Tag: Labour Law Management Consulting

When arbitrators and judges assess whether a dismissal was fair, they must apply the objective test. In simple terms, they must decide whether a reasonable person would conclude that the conduct justified dismissal. This assessment must remain unemotional and evidence-based. However, misunderstanding the objective test often leads to incorrect conclusions.

One category of employees who are well protected under the Employment Equity Act (EEA) is those who are ill or injured. Employers cannot mistreat employees who are ill or injured. If they do, they risk serious consequences. This reality highlights the hidden cost of mistreating ill employees.

The Basic Conditions of Employment Act (BCEA) entitles employees to certain minimum rights. These rights include remuneration for work done, leave and lunch breaks. Where the Department of Employment and Labour (DOEL) finds that an employer breaches an employee’s rights, it may issue a Compliance Order. The Labour Court can enforce this order. Non-payment of commission can also trigger regulatory and legal scrutiny.

Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even in the absence of provocation, dismissal may still be unfair. This distinction is critical for employers navigating strike-related discipline. One factor that can bedevil an employer’s case is inconsistency in the decision to dismiss.

Employers too often base appointment decisions on private agendas rather than employment policy. As a result, fairness to applicants suffers. Although management prerogative exists, the law limits its reach. It must operate within principles of reasonableness and fairness. Therefore, management decisions must rest on proven facts.

Section 187(2)(b) of the Labour Relations Act (LRA) provides that a dismissal may be fair if the employee has reached the normal or agreed retirement age. This means termination based on the employee’s age might not constitute unfair discrimination if the employee has reached retirement age.This distinction is important. It is crucial when considering dismissals that occur after an employee has passed retirement age.

Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even where there has been no provocation, such dismissal can be found to be unfair.

The law entitles charged employees to a fair and sufficient opportunity to prepare for the disciplinary hearing. They must also be allowed to testify on their own behalf, bring corroborative evidence and cross-examine the employer’s witnesses. In addition, employees have the right to use an interpreter, receive representation and have an impartial chairperson preside over the matter.

While alcohol-related offences can sometimes merit dismissal, this is not always the case. For example, where the employee has clinically been shown to be an alcoholic, treatment rather than punishment should be implemented. This is due to the employee’s incapacity. However, incapacity is not the only factor that could render such a dismissal unfair.

When an employee has been unfairly dismissed, the Labour Relations Act (LRA) prescribes reinstatement as the remedy. The employer can depart from this only if it shows good reason. Full reinstatement requires the employer to pay the employee all remuneration accrued between the date of dismissal and the date of reinstatement.