Introduction:
An employer may dismiss an employee for a fair reason - this means the dismissal is substantively fair and if the employer has followed a fair procedure - the dismissal is procedurally fair.
However, If an employee is dismissed for fair reason but the correct procedure of dismissal was not followed, the dismissal will be UNFAIR.
Section 188 of the Act (Labour Relations Act) stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Persons or Employers considering whether or not the reason for dismissal is of fair reason is in accordance with fair procedure must take into account any relevant Code of Good Practice issued in terms of Schedule 8 of the Act – as discussed here-in:
Substantive Fairness
There are 3 types of FAIR REASON for Substantively Fair Dismissal:
a. Misconduct
Example: an employee intentionally or carelessly breaks a rule at the workplace, e.g. steals company goods
b. Incapacity (if an employee cannot perform duties properly owing to illness, ill health or inability)
c. Operational reasons (if a company has to dismiss employees for reasons which are related to purely business needs and not because of some failing on the part of the employee, example: retrenchment, redundancy).
Substantive Fairness Requirements
1. In relation to Misconduct, the employer must conduct an investigation to determine whether there are grounds for disciplinary action or dismissal.
2. The employer must have sufficient evidence to establish (Prima Facie) proof of the misconduct...
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...on that is final (the parties in conflict don’t reach a decision together like in conciliation).
This decision is called an award. When an arbitrator is appointed to arbitrate over the dispute, he will ask the parties to retell their sides of the dispute.
The disputing parties can bring:
Documentary evidence
Call witnesses
Question each others witnesses
Give closing arguments
The award granted by the CCMA arbitrator is final and binding and has the same status as an order of court if it is certified by the CCMA director.
No appeal is allowed against an award granted by the arbitrator. If an irregularity has occurred or gross misconduct by the arbitrator or the commissioner is proven a party has six weeks to file for a review in the Labour Court.
Conclusion:
The CCMA’s main obligation is to protect the rights of employees and employers.
There was evidence shown that the unfair dismissal requirements were the furthermost conflicting and inconsistent from the manager’s perspective. The Fair Work Act applied unfair dismissal requirements for entirely workers, regardless of the population of workers in the business (Chapman, 2015). The Fair Work Act presents two cases that dismissal could be reasonable, including other dismissal and summary dismissal. In the first case, the law offers a sequence of stages such as concluded checklist, copies of notice, declaration of dismissal and a witness announcement with signature that managers must follow with the intention to reduce the problem (Chapman, 2015). In the second case, managers may dismiss a worker without notice due to theft or fraud. As the consequence, the amount of cases in relation to unfair dismissal has risen significantly since the Fair Work Act implemented as law. In addition to the growing records of cases in relation to unfair dismissal, the judgements from Fair Work Australia showed some contradicting clarifications of the Fair Work Act (Chapman, 2015). According to an example, a business in Albury- Wodonga had dismissed an employee due to the breach of occupational and safety laws after an employee continually denied to wear safety glasses at work (Sloan, 2011). However, after checking the worker’s reinstatement, the Fair Work Australia stated that the worker had a family and he has found it challenging to
If the plaintiff can prove prima facie the burden shifts to the employer. The employer must provide evidence that they fired the plaintiff for reasons other than discrimination. If the employer can prove this, the burden shifts back to the employee. The employee must then prove that the reasons the employer gave for termination are a pretext for discrimination. If the plaintiff can prove pretext, the court will find that the employer discriminated under disparate
The employer and the employee will have to come to a firm understanding as to what are all the discrimination laws that are applicable to them. Employers often believe that compliance with a certain set of anti-discriminatory laws at the central level are sufficient. But in most of the cases that is not the case. The employers will have to be compliant with all the state and local laws of where their organization is being located. And those laws might differ from place to place and might offer greater protection to the employees in the organization. For example, some of the state will have state anti-discrimination laws, which prohibit employers from discriminating against the sexual orientation of its employees. If the employer terminates the employee based on his sexual orientation, which is well within the central law, but in some of the state level laws, the employer will be violating such laws to terminate an employee based on the sexual
Employees can be absent from work either due to Long-term sickness, short-term certified or uncertified sickness or unauthorised absence and lateness. Absenteeism will not include annual leave , maternity, compassionate or absence due to training or attending union meetings but where a worker fails to turn up at work as scheduled resulting in disruption of work schedule, added work load, increased payroll costs and poor quality service an d poor staff morale.
The decisions of the group is governed by a vote, majority of the votes wins the dispute. If in any case there should be an even number of votes on both sides of the decision, a conference is held where all members must speak their mind on why the decision they chose is correct. If the decision remains at a 50/50 vote,
6-9. When the litigants settle their case by compromise, let the magistrate announce it. If they do not compromise, let them state each his own side of the case, in the comitium of the forum before noon. Afterwards let them talk it out together, while both are present. After noon, in case either party has failed to appear, let the magistrate pronounce judgment in favor of the one who is present. If both are present the trial may last until sunset but no later.
The process of carefully looking at every decision and the repercussions of that decision is simply good business practice. Every company audits its decisions to make sure its what is right for the company. Firing practices should be no different. To draw some arbitrary line at this point to allow for firing an employee without cause is unethical and egregious business conduct. Due process is simply a sound way of carrying out the practice of removing an employee from the services of a c...
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s...
questionable irregularities. The employee always has a channel open to convey their concerns to the right people within the company before the problem becomes unnecessarily large or leads to a complaint to a court. Whistleblowing consists in the creation of a system of complaints about non-compliance, by employees of a company, both internal rules, and the regulations governing their activity. Blowing the whistle carries personal and professional implications and
occurs in the workplace when deceit or scam by one or more employees causes or ,may cause the
The law regarding unfair dismissal is a well established and widely understood legal right. Consequently it is very common for legal action to be taken with regards to unfair dismissal; this is illustrated by the fact that around one in seven dismissals result in a tribunal claim (K.G Knight and P.L Latreille, ‘Discipline and complaints to employment tribunals’ British Journal of industrial relations. p541). A dismissal is defined in S.95 of the Employment Rights Act 1996 (ERA) as; any termination of the employment by the employee with or without notice, expiry of a fixed term contract which is not renewed or where the employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled
Both parties present their cases before a judge who moderates and a jury of people with no legal training decides on the facts of the case. The judge evaluates the evidence, the jury decisions on the facts and applies the appropriate law to it, then provides a judgement in favour of one of the parties. After the decision, if one of the parties believes it was unfair, he may appeal it to a higher court, in such appeal; courts may only review findings of law, not the facts.
Therefore, despite if the employee left on good terms or not, all property of the organization and access should be cut
... with the aggrieved worker and representative meeting with the supervisor involved, followed by an appeal system with strict time limits and ultimately ending in binding arbitration. When management and the union cannot resolve a grievance submitted by a union, the union must decide whether to proceed to the final step of the grievance procedure: arbitration. Arbitration is an adversary proceeding like a trial in court. An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy.
Both forms of ADR have several common characteristics. However, one must consider that a neutral side in both procedures fulfils distinct from one another duties. Mediators do not have the objective to make decision, whereas arbitrators determine an outcome of the case. Upon the termination of the procedure, an arbiter renders a binding award that cannot be later avoided by disputants. During mediation, parties are not contingent upon the third side and enjoy freedom of actions needed for dispute resolution. In contrast, in case of failure to reach an agreement, parties are not legally bound for actions afterwards. By considering the true qualities of arbitration and mediation taken individually, legislation and scientists suggest that in single arbitration, arbitrators may use mediators’ functions to promote amicable settlement and functions of both arbitrators and mediators have incongruous