Section 188 of the Labour Relations Act (LRA), which deals with other unfair dismissals, states the following:
1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was affected in accordance with a fair procedure.
2. Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was affected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.”
Given the provisions of section 188 of the LRA above, the onus of proof rests with the employer. Employers must therefore exercise great care when designing and applying their disciplinary policies as the labour courts do not take kindly to employers who do not follow their own policies and those who cannot justify dismissal as a result. It is important to note that consistency must be applied when dealing with such disciplinary matters to ensure that there is an element of fairness, and that the employer is not guilty of unfair labour practices by applying rules in an arbitrary and discriminatory manner.
As a company, we are very focused and cognisant around consistency and treating everyone fair. Should you feel that you are being treated unfairly, do not hesitate to reach out to your Human Resources Manager. Alternative, our Managing Director has an open-door policy – do not hesitate to seek guidance / assistance.