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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
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Experience:  L.LB (UOVS)
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We have an employee on a three month probation period and during

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We have an employee on a three month probation period and during this 3 month probation period, which expires end of November 2010, she has not been performing according to her requirements, we have trained her for a week, spent a day in store with her, has been off sick for 4 days without doctors note and has lied about her times spent in the stores we have already given her warnings and yet she continues not to perform accodring to our requirements. Some of the stores we work in dont want her back in store. We offered her a 6 month contract to fill in for one of our staff members that is on maternity leave, and her 3 months expires end of November. Can I only dismis her end of November.
Submitted: 3 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 3 years ago.

Good day.

This is an info request to assist you better. Please continue on this thread.

 

Do you have a written disciplinary code in place? Does your employment contract say something about the amount of warnings a person is to receive before she is going to get fired?

Customer: replied 3 years ago.
No we dont have a written disciplinary code in place, on the contract of employment we state 1 verbal, 1 written and then termination.
Expert:  WCLawyer replied 3 years ago.

Remember that, even if you issue a warning, you still have to follow a fair procedure. This does not, necessarily, have to be a formal disciplinary hearing, but the employee must be given an opportunity to state her case to avoid receiving the warning. If there is a reasonable explanation for the conduct and no warning is warranted, then the employer should not issue a warning. If you don't follow a fair procedure before issuing the warning, you might as well chuck the warning in the fire.

 

I suggest that you do get a formal disciplinary code drawn up, in which offences are described in broad terms or in detail if you want and next to the offence, you list the punishment, i.e warning, immediate dismissal etc. That would be handy for future use.

 

When you want to dismiss an employee that is under probation on operational requirements pertaining to her ability to do the job, you also, still have to conduct a disciplinary hearing. You would have to show the presiding officer that you have done your part in trying to get this employee up to speed and that, despite that, she is still not where she should be three months on in the job.

 

If, however, the employee is found guilty of misconduct on a dismissable offence within the three month period, there is nothing that prohibits you from firing her within the three months. So, for instance, her lying and staying away from the job etc would be things you would already be able to discipline her on and that counts towards the warnings etc.

 

IF it is on her contract that you may dismiss her on two warnings, then you would be able to dismiss her when you have issued two warnings, but please, have regard to my comments regarding fair procedure above.

 

If she goes to the CCMA (and she probably will, regardless of whether you use fair procedure or not) for unfair dismissal and you have not followed fair procedure, the merits on why you fired her, would not count.

 

 

Customer: replied 3 years ago.

Understood about fair procedure but if she is on a 3 month probation and she is not performing now can I dismiss her after the 3 months saying that she is not performing she has had 2 warning and is still not doing what was shown to her, surely this must be considered fair!!

 

Expert:  WCLawyer replied 3 years ago.

Well, these are the facts that you have to present to whomever is the presiding officer at her disciplinary hearing. Should the presiding officer find that any one of those or in combination thereof, this is dismissable, then that would be considered fair. It is in the descretion of the presiding officer whether she is to be dismissed or not.

 

On your version, dismissal seems fair.

WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14828
Experience: L.LB (UOVS)
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