6.4 Re-examination on new issues raised in cross-exam. Employees are recommended to firstly try to obtain the relevant medical and expert assistance and to address their own performance and conduct and where this is not possible, to approach the employer with a view to obtaining some form of intervention to avoid the situation escalating to the point where the employee is dismissed for poor performance or misconduct which but for the underlying cause such as PSTD or depression could have been alleviated if not avoided. They refused to do the work of a striking employee. Automatically unfair dismissal? Filing of a grievance does not amount If there is no Code, the decision should be based on generally accepted notions of a scale of acts ranging from minor to very serious offences. This field is for validation purposes and should be left unchanged. The worker must be given reasons for any decisions taken. REPUBLIC OF SOUTH AFRICA Reportable Of interest to other judges THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN . (PDF) Automatically Unfair and Operational Requirement Dismissals 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. 6. that the dismissal was substantively unfair, principally because the employer failed to properly consider the suggestions put in the applicant?s counter-offer to the section 189 letter; The Court accordingly, ruled that the employees had been discriminated against on the basis of gender, and that their dismissals were automatically unfair. When a retirement age is agreed upon, a dismissal prior to that date based solely on the employees age will be automatically unfair ie dismissal of a teacher at age 68 was deemed to be automatically unfair because it had been agreed that she would work until the age 72 years. Judge Leeuw AJ Judgment Date 30 November 2005 The labour law of unfair dismissal changed this imbalance in the power relationships. taking part in a legal strike or other industrial action or protest action, refusing to do the work of someone who was on strike, being pregnant, or any reason related to pregnancy, refusing to accept a change in working conditions, reasons that are due to arbitrary discrimination (except that an employer may retire someone who has reached the normal or agreed retirement age, or if the reason is based on an inherent requirement of the job, for example being able to speak a certain language in order to do the job properly), a reason related to a transfer following a merger of the company with another organisation. The agreement was reached that both parties would take all reasonable measures to avoid job losses. PDF Constitutional Court of South Africa - Saflii This article examines the strengths and weaknesses of these legal actions. Fax:021-4232105 Pedzinski v Andisa Securities (Pty) Ltd [Pro Dis, Unfair redundancy] SABC The Watchdog | Nehawu strike continues, With Patrick Deale, NEWAHU Strike: When a strike gets out of control, who is to blame Early Breakfast with Africa Melane. PDF The Labour Court of South Africa, Johannesburg It should be made within a reasonable period. Dismissals for misconduct will only be fair if: For minor mistakes the employer must use informal advice. The worker should have a chance to cross-examine witnesses called against him or her. RETRENCHING FOR POOR PERFORMANCE: Can an employer use poor performance as the reason for retrenching employees? A dismissal is automatically unfairif the employer, in dismissing the employee, acts contrary to section 5 or if the reason for the dismissal is: 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 Chapter IV. where the employee is dismissed following a disclosure made by him in terms of the Disclosure of Information Act. A close 51% 70% would usually not be persuasive enough to find the employee guilty. The worker must be present at the hearing and be allowed to state his or her case. The Labour Relations Act ("LRA") at section 187 states that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 (this section confers protections relating to the right to freedom of association and on members of workplace forms) or, if the reason for the dismissal is - . Workers in the following circumstances are also entitled to fair dismissal reasons and fair dismissal procedures under the LRA. W.Tel no. BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22 (18 May 2020) . In the recent Labour Appeal Court decision of Legal Aid South Africa v Jansen the court looked at inter alia, the issue of who bears the onus of proving that the dismissal was automatically unfair. 1. that the disclosure (the report about trading irregularities) was a protected disclosure pursuant to the Protected Disclosures Act; The Court found that the employees claim was one of an automatically unfair dismissal in terms of section 187 of the LRA and unfair discrimination in terms of the EEA. What is of importance from this case is that the LAC held that where an employee contends that he was discriminated on one of the grounds as listed in section 187 (1)(f) as above It is incumbent on an employee alleging that the reason for his dismissal was discrimination on prohibited grounds, to produce sufficient evidence raising a credible possibility that the dismissal amounted to differential treatment on the alleged ground. There are different procedures for cases of misconduct, incapacity (poor-performance or ill health), and retrenchment. Its more like the employers case should be about 70% more believable than the employees version."}}]}. An infringement of that fundamental right is an automatically unfair dismissal. Employers should, therefore, exercise extreme caution when dealing with any of the situations as listed in Section 187 (1) and seek legal advice where required. 1. . Section 187 (1) (f) of the LRA states that 'a dismissal is automatically unfair if the . The principle of fairness is unique to labour law. Review Us. With July on the way, it's important for beneficiaries to know how much there Sassa payments will be. Relevant documentary evidence should be sorted and arranged in date or chronological order in a bundle or indexed file of documents. By submitting your email address to us, you agree to receive our newsletters and course updates. The test for determining the true reason and whether a dismissal was automatically unfair in terms of section 187(1)(d) was laid down in SA Chemical Workers Union v Afrox Ltd 3 (1999) ILJ 1718 (LAC).The court must determine the factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the . For more information or to Contact Cape Labour. For example, something you heard or was told to you by someone else or a document which contains disputes of fact. Changing Conditions Automatically Unfair Dismissal: Can an employer dismiss employees for refusing to accept changes to working conditions? These acts involvethe fault of the employee. It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa. Should there be any doubt in the mind of either an employer or an employee in this regard it is recommended that you first approach an attorney to assist you to avoid the minefield that you may find yourself in. This has been exacerbated by the semigration of parents hoping to find job opportunities in major economic hubs like Gauteng, KwaZulu-Natal and the Western Cape following the pandemic, with nearly 60% of the South African population living in these three provinces. Standard Bank of South Africa v CCMA & others (2007) 16 LC 8.29.11 What is procedural fairness in a retrenchment? Dismissal: automatically unfair dismissal - 24months compensation In the matter before the Labour Court the employer was ordered to reinstate the employee with full retrospective effect as well as to pay the employee compensation of an amount equivalent to six months salary. If you continue to use this site we will assume that you are happy with it. The LC found that this brought the matter within the ambit of s 187 (1) ( d) and the dismissal was accordingly automatically unfair. The information on this website does not constitute legal advice. Domestic workers and the National Minimum Wage increases How jobs have affected in South Africa, Domestic workers minimum hourly rate to increase, The New National Minimum Wage for domestic workers is to be implemented from 01 March 2023. Subject Substantive Fairness in Dismissal However, participants in protected strikes may be dismissed for misconduct (eg. -. IN THE LABOUR COURT OF SOUTH AFRICA 1 IN THE LABOUR COURT OF SOUTH AFRICA (HELD IN CAPE TOWN) Case No: C124/17 and C728/16 Reportable In the matter between: SHIRLEY SIMMADARIApplicant and ABSA BANK LIMITEDRespondent Heard: 5 March 2018 Delivered: 6 March 2018 As a consequence employees may be found to be performing poorly or conducting themselves in manners which are inappropriate, unacceptable and/or contrary to the employers rules and regulations. 082-433-8714 An automatically unfair dismissal is distinguished from an 'ordinary' dismissal i.e. The purpose is firstly to establish whether the employee is guilty of committing the act of misconduct. Offering FREE legal consultation for exploited, unfairly dismissed or victimised employees, we also offer a "No Win No Fee" approach to employees. Another reported case of a dismissal that has been held to be automatically unfair because the employee was discriminated against on the basis of family responsibility. The employer bears the onus in a misconduct case to prove that the dismissal was substantively fair and procedurally fair. EMPLOYEES CASE ON THE EVIDENCE, 7.3 Cross- examination by employer. Jurisdiction Labour Court, Johannesburg by Global Business Editor | Aug 30, 2017 | Latest News | 0 comments, A dismissal can take a number of forms. In addition to dismissals for misconduct, incapacity, and dismissals for operational requirements, the Labour Relations Act further provides for dismissals that are automatically unfair. (The latter will only be applicable if your company is a unionised environment.). Dismissal constituting discrimination on basis of employees mental condition is automatically unfair. He consultation process is a joint consensus seeking process. Summary of Facts: REMEMBER the golden rule for success 90% preparation + 10 presentation! The employer must produce evidence of sufficient weight to discharge the onus on a balance of probabilities. As a rough estimate, the proverbial scales of justice should tilt about 70% + in favour of one party or the other. Global Business Solutions is a leading Labour Law, Human Resources and Industrial Relations consultancy offering a diverse range of services aimed at empowering businesses to achieve their objectives. South Africa: Constitutional Court: Retrenchments Vs Automatically Email Us -enquiries@allardyce.co.za | labour@allardyce.co.za, The Labour Relations Act (LRA) at section 187 states that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 (this section confers protections relating to the right to freedom of association and on members of workplace forms) or, if the reason for the dismissal is . A woman may not be dismissed in any circumstances merely because she is pregnant. Prior to the employee reaching retirement age, it would be in the interest of the employer to conclude a written agreement to extend the period of employment of the employee for a further fixed term period, to avoid possible litigation by the employee. "}},{"@type":"Question","name":"What is procedural fairness? 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. NARROWING THE ISSUES (FACTUAL & LEGAL), 4.1 Procedural or substantive unfairness or both, 4.2 Issues that are common cause, 4.4 Issues that the arbitrator is required to decide, 5. 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. If an employer dismisses an employee on any of the grounds listed he dismissal will be regarded as automatically unfair if the worker is dismissed for: exercising any of the rights given by the LRA or participating in proceedings in terms of the Act. 5. that the applicant had failed to establish the s.187(1)(f) part of her claim, namely that dismissal was a result of being a disabled employee. We use cookies to ensure that we give you the best experience on our website. In terms of section 187 (1) (c) refers to employees who are threatened with dismissal or are actually dismissed for refusing to accept unilateral amendments to their terms and conditions of employment by their employers. ], [Examples: Condonation, Jurisdiction, Legal Representation, Discovery of Documents, Recusal etc. The evidence is measured on a scale referred to as thebalance of probabilities. ), 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. High Court declares Zimbabwe Exemption Permit termination unlawful, The role of the Essential Services Committee in safeguarding South Africas most vital industries, An analysis of the statutory requirements for promoting employees in a fair manner, Indulging in Forbidden Fruit: Reserved for the Labour Appeal Court, exercising any right conferred by this Act; or. 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, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility, g) A transfer, or a reason related to a transfer, contemplated in section197 or 197A or. They claimed that their dismissals were automatically unfair because they had been discriminated against on the basis of their religion, conscience, belief and/or gender. Accordingly, the Court found that the dismissal was both automatically unfair as well as substantively and procedurally unfair. The Court held that the principle or dominant reason for his dismissal was that the employer was not happy about the gender reassignment process and dismissed him for that. Whistleblowers - employees who bring to management's attention irregularities within the organisation - are covered by the Protected Disclosures Act. The Protected Disclosures Act 26 of 2000 protects persons, including employees, against dismissal or any prejudicial conduct if they disclose information to certain persons inter alia the commission of criminal offences, miscarriages of justice, unfair discrimination and conduct detrimental to health and safety or the environment. In Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC), the employee was dismissed for his failure to disclose during his interview his intention to undergo a gender reassignment process. same proceedings pending in other proceedings). The worker must be given enough time to prepare for a hearing. Register your domestic worker in terms of the Compensation for Occupational Injuries and Diseases Am. The author of a document must testify to confirm the truth of the disputed contents in a document even if its a sworn affidavit. In terms of section 187 (1) of the LRA a dismissal is automatically unfair if the employer, in dismissing the employee acts contrary to section 5 of the LRA. Section 187 (1) (g) renders a dismissal related to or pursuant to a transfer of the business to another may not retrench its employees if the purchaser does not wish to engage the sellers employees. 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. Register your domestic worker in terms of the Compensation for Occupational Injuries and Diseases Amendment Act 22 (COIDA). So, too, is it automatically unfair to dismiss an employee for attempting to exercise rights in terms of a collective agreement or grievance or disciplinary procedure? Whistleblowers - employees who bring to management's attention irregularities within the organisation - are covered by the Protected Disclosures Act. For participating in the formation of a union, or joining a union and, having joined, participating in the unions lawful activities, the election of its officials or office bearers or for standing for election for such positions. Section 187 reads as follows regarding automatically unfair dismissal: 1. 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. h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act. Dismissals - Labour Guide South Africa labour_protect_home_page Applicant alleges automatically unfair dismissal in terms of LRA s 187(1)(d). refusing, or indicating an intention to refuse, to do work normally done by an employee who is on a protected strike or is locked-out, unless that work is necessary to prevent an actual danger to life, personal safety or health; A dismissal is automatically unfair when the dismissal is for the purpose of compelling the employee to agree to the employer's demand and such dismissal is temporary, pending the acceptance of the changes. Victims of automatically unfair dismissals will invariably be reinstated, unless they choose compensation instead. The duty to disclose a conflict of interest. Van Niekerk J recently held that s 187 (1) (c) of the Labour Relations Act 66 of 1995 (LRA), which provides that a dismissal is automatically unfair if the reason is 'a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer', cannot be relied on by individual employees. Corrective or progressive discipline must be used for misconduct. 1.1 she made a protected disclosure [s.187(1)(h)]; 1.2 she was compelled to accept a demand in respect of a matter of mutual interest [s.187(1)(c)]; or. The worker must always have a fair hearing before being dismissed. Anemployer can no longer dismiss forno cause. This applies especially to employees at the lower skills levels who dont have strong bargaining power or the support of a union to protect themselves from unfair working conditions. Compensation equal to 24 months' remuneration was ordered and the employer was ordered to pay the employee's legal costs. 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. 8.5 Legal principles, authority or case law, 9.2 Reinstatement & back-pay; or, 9.3 Re-employment with no or limited back-pay; or, 9.4 Compensation no reinstatement or re-employment if , 9.4.1 Employee does not wish to be reinstated ;or, 9.4.2 Continued employment intolerable; or, {"@context":"https://schema.org","@type":"FAQPage","mainEntity":[{"@type":"Question","name":"What is unfair dismissal? The employer must have a proper and fair reason for dismissing the worker. Theprocedure for an alleged act of misconductsuch as assault or theft is the disciplinaryprocedure. In other words, the employers evidence must carry more weight than the employees evidence. So the worker must get wages for the hours worked, plus any leave pay, plus notice or payment in lieu of notice, plus severance pay. The employee had resigned after being transferred to the night shift after returning from maternity leave. E-mail: bernard@capelabour.co.za South Africa: Trade Unions, Freedom Of Association And Unfair - Mondaq 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. The Labour Relations Act serves to protect the employee's rights according to the constitution, preventing them from any suffering caused by unfair dismissal in South Africa. He or she should be able to conduct the enquiry fairly and be able to consider the evidence objectively. It's not applied in other areas of law such in the laws of contract, property, finance, etc. An employer can take these options to dismiss a worker: This means the employer tells the worker to leave work after a certain period, like a week or more. Unfortunately, a practice has evolved which has morphed enquiries into formal court like processes in which parties attack each other on technical procedural and other legal points. There must be a refusal to agree to that demand, and. Cape Town Review Us. In the latter category, it is not necessary to prove that a dismissal is unfair. misconduct (the worker has done something seriously wrong and can be blamed for the misconduct. Due to the increasing popularity of vocational training among prospective students, a leading college has now expanded their offering to the online space, to increase accessibility to a number of their courses. was dismissal appropriate under the circumstances?). reason for a dismissal, the enquiry moves to the remedy to which the employee is entitled. A dismissal is automatically unfair in terms of section 187 of the LRA if the employer dismisses an employee for reasons relating to organisational rights or for reasons relating to unfair discrimination, participation in a protected strike or pregnancy. Respondent raises exception. 8.3 Why those facts are the more probable version. This could be dismissal for a serious offence or something short of dismissal such as a warning for a less serious offence. contrary to section 5 or if the reason for the dismissal is: 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 Chapter IV. Progressive discipline can get stronger every time the worker repeats the misconduct. Section 187 of the LRA provides that a dismissal is automatically unfair if it has an unfair reason. Employees claiming to be victims of automatic unfair dismissals for purposes of section 187 (1) (f) must prove two things: first, that they were discriminated against; second that the discrimination was unfair. So the worker must get wages for the hours worked, plus any leave pay, plus payment in lieu of notice, or payment for accommodation (30% of basic wage). The best evidence is information which comes directly from first source such as a witness who saw or heard something personally.
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