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PROCEDURES TO BE ADOPTED FOR DISMISSING AN EMPLOYEE - ESPECIALLY DURING PROBATION
Rael Solomon of the Labour Consultancy
1. The first step in avoiding legal problems is to follow all the correct procedures in employing the employee in the first place.


Obtain a complete and full C.V. from the applicant.
Check all references. The applicant has rights - respect them (Affirmative Action)
Interview to check:
Suitability for the position
Compatibility with superiors and colleagues
Ability - suitable tests can be used if special skills are required. Eg. Use of a computer to accomplish a required task
There should be a precise and definitive "Job" description incorporated into the probationary contract.


2. A probation period, that is reasonable given the circumstances of the job, is recommended. The period should be determined by the nature of the job and the time it takes to determine the employee's suitability for continued employment. where appropriate the employee should receive:

Evaluation
Instruction
Training
Guidance and Counselling


Dismissal during the probationary period should follow the procedures required for the dismissal of a "permanent" employee.

The Act recognises only three grounds for a fair dismissal which are being unacceptable for "legal" reasons


Conduct of employee
Capacity of employee
Operational requirements of the employer
NB! Dismissal should be preceded by an opportunity for the employee to state a case in response to the case for dismissal assisted by a co-employee or trade union representative. Dismissal during the probationary period is usually due to Incapacity - Poor Work Performance; misconduct; incompatibility or a combination of these factors?

ANY PERSON DETERMINING WHETHER A DISMISSAL FOR POOR WORK PERFORMANCE IS UNFAIR SHOULD CONSIDER:


Did the employee meet a required work standard
Was the employee aware of the standard
Was the employee given a reasonably period to meet the required standard
dismissal was an appropriate action
DISMISSAL (B) FOR MISCONDUCT IN THE PROBATIONARY PERIOD:


Was a rule or standard contravened
Was the rule a valid or reasonable rule
Was the employee reasonable expected to be aware of the rule or standard
Was dismissal appropriate for the contravention.
NB! In all cases involving dismissal the employee should be given the opportunity to state a case and to be assisted by a trade union representative where appropriate or co-employee. If the employee is a union member try to advise the union timeously of the intended disciplinary action or at least make sure the employee is aware of his rights.

MISCONDUCT: DISCIPLINARY PROCEDURES PRIOR TO DISMISSAL


All employers should adopt disciplinary and Codes of Conduct rules that clearly establish the standard of conduct required for an employee
The employers rules must create certainty and consistency in the application of discipline
Discipline should be consistent and applied in the same manner for all employees.
Some rules or standards may be so well established that it not necessary to communicate them eg. theft, gross insubordination.
Graduated discipline should be used to correct employees behaviour
Formal procedures do not have to be involved every time a rule is broken or standard not met. Written warnings should be given when deemed appropriate.
It is usually not appropriate to dismiss an employee for a first offence except for gross and serious misconduct:
Theft - gross dishonestly
Gross insubordination
Wilful damage to property
The employer should consider factors such as -

employees circumstances
previous disciplinary record
the circumstances surrounding the reasons for dismissing the employee.

from: http://www.btimes.co.za

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