It has already been seen –  ILO: Difference between ‘misconduct’ and ‘serious misconduct’ – that employers have the right to dismiss employees provided the reason is valid, lawful and fair.   Valid reasons range from the most serious form of misconduct to an entirely ‘no fault’ situation.   Leave aside the need for fair prior procedures.   By properly interpreting the law it becomes obvious that the balancing factors are the employee’s right to receive reasonable notice and severance benefits.   At the one end of the spectrum (serious misconduct) employees forfeit all such rights whereas at the other end (operational requirements) employees retain such rights as the dismissal is regarded as a ‘no fault’ dismissal.   How to deal with the numerous shades of grey in the area between the two extremes ?   Simply err on the side of the employee.   Unless employers have clear and convincing evidence of really ‘serious misconduct’ they should offer/pay at least reasonable notice when dismissing.

Earlier relevant posts

Serious misconduct which deprives employees of notice [ILO art 11]

Whilst there is no clear indication of what conduct should be regarded as serious, and thus deprive employees of reasonable notice, it is not difficult to provide some examples.   In most instances it will depend on the circumstances and the relationship between the parties.   Any misconduct that seriously damages or destroys the trust or confidence relationship without just cause would usually qualify as serious misconduct.   That would include not only any type of criminal offence, such as theft and unprovoked assault, but would also include gross insubordination and the like.

The Basic Conditions Employment Act [BCEA] provides that employees forfeit any right to notice for ‘any cause recognised by law’.   This can only mean the common law because neither the Labour Relations Act [LRA] nor the BCEA provide any guidance on the subject.   The common law requires material or fundamental breach, which is more that just ‘misconduct’.

Severance benefits do not have anything to do with the employee’s conduct

Severance benefits are another matter because the BCEA [section 41] only grants the right to severance pay when the employer specifically states that the reason for dismissal is based on operational requirements.   That means that the right is solely dependent on the employer’s reason for dismissal.

It has already been pointed out that the ILO Convention of 182 does not adopt this approach.   According to the ILO Convention employees only forfeit the right to severance benefits when the reason for dismissal is ‘serious misconduct’.

It is not possible to discuss the numerous shades of grey but from the ILO Convention it is possible to give some examples because the ILO Convention distinguishes between ‘misconduct’ and ‘serious misconduct’ and also explains what is meant by capacity.

Many shades of grey – reason related to conduct – ILO Convention

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.

Reason related to capacity – ILO Convention

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.

Valid, lawful and fair reason

It has repeatedly been stressed that employers must now satisfy three requirements when dismissing.

  • Prior to 1979, when the issue was regulated by the common law, the only requirement was lawfulness.
  • After 1979 and until today the requirements of validity and fairness were added.
  • If one of proposed amendments to the LRA goes through it will remove the requirements of validity and fairness when dismissing employees earning above a certain amount.   Employers will act lawfully if they notify the ‘wealthy employee’ that the contract will terminate after three months, or forthwith if payment of three months salary is made instead of notice.

At least this is better that the Employment At Will [EAW] system in the USA where generally speaking the law requires neither validity, lawfulness nor fairness.