The concept of summary dismissal

December 14th, 2011, Published in Articles: Vector

The concept of “summary dismissal” is seemingly simple, yet it is very often misunderstood by both employers and employees.

An employee is summarily dismissed when the employment contract between an employer and employee is terminated immediately after a disciplinary inquiry, without notice or payment in lieu of notice. Summary dismissal is only allowed in exceptional circumstances of misconduct.

The concept of summary dismissal is, however, misleading, because it refers to the immediate dismissal of an employee after the employee has been found guilty at a disciplinary inquiry and not to the immediate dismissal of an employee after the employee has committed the alleged misconduct. A fair procedure is still required in respect of summary dismissal.

But what happens if an employee’s misconduct is also a criminal offence?

Even if an employee has committed a criminal offence, an employer may not just fire him/her. The employer is required to hold a disciplinary inquiry and establish the misconduct, even if the employee is caught stealing from the employer, for instance, and is criminally charged and convicted.

However, an employer does not necessarily have to wait for the outcome of the criminal proceedings before holding a disciplinary enquiry.

The degree of proof in a criminal matter is “beyond reasonable doubt” whereas, in a disciplinary inquiry, the employer must only be satisfied on a balance of probabilities that the offence was committed.

Therefore, the situation could arise where an employee is found criminally not guilty, but is found guilty at a disciplinary inquiry and summarily dismissed.
If an employer does wait for the outcome of the criminal proceedings, even if the employee is found criminally guilty, they may not merely rely on the employee’s conviction to dismiss the employee.

In a decided case, “Durban Integrated Municipal Employees’ Society and Others versus Durban City Council”, two employees pleaded guilty in a criminal court to smoking marijuana and were subsequently dismissed by their employer without a disciplinary enquiry.

The Industrial Court, which is the old Labour Court, held that the employees’ convictions were insufficient proof of their guilt and that a disciplinary inquiry should have been held. The employer was ordered to re-instate the employees.

Offences such as dishonesty, gross negligence, drunkenness, theft, insolence and fighting have previously been held to be serious enough to justify summary dismissal. An employee who is summarily dismissed is not entitled to notice pay, but is entitled to pension benefits and to be paid out for accrued leave up to the date of dismissal.

Shantonette Naidoo, regional director, KwaZulu-Natal.