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Dismissals & Unfair labour practices
It is essential that before taking any steps against an employee, whether it is in regard to unacceptable behaviour, poor work performance; disciplinary action or even a retrenchment, that the issue at hand be correctly identified by a legal expert as failing to do so can have irreversible and disastrous consequences.
Even though there are restrictions that apply to legal representation, preparation with a legal expert for any matter is not restricted and is the key to winning a case by carefully deciding how best to present your case, what witnesses to call, and what evidence is essential.
It is always preferable to have an independent chairperson with expert knowledge chairing a disciplinary enquiry as it not only removes the perception of bias, but it also means that the outcome will be based on sound legal principles.
the sheriff & the enforcement of arbitration awards
Depending on whether you have been ordered to pay compensation or ordered to reinstate an employee, the sheriff could arrive at your premises to attach and remove the company's property, or worse than that, arrest you for failing to reinstate an employee.
UNSATISFACTORY ARBITRATION AWARDS
An arbitration award may be set aside in 2 ways – the 1st is by way of a recission application, and the 2nd is by way of a review application. Knowing which application to bring could be the difference between success and disaster!
RESTRAINTS OF TRADE
Restraints of trade are still enforceable in law, and continue to be enforced by our Courts despite the employee's constitutional right to choose their trade, occupation and profession.
The confidential information and your customer connections are still protectable interests.
DISCIPLINARY CODES & PROCEDURES
It is always advisable to have codes and procedures in place because they ensure that employees are clear on what is and what is not acceptable, and the consequences which flow from not adhering to such codes and procedures.
These codes also include having policies on sexual harassment and use of company email and internet by employees.
it is vital to know whether a strike will be regarded as a protected strike or an unprotected strike because of the very different consequences which flow from each type of strike.
It is as important to know which strikes can be stopped or prevented by way of a Court Interdict.
TRADE UNION NEGOTIATIONS
There are different rights that a trade union may acquire at a company but these are determined by the level of the union's representativeness in the workplace, and which rights will change with the fluctuation in the number of employees that belong to the trade union.
It is also important to know that a trade union does not always have the right to institute a strike.
Make sure your dismissals are fair and you are following procedure to keep your company safe
How do I know if a dismissal is fair?
There must be a fair reason ( substantive fairness) and a fair procedure must be followed ( procedural fairness ). Both must be fair for the dismissal to be fair. Identifying the correct category is critical in ensuring that both the reason and the procedure is fair; and the best time to get expert advice is therefore before any steps are taken in seeking to effect a dismissal.
What are the most common reasons for dismissals?
Conduct; capacity ( poor performance or ill-health ); retrenchments; automatically unfair dismissals ( discrimination on grounds like pregnancy, age, race ).
What is it that needs to be proved?
Each category of dismissal has its own criteria in determining whether there is a good enough reason for dismissing; and each has its own unique process and/or defences .
Where is a claim brought?
All disputes start at the CCMA or Bargaining Council, and will, depending on the nature of the dispute, either be arbitrated at the CCMA or Bargaining Council or will be adjudicated by a Judge at the Labour Court.
UNFAIR LABOUR PRACTICES
Know how to identify and prevent unfair labour practices
What type of action will be regarded as an unfair labour practice?
This relates to unfair conduct by an employer & includes issues related to:
Promotion or demotion;
Training;
Providing benefits;
Disciplinary action short of dismissal ( eg. verbal and written warnings & suspension. )
Where do I refer an unfair labour practice dispute?
Consult with us to ensure your disciplinary hearings are fair and documented accurately
What happens at a disciplinary hearing & what steps should be taken?
A formal hearing does not always need to be held, but it is about ensuring that an employee is given the opportunity to properly respond to whatever the employer's concerns might be.
The hearing itself should be preceded by:
– an investigation into the issues;
– the employee should be notified of the allegations;
– the employee should be allowed the opportunity to state a case in response to the allegations;
– the employee should be entitled to a reasonable time before the hearing to prepare a response.
As any sanction that is imposed on an employee must be for a fair reason and after having followed a fair procedure, a legally qualified and experienced chairperson will ensure that the correct legal principles are applied and that the process is handled fairly.
If the process is handled correctly at this stage, and a fair result is the outcome, the matter will not be succesfully challenged at the CCMA, a Bargaining Council or the Labour Court.
Must a disciplinary hearing always be held?
A formal disciplinary hearing does not always need to be held, and is largely dependent on the issue at hand, and one should seek the correct legal advice before making a decision as to whether a formal hearing should be held or not.
CCMA & BARGAINING COUNCILS
What is the CCMA and what is a Bargaining Council?
The CCMA or a Bargaining Council is where all disputes are lodged and will, depending on the nature of the dispute, either be dealt with at the CCMA or Bargaining Council, or will be adjudicated by a Judge at the Labour Court.
Is there a difference between the CCMA and a Bargaining Council?
Whilst they generally both perform the same function, certain industries have a Bargaining Council, some examples are: the motor industry, restaurants, engineering and hairdressing. If there is not a Bargaining Council in a particular industry, the CCMA will then deal with the dispute.
A referral to the incorrect institution may result in them advising that they do not have jurisdiction to hear the matter, which will cause a delay, and/or may even have the consequence that a claim is not heard at all.
There are strictly regulated time periods within which a dispute must be lodged, and a claim may well be successfully defeated purely on the basis that a claim has been filed late, and without the merits of the claim even being considered.
LABOUR COURT
What is the Labour Court?
The Labour Court enjoys the same status and is equivalent to a High Court.
What are the functions of the Labour Court?
The Labour Court functions include:
Granting interdicts to prevent unprotected strikes;
Making settlement agreements an order of the Court;
Reviewing and setting aside unsatisfactory arbitration awards.
Which disputes must be referred to the Labour Court?
An arbitration award that is being sought to be reviewed and set aside.
Retrenchments involving more than one employee;
Automatically unfair dismissals for reasons related to for example pregnancy, race, and age.
CONCILIATION & ARBITRATION
What is conciliation?
Conciliation is not only the first step, but is a compulsory step, in resolving any dispute, and a failure to refer a dispute to conciliation may mean that an employee cannot further proceed with a claim.
Conciliation is an attempt, with the assistance of a commissioner, to try and amicably resolve the dispute. No legal representation is allowed at conciliation.
The commissioner can only advise and assist both parties to try and reach a settlement, but the commissioner cannot make a decision in favour of either party at the conciliation stage.
What is arbitration?
Arbitration takes place when a matter has not been resolved at conciliation.
The commissioner will listen to the case presented by the employee, and the case presented by the employer, and they will then make an arbitration award which decides the matter in favour of either the employer or the employee.
An arbitration is like a mini-trial at which the parties will be required to present evidence to prove their cases, call witnesses, cross-examine the other side's witnesses, and present argument why the commissioner should find in their favour, which is why it is critical to obtain proper legal advice in preparing for the arbitration.
Depending on the facts of the case, legal representation may be allowed at arbitration.
What is a con/arb?
A con/arb is when the arbitration occurs on the same day as the conciliation in the event of the conciliation being unsuccessful.
An employer may object to the arbitration proceeding immediately after the conciliation so that the arbitration is held at a later date, but there are rules which must be strictly adhered to in filing such an objection.
When is legal representation allowed?
Legal representation is not automatically allowed at the CCMA or at a Bargaining Council , but one is fully entitled to obtain legal assistance when preparing for the case. Proper preparation with an expert in labour law is critical for attending an arbitration. Legal representation is always permitted at the Labour Court and Labour Appeal Court.
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The information provided on this website is not legal advice. Seek professional help if you are concerned about a specific legal issue.