Flexibility – does South Africa’s labour legislation allow for this? 

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Gillian Lumb | Regional Practice Head, Director | Cliffe Dekker Hofmeyr | gillian.lumb@cdhlegal.com | www.cliffedekkerhofmeyr.com |


Discussions surrounding labour law in South Africa can be extremely polarised.

On the one side some employers advocate greater flexibility, while on the other some trade unions seek increased protections.

For employers, regardless of your views, understanding the South African labour law landscape and your own rights is an essential part of running a business and avoiding the potentially damaging fallout resulting from labour relations issues.

Process

Under the current Labour Relations Act (LRA), the dismissal of an employee for misconduct requires the employer to conduct an investigation, notify the employee of the allegations, afford the employee an opportunity to state their case in response and a reasonable time within which to do so, allow the employee the assistance of a trade union or fellow employee and finally, communicate the decision, preferably in writing.

If the employee is then dismissed, the employee should be given the reason for dismissal and reminded of their right to refer the matter to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA).

Despite what the Act says, many hold and follow the view that a more stringent, “criminal system” is needed in all cases in which the employee is the accused, is issued with a charge sheet, is required to plead to the charges, the hearing takes on the formalities of a criminal type proceeding, a verdict is given and finally a sanction is imposed.

Flexibility?

In many instances, this onerous and rigid process is not required.

In essence, an employee’s right to a hearing is no more than dialogue and an opportunity for reflection before a decision is taken.  This has been reiterated by the labour court on numerous occasions. However, the CCMA continues in many instances to require adherence to a more rigid process by the employer.

The formal process is meant for the CCMA and not for internal disciplinary hearings. More formal processes can be more costly to the employer, and more time consuming running in some instances to months at a time only to be followed by the dismissed employee referring a CCMA and the proceedings having to commence all over again.

While it may not be appropriate in every instances employers should consider a more flexible approach when it comes to disciplinary hearings in line with numerous findings of the Labour Court. Not only can this save the employer costs but also management time associated with a protracted formal internal process followed by a repeat of the hearing at the CCMA.

While there are advantages to following a more informal approach it may not be possible in every instances. For example, if an employer has its own disciplinary procedure in place that demands compliance with a more stringent, more criminal system type approach, the employer will have to follow this or seek to renegotiations the terms of its disciplinary procedure.