Well, for starters, it’s the law – the Labour Relations Act (LRA) obliges employers to follow a fair procedure, before terminating an employee’s employment. A failure to follow a fair procedure exposes an employer to potentially being ordered to pay out compensatory wages of up to 12 months’ worth of wages, depending on the extent of procedural deficiency or degree of unfairness.
It’s worthwhile noting that the kind of pre-termination procedure prescribed by the legislation, depends on the type of ground (or reason) relied upon for wanting to terminate employment:
- Misconduct reasons require a specific approach towards disciplinary processes.
- Performance reasons require a specific approach towards performance management processes.
- Poor health (incapacity) reasons require specific health related investigatory processes.
- Operational requirements (retrenchment) reasons require a specific consultation process.
In my 20+ years of practice as an Employment Attorney in SA, some of my employer clients would frown upon the compulsory pre-dismissal procedures imposed by Employment Legislation, sometimes viewing such pre-termination procedures as strange or with a degree of resentment.
Whilst acknowledging the added burden that such legislation places on running a business, here’s a few worthwhile factors to consider:
- A disciplinary hearing process sometimes helps to reveal the true cause of an incident and may even expose other culprits involved.
- A performance assessment process often draws out an employee’s strong points, including a potential revision of the job role for the related position.
- A health-related investigation process sometimes helps to reveal the root cause for ongoing absenteeism in the workplace.
- An effective employee consultation process can potentially result in agreed retrenchments or other mutually agreed outcomes.
- Following an effective process can also potentially expose deeper underlying workplace issues.
Besides the above 5 factors, let’s not forget that a pre-dismissal process requires interactive engagement between Management and Employee/s. All pre-termination processes involve a level of human communication, which is key to any relationship, especially an employment relationship.
Moreover, what is often overlooked, is that although such processes are couched as “pre-dismissal” procedures, they are inherently designed to potentially preserve the employment relationship, not necessarily result in the end of an employment relationship – for instance:
- Progressive or corrective disciplinary processes are designed to adjust employee behaviour.
- Performance assessment/evaluation processes are aimed at improving staff performance.
- Health investigation processes are designed to try and accommodate ill health or injury.
- Consultation processes are designed to seek alternatives to retrenchment or redundancy.
