The first article dealt with the start of the employment
relationship (recruitment, selection and appointment);
the second explored the managing of the employment
relationship (performance management, the
grievance procedure and the creation of an HR policy)
and this, the third one, will examine the end of the
employment relationship (resignations and dismissals,
as well as the disciplinary procedure).
The employment relationship can be terminated for
a. On completion of agreed period or task
b. By mutual agreement
c. By notice
d. On grounds of impossibility of performance
e. Because of insolvency
Fair versus Unfair Dismissal
The following are considered by the labour courts to
be “fair” reasons for the termination of the employment
• Incapacity to perform job
• Operational requirements of the business
While most other reasons for dismissal will be unfair,
the following are the automatically unfair reasons that
apply to a vet practice:
• A worker is pregnant or intends to become pregnant
• An employer discriminated against a worker because
of race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language,
marital status or family responsibility
• An employer cannot prove:
• a worker’s misconduct or inability
• that the employer’s operational needs are
• that the dismissal procedure was fair
• Any other reason
Dismissal for Misconduct
The following are grounds for dismissal for misconduct:
• The accused employee did commit the misconduct
• The misconduct was serious enough to merit dismissal
• The employee knew or should have known that
the incident constituted misconduct
• The rule or standard was valid or reasonable
• The rule has been consistently applied in previous
• If the dismissed employee takes action against
the vet practice, you will be asked the following:
• Were there any mitigating circumstances?
• Can you prove that the employee’s conduct
made a continued employment relationship
The above refers to the “substance” of the dismissal;
however the dismissal must also be “procedurally”
fair. Procedural fairness refers to following the correct
procedure when effecting the dismissal.
This procedure is outlined by the labour legislation,
as well as the vet practice’s own disciplinary code. It
includes holding a disciplinary hearing, allowing the
employee to appeal, etc..
Dismissal for Incapacity
Incapacity can arise from two places; first, a newly
appointed employee shows that they are unable to
perform their job adequately or, second, when injury
or ill-health prevents an employee from performing
As discussed in the first article in this series, recruitment
is the foundation on which employee relations
is based. This is very evident in the case of dismissing
for poor work performance as the employer will have
to show the following:
• The employee was given appropriate evaluation,
instruction, training, guidance or counselling.
• The employee continues to perform unsatisfactorily
after a reasonable period of time for improvement
has been given.
This means that the probationary period should be
seen as a time for skilling the employee, rather than
just “checking them out”.
Incapacity due to ill health or injury can be temporary
• Temporary: The vet practice needs to assess the
extent of the illness or injury as to whether the
employee will be absent for an unreasonably long
period of time. If so, the vet has to explore all possible
alternatives to dismissal. For example, if an
employee will be absent from work for 3 months
due to illness, an alternative to dismissal could be
employing someone on a temporary basis.
• Permanent: Before considering dismissal, the vet
has to look at whether the employee’s workplace
can be adapted to accommodate their disability
or, alternatively, whether the employee can perform
another job within the practice. For example,
in the case of an practice manager who becomes
wheelchair-bound, the vet would have to
investigate making her office easily accessible to
• In the case of injury or sickness caused by their
job, even more accommodation should be made.
One particular area to be aware of is that, while being
drunk can be a dismissable offence, alcoholism and
drug addiction can be seen as illnesses and therefore
counselling or some other intervention should be
considered before dismissal.
Dismissal for Operational Requirements
Because small to medium sized businesses have dismissed
unproductive employees by saying “We just
can’t afford to keep you on” to avoid disciplinary action,
the labour legislation is very specific about what
constitutes dismissal for operational reasons and how
it must be conducted. Dismissal for operational requirements
are categorised as “no fault” dismissals as
they are not in any way linked to the performance of
an employee. As they are “no fault”, the legislation requires
that businesses explore all possible alternatives
to dismissal are explored.
To this end, the process should be collaborative, between
employer and employee, as far as possible.
To achieve this collaboration, the process must include:
• The opportunity to meet and report back to employees
• The opportunity to meet with the employer
• The request, receipt and consideration of information
Of course, in a vet practice, the collaborative process
is often limited to just two people – the practice owner
and the person being retrenched. Nevertheless,
the process must still be collaborative.
Vets should also be aware that they might have to justify
why they selected the person(s) for retrenchment.
Apart from a job becoming redundant, selection criteria
that would be fair include length of service, skills
and qualifications. The courts will generally accept
the use of the “last in first out” (LIFO) principle.
An employee who is retrenched is entitled to a MINIMUM
of one week’s salary per completed year of service
at the practice. They must additionally be paid
out for unused annual leave and either be paid one
month’s notice, or be given unlimited time to find a
new job. If the employee rejects a reasonable alternative position at the practice, they do not have to be
paid a severance package.
In the previous section, dismissal for misconduct
was outlined. However, it is important to remember
that dismissal in these circumstances should only be
used as a last resort. A formal disciplinary code will
provide guidelines as to how deal with discipline in
the workplace, ensuring fairness as well as preventing
unwanted comebacks by disgruntled employees.
The purpose of a disciplinary code, then, can be summarised
• To ensure that all employees conduct themselves
properly in the interests of workplace harmony,
safety and effectiveness.
• To guide employees and management as to the
conduct expected and the appropriate corrective
The Reasons for Disciplinary Action
While the reasons for disciplinary action being taken
are almost limitless, they can all be summarised as follows:
• A vet practice must have certain rules and regulations
to enable it to carry out its activities in an
orderly and meaningful way.
• To achieve this, it is essential that all employees
are aware of the behavioural norms and standards
expected of them.
The above will only be successful if the disciplinary
policy and procedure are applied fairly and consistently.
The Aims of a Disciplinary Code
When creating and applying a disciplinary code, rather
than seeing it as a guide to punishment, the code
should be centred on the following
Correction and rehabilitation should be the cornerstone
of good discipline and is prescribed before
harsh penalties are unnecessarily applied.
For example, despite counselling, failure to improve
poor attendance may ultimately lead to
dismissal, thus acting as a deterrent to other employees.
This is achieved via progressive discipline because
warnings identify and give employees the chance
to stop the offending misconduct.
• Fair Discipline
The LRA, backed up by the CCMA, Labour Court
and Industrial Court decisions made of the past
few years, have stressed that disciplinary action
must be both substantively fair, as well as procedurally
• Procedural Fairness is achieved by the correct
application of disciplinary steps. Adherence to
disciplinary procedures helps to ensure that
discipline is administered consistently, fairly
• Substantive Fairness is achieved by adherence
to the disciplinary policy, guidelines, common
practice, the laws of South Africa, fairness and
consistency. This applies when determining
innocence or guilt and arriving at the corrective
The LRA and the Courts require that employees
must know the rules and the consequences of infringements
before any penalties are applied.
• Progressive Discipline
While some offences merit a disciplinary hearing
and possible dismissal on the first offence,
other infringements need to be dealt with via a
process of one, two or three warnings at progressively
higher levels of severity, depending on
the seriousness of each specific offence. In this
way, warnings accumulated on a progressive basis
could culminate in a disciplinary hearing and
possible dismissal. It is stressed that not all warnings
may be accumulated in this way. That is, only
warnings for infringements of a similar type may
be accumulated in a particular line of progression.