The CCMA Code of Good Practice sets out the essential elements for determining substantive fairness. Although we take great care to ensure that the information on our website is accurate and up to date, readers are advised to always consult with a Labour Law Practitioner before acting on the information. "}},{"@type":"Question","name":"What is procedural fairness? If there is no Code, the decision should be based on generally accepted notions of a scale of acts ranging from minor to very serious offences. It's not applied in other areas of law such in the laws of contract, property, finance, etc. reason for a dismissal, the enquiry moves to the remedy to which the employee is entitled. For example, maybe the employer says the business is losing money (economic reason), the employer is getting a machine to do work that workers did by hand before, or the employers new machines need different skills to operate them than the existing workers skills (technological reasons), or the employer is restructuring the business by combining two departments so she doesnt need two Heads of Departments anymore (structural reason). In addition to dismissals for misconduct, incapacity, and dismissals for operational requirements, the Labour Relations Act further provides for dismissals that are automatically unfair. Sassa Status Check: How Do I Check My SASSA Pending Status? An automatically unfair dismissal is distinguished from an 'ordinary' dismissal i.e. Judge Leeuw AJ To discharge the onus of unfair dismissal successfully, the employer must discharge the onus on all the questions on the checklist. Another reported case of a dismissal that has been held to be automatically unfair because the employee was discriminated against on the basis of family responsibility. he dismissal will be regarded as automatically unfair if the worker is dismissed for: The LRA has a Code of Good Practice for Dismissals that employers must follow. Anemployer can no longer dismiss forno cause. MUTUAL SEPARATION AGREEMENTS: Whats involved in negotiating an agreement to terminate an employment relationship? The employer must produce evidence of sufficient weight to discharge the onus on a balance of probabilities. b) That the employee refused or indicated an intention to refuse, to do any work usually done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health. W.Tel no. If a dismissal is found to be unfair, the worker will be able to get reinstated or re-employed, or get compensation money. If negligence is alleged the employer must prove objectively that the employees act was not one which a reasonable person would have committed in the same circumstances. CCMA, Trade Unions, and Bargaining Councils, Medical Boarding in South Africa: Checklists for Ill Health Incapacity, Letter from Ajax (employer) to Smith (employee), Email string between Ajax and Smith to 22.08.17]. The worker is allowed to refer the proposed dismissal to the CCMA for conciliation. Section 187(1)(d) of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is 'that the employee took action, or indicated an intention to take action, against the employer by - (i) exercising any right conferred by this Act or (ii) participating in any proceedings in terms of this Act.' If an employee is suffering in this way it is not sufficient for the employee to use the underlying medical condition as an excuse for his poor performance and or misconduct. Email Us -enquiries@allardyce.co.za | labour@allardyce.co.za, The Labour Relations Act (LRA) at section 187 states that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 (this section confers protections relating to the right to freedom of association and on members of workplace forms) or, if the reason for the dismissal is . Procedural fairness (was there a fair procedure before the worker was dismissed?). 1. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable. Section 187 (1) of the LRA provides that a dismissal is automatically unfair if an employer, in dismissing an employee, acts contrary to Section 5 of the Act, (which confers protections relating to the right to freedom of association and on members of workplace forums), or if the reason for the dismissal is one of the following: a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV of the Act, which deals with industrial action and conduct in support thereof; b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health; c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; d) that the employee took action, or indicated an intention to take action, against the employer by-. The duty to disclose a conflict of interest. Register your domestic worker in terms of the Compensation for Occupational Injuries and Diseases Amendment Act 22 (COIDA). Case No. Theemployer must prove all of theseelementsfor the dismissal to besubstantively fair. Alternative Dispute Resolution (ADR) South Africa. This is because employees are afforded specific proection by law if dismissed in circumstances where the dismissal violates their basic employment rights. Your trusted partner for comprehensive labour law and Health & Safety training in South Africa. Employees, or their unions, approach their employers to establish a new right. Section 187 of the Labour Relations Act lists the reasons for which an employee may not be dismissed under any circumstances such dismissals are automatically unfair. This sometimes causes suspicion in the employees mind that the chairperson is biased in favour of the employers version. The fairness of dismissal is decided in two ways: 1. A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is When an employer considers retrenchment, he or she must consult: The employer must issue a written notice inviting the other party to consult with it and make all the relevant information available in writing at the consultations, including: The people the employer is consulting with must be allowed to have their say and make suggestions on any of these issues. This means the worker leaves immediately and is paid out instead of getting notice. Cape Town
One of the employees implicated was her superior?s senior manager. The payment must include the value of payment in kind. An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not required to prove two years' continuous service. h) A contravention of the Protected Disclosures Act 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act. Examples of reported cases of automatically unfair dismissals. Summary: Automatically unfair dismissal - allegation that the employee was dismissed for the reason that he took action against the employer by lodging a grievance and referring an unfair labour practice claim. Victims of automatically unfair dismissals will invariably be reinstated unless they choose compensation instead. When it comes to automatically unfair dismissals, it is often related to the infringement of a fundamental right. In other words the parties try and reach an agreement on the different issues, such as: (bullets follow). REINSTATE OR COMPENSATE? An employer must produce enough evidence to prove that there is good reason to dismiss an employee.\n\nThe evidence is measured on a scale referred to as the balance of probabilities. The applicant was employed by the respondent (part of the Standard Bank Group) as a Compliance Manager, responsible for investigating misdeals and irregularities in share trading. The Court found that the employees claim was one of an automatically unfair dismissal in terms of section 187 of the LRA and unfair discrimination in terms of the EEA. If guilt is proved the second step is to determine the appropriate disciplinary sanction or penalty. . The fault may have been caused intentionally or negligently. Reinstatement means the worker gets the job back as if she or he was never dismissed. Section 187 (1) (g) renders a dismissal related to or pursuant to a transfer of the business to another may not retrench its employees if the purchaser does not wish to engage the sellers employees. A reported case referred to a fireman subject to sustained racist abuse by colleagues. They apply the principle of " lawfulness ". Section 187 lists the reasons for which an employee may not be dismissed under any circumstances such dismissals are automatically unfair. This is not a 49% 50% test. You (as the paralegal) should report this to a union if there is one. Section 5 confers on employees a right to freedom of association and to belong to workplace fora. The worker must get wages for the time he or she worked, plus any leave pay (if he or she has not taken all the leave that is due). As a consequence employees may be found to be performing poorly or conducting themselves in manners which are inappropriate, unacceptable and/or contrary to the employers rules and regulations. The purpose is firstly to establish whether the employee is guilty of committing the act of misconduct. There is a prescribed 90-day time limit for the referral of a dispute to arbitration or to the LC if conciliation fails. The proximate reason for the respondents dismissal was his four instances of misconduct. This decision was taken on appeal to the LAC where the appellant (the employer) contended that the employee was in fact dismissed for misconduct and had failed to show that he was dismissed as a result of any medical condition or that there was any causal link between his depression and the misconduct which led to his dismissal. Section 187 (1) of the LRA provides that a dismissal is automatically unfair if an employer, in dismissing an employee, acts contrary to Section 5 of the Act . Workers should not be dismissed for a first offence, unless it is very serious, such as gross insubordination or dishonesty, intentional damage to the employers property, putting others safety at risk, or physical assault of a co-worker. He or she should be able to conduct the enquiry fairly and be able to consider the evidence objectively.
Jurisdiction Labour Court, Johannesburg bernard@capelabour.co.za
They claimed that their dismissals were automatically unfair because they had been discriminated against on the basis of their religion, conscience, belief and/or gender. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer consent to arbitration by the CCMA. If intention is alleged the employer must prove that the employee committed the act deliberately. b) That the employee refused or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out unless that work is necessary to prevent an actual danger to life, personal safety or health. This is from the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or upholdthe dismissal. CONSTRUCTIVE DISMISSAL: When will a claim for forced resignation succeed? Summary of Judgement: 1. it was an automatic unfair dismissal [s.187(1)(c)] because either: If the employer rejects what they say, he or she must give reasons in writing if the workers have submitted their representations in writing. (was there a fair reason to dismiss the worker? The chairperson is most often a manager in the business. The applicant reported irregular insider trader to her superior and other departments within her employer?s organisation. Fax: 021-4232105 misconduct (the worker has done something seriously wrong and can be blamed for the misconduct. Automatically unfair dismissals are covered by section 187 of the Labour Relations Act 66 of 1995 (LRA). By submitting your email address to us, you agree to receive our newsletters and course updates. The checklists which follow should point you to the range of possible legal issues which could arise in your case and hopefully, theyll help you to prepare your case as fully as possible. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer consent to arbitration by the CCMA. The provisions can be used by parties, if both agree to this, to help them reach an agreement. Applicant alleges automatically unfair dismissal in terms of LRA s 187(1)(d). There is no time limit within which such a dispute should be referred to this Court for adjudication. Sometimes, if the employer has only a very small business she or he will not be expected to meet all these requirements. whether the worker failed to work to a required standard, whether the worker was aware of the standard, whether the worker was given a fair chance to meet the standard, whether dismissal is the right punishment for failing to meet the standard, has given the worker proper training, instructions, evaluation, guidance and advice, assessed the workers performance over a reasonable period of time, investigated the reasons for continued poor performance, investigated ways of solving the problem without resorting to dismissal, gave the worker a chance to be heard before deciding to dismiss, investigated the degree and duration of the injury or incapacity, considered ways of avoiding dismissal, for example getting a temporary worker until the sick worker is better, tried to find alternative work for the worker to do, tried to adapt the work so that the worker could still do it.
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