This in turn compromises the ability of businesses to grow and to employ more employees.
One example of this problematic legislation is the fact that some arbiters give too much weight to mitigating circumstances. For example, while it is acceptable to use an employee’s long service as a mitigating circumstance in
certain situations, it makes no sense to view length of service as an immovable barrier against dismissal.
For instance, should a penalty of dismissal be imposed in a case where the employee has been grossly derelict in his duties the employer normally intends for the employee to stay fired. This is because:
- No enterprise can run effectively and harmoniously with employees who break the rules, destroy trust or fail to do their duty
- The employer needs to replace the errant employee and will therefore not have a post available for a dismissed an employee who is reinstated
- The employer wants all employees to know that if they cross the line they will be out of a job
- The reinstatement of a dismissed employee therefore undermines the harmony and effectiveness of the workplace and the authority of management.
The employer therefore has a very strong need to know that its dismissal decision will not be interfered with. However, the Labour Relations Act (LRA) dilutes the employer’s right to dismiss by:
- Laying down numerous and stringent criteria for deciding whether a dismissal decision should stand or not
- Giving arbitrators and judges the right to overturn dismissal decisions.
It is the above provisions that have plagued many employers over the past years and have resulted in many thousands of employees being reinstated.
Some years ago Rustenburg Platinum Mines dismissed a Mr Sidumo for failing in his duty as a mine security officer. Mr Sidumo failed to follow the required loss prevention procedures to be utilized for searching employees employed in a high security area. On the day in question the employee failed to search all but one of the people who exited the company’s precious metal store.
Mr Sidumo, through his trade union, disputed the dismissal at the CCMA. The arbitrator accepted that Mr Sidumo had been guilty as charged but decided that the dismissal decision was too harsh. As Mr Sidumo had 15 years’ of service and had ‘not been trained’ in the required duties the arbitrator ordered the reinstatement of Sidumo.
The employer took the matter further and it ended up in the Constitutional Court. (Sidumo vs Rustenburg Platinum Mines Ltd and others. October 2007, Skills Portal News Letter) which found that the dismissal was unfair in the light
of the mitigating circumstances. In effect, the Constitutional Court has decided that the law protecting the jobs of employees must remain paramount.
In their disappointment employers should not lose heart and be deterred from dismissing employees who deserve it. Instead, they must ensure that, before they discipline and dismiss employees, they fully understand the effect of
mitigating circumstances on potential dismissal decisions.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable
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This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
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This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to the Labour Law videos website or contact Ivan on [email protected]
