Forum Replies Created
-
Posts
-
The importance of consistency in dismissal cases arises from item 3.(6) of Schedule 8 of the LRA which says that the penalty of dismissal should be implemented consistently. Despite the word “should” in schedule 8, law enforcers view the principle of consistency very seriously.
This is because legally and logically consistency is a core element of substantive fairness. For example, if A has been dismissed for an offence and B was not dismissed for the very same offence the question as to the fairness of A’s dismissal is called into question. This is because Schedule 8 provides that dismissal must be implemented only as a last resort where it is essential to rectify the employee’s misdeed. However, the fact that B was not dismissed indicates that dismissal was not necessary.
Having said this, if the employer is able to prove that the circumstances of A’s infraction were significantly more serious than those in B’s case it is likely to get away with the inconsistency. in the Sibanye Gold case it appears that there were no differences significant enough to justify the inconsistency.In my opinion it is obvious that the work from home arrangement was a temporary measure. So the employer was entitled to instruct the employee to resume working from the office.
Hearing chairpersons are not obligated to be even handed in cases where an adjournment is not necessary. And the chair has the discretion to decide if an adjournment is necessary. Therefore, in this case, there would be no reasonable apprehension of bias.
Michael might be right but there is a complexity. Normally, a fixed-term contract does not provide for retrenchment if the employee is retained for the entire term. This is because the contract expires naturally and there is no need for a retrenchment. in the light of this, I do not think that the period of the fixed-term contract should be taken into account in deciding on the severance pay when the employee is retrenched 2 years later.
It is clear that Section 189 of the LRA is geared towards optimal protection of the rights of potential retrenchees. Section 189(2) requires the employer to engage in meaningful consultations. And item 2 of the Code of Good Practice on Dismissal Based on Operational Requirements provides that, “Because retrenchment is a no fault dismissal and because of its human cost, the Act places particular obligations on the employer, most of which are directed towards ensuring that all possible alternatives to dismissal are explored and that the employees to be dismissed are to be treated fairly.” Section 189 (1) requires the employer to consult with external representatives of trade union members. While section 189(1)(d) does not explicitly allow non-unionised employees to nominate external representatives I believe that this is implied. Item (4) of the Code of Good Practice Dismissal dealing with misconduct dismissals specifically provides for representation by a fellow employee. This suggests that, if the legislators intended the representation of potential retrenchees to be confined to fellow employees they would have specifically provided for that in section 189(1)(d). Therefore, employers who refuse employees external representation do so at their peril.
What we need to take int account is that a Zero Tolerance policy is not always justified under the circumstances. In this case the employee was not in a safety sensitive job. Therefore, it is questionable that the Zero Tolerance policy should have applied to her. If her job did not require her to go to high-risk areas of the business, there was no reason to object to the employee having residual cannabis in her system
If I were the CCMA arbitrator I would uphold this dismissal. Firstly, workers should not have the right to make such a demand. Secondly, the workers did not make it clear as to what action they planned to take if their demand was not met. As they may have been intending to go on strike, and as strikes are harmful to the economy, they should have no right to make such threats. The employer was therefore right to fire the workers.
If I were the CCMA arbitrator I would uphold this dismissal. Firstly, workers should not have the right to make such a demand. Secondly, the workers did not make it clear as to what action they planned to take if their demand was not met. As they may have been intending to go on strike, and as strikes are harmful to the economy, they should have no right to make such threats. The employer was therefore right to fire the workers.
It is widely argued that trainees are not employees, but this is a contentious issue. It is argued it is argued that trainees should not have the protection of the labour law dispensation because they are linked to the business or organisation via their need to develop skills and not for purposes of doing work. While this is a rational argument the statutes themselves indicate differently. For example, included in the definition of ‘employee’ in the LRA is the phrase: “any other person who in any manner assists in carrying on or conducting the business of an employer.” This definition includes all trainees who provide work for the business. And section 198(4)(c) of the LRA says that a student or recent graduate who is employed for the purpose of being trained or gaining experience may be employed on the basis of a fixed term contract for longer than 3 months. This clearly implies that the trainee is an employee whose rights are provided for by the LRA. As a result, any employer wishing to argue that a trainee is not an
I agree with Ingrid that reinstatement could be an option because this is not necessarily a constructive dismissal. However, would it be right for the unfairly dismissed employee not to be reinstated merely because the employer brought evidence to show that reinstatement would be impractical? Surely the intention of section 197 is for the employee to be employed by the new employer despite the impracticalities of doing so?
