CCMA LABOUR LAWYERS IN HELDERKRUIN

Disciplinary Hearings

Labour law requires that disciplinary procedures be substantially and procedurally fair. Where either of these falls short, it may form a basis for challenging the decision through an outside process e.g CCMA, upon all the internal procedures being exhausted.

Substantial and procedural fairness with regards to Disciplinary Hearings means that the reason must be justifiable, ample notice must be given, service of such notice must be sufficient, rights of the employee and witnesses must be observed in the hearing, an opportunity to adduce and challenge evidence must be given, an unbiased approach by the Chairperson of the hearing must be intact and restraint from all the parties involved must be exercised.

Our Labour Law Attorneys;

• Represent employers, employees and witnesses during Hearings;
• Chair disciplinary hearings;
• Assist with preparation of hearings;
• Advise on the admissibility of evidence;
• Facilitate the disciplinary hearing procedures.

Unfair dismissals

What is regarded as an Unfair Dismissal? 

An unfair dismissal is whereby an employer terminates employment without good cause and/or without following the correct procedure. This means the fairness of a dismissal hinges on two legs, substance and procedure. The Labour Relations Act 66 of 1995 provides that a dismissal will be regarded, by default, as unfair if the reason for the dismissal amounts to an infringement of the employee’s fundamental rights e.g gender, race, ethnicity, if unjustifiable under the circumstances.

An employer is not allowed to dismiss an employee for exercising their statutory employment rights. These rights include supporting or participating in a lawful strike or protesting action, exercising freedom of association (trade unionism) or any other rights accorded by applicable Labour Laws.

On the other hand, dismissal will not be regarded as unfair if the employer’s reasons for dismissal related to the employer’s operational requirements.

Where the reasons for the dismissal of an employee are fair but the procedure was incorrectly done, the employee can still prove unfair dismissal.

The correct procedure for a fair dismissal to take place may be summarized as follows:

1. An investigation to determine whether there are grounds for dismissal should be conducted. Here, the employer should notify the employee of the allegations against them, and the employee should be allowed to respond to the allegations.
2. The employer may then decide to accept the response of the employee and close the file, or bring the allegations through a formal disciplinary hearing process;
3. The employer must be given a formal Notice set out with the allegations against them, and informing them of their rights to such things as representation, language interpretation, postponement, adducing and challenging evidence etc.
4. The Notice must also inform the employee of their right to be assisted by either a Trade Union or a fellow employee
5. The hearing must then be held at the appointed date and time, where after a verdict and its attendant reasons must be issued to the employee.
6. If the employee is dismissed, reasons for dismissal should be given to the employee, and he or she should be reminded of any rights to refer the matter on appeal to the necessary authorities.

If you are of the opinion that you have been unfairly dismissed, our Labour law team at Burger Huyser Attorneys will assist you with your matter and ensure that the necessary procedures of redress are taken.

CCMA & BARGAINING COUNCIL

Our astute Labour law department attorneys are experienced and knowledgeable in labour representation at CCMA and several Bargaining Councils, which have dispute resolution jurisdiction in some economic sectors. Where disputes are referred, there are timeframes that must be strictly adhered to e.g 30 calendar days for unfair dismissal. Where a party refers to the dispute outside the stipulated time, we stand ready to assist in the application for Condonation. Condonation applications are delicate and complex; one has to go the full distance in deposing persuasive motivations as to why the dispute must be accepted out of time. Among other things, it must be motivated why the case stands good chances of success if allowed and, one must at least show good cause why the referral could not be brought in time.

Nonetheless, we encourage parties to refer disputes as soon as possible once the internal procedures are exhausted so as to avoid complications.

An informal process known as Conciliation will be pursued first to facilitate parties to the dispute a chance to resolve the dispute in an amicable way. In such event that the dispute remains unresolved through Conciliation, then Arbitration will follow. Arbitration is a very formal process, and we urge parties (employers and employees) to seek the guidance and assistance of our Labour department attorneys for comprehensive assistance.

Unfair Labour Practices

A claim for Unfair Labour Practices protects the employees of the company and not the employers. The Labour Relations Act defines an unfair labour practice as an unfair act or omission that arises between an employer and an employee, which involves:

• Unfair conduct of the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.
• Unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
• The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.
• An occupational detriment, other than dismissal.

Unfair Labour Practices must be referred within 90 days, and if you have experienced any unfair labour practices within your place of work, our labour law attorneys will assist you.

Labour Court Litigation

Where a dispute arises between an employer and an employee, it is advisable that efforts be made to resolve the matter in a conciliatory internal process first. In the event that the dispute remains unresolved, then the issue can be taken on formal processes as per the procedure. At first, will be the internal Disciplinary Hearing, then the CCMA/Bargaining Council, the Labour Court, the Labour Appeal Court and finally the Constitutional Court.

Unlike the Conciliation process at CCMA or a Bargaining Council, the other processes are formal in nature, and it is critical that one seeks legal guidance and assistance. Claims are sometimes unsuccessful due to technical or procedural shortfalls despite being strong on substance. It, therefore, is vital to seek legal assistance.

Retrenchments

Owing to the COVID-19 pandemic and a subsequent plummet in economic activity, many businesses found themselves economically unviable to continue operations. Thousands of jobs were shed and people found themselves without jobs overnight. However, it is essential to note that Labour laws still require employers to follow due process if they decide on shedding jobs in response to operational requirements.

Retrenchment is regulated by sections 189 and 189A of the Labour Relations Act 66 of 1995. The difference between these two procedures is that the former applies to small scale employers (50 employees or less) and big scale employers (more than 50 employees) who intend on undertaking small scale retrenchments.

The latter (189A) applies to large scale employers who contemplate large-scale retrenchment in any 12-month consecutive period.

Large scale retrenchment amounts to the following;

1. 10 employees, where the employer has up to 200 in their employ;
2. 20 employees, where the employer has more than 200, but not more than 300 in their employ;
3. 30 employees, where the employer has more than 300, but not more than 400 in their employ;
4. 40 employees, where the employer has more than 400, but not more than 500 in their employ;
5. 50 employees where the employer has more than 500 in their employ;

The retrenchment procedure is one of continuous engagement between the employer, the employees’ representatives (if any) and the employees to seek ways of achieving the employer’s operational requirements without threatening the security of jobs. The procedure envisages that retrenchment is the option of last resort after all the options have been explored to save jobs.

The Retrenchment procedure may be summarized in brief as follows;

1. Notification of all employees that will be affected;
2. Consultation between employer and Trade Union, Workplace Forum or employees, to explore other means other than termination and, if that cannot be avoided, the identification methods of the employees whose employment will be terminated;

• Termination notices to identified employees;

1. Severance pay/retrenchment packages paid to the affected employees.

Our Labour law services are quite extensive and comprehensive. We assist employers, employees, trade unions, workplace forums and any other party whose interests and rights are vested in labour and employment law