16 Mar 2011. In Preece v J D Wetherspoon PLC a Tribunal held that dismissal was a fair sanction for a pub manager who had a conversation complaining about two of her customers on Facebook while she was still at work. An overview of legal procedure & case law. Dismissal for Misconduct and the onus at the CCMA: Workplace Rules In dismissing an employee, the dismissal should have two fundamental characteristics. Source: Emma Whitelaw, an Associate in the Employment Law Department at Bowman Gilfillan, Cape Town, details the issues. 1. The CCMA has frequently upheld the dismissal of employees fired for misconduct. Employers may feel justified in summarily dismissing employees when they make what is seen as a serious mistake that hurts their business, but the employer might be the one in … What Constitutes Gross Misconduct? As a result, he knows what Judges are looking for. The term summary dismissal is often used to describe a termination for serious misconduct, as provided in the Fair Work Regulations 2009. ... Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a … The employer won. The Employment Appeal Tribunal confirmed that an employee could be summarily dismissed for gross misconduct even though there was no one act that amounted to gross misconduct on its own, provided there was a series of acts that cumulatively did so. A dismissal may be fair if, for example, continuing to employ the employee would seriously damage the employer’s reputation or if there is another genuine connection between the alleged offence and the employee’s employment. The challenge with outside work misconduct is framing the charges. The dismissal should be substantively fair, this meaning that the Applicant should be dismissed for a good reason. The ‘without prejudice’ rule arises from case law and enables the parties to be able to negotiate without fear that the communications can later be used by either party as an admission of liability. STEENKAMP J . The procedure leading up to dismissal need not be formal or labelled as a disciplinary hearing, however, the employee must get an opportunity to state his/her case prior to being dismissed. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired. THE NATURE OF DISCIPLINE 2.1 There must be a rule or standard 2.2 The rule must be valid 2.3 The rule must be consistently applied 2.4 The employee must be aware of the rule 2.5 Corrective approach 3. A common dilemma, with which employers in all areas of industry […] This has not always been the case, but it is now an important legal issue since the Fair Work Act 2009 came into operation. Dismissal for serious misconduct: When have you gone too far? There is no single written definition of gross misconduct. Misconduct is the failure to fulfil the conditions of employment in the contract of service. An ‘ordinary’ misconduct dismissal will generally only be fair if the employee has been given previous warnings which have not expired. It is untrue that Malaysian employment law makes it impossible for an employer to dismiss an employee without having to pay damages for unfair dismissal. This case highlights a dismissal could be ruled unfair if poor performance is mistaken for misconduct. Case law: Dismissal for misconduct can still be fair even if employee puts things right Employers may still be able to dismiss an employee for gross misconduct, even if the employee subsequently attempts to put things right, according to a recent ruling. However, each case will be different and the employer cannot simply rely on the charge by the police. The dismissal of the employee cannot happen right away, a disciplinary hearing must held before the employee could be dismissed for misconduct. The meaning of “serious misconduct” by an employee in Australian employment law is plagued by controversy and uncertainty. Examples from the case law where the tribunals have found that the employer was outside the range of reasonable responses include: If terminated on this basis the employer will not be required to provide an employee with a period of notice. It is therefore very important for employers, before dismissing employees for off site misconduct, to get the case analysed by a labour law expert in order to check whether dismissal will be acceptable or not. This update was published in Legal Alert - … However, dealing with misconduct outside of work is difficult. Pursuant to Fiji law, in situations of serious employee misconduct the employer has two choices, either: a summary dismissal for cause (as set out in section 33 of the Employment Relations Act) when the employer is certain of the facts and those facts warrant immediate termination of employment; or by Saul Harben, Steve Bowler. Dismissal for gross misconduct does not attract notice pay and a gross misconduct dismissal can have huge consequences for an employee, particularly in certain professions. Senior deputy president Hamberger from the Fair Work Commission has ordered domestic postal freight company Startrack Express to pay one of its drivers $17,500 in compensation after it was found that the company had unfairly dismissed an employee of eight years. The first example looks at a dispute around whether there was unfair dismissal or a resignation. Judgment. The employee was dismissed for gross misconduct. The basic acceptable reasons for dismissing employees are misconduct (which has various shades), and poor work performance (which is self-explanatory). dismissal, whether that be with notice or a summary dismissal (dismissal with no notice or pay in lieu of notice) for gross misconduct. Examples include theft, dishonesty, disorderly or immoral conduct at work and insubordination. Malaysia’s Industrial Court has established via many previous decisions that insubordination is capable of being a serious misconduct which is sufficient to destroy the employment relationship and justify a dismissal. BY lvan lsraelstam, Chief Executive of Labour Law Management The difficult part is describing the misconduct. Sunderland FC’s need to protect its reputation in this case overpowered Johnson’s right to a private life making this a relatively simple matter. The sanction of summary dismissal for theft, as such, is seen in most employers’ disciplinary codes in the workplace. Unfair dismissal is one of the most common types of employment law cases. Proper strategy begins long before you dismiss an employee. Just Cause for Dismissal in Canada, twice every year, he reviews every just cause case in Canada. Case law on this type of misconduct is slowly emerging. This article examines the definition of Gross misconduct, what actions amount to Gross misconduct and what procedures an employer should follow in order to summarily dismiss an employee for Gross misconduct, while at the same time avoiding the pitfalls which can lead to a claim for unfair dismissal. They must be acts that destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue. In cases involving misconduct for reporting for duty under the influence of alcohol a commissioner should, in determining the fairness of dismissal, consider and weigh against each other among other things: That the employee knew of the rule and was aware that breaching it could result in dismissal; The first of the two case studies explains the difference between serious misconduct and gross misconduct and looks at whether it is permissible to dismiss someone with a clear disciplinary record for serious rather than gross misconduct. Introduction [1] The applicant, ABSA, dismissed the third respondent, Ms Miranda Ngwenya, for gross negligence arising from an incident on 17 August 2012. It is a balancing act of the employee’s right to privacy and the employer’s right to protect its reputation. The law can, however, provide some general tests that may assist an employer to determine when misconduct may warrant summary dismissal or dismissal for cause. Lawyers will frequently explain that every case must be considered on its own facts and merits. Legal Alert. Labour law definitely does allow employers to dismiss employees. His claims of unfair dismissal, wrongful dismissal and race discrimination were dismissed. A common dilemma, with which employers in all areas of industry are faced, is the question of when dishonesty by an employee is sufficient to justify dismissal. Summary: Review – LRA s 145 – misconduct – gross negligence – ABSA v Naidu followed – dismissal fair – award reviewed and set aside. Dismissal for conduct outside of work is nothing new. The other case explains that gross misconduct can be an accumulation of incidences rather than just one act. It has long been held that summary dismissal is the appropriate sanction for theft. There has been extensive case law regarding the appropriate sanctions for theft, especially in the case of petty theft. Our team will assist you in addressing suspected misconduct or poor performance. OVERVIEW: DISMISSAL FOR MISCONDUCT 2. Dismissal for Gross Misconduct? If, following a reasonable investigation, an employer is satisfied that a person has committed gross misconduct then they can be dismissed immediately and without notice. Below are two examples of unfair dismissal cases which our Employment Solicitors have dealt with.. Unfortunately the law cannot provide a definitive answer in every situation. The greater the potential consequences for the employee, the greater the obligation on the employer to show the investigation and disciplinary process was reasonable. However, misconduct which does not amount to gross misconduct will not justify dismissal unless the employee is already on a final warning. Gross misconduct is an act which is so serious that it justifies dismissal without notice, or pay in lieu of notice, for a first offence. Unfair dismissal can take many different forms. 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