Where businesses and other organisations are unable to get work done by robots they need to acquire the necessary skills by hiring staff. A key  question then arises as to whether the money expended in order to acquire and retain these employee skills should be seen as an expense or as an investment.

This week Ivan Israelstam explains the background to the Commission for Conciliation Mediation and Arbitration (CCMA) Guidelines. What is the purpose of publication of the guidelines, and what are some of the important items included in the document? The guidelines are intended to ensure greater consistency in Commissioners' arbitration decisions, and meet the Constitutional right of employers to fair administrative action. In conclusion, Ivan reinforces that the onus to prove a fair dismissal rests with the employer.  

The law considers absenteeism over short periods (a day or two) without leave or without good reason as minor misconduct. However, when even short periods of absence become the norm amongst a workforce this can constitute an extremely serious problem for the employer.

South Africa’s Constitution gives all accused persons the right to defend themselves. Cross examination is a key tool used for this purpose. It is used universally in courts and tribunals and gives an accused the opportunity to challenge his/her accusers.

The Code of Good Practice: Dismissal (the Code) in Schedule 8 of the Labour Relations Act (LRA) has been, in effect, provided for in section 188 (2) in Chapter 8 of the LRA. This chapter provides for this Code as part of its purpose of ensuring that employers accede to the rights of employees not to be unfairly dismissed as required by section 185(a) of the LRA.

Yes, it is true that our government has lifted its Covid restrictions as a means towards promoting economic activity. While this will assist businesses to improve their sales, employers and employees need to bear some important things in mind:

The Labour Relations Act, seven other labour acts and numerous codes of good practice have all been designed to protect employees. And indeed, employees need protection from unscrupulous employers. However, the imbalance is so great that our labour laws leave employers virtually unprotected.

Our labour dispute resolution system often claims jurisdiction over foreign employers. When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil.

The law makes it essential for employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

There are many different reasons that employers lose at arbitration despite their confidence that they would win. Some of those reasons include:

Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve.

Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct or poor performance. Normally, such discipline would be found to be unfair. However, one view is that a second disciplinary process might be justified if the employer is able to present evidence that:

In common law employers and employees have the obligation to treat each other fairly and within the law. 

Where the employer fails to attend an arbitration hearing the arbitrator is entitled to continue without the employer unless the arbitrator is aware of an acceptable reason for the employer’s absence. As the arbitrator has little or no way of testing the truth of the employee’s evidence he/she will most often accept the employee’s version and find against the absent employer. This is called a default judgement.

Dishonesty has traditionally been seen as a serious offence and one that could render an employment relationship intolerable. This is because dishonesty damages the ability of the employer to trust the employee. 

When an employer contemplates retrenching employees it is required by the Labour Relations Act (LRA) to first consult about this prospect before making any decision to retrench. Where the relevant employees belong to a trade union the employer is required to consult with that union on a number of issues, the most important of which is any means of avoiding job losses. 

The presiding officer (PO) of a disciplinary hearing must hear the evidence from both sides properly in order to be able to consider it once the hearing is adjourned for purposes of a verdict. The PO then assesses the evidence collected at the hearing in order to decide whether the employee is guilty or not guilty of the charges. 

Labour law accepts the firing of guilty employees only if dismissal is the last resort. The Code of Good Practice: Dismissal provides that, where employers are considering dismissing an employee they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s breach of the trust relationship.

Where the job itself is permanent it is dangerous to employ staff on anything but a permanent contract. This is firstly because the Labour Relations Act provides for fixed-term employees to have a reasonable expectation of renewal of their contracts at the expiry date.

Whether the dismissal of an employee who attended work whilst awaiting a Covid-19 test result, who continued to report to work after the Covid-19 test result came back positive and who failed to follow health and safety protocols in the workplace, was fair.