No smoke without fire: We review Dr John Grogan’s third edition of his important employment law book Dismissal

DISMISSAL

(Third Edition) By John Grogan (805 pages)

Juta & Co (Pty) Ltd | www.jutalaw.co.za

“Even I regained my freedom with a sigh.” – Lord Byron (1788 – 1824)

In American television reality shows “You’re fired” is usually uttered with much more intent than “You’re hired.” Dictionaries define the verb “fire” as “to ignite; to cause to explode; to expose to heat; to cauterise; to bake; to dismiss.”

In Britain, the equivalent would be “You’re sacked”, with equally dismal dictionary definitions: “to put into a sack; coarse cloth, worn in mourning or penance.”

The Biblical sackcloth and ashes bring together both fire and the sack, for example;

“Mordecai rent his clothes, and put on sackcloth and ashes, and went out into the midst of the city, and cried with a loud and bitter cry.” (Esther 4:1).

In the modern world, such drastic solutions are fortunately now subject to different legal constraints. In South Africa, dismissals are the most common cause of labour disputes and the most frequently encountered problem in the workplace. This volume deals with the legal issues that arise from the termination of employment.

The author sets the context:

“With disappointing frequency, employers and managers are confronted with the problem of how to get rid of what they deem to be errant, useless or redundant employees. In South Africa, it is of great importance to be able to deal with this problem with certainty: a botched dismissal can prove costly, both in time and money, and may impact negatively on labour relations and production. On the other hand, retaining operationally redundant employees, those who are untrustworthy or not performing the work for which they are paid does little for the welfare of the enterprise. Unfortunately, the answer to when an employee may safely be dismissed is far from simple.”

The various chapters deal not only with the “conventional” forms of dismissal – for misconduct, incapacity and operational reasons – but also with less commonplace but no less important situations, such as dismissal for incompatibility, mass dismissals of protected and unprotected strikers, and dismissals pursuant to closure, mergers, transfers and sales of business, and by labour brokers.

Written in a clear and readable style, the applicable principles are illustrated with actual examples drawn from case law, brought up to date in this third edition.

Dismissal takes its place as one of a quartet of volumes by the same author, the others being Employment Rights, Collective Labour Law, and Labour Litigation and Dispute Resolution. The tabletop for these four companion legs is the author’s comprehensive book Workplace Law, now in its 12^th edition.

The acclaimed author Dr John Grogan BA (Hons), B Iuris, LLB, LLM, Ph D,is the former Head and Professor of Law at Rhodes University, a practising advocate and arbitrator. He has served as an acting judge in the Labour and High Courts and as senior commissioner of the CCMA (Commission for Conciliation, Mediation and Arbitration) and a number of bargaining councils. His wealth of practical, professional and academic experience makes this book the primary resource on the subject for employers, lawyers, judicial officers, labour and human resource practitioners and trade union officials.

All aspects related to dismissals are covered in-depth, with helpful footnotes providing legal authority. These include misconduct outside the workplace and criminal conduct, procedures for challenging dismissals, remedies such as consequential damages and severance pay, and the question of costs in dismissal matters.

Publisher Juta and the author, with this and its fellow volumes, have truly provided an antidote to the joyless weeping and wailing of sackcloth and ashes.

Review by Louis Rood BA LLB (UCT), Consultant at Fairbridges Wertheim Becker Attorneys.