Labour Law and Unfair Dismissal

This area of the law seems complicated and vague and as a result employers often do not understand what is required of them in terms of the labour laws.

In fact it is almost all about procedure.

Almost all CCMA cases are over procedural failures. Now that you know, forewarned is forearmed: Get your procedures tweaked by experts.

Get a code of conduct for your business that is short, quick and easy and will create a background for all procedural issues. It is really like an action plan for emotional situations. 

Fairness

Whilst labour law is based on equity, meaning that the test is fairness, there is nevertheless a strict procedural code. Thankfully!

It turns out it is definitively unfair not to follow the letter of the law but not necessarily fair to follow it meticulously. This is the challenge for small business. Dot the “i” and cross the “t”.

This illusive concept of fairness is determined  in the CCMA with a pro-labour bias. Although, to be fair, it is a procedural bias. You have to get the process right or it is almost always automatically unfair! Not only is it not surprising that a law will have a strong procedural bias, it is thankful, especially in an emotional area such as the termination of one’s employment.

he guidelines are fairly clear but somehow employees and employers have disputes. Employees who approach the CCMA will often walk away with penalty awards against their employers, mostly because of procedural failures.

Emotions

What the law cannot deal with is that dismissing an employee is never a pleasant task. Most of us do not manage unpleasant tasks very well at the best of times. Almost all of us would prefer not to dismiss employees. No one really enjoys this task.

How to deal with dismissal

If you intend dismissing an employee give us a call or send us an email.

y far the cheapest and easiest solution –

 

By far the best solution in a tricky situation is to arrange for a professional person to guide you through the procedure and chair the meeting. When you consider whether it is worth the cost bear in mind that a penalty at the CCMA is typically between 3 to 12 months salary. Most employees who approach the CCMA will get some sort of an award. Often the award will be 3 to 6 months salary. Almost all of the cases
could have been prevent.

Hiring Process

There is always an opportunity at the hiring stage to write your own rules as between employer and employee. Both parties have bargaining powers although they are not all equal.

The letter of appointment is only one aspect. Get your hiring process checked.

Make sure you have a code of conduct for grievance in place.

The Dismissal Process

The Labour Relations Act (LRA), Act 66 of 1995

These aims should all be achieved by the regulation of a system of rules that, if you follow them, should never end in dispute or a penalty. In real life even the Human Resources Department in a large company will have disputes. But there need never be a dispute over procedural issues.

Get the process right.

Some sections of the The Labour Relations Act (LRA), Act 66 of 1995

  1. Section: 186  Meaning of dismissal and unfair labour practice.
  2. Section: 188   Other unfair dismissals.
  3. Section 193   Remedies for unfair dismissal and unfair labour practice.
  4. Section 192 Onus in dismissal disputes.
  5. Schedule 8

CODE OF GOOD PRACTICE: DISMISSAL

You can always copy this code if you do not want to write your own. But consider paying for the benefit of a skilled labour lawyer to write a simple Code of Practice for your business.

If all else fails, at least read more…

Clause 3.   Disciplinary measures short of dismissal.