’ may belong to one of two categories:

(a) one involving inadequate performance of duties the worker was contracted to carry out, e.g. neglect of duty, violation of work rules, disobedience of legitimate orders, etc.; or

(b) one which encompasses various types of improper behaviour, e.g. disorderly conduct, violence, assault, using insulting language, disrupting the peace and order of the workplace etc.

Links to ILO website

Note on Convention No. 158 and Recommendation No. 166 concerning termination of employment – 1998

Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No. 158), and the Termination of Employment Recommendation, 1982 (No. 166) (Geneva, 18–21 April 2011)

Extracts from the Note on Convention 158 [without footnotes]

Reason connected with the employee’s capacity

A lack of capacity, or aptitude, on the part of the worker can take two forms,

(a) it can result from a lack of the skills or qualities necessary to perform certain tasks, leading to unsatisfactory performance; and

(b) poor work performance not caused by intentional misconduct, as well as various degrees of incapacity to perform work as a result of illness or injury.

The Convention requires that such a period of notice be of a ‘reasonable’ duration.

The specific length of this notice period is left to be determined by legislation, and may be augmented by collective agreements, the contract itself or by custom. Article 11 also envisages that the requirement to give a period of notice may be extinguished if compensation is provided in lieu. The Committee of Experts has considered that such compensation should correspond to the remuneration the worker would have received during the period of notice if it had been observed.

It is also noted, in this connection, that the Committee of Experts has stressed that the only exception to the obligation to give notice (or compensation in lieu thereof) is in respect of an employee’s serious misconduct.

D. Procedure relating to termination:

Appeal, severance allowance, and income protection.

The Convention serves to lay out standards of procedural fairness in cases of termination of employment and thus includes, amongst its terms, provisions relating to the procedure to be applied prior to or at the time of termination, the procedure of appeal against termination, and a worker’s entitlements upon termination.

(i) Procedure to be applied prior to or at the time of termination

Article 7 of the Convention provides that “the employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity”.

The Committee of Experts has considered that “over and above the terms of Article 7 and its meaning, which is to allow workers to be heard by the employer, the purpose of this Article is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties”.

The Convention does not explicitly state what form this defence should take, nor the form in which the allegations should be presented. Accordingly, the Convention also offers some flexibility as to the manner of implementation on this matter.

It is necessary in this respect that the right to be heard is provided prior to the termination of employment, irrespective of whether the worker is entitled to procedures after the termination of employment, and even if the termination is not considered as final until the appeals procedures are exhausted.