In addition to dismissals for misconduct, incapacity, and dismissals for operational requirements, the Labour Relations Act further provides for dismissals that are automatically unfair. 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 [...]
A dismissed employee must refer a dispute to the CCMA within 30 days of the date of dismissal. If this time period has lapsed, the employee must apply for condonation of the late referral in terms of Rule 9 of the CCMA. This means that the employee asks the CCMA to still accept the referral, [...]
During the last few years, employers may have been confronted with a situation where an employee would tender their resignation. A few weeks thereafter, the employer would be surprised to receive a referral to the CCMA, where this employee now claims constructive dismissal as a result of intolerable treatment by their employer. Constructive dismissal relates [...]
Often employees will appeal their sanction internally after being dismissed. How does an employer determinate when the date of dismissal is? Will it be on the date that the employer informs the employee of their dismissal, or when the outcome of the appeal is served on the employee? In terms of section 190(1), "the [...]
Many employers labour under the impression that a formal disciplinary hearing must be held before dismissing an employee for misconduct and that failure to do so will amount to a procedurally unfair dismissal. The Labour Relations Act, however, does not require such a stringent approach and case law supports this view, especially where compelling [...]
There are some instances whereby it may become apparent that the employer may not be able to dismiss an employee based on the original charges. Would this mean that the employer should withdraw the charges and start over, or are there any circumstances whereby an employee may be dismissed for a charge that was not [...]
The employer and employee enter into a Full and Final Settlement agreement to mutually and amicably terminate the employment relationship between them, but a few days later the employer receives a referral or even a Notice of Set down from the CCMA or the Bargaining Council indicating that the employee was unfairly dismissed. Does [...]
There is so much information, case law and legislation out there pertaining to dismissals for misconduct, and there are many different types of misconduct which can be committed by employees. Further to this, there are also various sub-facets when it comes to dismissals for misconduct, such as concepts like derivative misconduct or collective misconduct. With [...]
Rules regulating conduct in the workplace flow from a number of sources. Some emanate from the common law, for example, that an employee may not steal from an employer. Some rules are the result of an express agreement between the parties while other rules may arise impliedly from the conduct of the parties. There [...]
A question that is now raised more frequently under the current economic circumstances is, whether an employee may be dismissed as a result of them failing to accept a change in terms and conditions of employment as an alternative to avoid inevitable retrenchment? Section 187(1)(c) of the South African Labour Relations Act, 1995 (the [...]