In general, gross misconduct in the workplace is characterized as an objectionable action that is willful and cannot be described as a mistake or an act of negligence. Misconduct is often defined as an intentional violation of rules in the workplace. Misconduct is one of the grounds recognised by the law that may give reason for the dismissal of an employee.
Appeal processes are not a requirement in terms of the LRA (Labour Relations Act), many companies in terms of their internal policies will have an internal appeals process, however the absence of one does not construe any unfair labour practice. Appeals (if your policy makes provision for one) are applicable when an employee appeals a particular process or decision related to disciplinary action.
Grievances are a crucial means to allow employees to raise concerns they may have with the employer, members of its management its practices or fellow staff. A failure to respond to such grievances may lead to valid constructive dismissal claims against an employer.
Counselling & Progressive Discipline – No Formal Procedures are Required
Because of the progressively corrective nature of disciplinary action, the sanction applied should also be progressive in nature. Depending on the severity of the offense and the circumstances under which it as committed, the sanction can range from a verbal warning through to a written warning, a final written warning and dismissal. Warnings do not necessarily have to follow the order of verbal – written – final written – dismissal, unless the employer has made provision for this procedure in his Disciplinary Code.
The law promotes the principle of progressive discipline.The purpose of the warning is to try and correct a situation, if necessary by progressively more severe sanction each time the offense is repeated, or if there are repeated offenses of misconduct.
Poor Performance looks at whether the employee meets the required standards of the particular job.
An employer may set performance standards that an employee is required to meet. Standards must be both reasonable and relevant to the workplace. More than one performance standard may be required, depending on the job.
Any person determining whether a dismissal for poor work performance is unfair should consider –
1. whether or not the employee failed to meet a performance standard; and
2. if the employee did not meet a required performance standard whether or not –
- the employee was aware, or could reasonably have been expected to be aware, of the required performance standard;
- the employee was given a fair opportunity to meet the required performance standard; and
- dismissal was an appropriate sanction for not meeting the required performance standard
Incapacity / Ill health – Injury on duty / Impossibility of Performance
In certain instances an employee may either incur an injury whilst on duty or outside working hours, whereby in both instances renders the employee incapable to perform his / her normal contractual duties.
Continues absence as a result of this may or an employee’s inability to perform his contract as a result of this, may warrant contract termination.
There are numerous legal requirements, including obtaining medical reports and investigating alternatives to accommodate the illness…
Telephonic Support – On call
SA Labour Dynamics is on call and will be able to assist with immediate telephonic support on any general questions in relation to Labour Relations, should we not be able to assist immediately we commit to answer / assist you within 24 hours.