There are a few grounds in law that justifies an Employer terminating an employment contract of an employee, and Misconduct is one of them. However, an Employer may not just provide notice as per contract to the employee, the dismissal for misconduct must be:
- Substantially Fair, ie: a valid reason for the termination of the contract, and;
- Procedurally Fair, ie: the dismissal must have been affected in a procedurally fair manner
Employers must apply progressive discipline as discipline should be corrective, and not a form of punishment. Based on this, warnings that follow a Verbal, Written, and Final Warning process should be followed as a means of first correcting an employee’s behaviour.
ISSUING OF WARNINGS
Prior to the issuing of a warning, it is good practice to meet with the employee and provide the employee with an opportunity to be heard. In many cases, the employees comments may be included into the warning being issued.
DISMISSALS
Dismissals should always be considered as a last resort.
When making the decision to impose a dismissal penalty, the Employer should take the following into consideration:
- How serious the misconduct was
- The disciplinary record of the employee, ie: first time offender
- The Employee’s length of service
- Possible personal circumstances the Employee is dealing with
- The circumstances of the misconduct itself.
Discipline and dismissals should be applied consistently throughout the organisation, between departments and considering penalties imposed with employees in the past.
It is recommended that organisations formalise and communicate a Disciplinary Code throughout the organisation to ensure that disciplinary measures remain consistent.