Dismissal did not become resignation

Cases

Dismissal did not become resignation

An employee who asked that his dismissal ‘be brought forward’ did not turn his dismissal into a resignation. The SA Industrial Relations Commission found that procedural fairness had been denied even though the reason for dismissal was a valid one.

WantToReadMore

Get unlimited access to all of our content.

10/03

 

An employee who asked that his dismissal ‘be brought forward’ did not turn his dismissal into a resignation.

The SA Industrial Relations Commission found that procedural fairness had been denied even though the reason for dismissal was a valid one.

Was there a dismissal?

The employer submitted that the employee resigned from his employment when he telephoned the employer to ask if his termination could be 'brought forward'.

However, the decision to dismiss the employee was taken well before 2 August when this telephone call was made.

The intention of the employee and employer in their conversation on Friday afternoon 2 August was clear - there could be no doubt that the employee did not intend to resign when he spoke to the employer about whether his termination could be 'brought forward'. 

Was there a valid reason for termination?

Commissioner Dangerfield stated:

'Article 4 of the ILO Convention on Termination of Employment, which is incorporated in the Act at Sch 7 provides that a worker "...shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service".

'The reason for the employee's dismissal was as stated by the respondent Winfield in his faxed letter to the employee dated 29 August and confirmed later in the Separation Certificate he provided to Centrelink, namely "misconduct" in that he breached his duty to act in the employer's interests by submitting embarrassing and potentially damaging information to a third party  …without either his employer's approval or that of the so-called "head contractor", FAB Cleaning.

'I find that this does constitute a "valid reason" for dismissal in the sense that it is "sound, defensible or well founded ... (and not) ... "capricious, fanciful, spiteful or prejudiced" (Per Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371 at 373).'

Procedural considerations

The Commissioner continued:

'The opportunity to defend oneself or to at least explain one's actions is not just an employee entitlement; for an employer, it is a statutory requirement

'...The requirement for an employer to give an employee the opportunity to defend himself or herself is a requirement to do so before making any decision to dismiss.

'For these reasons it is clear that the employee was not afforded what is usually called 'procedural fairness' in the matter of his dismissal, even though the respondent may have had grounds for believing it had a substantive valid reason for dismissal. ...

'The essence of this decision is that all the circumstances of a given case must be examined before a decision is made as to whether the dismissal as harsh, unjust or unreasonable.

'There are times when a substantively valid dismissal might be upheld even though the procedure adopted in the dismissal process was flawed in some way. But this need not always be the case. In my view the manner in which the applicant was treated in this case, the employer's total lack of concern for any due process, let alone some modicum of fairness in the process, is sufficient to render the employee's dismissal in these circumstances harsh, unjust and/or unreasonable.'

Two weeks pay was awarded as compensation.

See: Rundle-Southwell v Winfield [2003] SAIRComm 53 - Dangerfield C - 12 September 2003 - Industrial Relations Commission (SA).

 

 

Post details