Labour issues – issue one

Mpumalanga News introduces a new monthly column on labour-related matters which will be published every first week of the month. We hope it will enlight our readers on these issues.

Meaning of unfair dismissal in terms of LRA, 66 of 1995 as amended Magate Phala (Labour Law expert) –

Section 185 (a) of the Labour Relations Act (LRA) 66, of 1995 as amended, stipulates that every employee has the right not to be unfairly dismissed. Section 186 (1) of the same Act defines “dismissal as meaning that –

* An employer has terminated a contract of employment with or without notice;
* An employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
* An employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment;
* An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another;
* An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee; or
• An employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of Section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

The procedural and substantive fairness in dismissal cases for misconduct

Section 188 (1) of the 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.

In terms of item 4, Schedule 8 of LRA, (Code of good practice on dismissal), an employer is required to follow a fair procedure before reaching a decision to dismiss an employee. This requirement is derived from the common law principle “audi alteram partem rule” which requires an employer to afford an employee the opportunity to be heard and state his defence in a fair and properly constituted disciplinary hearing. The employer must also prove that the reason for the dismissal is a fair reason and that there was no alternative to the sanction of dismissal.

An employee who has been charged with misconduct has the following rights:
* To be notified of allegations against him/her in a form and language that can reasonably be understood
* The employee is entitled to a reasonable time to prepare his defence
To be represented by a fellow employee or a representative of a recognised trade union
* An interpreter, if necessary
* To a fair hearing
To state his case
* To call witnesses
* To cross-examine the employer’s witnesses
* To have written reasons for decisions
* If found guilty, to plead in mitigation
* To appeal the decision of the chairperson in terms of the employer’s disciplinary code and procedures, (if applicable).

Discipline is a prerogative of the employer and furthermore it is a sole responsibility of the employer to appoint an impartial chairperson to preside over disciplinary cases. An impartial chairperson means among others –

* A person who does not have prior knowledge of the facts of the employee’s case
* is completely independent
* is unbiased and neutral throughout the proceedings
* has knowledge of the disciplinary procedures and basic labour laws
* has knowledge and understanding of law of evidence
* is able to make his own notes
* is capable of making his own decisions
* is able to justify and give reasons for his findings and sanction.

Item 7 of Schedule 8 (LRA) stipulates that –

Any person who is determining whether a dismissal for misconduct is unfair should consider –

* whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
* if a rule or standard was contravened, whether or not – the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and dismissal was an appropriate sanction for the contravention of the rule or standard.

During disciplinary hearings, the employer is required to prove its case on balance of probabilities. This test was illustrated in the Labour Appeal Court matter of Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC), the court stated that, “The test which should be applied is whether the version of the party who bears the onus of proof can be believed or not. This process involved comparing the version of both parties to determine which version is more probable”.

In Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4, [2006] 9 BLLR 833 (LC), the Labour Court held that, when determining whether an employee is guilty of misconduct, the proper test is proof on a balance of probabilities not that of beyond reasonable doubt, which is the burden of proof as it applies in our criminal law system.
An employee who has been unfairly dismissed may in terms of section 191 (1) (a) – (b) of the Act refer unfair dismissal dispute to the CCMA or applicable bargaining vouncil, if his employer falls within the registered scope of such council. The time frame for referral of unfair dismissal disputes is 30 days from the date of the employee’s dismissal. If the employee fails to refer his dispute within the period of 30 days, the CCMA or council may on good cause shown condone a late filling of such referral.

(Magate Phala specialises in Labour Law, He is a registered SABPP ER practitioner. a member of South African Society for Labour Law and he writes in his personal capacity)

Bongani Hlatshwayo

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