Labour Law – For the Employer
At Schoeman Attorneys, we evaluate each case on its own merits and provide you with an outcome to suit not only you, but your entire corporate entity.
We can assist in any of the following fields:
- Retrenchment processes and advice,
- Labour disputes,
- Disciplinary actions,
- Drafting of your company policies: e.g. Disciplinary code and the associated documentation hereto;
- CCMA hearings,
- Labour Court referrals etc.
The most requested information relates to the dismissal process:
“An employer terminates a contract of employment with or without notice.”
When is a dismissal fair?
The LRA has a Code of Good Practice for Dismissals that employers must follow. The ‘fairness’ of dismissal is decided in two ways – substantive fairness and procedural fairness. Three grounds for fair dismissal exist, namely conduct of the employee, capacity of the employee (his ability to do his job) and operational requirements of your business (retrenchment). A dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.
Dismissals based on the grounds of misconduct:
Employers are encouraged to adopt clear rules of conduct that are known to all workers. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.
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.
Let Schoeman Attorneys guide you through the restructuring of your company in order to prevent unnecessary damages and loss of income. Contact us now!