Except where the reason for termination of employment relates to gross misconduct (material breach of contract) employers should be encouraged to adopt a holistic approach and pay notice pay, and even some form of ‘severance pay’.

Here are some cryptic thoughts on the proposed amendments.    A sincere attempt needs to be made  to achieve a proper balance between various interest groups.   There should be as little interference as possible with the rights of employers whilst protecting the rights of employees.

Termination of employment involves a –

  • Reason that is lawful, legitimate (valid) and fair.
  • Procedure that ensures that employees have a right to be heard.

When resolving ‘dismissal’ disputes there is a need to balance interests of –

  • the employees;
  • the business; and
  • unemployed job-seekers.

It is submitted that when the law is properly understood and interpreted, employers will be able to resolve many more ‘dismissal’ disputes internally and avoid wasting money on unnecessary legal costs and ‘settlements’.

To keep this note brief it is not intended to deal with –

  • internal procedures/investigations that need to be less formal; and
  • the need for management to respect the dignity of employees by using language that does not suggests that employees are ‘criminals’.

Change to divorce law in 1979

In SA before 1979 a divorce could only be granted on clear proof of ‘fault’ (desertion or adultery).   On such proof the marriage contract was cancelled (decree of divorce granted) and the ‘innocent’ party automatically forfeited all rights to the benefits of the marriage.   A clear case of ‘all or nothing’.   Alas the same approach is being adopted today with dismissals.

Fortunately the divorce law was changed by statute in 1979.   Ironically the Wiehahn Commission reported in the same year and the concept of fairness was introduced.   It seems that this resulted in the adoption of an ‘all or nothing’ approach in clear contradiction with the ILO Convention of 1982 that clearly splits the issue into two parts (#1  reason to terminate and #2  employee’s forfeiture or certain rights).

Adoption of holistic approach

Since 1979 ‘marriage contracts’ can be terminated on proof of irretrievable breakdown; fault is only relevant to the division of assets, etc.   This change of approach must have resulted in millions of Rand being saved in legal fees and fees for private investigators.

A similar balance can be achieved by properly interpreting and applying the clear purpose of  the ILO Convention, our common law, the LRA and BCEA.    Importantly the LRA uses the word ‘conduct’ and not ‘misconduct’ and ‘capacity’ not ‘incapacity’.

Relevance of fault

Nowhere in our law is ‘fault’ a requirement to terminate the employment of employees in the private or public service.   Contrast this with the requirement of ‘gross misconduct’ to terminate the appointment of a judge.   Fault is only really relevant as to whether or not notice of termination has to be given by the employer under the common law or the BCEA.   The LRA does not even mention notice of termination.

Reason related to conduct (trust) or capacity (confidence)

As is well-known under the LRA employers may only terminate employment on proof of a fair procedure (s189 or the Code) and a reason that is –

  • Lawful (on notice unless there is a cause recognised by law – material breach and not just any form of ‘misconduct’).
  • Legitimate or valid (related to conduct or capacity or based on operational requirements)
  • fair (capacity, such as poor performance that effectively destroys the confidence relationship or conduct, such as dishonesty that destroys the trust relationship – sometimes referred to as intolerability).