automatically unfair dismissal south africa

Whistleblowers - employees who bring to management's attention irregularities within the organisation - are covered by the Protected Disclosures Act. We use cookies to ensure that we give you the best experience on our website. Section 187 lists the reasons for which an employee may not be dismissed under any circumstances such dismissals are automatically unfair. If workers and the employer cannot agree, disputes over retrenchments and severance pay can be referred to the CCMA. 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 principle of "fairness" is unique to labour law. Cell: 082-433-8714 Its more like the employers case should be about 70% more believable than the employees version. The employer ordered to reinstate with full retrospective effect those employees who wished to be reinstated, or to pay those who did not wish to be reinstated compensation equivalent to 20 months remuneration, including increases that would have been granted after their dismissals. This is not a 49% 50% test. Although we take great care to ensure that the information on our website is accurate and up to date, readers are advised to always consult with a Labour Law Practitioner before acting on the information. where the employee is dismissed following a disclosure made by him in terms of the Disclosure of Information Act. Section 5 further prohibits prejudicing employees (which clearly includes dismissing them) for failing or refusing to do anything that an employer may not lawfully require an employee to do. One of the employees implicated was her superior?s senior manager. Gardens ISSUE IN DISPUTE. 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. If a dismissal is found to be unfair, the worker will be able to get reinstated or re-employed, or get compensation money. 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. You can find all of our relevant details here. 07 Jan 2020. This makes it necessary to consider and prepare for all sorts of legal points which could crop up in the cut and thrust of prosecuting or defending an allegation of misconduct. She prepared a report on trading irregularities that was sent to her superior and to the Group?s compliance department. It's important for any professional to network, as this will not only help you connect to as many people as possible in your respective industry, but these are connections that can help elevate your career. Its more like the employers case should be about 70% more believable than the employees version."}}]}. g) A transfer, or a reason related to a transfer, contemplated in section197 or 197A. An automatically unfair dismissal must be referred to the Labour Court for adjudication and may lead to compensation of up to 24 months' remuneration. 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. If the worker is a shopsteward, the employer must first inform or consult the union. 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. . W.Tel no. Section 187 of the LRA provides for a number of instances where the dismissal of an employee is regarded as automatically unfair on the basis of the reason for such dismissal. The law of unfair dismissal in South Africa is based on the assumption that an employer is in an inherently stronger position of power than an employee. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law(Industrial Relations) and advice to employers and employees across all market segments and industries since1987. The employee had resigned after being transferred to night shift after returning from maternity leave. Relevant documentary evidence should be sorted and arranged in date or chronological order in a bundle or indexed file of documents. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable. e) the employees pregnancy, intended pregnancy, or any reason related to her pregnancy; 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 section 197 or 197A; or. Taking action or indicating an intention to take action against an employee for exercising or wanting to exercise any right or for participating in any legal activity; Being pregnant or for planning to become pregnant or any other reason related to her pregnancy; Belonging to or participating in the activities of a trade union; Participating in or supporting a protected strike or for wanting to do so; Refusing or indicating an intention to refuse, to do the work of another employee taking part in a protected strike, or who is legally locked out, unless the work is necessary to prevent an actual danger to life, personal safety or health; Refusing to accept an employers demand related to a matter of mutual interest e.g. How Do I Check My Sassa R350 Grant Balance? But this should not stop the chairperson from conducting the enquiry if there is no good reason to show possible bias. In amisconduct case,the employer must be able to produce enough weighty evidence to prove on a balance of probabilities that the employeebreached a workplace rule. 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. Changing Conditions Automatically Unfair Dismissal: Can an employer dismiss employees for refusing to accept changes to working conditions? The instruction to remove their dreadlocks would have had a drastic effect on the employees, who would be scorned by those who practiced their faith if they obeyed, or precluded from practicing their traditional beliefs. The provisions allow for an outside facilitator to help facilitate the process and the right to strike over retrenchments as a final resort. Three of the five employees claimed they wore dreadlocks because they adhered to the Rastafarian faith, and the other two said they did so for cultural reasons. Assessing the balance of probabilities in the context of substantive fairness and dismissal is an inexact science. proposing that she either work full-time (she had developed a back condition and as a result worked days), be allocated a suitable alternative position or be retrenched. (Note that you need to apply these consistently as, if you dont, you could face fines and the like. 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. Theemployer must prove all of theseelementsfor the dismissal to besubstantively fair. Factual background [3] The applicants commenced employment with the respondent during the course . ], [Examples: Condonation, Jurisdiction, Legal Representation, Discovery of Documents, Recusal etc. Dismissals for misconduct will only be fair if: For minor mistakes the employer must use informal advice. If the dispute remains unresolved after conciliation, the dispute may be referred to this Labour Court for adjudication and/or to the CCMA for arbitration if both parties have consented to do so. The worker is likely to get compensation if: The worker can get up to 12 months wages as compensation for an unfair dismissal (procedural or substantive unfairness). SITE BY TENAKA, What is an automatically unfair dismissal, Employers statutory obligations at employment, Employers legal obligations at employment end, Employees legal obligations at employment end, Manage conduct and capacity in the workplace, Determine if the abuse of sick leave is misconduct or incapacity, Manage incapacity due to ill health or injury, What is an automatically unfair dismissal, What is an automatically unfair dismissal: S187 of the LRA. Sassa Status Check: How Do I Check My SASSA Pending Status? The author of a document must testify to confirm the truth of the disputed contents in a document even if its a sworn affidavit. This argument was based on the provisions of section 187 (1) ( c) of the LRA, which provides that a dismissal is automatically unfair if the reason for the dismissal is "a refusal by an employee to accept a demand in respect of any matter of mutual interest between employer and employee". It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa. JS 396 / 04 b) That the employee refused or indicated an intention to refuse, to do any work usually 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. 8.3 Why those facts are the more probable version. In doing so, the Court relied on the fact that the employer was aware of her health condition and that she would not be in a position to accept an offer of full-day employment, but offered her the position nonetheless as a method to dismiss her if she did not accept the new terms; In other words, the employers evidence must carry more weight than the employees evidence. Was this the War or just the First Battle? Negligence: When does ordinary negligence become gross? 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. . It must also prove that. Even if the worker is at fault, the employer must still pay the right wages, leave pay and notice pay. Your trusted partner for comprehensive labour law and Health & Safety training in South Africa. Once the disputes has been referred to the CCMA for conciliation, the CCMA must attempt to resolve the dispute through conciliation. The CCMA agreed, holding that compelling her to work the night shift had had a discriminatory effect on the employee. On a number of occasions the Court stated that it viewed the retrenchment as a sham. The notice pay must be for as long as the notice time required, for example 1 weeks pay instead of 1 weeks notice. He testified that they treated him as if he had a contagious disease. If the employer rejects what they say, he or she must give reasons in writing if the workers have submitted their representations in writing. For more information about our specialised services and rates, contact us at reception@www.allardyce.co.za or on 011 234 2125 today. same proceedings pending in other proceedings). So too, the right to strike is a fundamental right; accordingly, a dismissal for participation in a protected strike will be automatically unfair. A 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. Progressive discipline can get stronger every time the worker repeats the misconduct. in section 187 (1) (f), the dismissal is discriminatory. Kindly take notice of our disclaimer policy published at the bottom of the home page of this website. The worker must get wages for the time he or she worked, plus any leave pay (if he or she has not taken all the leave that is due). An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not required to prove two years' continuous service. Re-employment means the worker gets the job back, but starts like a new worker. 8.2 Facts which prove or disprove the issues in dispute. Section 189A of the Labour Relations Act, has special provisions for retrenchments in companies that employ more than fifty employees. -. COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION 2018. There must be clear evidence of a demand, 2. 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. 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. a dismissal for reasons relating to the employees conduct, capacity or the employers operational requirements. In the Total South Africa case, a CCMA commissioner held that the dismissal was fair. 8.4 The consequences of the misconduct. With July on the way, it's important for beneficiaries to know how much there Sassa payments will be. . The Court appeared to reject this part of the claim only because the applicant had not led sufficient evidence to establish proof of the claim; They refused to do the work of a striking employee. If an employer dismisses an employee on any of the grounds listed The workers were then retrenched. It proposed to remedy this by restructuring which entailed, inter alia , the proposed redundancy of certain roles. The substance refers to the merits of the reason for dismissal. But if a dismissal is found to be automatically unfair an employee is entitled to receive up to 24 months' compensation. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer consent to arbitration by the CCMA. info@globalbusiness.co.za East London 043721 1030 Port Elizabeth 041364 0472 Johannesburg 011483 3722 Cape Town c/o 043 721 1030 Durban c/o 041364 0472, HOME ABOUT US SERVICES NEWS APP & HR BPOPOPIA CONTACT US, Acts & Bills, Gazettes & Codes on Good Practice, Misconduct Dismissal: Intolerability Not Be Confused With Mere Incompatibility, The Preferential Procurement Regulations Have Changed This Is What It Means For Your Business, MELISSA BRANDT V QUOIN ROCK WINES C152/2021. In contrast lawfulness is confined to a much narrower scope of possible factors to consider such as the well-established principles of contract and the rules of interpretation of statutes. If you have applied for a Sassa grant for June 2023, or have submitted an appeal, you can track the status of your application and/or appeal with a few simple steps. When it comes to automatically unfair dismissals, it is often related to the infringement of a fundamental right. 1. 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. Will it be impractical to order reinstatement because an unfairly dismissed employee behaved badly in the arbitration? It is important to note that even though an Applicant can refer a dispute to the CCMA relating to a dismissal as contained in Section 187 (1), the CCMA will only have the jurisdiction to assist the parties to reach a resolution of the matter. Once it is proved that the employee is dismissed for any of the reasons specified in section187, the employer can raise no defense and the employee is entitled to reinstatement or, in exceptional cases, compensation. There is a prescribed 90-day time limit for the referral of a dispute to arbitration or to the LC if conciliation fails. Fax: 021-4232105 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. This article explores the concept of the automatic unfair dismissal that is regulated in s 187(1)(c) of the Labour Relations Act, where the reason for the dismissal is to "compel the employee to . Whether it's in the corporate sector, education, community development, or any other field, facilitators play a vital role in creating engaging learning environments, fostering collaboration, and driving meaningful discussions. 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? The finding could be ordinary negligence (less serious) or gross negligence (more serious). An employer must produce enough evidence to prove that there is good reason to dismiss an employee.\n\nThe evidence is measured on a scale referred to as the balance of probabilities. On review, the Labour Court set aside the award and substituted the award with a finding that: the dismissal was unfair; and; the Company was to pay the employee compensation equivalent to 12 months' salary. A dispute of interest is not based on an existing right. REPUBLIC OF SOUTH AFRICA Reportable Of interest to other judges THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN . The procedure for a misconduct case is the disciplinary enquiry. However, participants in protected strikes may be dismissed for misconduct (eg. The employer must produce evidence of sufficient weight to discharge the onus on a balance of probabilities. Legal representation is not a right in internal disciplinary enquiries but it may be allowed by agreement or in exceptional circumstances. Respondent raises exception. This field is for validation purposes and should be left unchanged. Definition Dismissals for one of the following reasons will be regarded as "automatically . The best evidence is information which comes directly from first source such as a witness who saw or heard something personally. Without regulation, an employer would easily be able to exploit vulnerable employees. 2. the dismissal was substantively and procedurally unfair [s.189]. ii) Participating in any proceedings in terms of this Act. This is not a 49% 50% test. Theprocedure for an alleged act of misconductsuch as assault or theft is the disciplinaryprocedure. The fairness of dismissal is decided in two ways: 1. But the usual sanction for gross negligence for a first offence is dismissal. A final warning for repeated misconduct or serious misconduct must be given in writing. This is what the law of unfair dismissal in South Africa is all about. There are different procedures for cases of misconduct, incapacity (poor-performance or ill health), and retrenchment. This is from the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or upholdthe dismissal. Employees claiming to be victims of automatically 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. Section 187 of the Labour Relations Act lists the reasons for which an employee may not be dismissed under any circumstances such dismissals are automatically unfair. Jurisdiction Labour Court, Johannesburg Sassa Status Check: How To Check Your June 2023 Sassa Grant Status. The applicant put a counter-proposal to avoid the redundancy that was rejected by the employer and she was dismissed. Summary: Automatically unfair dismissal - allegation that the employee was dismissed for the reason that he took action against the employer by lodging a grievance and referring an unfair labour practice claim. . The Court noted further that female officers were permitted to wear dreadlocks. If it was an automatically unfair dismissal the worker could get up to 24 months wages as compensation. Every year, thousands of South African children are not placed in schoolsdue to inadequate capacity. For multiple pages in doc, use D1.1, D1.2, etc. Cape Town Section 187 (1) (d) requires the action to be in the exercise of any right conferred by the LRA. 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 A dispute of right is based on a legal or contractual right. 3.2 Employment date, job description, duties etc. 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. : 021-423-3959 He claimed that he had been unfairly discriminated against and that the employer had done nothing to protect him from racist abuse. An employee could claim unfair dismissal through the CCMA in the following circumstances: The following reasons for dismissal are invalid. 2. that her dismissal occurred on account of having made the protected disclosure (the Court stated, ".the only probable and reasonable inference to be drawn from (her superior?s) conduct is that after the applicant had made the protected disclosure, which exposed the unlawful conduct.of employees, he (the superior) was not happy about the manner in which the disclosure was reported'. 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. An employer is allowed to retrench workers for operational requirements based on the employers economic, technological, structural or similar needs. e) The employees pregnancy, intended pregnancy, or any reason for her pregnancy. Only conditional dismissals can constitute automatically unfair dismissals under s 187(1)(c) of the LRA. ","acceptedAnswer":{"@type":"Answer","text":"Procedural fairness is the process which gives the employer and the employer an equal opportunity to present their versions about a work-related issue to a neutral chairperson to decide whether disciplinary action is justified. Should a matter be referred to the CCMA as a dismissal for misconduct in terms of Section 191 of the Act, a commissioner will still have a duty to determine the true nature of the matter. BEST EVIDENCE: How does an arbitrator assess the weight of evidence to determine guilt on a balance of probabilities? This field is for validation purposes and should be left unchanged. Its advisable to take written statements from witnesses in your preparations for alleged unfair dismissal and misconduct cases. For further information or any labour related matters, you can contact Bernard Reisner: W.Tel no. 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. bernard@capelabour.co.za If you continue to use this site we will assume that you are happy with it. No employee may be dismissed for exercising these freedoms in any way ie. Interesting Read:How To Change Your Banking Details For Sassa Grants. Case No. The Applicant may thereupon be awarded either reinstatement or compensation of an amount not exceeding 24 months salary. 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. These categories are dismissals for misconduct, incapacity (ill health or poor performance) and operational requirements. The Department contended that it had merely sought to enforce the regulation dress code, strict compliance with which was necessary to maintain discipline. When deciding whether a dismissal for incapacity was fair or not, the following must be considered: Dismissals for poor performance will only be fair if the employer: Dismissals for (temporary/permanent) ill health or disability will only be fair if the employer: How badly ill or disabled the worker is (degree of incapacity) and for how long he or she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered when deciding whether the dismissal is fair or not. 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. In today's rapidly changing world, effective facilitation skills have become increasingly crucial in various professional domains. Section 187 (1) of the LRA provides that a dismissal is automatically unfair if an employer, in dismissing an employee, acts contrary to Section 5 of the Act, (which confers protections relating to the right to freedom of association and on members of workplace forums), or if the reason for the dismissal is one of the following: 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 the provisions of Chapter IV of the Act, which deals with industrial action and conduct in support thereof; 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; c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; d) that the employee took action, or indicated an intention to take action, against the employer by-.

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