One of the primary functions of the CCMA is to “keep employees employed”. Therefore, it is not surprising that reinstatement or re-employment is the primary remedy for an employee whose dismissal was unfair. Section 193 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) provides that where an arbitrator finds [...]
WhatsApp is a popular means of communication; employers often create group chats within their Company to communicate instructions or share relevant company information. But what happens when an employee uses this means of communication to share his or her view of a topic that could ultimately affect the working environment? In a recent CCMA decision, [...]
The Labour Relations Act places the trust relationship between the employer and employee at the heart of the employment relationship. Therefore, it can be assumed that an act of misconduct would impact that trust relationship and render continued employment impossible. While that may seem like the logical basis for dismissal, employers are cautioned against making [...]
When a matter is referred to Arbitration, one of the possible awards handed out by the Commissioner is reinstatement. Generally, the award of reinstatement flows as a result of a referral related to a dismissal or end-of-contract matter. With reinstatement, the Commissioner directs the employer (the Respondent) to restore the employee (the Applicant) to their [...]
The CCMA first determined whether an employer may dismiss an employee based on incapacity in the matter of Theresa Mulderij v Goldrush Group, GAJB 24054-21. The CCMA found the dismissal of an employee due to her permanent incapacity to be fair and upheld the company's dismissal. In this case, the employee was unvaccinated, and her [...]
The Code of Good Practice: The section dealing with Dismissals states that one of the requirements of a fair dismissal is that it must be the “appropriate” sanction. An arbitrator must make a value judgment regarding the fairness of the employer’s decision, considering all the relevant circumstances. When determining the gravity of the misconduct, the [...]
Employers should exercise caution when dismissing employees charged with assault, even if the assault is serious. An employer, all too often, reacts emotively to alleged assault due to the grievous nature of the offence. This diverts the employer’s attention from the cold, hard facts when assessing whether dismissal is indeed an appropriate sanction in the [...]
Section 192 (1) of the Labour Relations Act 66 of 1995 (LRA), states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and only then must an employer prove that the dismissal was fair. This is particularly important when an employee alleges that he was dismissed, but the [...]
Most Employers are aware that when an employee is dismissed, that dismissal must be procedurally and substantively fair. Failing one or the other, a Commissioner at the CCMA or a Bargaining Council will deem the dismissal to be unfair, and an employer will find themself on the receiving end of an adverse arbitration award. The [...]
Employers have the right to discipline and even dismiss employees for misconduct that occurs outside of the workplace if it can be shown that there is a link between the misconduct and the employer, its operational requirements, and where it occurred within the context of the working relationship. The Labour Appeal Court confirmed this aspect [...]