IVAN ISRAELSTAM: Bosses must spell out all the workplace rules

When considering the dismissal of an employee for misconduct the employer must, after hearing all the evidence presented, must ensure that such a dismissal would be fair. Should the employee take the matter further the employer would have to prove that the dismissal was both procedurally and substantively fair. 

“Procedurally fair” relates to whether the employee was given sufficient advance notice of the inquiry, the opportunity to prepare a defence, a chance to state their case and the right to representation by a fellow employee. 

Whether a dismissal is “substantively fair” relates to the basis for the dismissal itself rather than to the disciplinary procedures. Specifically, for the dismissal to be adjudged to be substantively fair, the employer would have to show that the employee did commit the misconduct or failed to meet the required standards, and that the requirements/standards were achievable and reasonable. The employer would also have to prove that the penalty of dismissal was a fitting one in the light of the severity of the offence, that the employee knew or should have known the requirements or standards, and that the rule that the employee is alleged to have broken existed at the time of the alleged offence. 

Officials at the Commission for Conciliation Mediation & Arbitration (CCMA) are required to apply their minds to these factors and to the circumstances of each case in the interests of fairness. 

In the case of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583) the CCMA heard a case wherein the employee was dismissed for reasons including foul language. However, it was found that no rule against swearing existed at the workplace. 

The absence of the rule against swearing together with lack of evidence on the other charges led the arbitrator to find the dismissal unfair and awarded the employee 12 months’ remuneration as compensation. 

It can be argued that there need not be a rule against swearing for an employee to be guilty of misconduct. That is, employers would want to argue that swearing at the workplace is universally known to be unacceptable, making the inclusion of an anti-swearing rule unnecessary. 

However, the CCMA official in this case clearly did not believe that to be the case, presumably based on the assumption that swearing is acceptable unless the employer makes it clear that such language is prohibited. Another arbitrator may have seen it differently but employers cannot count on that. That’s because the Code of Good Practice: Dismissal states that employers should inform their employees of their rules. This implies that the onus of proving that the rule exists and that the employee knew of the rule falls on the employer. 

It can be a laborious and complex task for an employer to draw up a comprehensive set of rules, but dealing with the consequences of having none can be even more onerous. If employers aren’t in a position to take charge of this vital task, there are experts they can call on to ensure it is done properly.

• Israelstam is CEO of Labour Law Management Consulting.