In context of terminating employment contracts what is regarded as a cause recognised by law [BCEA s 37(6)(b)] as sufficient to deprive employees of statutory, agreed or  reasonable notice of termination or payment in lieu thereof?

Summary

The misconduct must be of such a nature that it irreparably damages the employment relationship. Courts often examine the following factors when determining whether just cause exists: 
  • specific facts, 
  • nature of the misconduct, and
  • employment context.

Explanation

1. Serious Misconduct

  • Behaviour that is willfully harmful to the employer or the workplace, such as theft, fraud, assault, harassment, or criminal conduct connected to employment.
  • Example: An employee stealing company property may be grounds for immediate termination.

2. Insubordination

  • Willful refusal to comply with lawful and reasonable instructions from the employer.
  • Example: An employee deliberately disobeying safety procedures after repeated warnings.

3. Gross Negligence or Incompetence

  • Reckless disregard for work duties or incompetence that causes significant harm to the employer’s operations.
  • Example: An employee ignoring critical safety standards, leading to an avoidable workplace accident.

4. Dishonesty or Breach of Trust

  • Actions that undermine the employer’s trust in the employee, such as lying about qualifications or misrepresenting work-related matters.
  • Example: Falsifying expense claims or time records.

5. Conflict of Interest

  • Engaging in activities or business dealings that directly compete with or harm the employer’s interests.
  • Example: Working for a competitor without disclosure.

6. Chronic Absenteeism or Tardiness

  • Persistent failure to attend work or perform duties as required, despite warnings.
  • Example: Repeated absences without valid reasons after progressive discipline.

7. Substance Abuse at Work

  • Being under the influence of drugs or alcohol while on duty, particularly when it affects performance or safety.
  • Example: Operating machinery while impaired.

8. Violation of Company Policies

  • Breach of established workplace rules or policies, especially after prior warnings or disciplinary actions.
  • Example: Misusing company resources despite a clear policy prohibiting such behavior.

Legal Considerations:

  • Proportionality: The misconduct must be severe enough to justify immediate dismissal without notice.
  • Procedural Fairness: Employers are generally expected to investigate allegations thoroughly and allow the employee an opportunity to respond before termination.
  • Progressive Discipline: For less serious infractions, courts or tribunals often expect employers to apply progressive discipline (warnings, suspensions) before resorting to termination for cause.

Basic Conditions of Employment Act 75 of 1997

37. Notice of termination of employment.

(1) Subject to section 38 [payment instead of notice], a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than—

(a) one week, if the employee has been employed for six months or less;

(b) two weeks, if the employee has been employed for more than six months but not more than one year;

(c) four weeks, if the employee—

(i) has been employed for one year or more; or

(ii) is a farm worker or domestic worker who has been employed for more than six months.

(2)

(a) A collective agreement may not permit a notice period shorter than that required by subsection (1).

(b) Despite paragraph (a), a collective agreement may permit the notice period of four weeks required by subsection (1)(c)(i) to be reduced to not less than two weeks.

(3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer.

(4)

(a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee.

(b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands.

(5) Notice of termination of a contract of employment given by an employer must—

(a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and

(b) not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave.

(6) Nothing in this section affects the right—

(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and

(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law. [Note: see above.)

38. Payment instead of notice.

(1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period.

(2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise.