Dismissals

Every person in South Africa has the right to fair labour practices. One of those rights captured in the Labour Relations Act is the right not to be unfairly dismissed. In order to be fairly dismissed, the employer must apply a fair procedure (disciplinary procedure) and have a substantively fair reason that warrants dismissal. The concept of fairness applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case.

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Other Articles in this Category:

Retrenchment - do we recognise the effect? Measures how to avoid retrenchment.
Johanette Rheeder

Retrenchment is never easy, both on the employer and the retrenched employee. The employer faces disputes, low morale, low productivity and even sabotage by disgruntled employees. Retrenchment may also have a devastating effect on the on the retrenched employee and his family life. White males, especially the older males, may find it difficult to obtain work again due to affirmative action candidates being favoured by employers.

Did I resign or was I dismissed?
Johanette Rheeder

This year has had its fair share of disputes regarding arguments between employers and employees as to whether the employment relationship came to an end due to a resignation or a dismissal. Employees resign, change their minds, want to withdraw resignations and the employer wants to move on. Had the employee resigned, then the CCMA will not have jurisdiction, so whenever there is doubt, the employer will claim resignation to stay out of the CCMA.

When is a dismissal fair in alcohol abuse cases?
Johanette Rheeder

Every chairperson, when deciding on a sanction, must go through a process where he or she decides whether dismissing the employee is the right or fair thing to do. Fairness, as some may be surprised to note, applies not only to the employee but also to the employer! In Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) [also reported at [2004] 3 BLLR 199 (LAC) the Court stated that the concept of fairness, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case. In judging fairness, a person or a court will apply a moral or value judgment to established facts and circumstances, and in doing so it must have due regard to the objectives sought to be achieved by the LRA.

Constructive Dismissals – a difficult case to prove
Johanette Rheeder

Constructive dismissal has become a convenient escape for disgruntled employees and we find more and more that employees resign with a special condition to their resignation, so as to keep open the back door for a claim of constructive dismissal, alternatively the employee just refers a constructive dismissal dispute to the CCMA after resignation.

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