Matthias Ruziwa
“Dismissing employees is sometimes necessary; however, it can be costly and can also affect wider employee morale and potentially damage the business. It should be considered only when other, more positive options to improving performance and behaviour have failed.
” From my experience, dismissal of an employee occurs when the employer terminates the contract, either with or without giving notice, when a fixed term contract ends and is not renewed or when the employee leaves, with or without giving notice, in circumstances in which they are entitled to do so because of the employer’s conduct which is commonly known as constructive dismissal. The most common reasons for dismissal are misconduct, inability to do the job and redundancy. A dismissal will normally be ‘fair’ provided the employer has acted in terms of established legal provisions and has ‘reasonably’ carried out the dismissal. When an employee is dismissed, they often claim ‘unfair’ dismissal.
Employers often wrongfully dismiss employees by terminating the contract of employment, and in doing so breaches the contract. The most common example is terminating a contract without giving the contractual notice period. The period of notice is a matter for agreement between the parties, but is subject to minimum periods prescribed by law. Employees have additional statutory protection in addition to that given by the law of contract. The main protection is the right of an employee not to be unfairly dismissed. The concept of unfair dismissal is provided under Section 12B of the Labour Act – Cap 28:01 which stipulates that;
(1) Every employee has the right not to be unfairly dismissed.
(2) An employee is unfairly dismissed—
(a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or
(b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).
(3) An employee is deemed to have been unfairly dismissed—
(a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;
(b) if, on termination of an employment contract of fixed duration, the employee—
(i) had a legitimate expectation of being re-engaged; and
(ii) another person was engaged instead of the employee.
The basis of unfair dismissal law is that employees have the right to be treated fairly. In making a claim of unfair dismissal the employee needs to be able to demonstrate that they were dismissed; the employer will then need to show that this dismissal was fair because it was for a specific reason.
Dismissal is a serious matter that needs careful handling. Before taking any action, managers should first establish the facts. And before considering dismissal, managers should also consider if a more positive approach is likely to be effective. Where the employee’s conduct is an issue, the level of ‘proof’ that the employee committed an alleged offence is not as high as that required in the criminal courts. However, the employer must be able to demonstrate that it carried out a thorough investigation into the alleged offence. The employer must then be able to show that the investigation led to a reasonable belief that the employee had committed the offence, and that the decision to dismiss was reasonable.
Where the employee’s capability is in issue, matters may be beyond the employee’s control. The problems may be a result of inadequate leadership, bad management or defective systems of work and, if so, the employer can put in place appropriate remedies such as learning and development. Improvements can often be achieved through continuing feedback and joint discussion between individuals and their manager to identify the problem, establish the reasons for under-performance and agree the remedial action to be taken.
The law provides guidance on dealing with disciplinary and dismissal and grievance matters. A company can use its own registered code of conduct. Where there is no individual code and there is an established National Employment Council, the industry code should come into play.
In the event that there is neither an individual company code nor an industry code, the employer should comply with the model code made in terms of section 101(9) of the Labour Act.
Employers must follow their own disciplinary process or dismissal procedure for a dismissal to be ‘fair’. Employers should usually follow at least three stages in the disciplinary process;
The employee should be informed in writing of the alleged offence and be given reasonable time to prepare for his or her defence.
The employee should be given an opportunity to be heard. Legally, the employee is allowed to be represented at the hearing and should be accorded the opportunity to cross-examine witnesses.
The employee should have the opportunity to appeal against any verdict.
Constructive dismissal occurs when the employee resigns as a result of the actions of the employer. The employer’s actions must amount to a fundamental breach of the employment contract, for example, the employer breaches the contract of employment and employee resigns in response to the breach. The employee must resign in a timely manner and the resignation must be because of the breach. The most common breach is that of the implied term of ‘mutual trust and confidence’ between the employer and employee.
In unfair dismissal claims, decisions made by the courts consist of a basic award to compensate for loss of employment and a compensatory award to reflect immediate and future loss of earnings where an order for reinstatement or re-engagement is made but not complied with.
It is therefore important that employers have clear dispute resolution procedures that are communicated to all staff. The employer should ensure that line managers and any employees involved in managing disciplinary matters and grievances particularly workers` representatives are properly trained in their content and implementation.
The employer, and their HR practitioners, have a responsibility to ensure that all disputes are handled in a fair and consistent manner across the organisation. Dismissing employees is sometimes necessary; however, it can be costly and can also affect wider employee morale and potentially damage the business. It should be considered only when other, more positive options to improving performance and behaviour have failed.
Where dismissals can’t be avoided, it’s essential to comply with the relevant law and codes of conduct. There are significant business benefits for employers, in terms of the perceptions of other employees and the wider community, in being seen to handle dismissals fairly and responsibly.
Disclaimer: Opinions expressed herein are solely those of the author.
Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address:[email protected] /Whatsapp 0773 470 368.
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