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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.
LEGAL REPRESENTATION
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.
DISCIPLINARY HEARINGS
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 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 a recission application, and the 2nd is 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.
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Frequently Asked Questions For Employees
Dismissals
Make sure your dismissal was fair and that proper procedure was followed
How do I know if a dismissal is fair? What is it that needs to be proved?
For a dismissal to be fair, 2 criteria must be satisfied :
There must be a fair reason ( substantive fairness) for your dismissal and a fair procedure must have been followed ( procedural fairness ).There are different categories into which a dismissal would fall, and these are:
conduct ( or misconduct eg. gross negligence, insubordination; theft; assault)
capacity ( poor work performance or ill-health );
retrenchments ( also known as dismissal based on operational requirements) ;
automatically unfair dismissals ( discrimination on grounds like pregnancy, age, race ).Each category has its own factors which determine whether your dismissal was fair or not.
Fair procedure
In order to be a fair procedure, the question is were you given an opportunity to properly respond to whatever the employer’s concerns were and to explain your circumstances? If you weren’t, then your dismissal would be procedurally unfair.
Where do I bring a claim?
Depending on the nature of the unfair labour practice, the dispute is dealt with at the CCMA , Bargaining Council or the Labour Court.
It is important to refer your dispute to the correct place and within the permitted time periods or it may result in a delay in your claim being heard, or your claim not being heard at all. It is thus important to get expert advice as soon as possible.
UNFAIR LABOUR PRACTICES
How to identify 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?
Depending on the nature of the unfair labour practice, the dispute is dealt with at the CCMA , Bargaining Council or the Labour Court.
It is important to refer your dispute to the correct place and within the permitted time periods or it may result in a delay in your claim being heard, or your claim not being heard at all. It is thus important to get expert advice as soon as possible.
DISCIPLINARY HEARINGS
Consult with us to ensure your disciplinary hearing is fair
What steps should be taken?
The hearing itself should be preceded by an investigation into the issues;
and you should be notified of the allegations against you.You are entitled to a reasonable time before the hearing to prepare a response ( and you may do such preparation with the assistance of an attorney).
What happens at a disciplinary hearing?
You must be given the opportunity to state a case in response to the allegations.
You must be allowed to present evidence and to call witnesses to defend the allegations that have been made against you, and you must be given an opportunity to challenge the employer’s evidence and to question the employer’s witnesses.
CCMA & BARGAINING COUNCILS
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What is the CCMA and what is a Bargaining Council?
One of the purposes for which the CCMA and Bargaining Councils were created was to resolve disputes. A dispute MUST be referred to the correct institution ie. either the CCMA or a Bargaining Council. The first step in unfair dismissal and unfair labour practice disputes is to refer the matter to the CCMA ( Commission for conciliation, mediation and arbitration) or a Bargaining Council.
Certain industries have a Bargaining Council, some examples are the motor industry, metal and engineering industry, restaurant and catering, and hairdressing.
It is therefore important to know whether there is a Bargaining Council in the industry in which you work because any dispute that you have will need to be referred to that Bargaining Council. The CCMA will have jurisdiction if there is not a Bargaining Council.
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
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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?
Depending on the type of dispute, the matter may be arbitrated at the CCMA or Bargaining Council or adjudicated by a Judge at the Labour Court. Examples of disputes heard by the Labour Court are retrenchments involving more than one employee and automatically unfair dismissals for reasons related to for example pregnancy, race, and age.
The Labour Court functions also include granting interdicts; making arbitration awards and settlement agreements an Order of the Court; reviewing unsatisfactory arbitration awards.
The Labour Court may also issue a warrant of arrest if an employer refuses to comply with a CCMA or Bargaining Council award.
The Labour Court may refuse to hear a matter if a conciliation has not been held.
CONCILIATION & ARBITRATION
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What is conciliation?
Conciliation is the first step in resolving any dispute.
Conciliation is an off-the-record 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 does not decide the matter for the parties – that happens at arbitration which is the next phase after conciliation.
What is arbitration?
Arbitration takes place after an unsuccessful conciliation. The commissioner will listen to the case presented by the employee, and the case presented by the employer, and then make an arbitration award.
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 sides witnesses, and present an argument why the commissioner should find in their favour.
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.