I too frequently receive frantic requests from employers to help them get rid of an employee at all costs. In the midst of their panic they fail to realise that the ‘costs’ they are shouting about could be immense.

It is well known that South Africa’s Constitution, the Equality act and the Employment Equity Act, all render racism unlawful. Despite this powerful and well publicised legislation and society’s repugnancy for racist behaviour, the biases and unfair discrimination that characterised the ‘old South Africa’ still exist in the hearts and minds of many people.

Employers commonly opt for alternative and temporary resources, such as staff provided by labour brokers, to avoid direct employment of workers. This practice is known as labor brokering or outsourcing, and it has become a common trend in the modern job market. 

The ability to get away with breaking the law has encouraged many employers to mistreat undocumented foreign people employed by them. That is, employers have paid illegal immigrants low wages, deprived them of employee benefits and have dismissed them at will.

The Labour Relations Act (LRA) provides for employees who have been passed over for promotion to lodge an unfair labour practice dispute at the CCMA or at the relevant bargaining council. 

The code of good practice that regulates the conducting of misconduct dismissal arbitrations increases the obligation on commissioners to conduct themselves properly when arbitrating such matters.
 

Many dismissals in which we have been involved have been upheld by the CCMA. It is not the firing of employees that the law has a problem with. It is not dismissals that raise the ire of CCMA arbitrators. Instead, it is unfair dismissals that result in the employer being forced to reinstate the employee and/or being forced to pay the employee exorbitant amounts of money in compensation.

Every employer and every employee has the right to expect that the other is trustworthy. As a result, either party could forgo his/her right to continue the employment by destroying the trust relationship.

South African law provides heavy protection for pregnant employees, and does so via numerous pieces of legislation. 

Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability or illness. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled or ill. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.

In 1995 South Africa’s old Labour Relations Act was scrapped and replaced by the Labour Relations Act of 1995 (LRA). This act makes it very much easier than before for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory dispute resolution forums.

Investigation of misconduct allegations is a crucial step in legally acceptable disciplinary action and cannot be bypassed. However, employers often fail to investigate allegations of misconduct or poor performance because they are busy, because of feelings of anger towards the employee or due to ignorance of the labour law pertaining to disciplinary process.

Due to the fact that some employers are unskilled in dealing both effectively and legally with poor performance or misconduct they look for other ways of getting rid of troublesome employees. 

The legal procedures that an employer is required to follow in implementing dismissals for misconduct, retrenchments and poor work performance are all different.

Exceptional employees exist who always manage their own conduct and seldom need to be managed. However, most employees do need to be managed, and this is the job of their superiors.

The purpose of workplace disciplinary hearings is to enable the chairperson of the hearing to hear, from both sides and evidence relating to the charges against the employee.

Section 197 of the Labour Relations Act requires that, where a business is taken over, the new owner must take over the staff from the old owner. During such takeovers, employees are often desperate to stay on with the new enterprise.

What rights do employers have to discipline employees for misconduct perpetrated outside the workplace? 

There appears to have been a notable change in how employers structure automatic termination clauses in employment contractual agreements. A number of legal precedents indicate that these changes primarily favour the employee rather than both parties involved. 

A disciplinary warning is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead it is a notification that punishment or other corrective measures could follow.