Ivan Israelstam

The Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in previous articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.

A default award is one made by an arbitrator where the employer fails to attend the arbitration hearing. The arbitrator is entitled to do this unless he/she has received an acceptable reason for the employer’s non-attendance. In the employer’s absence the arbitrator has little or no way of checking as to whether the employee’s version is true.

The law does allow employers to dismiss employees for dishonesty. This is because dishonesty can destroy the ability of the employer to trust the employee. However, this does not mean that all decisions to dismiss dishonest employees will automatically be upheld by the CCMA and the courts.

The Labour Relations Act (LRA) makes it obligatory for employers that are contemplating retrenchments 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.

Schedule 8 of the Labour Relations Act allows the dismissal of guilty employees only as the last resort. The Act, together with its Code of Good Practice: Dismissal, effectively places the duty on the employer to justify the imposition of dismissal by showing that the employee’s misconduct is so serious that it makes continued employment intolerable.

The Cape Town taxi strike created severe harm to employers, employees and the taxi industry alike. The fact that people so frequently choose to use such destructive means of getting their way demonstrates just how discordant our societal and economic relationships are.

If an employer fails to attend an arbitration hearing, the CCMA has the power to issue a default award in favour of the employee.

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.

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.

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.

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.

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. 

When employers include disciplinary policy, procedures and codes in employment contracts, it is especially important that the employer follows their own documented procedures. Failure to follow their own procedures will call into question the status of the dismissal of employees. In this case, Ivan Israelstam details how the Labour Court judge analysed the failures of both the employer, and the CCMA arbitrator, who supported the dismissal.

The Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) provides the guidelines for employers to follow in disciplinary proceedings. This code does not specifically require "cross-examination" but does provide that the employee must be aware of the allegations against them, to understand them, and be given a chance to state their side of the story - or defence - in response to the allegations.This week Ivan Israelstam explains the meaning of "cross-examination" and provides advice on how employers should proceed.