Page 1 of 4 123 ... LastLast
Results 1 to 10 of 31

Thread: Dismissal on a whim - why not?

  1. #1
    Site Caretaker Dave A's Avatar
    Join Date
    May 2006
    Location
    Durban, South Africa
    Posts
    20,979
    Thanks
    3,055
    Thanked 2,462 Times in 2,067 Posts
    Blog Entries
    12

    Dismissal on a whim - why not?

    This question was triggered by a post in the Metals Industry strike - my take thread.

    I'll get to the post concerned in a moment, but first let me make an argument based on the same argument used by organised labour to support the right to strike (apparently balanced out by the employer's right to lock out, which come to think of it, the unions are not particularly respectful of right now ).

    Argument 1.
    The employee can resign on a whim. Doesn't even have to give reasons. Why can't the employer dismiss an employee in similar manner?

    Argument 2.
    I've highlighted the particularly relevant parts of the post.
    Quote Originally Posted by Greig Whitton View Post
    We absolutely need simpler, less onerous rules - particularly with respect to our labour laws. But that does not mean that all regulations are bad. And when it comes to dismissal situations, I don't think that our laws are particularly complex:

    1. Don't fire someone unless you have a fair reason (e.g. poor performance, incapacity, misconduct, operational requirements).
    2. Before you fire someone, explore alternatives to dismissal and give the affected employee an opportunity to respond to your reason for firing them.

    You don't need to be a labour law "guru" to get to grips with this. I've sat down with clients and explained it to them in half an hour or less. I've written plain English business guides that require less than an hour to read and apply.

    Part of the problem is that many small business owners don't want to learn, or assume that it is a lot more complex than it really is. They want the freedom to do as they please. And in some respects, they do deserve more freedom. But dismissal is not one of those situations. You can't have business owners (irrespective of the size of their company) firing people on a whim. It would lead to exactly the sort of exploitation that labour brokering has been used for (not, of course, to suggest that all labour brokers or their clients are exploitative).
    OK then. How about when the employer and employee have a really bad relationship?
    Like adversarial just for the sake of being adversarial because one doesn't like the other for whatever reason?

    The employee can pick their moment to leave the relationship, but the employer can't?
    Have you tried firing an employee for having a bad attitude?
    Get ready to fork out at the CCMA if you do (or pay a hefty fee to a labour lawyer to deal with it).


    Or how about when the employee is really miserable in their job, but can't muster up the initiative to move on?

    I've had a few of these over the years, and they just suck the energy out of any room they enter and fill it with negativity.
    I've counselled them.
    I've tried motivating them.
    I've offered options for them to improve their lot in life, which they just don't take.
    They clock in.
    They do the minimum asked of them.
    They don't impress clients, or even lose you clients (as in they just go away and never return).
    The only thing they cling onto stronger than their misery, is the cause of it - their job.

    The absolute best thing I can do for them, my business, myself and the future of the rest of my staff is fire the misery's sorry ass and force them to move on.

    But I'm not allowed to because that would be an unfair practice.

    So come on - why not be able to fire the employee on a whim?
    There's going to be a reason why that whim occurred in the first place, and as long as it's connected to the employee, I can't see a problem right now.
    Enlightenment welcomed.
    The trouble with opportunity is it normally comes dressed up as work.

  2. #2
    Moderator IanF's Avatar
    Join Date
    Dec 2007
    Location
    Jhb
    Posts
    2,615
    Thanks
    191
    Thanked 520 Times in 398 Posts
    This is not meant to be flippant but companies don't vote employees do.
    Only stress when you can change the outcome!

  3. #3
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Really great question, Dave! Here's my two cents:

    Quote Originally Posted by Dave A View Post
    The employee can resign on a whim. Doesn't even have to give reasons. Why can't the employer dismiss an employee in similar manner?
    To clarify, employees can't just resign on a whim since they are legally bound by their employment contract (which is why most employment contracts will require employees to provide notice before leaving). In practice, of course, these provisions often go ignored and are rarely worth enforcing. But as desA will be the first to tell you, I have a pedantic nature

    On a more important note, job creation (and protection) on a national level is in all of our best interests. If employers could dismiss employees on a whim, we would see even more job losses during challenging economic periods than we already do which would send our economy into an irreversible downward spiral. Our current labour laws staunch some of that hemorrhaging by requiring employers to demonstrate good cause and consider reasonable alternatives to dismissal.

    Finally, while I can empathise with the challenge of replacing employees who resign on a whim, I personally believe that it is an easier (though certainly not easy) challenge for employers to deal with than the challenge that employees would face of finding a new job (and supporting their family) when fired on a whim. In other words, most employees will have more to lose from being fired on a whim than what most employers have to lose when employees resign on a whim (again, I'm not saying that replacing an employee who resigns on a whim is an easy challenge to solve - I'm just saying that, in most cases, it will probably be easier than finding a new job and supporting your family when you get fired on a whim).

    Quote Originally Posted by Dave A View Post
    OK then. How about when the employer and employee have a really bad relationship?
    Like adversarial just for the sake of being adversarial because one doesn't like the other for whatever reason?

    The employee can pick their moment to leave the relationship, but the employer can't?
    Quote Originally Posted by Dave A View Post
    The absolute best thing I can do for them, my business, myself and the future of the rest of my staff is fire the misery's sorry ass and force them to move on.

    But I'm not allowed to because that would be an unfair practice.
    I disagree, Dave. You absolutely can fire someone for having a bad attitude if that bad attitude affects their performance at work (e.g. treating customers badly or failing to meet productivity targets) and/or if it manifests as misconduct (e.g. insubordination). Obviously you can't dismiss them summarily (unless their misconduct is particularly severe), but you would absolutely be within your rights to issue a formal warning, final written warning, etc. before dismissing them.

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  4. Thanks given for this post:

    Dave A (03-Aug-14)

  5. #4
    Site Caretaker Dave A's Avatar
    Join Date
    May 2006
    Location
    Durban, South Africa
    Posts
    20,979
    Thanks
    3,055
    Thanked 2,462 Times in 2,067 Posts
    Blog Entries
    12
    Quote Originally Posted by Greig Whitton View Post
    To clarify, employees can't just resign on a whim since they are legally bound by their employment contract (which is why most employment contracts will require employees to provide notice before leaving).
    To be clear, I'm not suggesting the dismissal should be instant - it would have to be with notice (most likely with notice being paid out without the employee having to work the notice period).

    It's the issue of where the line is drawn on fair cause that I'm trying to tackle here.

    Quote Originally Posted by Greig Whitton View Post
    I disagree, Dave. You absolutely can fire someone for having a bad attitude if that bad attitude affects their performance at work (e.g. treating customers badly or failing to meet productivity targets) and/or if it manifests as misconduct (e.g. insubordination).
    May I take it you haven't been exposed to the particular category of malfeasance I'm alluding to.

    They won't treat customers badly. They'll just be surly as they go about their task. (Can you fire a person for not being cheerful around customers).

    There'll be no clear insubordination - just a shuffling compliance with direct, unambiguous instructions. And not an ounce more. (Can you fire a person for consistently being unenthusiastic).

    You'll do a satisfaction call to the client after service, ask if they're satisfied, and you'll get "they did the job, but I can't say I'm impressed". (Can you fire a person because they consistently fail to impress clients).

    You'll get other members of staff coming up to you saying "I don't know why you keep that person around", and it starts affecting perfectly good staff members' performance. (Can you fire a person because they are dragging everyone else down).

    It's the bad egg that makes a good team become dysfunctional.

    And putting it bluntly, I don't think the individual's job security "entitlement" should trump the fact that this individual is affecting the job security of other staff due to clients that will (make no mistake) start wondering off elsewhere, let alone not-yet-employees who might stand to gain if the company actually did well enough to create raving fans and start expanding.
    The trouble with opportunity is it normally comes dressed up as work.

  6. Thanks given for this post:

    BusFact (04-Aug-14)

  7. #5
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Quote Originally Posted by Dave A View Post
    They won't treat customers badly. They'll just be surly as they go about their task. (Can you fire a person for not being cheerful around customers).

    There'll be no clear insubordination - just a shuffling compliance with direct, unambiguous instructions. And not an ounce more. (Can you fire a person for consistently being unenthusiastic).

    You'll do a satisfaction call to the client after service, ask if they're satisfied, and you'll get "they did the job, but I can't say I'm impressed". (Can you fire a person because they consistently fail to impress clients).

    You'll get other members of staff coming up to you saying "I don't know why you keep that person around", and it starts affecting perfectly good staff members' performance. (Can you fire a person because they are dragging everyone else down).
    In every instance, it all depends on whether the employee's attitude clearly affects their performance and/or conduct at work. The key to demonstrating that clear connection is proper contracting and performance management.

    For example, if you hire someone to impress your clients and their contract clearly specifies the performance standards that they need to meet (e.g. maintain an 80% customer satisfaction rating as measured by periodic customer satisfaction surveys), then you absolutely have grounds for instituting disciplinary proceedings if they fail to meet those standards. And if they consistently fail to meet those standards despite being provided with reasonable opportunities to improve, then you have grounds for dismissing them due to poor performance.

    Clearly it is harder to define when someone's bad attitude equates to poor performance or misconduct compared to more obvious behavioural offences. However, it it is not unreasonable for the employer to bear this responsibility otherwise we would be back to dismissal on a whim (i.e. "I no longer like you, so you're fired!")

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  8. #6
    Gold Member
    Join Date
    Jun 2010
    Location
    Johannesburg
    Posts
    832
    Thanks
    180
    Thanked 176 Times in 145 Posts
    This is a topic I am quite passionate about. I am almost entirely for everything Dave said. I couldn't have put it better myself.

    Then along comes Greig, who provides a sound counter argument.

    Quote Originally Posted by Greig Whitton View Post
    To clarify, employees can't just resign on a whim since they are legally bound by their employment contract (which is why most employment contracts will require employees to provide notice before leaving). In practice, of course, these provisions often go ignored and are rarely worth enforcing.
    But they can still resign on a whim. The fact that it only becomes effective a month later is not material. They can still choose to do so without giving or having any reason.

    Quote Originally Posted by Greig Whitton View Post
    On a more important note, job creation (and protection) on a national level is in all of our best interests. If employers could dismiss employees on a whim, we would see even more job losses during challenging economic periods than we already do which would send our economy into an irreversible downward spiral. Our current labour laws staunch some of that hemorrhaging by requiring employers to demonstrate good cause and consider reasonable alternatives to dismissal
    This is a point I have never considered before, and I think its a valid one. However I am under the impression that retrenchment is easier to carry out than firing, but none the less there is a process and a cost involved, so it does play a role in protecting the down side.

    The flip side of the coin of which I speak from experience, is that I am so scared of employing someone (essentially entering into a 40 year contract .... ok I'm being a bit over dramatic) that I would rather run overtime and turn away business than employ new staff unless I am very confident that its not a temporary spurt. I'm sure you'd probably argue that my fear is unfounded. Its there though, and the process requires a lot of time and effort.

    Then I fully agree with you that an employee getting fired is a far more stressful situation than an employer losing an employee and that is probably the crux of the reason behind the legislation being there in the first place.

    Quote Originally Posted by Greig Whitton View Post
    I disagree, Dave. You absolutely can fire someone for having a bad attitude if that bad attitude affects their performance at work (e.g. treating customers badly or failing to meet productivity targets) and/or if it manifests as misconduct (e.g. insubordination). Obviously you can't dismiss them summarily (unless their misconduct is particularly severe), but you would absolutely be within your rights to issue a formal warning, final written warning, etc. before dismissing them.
    Perhaps Greig, but it is extremely time consuming and unproductive. Even if you do absolutely everything perfectly, you may still have to spend time at the CCMA. Yes you win the case, but the wasted time, effort and cost? Then what about the guy who does an average job just to ensure he gets paid. It is not possible to replace him with someone with the potential to be brilliant at the job. So the employer gets stuck with mediocrity.

  9. #7
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Quote Originally Posted by BusFact View Post
    The flip side of the coin of which I speak from experience, is that I am so scared of employing someone (essentially entering into a 40 year contract .... ok I'm being a bit over dramatic) that I would rather run overtime and turn away business than employ new staff unless I am very confident that its not a temporary spurt. I'm sure you'd probably argue that my fear is unfounded. Its there though, and the process requires a lot of time and effort.
    I very much empathise with this entirely reasonable fear. However, you could hire people on fixed term contracts during your peak season - clearly specifying that their employment is limited to a finite period of time or specific project - so that you aren't saddled with permanent employees if the spurt isn't sustained.

    Quote Originally Posted by BusFact View Post
    Even if you do absolutely everything perfectly, you may still have to spend time at the CCMA. Yes you win the case, but the wasted time, effort and cost?
    I 100% agree. However, allowing employers to dismiss on a whim without consequence would simply shift the problem to the other extreme. What we need is a quicker, easier system for resolving unfair labour practice disputes.

    Quote Originally Posted by BusFact View Post
    Then what about the guy who does an average job just to ensure he gets paid. It is not possible to replace him with someone with the potential to be brilliant at the job. So the employer gets stuck with mediocrity.
    Without wanting to sound flippant, don't hire mediocre employees if you want brilliant ones. Not sure whether someone will turn out to be brilliant or average? This is where proper performance contracting is critical. Specify the standards that you require your employees to satisfy, how those standards will be measured, and (most importantly) how those standards will evolve over time (e.g. 70% customer satisfaction for the first 6 months; 80% customer satisfaction for the next 12 months; 90% customer satisfaction thereafter).

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  10. #8
    Gold Member
    Join Date
    Jun 2010
    Location
    Johannesburg
    Posts
    832
    Thanks
    180
    Thanked 176 Times in 145 Posts
    I get why the legislation is in place. It was too easy for an employer to totally exploit an employee, and they did. The job market is too one sided, with so few vacancies.

    However, the Government wants to create employment, but makes it really difficult and daunting to employ someone legally. The moment you become an employer, its almost the same as becoming a parent.

    - You become responsible for tax collection (PAYE).
    - You become responsible for employee unpaid debts (Garnishee orders).
    - You become responsible for arranging your employee's health care and retirement plan (not always, but often).
    - You have to finance your employee's responsibilities - maternity leave, paternity leave, sick leave, normal leave, family responsibility leave.
    - You get to jump hoops with SARS and have to register as an employer (EMP), don't forget UIF and COID. Lets not forget the twice yearly EMP501 which often appears on this forum.
    - You have to educate yourself on unproductive tasks, such as government returns, the ccma, the firing process. Don't forget tax as those payrolls can become a complex can of worms in no time at all.

    Its terrifying. Any readers who were thinking of employing someone for the first time still keen?

    That said, what is this employer/employee relationship anyway. Is it not a watered down version of slavery? Very watered down yes, but still related. Why is this relationship still considered the norm. Partnerships surely sound more equitable and fair. Supplier/customer, much more dignified.

    Why do school leavers look for jobs? Why don't they rather self employ?

    The answer is probably because it aint so easy.

    I realise this is a complex problem, but I have a wishful thinking vision, which admittedly has a few short comings in the real world. Wouldn't it be wonderful if there was no such things as employers or employees. Instead everyone is self employed and provides a product or service. They could provide manual labour as their service, rather than be an employee, they are treated like any other supplier to the company. The company no longer has staff. Instead the employ a book keeping service, or a packing service, or a delivery service. The employer loses the dedicated service, but loses the additional responsibility too.

    The role of government becomes ensuring that literate students exit their schools who are fully capable of starting their own business (heck, make it a matric requirement to have a business started). They should know how to look for opportunities, market it, do the accounts, etc. They should also be skilled in two trades such as car mechanic, wood work, steel work, plumbing, building, etc which gives them something to offer as a service if nothing else works out for them.

    People still group together in companies, to group skills where necessary. But you no longer look for a job, you look for customers.

    Pie in the sky and probably full of holes, but I can dream.

  11. Thanks given for this post:

    roryf (04-Aug-14)

  12. #9
    Diamond Member Blurock's Avatar
    Join Date
    May 2010
    Location
    Durban
    Posts
    3,437
    Thanks
    660
    Thanked 765 Times in 630 Posts
    Blog Entries
    1
    That's a good dream BusFact, and a Government that actually knows what they are doing...
    Excellence is not a skill; its an attitude...

  13. #10
    Gold Member
    Join Date
    Jun 2010
    Location
    Johannesburg
    Posts
    832
    Thanks
    180
    Thanked 176 Times in 145 Posts
    Quote Originally Posted by Greig Whitton View Post
    I very much empathise with this entirely reasonable fear. However, you could hire people on fixed term contracts during your peak season - clearly specifying that their employment is limited to a finite period of time or specific project - so that you aren't saddled with permanent employees if the spurt isn't sustained.
    That would work for annual cycle businesses, but I was referring more about when the economy picks up or when we suddenly get a few extra customers. Its not a predictable cycle. Sometimes it last a month or two, sometimes a year or two. So the time period isn't always known, nor is it a specific project. If its a year long upswing and I employ them on a 6 month contract, I would most likely forget the term ending, or otherwise extend the contract ... which I believe causes problems about them now being considered permanent.


    Quote Originally Posted by Greig Whitton View Post
    I 100% agree. However, allowing employers to dismiss on a whim without consequence would simply shift the problem to the other extreme. What we need is a quicker, easier system for resolving unfair labour practice disputes.
    Can't fault you there.

    Quote Originally Posted by Greig Whitton View Post
    Without wanting to sound flippant, don't hire mediocre employees if you want brilliant ones. Not sure whether someone will turn out to be brilliant or average? This is where proper performance contracting is critical. Specify the standards that you require your employees to satisfy, how those standards will be measured, and (most importantly) how those standards will evolve over time (e.g. 70% customer satisfaction for the first 6 months; 80% customer satisfaction for the next 12 months; 90% customer satisfaction thereafter).
    Ah, but remember, I'm a little guy making widgets. Its not something I did on purpose. Recruitment is a bit of a lottery for me. The guy looked brilliant in the interview, promised the world. I was wrong, now its a painful process to rectify. I realise that it is possible to fire someone. Have the initial contract and expectations properly done in detail, monitor performance, provide feed back, provide support and direction, present them with their shortcomings, provide warnings and assistance .... and eventually get rid of them, followed by the probable ccma hearing. It just shouldn't be such a long and expensive process.

    Its scary.

    Also, some jobs are very difficult to monitor. Receptionist, internal sales or accounts clerk for example.

    There are other examples too: The employee was the best available at the time, now someone better has entered the market. Or a simple personality clash, making work unpleasant.

Page 1 of 4 123 ... LastLast

Similar Threads

  1. [Question] unfair dismissal
    By lebgee in forum Labour Relations and Legislation Forum
    Replies: 1
    Last Post: 04-Jul-14, 01:32 PM
  2. Dismissal without hearing
    By IMHO in forum Labour Relations and Legislation Forum
    Replies: 4
    Last Post: 20-Jun-14, 02:34 PM
  3. [Question] Constructive dismissal
    By Joseph M in forum Labour Relations and Legislation Forum
    Replies: 3
    Last Post: 03-Jul-13, 08:57 PM
  4. retirement age and dismissal
    By sterne.law@gmail.com in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 08-Oct-10, 04:07 PM
  5. [Question] Unfair dismissal
    By jenine in forum General Business Forum
    Replies: 8
    Last Post: 13-Aug-08, 09:10 AM

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •