“LABOURING” WITH EMPLOYMENT-RELATED MATTERS
Bertus van Heerden
10 July 2019
Labour relations, can be the cause of much stress and irritation in the workplace, not only for the employee but in many instances for the employer who feels just as overwhelmed by the array of complex terminology, phrases and legal jargon used when dealing with the end of an employment relationship.
This article seeks to provide you with a brief overview of important terms and how the matters ancillary thereto should be approached.
“Unfair labour practice” is defined in section 186(2) of the Labour relations Act 66 of 1995(“LRA”) as any unfair act or omission that arises between the employer and employee involving unfair conduct by the employer, unfair suspension, failure to reinstate a former employee or occupational detriment. In an unfair labour practice matter, the employee is required to lodge the dispute with the CCMA within the later of 90 days from the date on which the dispute arose or the date on which the employee became aware thereof. If it is established that the employer committed an unfair labour practice the commissioner is afforded a reasonable discretion to make one of the following awards in favour of the affected employee:
- An order for reinstatement; or re-employment; or
- The payment of compensation not exceeding 12 (twelve) months of the applicable remuneration.
“Dismissal” in terms of section 186(1) of the LRA refers to the termination of an employment contract, failure to renew a fixed term contract, refusal to allow an employee to resume work, offering selective re-employment, causing the employee to terminate the contract by making the workplace intolerable or providing less favourable working conditions to the particular employee. The general rule insofar as dismissals are concerned is that the onus rests upon the employer to prove that the dismissal was both substantively (in reason) and procedurally (in process) fair. In dismissal matters, the employee is required to lodge their dispute in the CCMA within 30 days from the date of dismissal. If it is established that the employee was unfairly dismissed, the commissioner is afforded a reasonable discretion to make one of the following awards in favour of the affected employee:
- i) An order for reinstatement or re-employment; or
- The payment of compensation not exceeding 12 (twelve) months of the applicable remuneration ;
Generally speaking, the primary remedy afforded to employees falling foul to unfair dismissal by an employer would be reinstatement or re-employment, but these are not always feasible on account of the fact that the relationship between the employer and the employee may have broken down irretrievably.
“Re-instatement”, when used in the context of the remedies available to an employee in an unfair dismissal or unfair labour practice matters, entails the employee returning to work as if s/he had never been dismissed.
In contrast “re-employment” entails the employee returning to work on the basis of such return being regarded as being employed afresh i.e. His first day of work (no accrued leave or service period etc).
“Automatically unfair dismissals” are dealt with in section 187 of the LRA and refer to dismissals effected on account of strikes, additional work during strikes, victimisation, pregnancy, family responsibility, discrimination, transfer of a business or compelling the employee to accept a demand in which there is a mutual interest between the employer and employee (dismissed for refusing to accept a change in the terms of employment). In automatically unfair dismissal matters, the employee is required to lodge a dispute in the CCMA within 30 days from the date of dismissal. If it is established that the employee was the subject of an automatically unfair dismissal the commissioner is similarly afforded a reasonable discretion to make one of the following awards in favour of the affected employee
- An order for reinstatement or re-employment; or
- The payment of compensation not exceeding 24 (twenty-four) months of the applicable remuneration.
As alluded to above, employers would be well advised to ensure that a dismissal of an employee is both substantially and reasonably fair. Examples of fair reasons for dismissal (without providing an exhaustive list) would be dishonesty, damage to company property, conflicts of interest, assaulting or fighting with fellow employees, insubordination, incapacity, poor work performance or sexual harassment.
The employer is also required to adhere strictly to their internal disciplinary process and a significant emphasis, should be placed on ensuring that the dismissal procedure is fair. Such procedure is to take account of the rules of natural justice and enshrines the importance of the audi alteram partem (i.e. ‘hear the other side)’doctrine
A fair hearing entails (amongst other) adequate notice, the employee being made aware of the charge(s), the hearing preceding the decision, the hearing not being unreasonably delayed, affording the employee an opportunity to be present at the hearing, allowing the employee to be heard and to call and question a witness, ensuring that the presiding officer is impartial and that a decision is only handed down once all the evidence has been presented and fairly evaluated.
We would strongly advise both employees and employers to familiarise themselves with the relevant provisions of the LRA so as to ensure that they comply with their obligations and are aware of the various remedies at their disposal. If all else fails we recommend you seek sound legal advice.