The Basics of Employment Termination

How often do employees end up being employed in a managerial position and have to manage staff without the proper training of basic managerial skills?

We have come across numerous managers, not just on branch level, but in regional manager capacity that does not know the basics of applying discipline and on what basis can you terminate employment. How often have we not come across a situation where we have had enough of a certain employee only to find the HR department telling you, you cannot dismiss the employee for a whole host of reasons which sounds to you like a whole lot of gibberish?

In this post we are going to look at a brief overview of what the reasons are and the ways of terminating employment without trying to get to legalistic. Obviously there are different legislation applicable in different countries however in a Southern African context the below is fairly universal.

In order for an employment relationship to exist there has to be an agreement between the employer and employee, simply put the employee will provide his labour for a wage and the employer will provide work for the employee and pay a wage for it.  This agreement does not have to be in writing, and a verbal agreement will suffice therefore be cautious if you think you can get away not having anything in writing and hire and fire at will. Generally employees are protected from this form of termination. Herewith following are the grounds on which an employment relationship to terminate.

EMPLOYEE

Resignation

This is the only form where an employee can terminate their employment and it is where the employee informs the employer (verbally or in writing)  of his/her intention to terminate the employment relationship by the giving required notice of their intention to terminate. An employer cannot refuse this and once an employee has given notice of termination there is not much an employer can do about this. If an employee is forced to resign it could be viewed as a form of dismissal, called constructive dismissal.  

EMPLOYER

For an employer there are 3 legal grounds on which employment can be terminated. Each of them does have certain legislative requirements to be fair. It has to be procedurally fair (the procedure followed leading up to the termination was a fair procedure) and it has to be substantively fair (the reason for the termination must be a valid and fair reason).

The 3 grounds for termination are herewith as follows:

Organisational Requirements

This is known as a no-fault dismissal on behalf of the employee and is commonly referred to as a retrenchment. In this instance employees services are terminated based on the company’s operational requirements. It is often perceived by employees that these types of terminations are the easy way out for companies however there is a myriad of legal procedures that are linked to it and should not be attempted without seeking professional advice as it could be costly and time consuming if done incorrectly.

Performance (or lack of it)

This is where an employee is unable to perform their duties as per their contract of employment. To simplify it, the employee is willing but not able to perform. Examples of this is an employee that cannot perform on the desired level i.e. achieve a sales target however is trying to do so. Alternatively a very sick employee cannot resume with their normal daily duties as a result of their illness. In cases where performance is a concern there is an onus on the company to make sure that they have looked at alternatives in trying to accommodate the employee by providing training to or adapting the workplace to suit the employee, who is ill. Therefore the next time you come across the sales consultant who is failing to achieve target ask yourself is this individual willing but not able and if this is the case you would need to implement measures to accommodate this individual by providing training and follow up consultation sessions before an employee can be dismissed on the grounds of performance. As a last resort an employer can dismiss an employee based on performance if they can proof that they have reasonably tried to accommodate the employee. 

Misconduct

In this instance the employee is not willing but able or not willing and not able. Generally misconduct is linked to the attitude of the employee towards their employers and behaviour is willful, intentional or knowingly and their actions are detrimental to the company and that of the employment relationship. Examples of this type of behaviour is where an employee is dishonest, negligent, disregarded rules/ policies and procedures, insubordinate, and this list goes on. Depending on the type of organisation some offences are taken more seriously than others and may justify dismissal on the first offence, it all depends on whether the employment relationship has been broken or been damaged.

If you work for a medium to large organisation you should have a disciplinary code which should provide guidance on what type of punishment can be imposed in which events i.e. a verbal warning for a first late coming offence or dismissal for a dishonesty related offence.  The question that needs to be addressed in misconduct cases is to what extent has the employment relationship been affected. This is normally established through a disciplinary hearing or interview where the facts are investigated and tabled, presenting a finding on a balance of probabilities and comparing the outcome against past precedents set in a company and what company rules make provision for.

Without getting to legalistic we hope that the above has provided you with some insight on the grounds of termination and would assist you going forward in a managerial capacity.

Please note that on all the above termination scenarios there are various legalistic procedures that have to be followed and complied with. It is advised that professional assistance be sought if you are not 100% sure how to address with these matters.