automatically unfair dismissal south africa

Respondent Heard: 30 May 2012 Delivered: 12 June 2012 Summary: Dismissal after lodging grievance. How To Check Your June 2023 SRD Grant Status. (The latter will only be applicable if your company is a unionised environment.). On review, the Labour Court set aside the award and substituted the award with a finding that: the dismissal was unfair; and; the Company was to pay the employee compensation equivalent to 12 months' salary. In addition, a dismissal can also be automatically unfair. South Africa: Compensation Possible For Unfair Dismissal - Mondaq The instruction to remove their dreadlocks would have had a drastic effect on the employees, who would be scorned by those who practiced their faith if they obeyed, or precluded from practicing their traditional beliefs. in section 187 (1) (f), the dismissal is discriminatory. (f) that the employer unfairly discriminated against an employee directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. It is clear, then, that section 187 (1) (c) does not prevent employers from dismissing employees who refuse to accept a demand if the effect of that dismissal is to save other workers from retrenchment. The information on this website does not constitute legal advice. Read More, Copyright 2022 Consolidated Employers' Organisation | Ref. The employer must contact a trade union official and tell the official of the planned dismissals, and try to give workers an ultimatum with enough time to consider the ultimatum. NB: This article is for information purposes only and does not constitute legal advice. You (as the paralegal) should report this to a union if there is one. There must be a refusal to agree to that demand, and. Compensation for an unfair labour practice claim is limited to 12 months remuneration. Section 187 (1) (e) determines that: "A dismissal is automatically unfair if the Employer, in dismissing the Employee acts contrary to Section 5 or the reason for dismissal is the Employee's pregnancy, intended pregnancy or any reason related to . The chairperson is most often a manager in the business.     Cape Town Procedural fairness is the process which gives the employer and the employer an equal opportunity to present their versions about a work-related issue to a neutral chairperson to decide whether disciplinary action is justified. With July on the way, it's important for beneficiaries to know how much there Sassa payments will be. These categories are dismissals for misconduct, incapacity (ill health or poor performance) and operational requirements. Victims of automatically unfair dismissals will invariably be reinstated unless they choose compensation instead. The employer must produce evidence of sufficient weight to discharge the onus on a balance of probabilities. Relevant documentary evidence should be sorted and arranged in date or chronological order in a bundle or indexed file of documents. Other aspects of a fair procedure are explained below under the different reasons for dismissal. Case No. Her superior viewed the fact that she had not reported the matter to him alone as insubordination. The purpose is firstly to establish whether the employee is guilty of committing the act of misconduct. But this should not stop the chairperson from conducting the enquiry if there is no good reason to show possible bias. In other words, the employers evidence must carry more weight than the employees evidence. ), If the dispute is not resolved through internal disciplinary procedures, the dispute will be taken to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council. No doubt, this situation will present considerable challenges to any employer, the danger being unfair discrimination. Whether it's in the corporate sector, education, community development, or any other field, facilitators play a vital role in creating engaging learning environments, fostering collaboration, and driving meaningful discussions. 2. The Employment Equity Act 55 of 1998 provides that if an employer fails to take steps to prevent employees from discriminating against each other, the employer may be held liable. Without regulation, an employer would easily be able to exploit vulnerable employees. In other words, the worker must always get a chance to give his or her side of the story before the employer decides on dismissal. 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. For example, something you heard or was told to you by someone else or a document which contains disputes of fact. Automatically unfair dismissals. Its more like the employers case should be about 70% more believable than the employees version. If a worker thinks that the dismissal was unfair, in other words that the employer didnt follow fair procedures or there is not a good reason for the dismissal, then the worker can try to challenge the dismissal. Unless the parties consent to the CCMAs jurisdiction to arbitrate the matter, it will need to be referred to the Labour Court for adjudication. 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. 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. Substantively unfair dismissal is the termination of employment forno good cause or acceptable reason. reason for a dismissal, the enquiry moves to the remedy to which the employee is entitled. ii) Participating in any proceedings in terms of this Act. 7. In contrast lawfulness is confined to a much narrower scope of possible factors to consider such as the well-established principles of contract and the rules of interpretation of statutes. More effort is expected of the employer if the worker was injured or got sick because of their work. Conciliation for unfair dismissals disputes also covers automatically The worker is allowed to refer the proposed dismissal to the CCMA for conciliation. MUTUAL SEPARATION AGREEMENTS: Whats involved in negotiating an agreement to terminate an employment relationship? Misconduct involves fault by the employee. There was a series of incidents in which the employee was subject to racist abuse. 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-. It's important for any professional to network, as this will not only help you connect to as many people as possible in your respective industry, but these are connections that can help elevate your career. They could simply dismiss employees for no cause or reason whatsoever. If the employer rejects what they say, he or she must give reasons in writing if the workers have submitted their representations in writing. The workers were then retrenched. SECRET RECORDINGS: Are they legalwhen can you use them as evidence? This article examines the strengths and weaknesses of these legal actions. The Court has also restated and applied the requirements for a defence of lis pendens (i.e. 3.3 Employers HR policies and procedures, 3.4 Reasons and date of employees termination, 4. The provisions allow for an outside facilitator to help facilitate the process and the right to strike over retrenchments as a final resort. Final dismissals can never be " to compel the employee to accept" a demand and will not be automatically unfair. A reported case referred to a fireman subject to sustained racist abuse by colleagues. Some weeks later, the respondent decided that it needed to increase the staff component of the Compliance Department. The worker should have a chance to cross-examine witnesses called against him or her. The law of evidence in South Africa is a big subject and can get quite complex. A subsequent dismissal which can be related to the protected disclosure will constitute an automatically unfair dismissal - this dismissal brought with it the maximum penalty of 24 months pay. A dispute of right is based on a legal or contractual right. The labour law provides that the employer in this instance does not get the opportunity to . 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. Its advisable to take written statements from witnesses in your preparations for alleged unfair dismissal and misconduct cases. Should a matter be referred to the CCMA as a dismissal for misconduct in terms of Section 191 of the Act, a commissioner will still have a duty to determine the true nature of the matter. An employer may not unfairly discriminated against an employee, directly or indirectly on any arbitrary ground including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. Judgment Date 30 November 2005 In contrast lawfulness is confined to a much narrower scope of possible factors to consider such as the well-established principles of contract and the rules of interpretation of statutes. 8.2 Facts which prove or disprove the issues in dispute. Once it is proved that the employee is dismissed for any of the reasons specified in section187, the employer can raise no defence and the employee is entitled to reinstatement or, in exceptional cases, compensation. The payment must include the value of payment in kind. 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. (PDF) Automatically Unfair and Operational Requirement Dismissals If there is repeated misconduct, the employer must give the worker warnings. To dismiss an employee for exercising statutory rights constitutes automatically unfair dismissal. whoever a collective agreement says must be consulted, or if none exists: alternatives considered including redeployment, how it will be decided which workers to retrench, what other help the employer will give to the workers who will be retrenched, possibilities of future re-employment for these workers, number of workers employed by the employer, number of workers the employer has retrenched during the past 12 months, whether retrenchment is justified and ways to avoid retrenchments, ways to reduce the number of people retrenched, ways to limit the harsh effects of retrenchment, the method and criteria for selecting workers to be retrenched: if there is no agreement, the employer must use fair and objective criteria, severance pay: workers can negotiate for higher severance pay than the LRA prescribes (which is 1 weeks pay for every year of service), the circumstances surrounding the dismissal would make the relationship between worker and employer intolerable, it is not reasonably practical for the employer to take the worker back, the dismissal is unfair merely because the employer failed to comply with a fair procedure, but there was a good reason for dismissal.
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