CCMA Information

 

Judging by the number of e-mails I receive from employers, it would seem that the number of referrals made by dismissed employees to the CCMA may be on the increase. A further alarming fact that is emerging is that employees are very often in the position where the employee has far greater knowledge about labour law and fair procedures than does the employer.

 

I receive not infrequent e-mails from employers, informing me that they had handed a notice of disciplinary hearing to an employee, who has responded by telling the employer that the procedure being followed is either incorrect or unfair in some way – and the employer asks me : is the employee correct ?

 

Sadly, in many cases, I have to answer " yes – he is correct."

 

Even more sadly, after a month or two, I get an e-mail from that same client, complaining that the employee has referred a dispute to the CCMA – and questions from my side reveal that the employer, instead of seeking professional advice as we advised him to do, has simply blundered happily on with his unfair or incorrect procedure.

 

In addition to this, more and more employees are learning that, because employers are frequently inadequately prepared, the employee's referral to the CCMA actually succeeds in the employee being awarded a financial compensation. Even if it is only one month salary, the employee still comes out on top because the referral has cost him absolutely nothing, whereas the employer has retained legal counsel to pull him out of the compost heap.

 

There is no doubt that awards are being handed down in favour of the applicant employee, even if the dismissal is procedurally and substantively fair – simply because, due to poor or inadequate preparation, the respondent employer, has been unable to prove, to the satisfaction of the Commission, that the dismissal was procedurally and/or substantively fair.

 

And employees are aware of all this and they take advantage of it. Is it an unfair advantage ? I think not. Any adversary is fully entitled to take advantage of any weaknesses in his opponents defense – that is the name of the game.

 

For as long as employers continue to treat the requirements for fair procedures as mere window dressing, for as long as what employers will persist in doing everything verbally and keeping written records of nothing, and for as long as employers persist with the attitude that employees cannot fight the employer because "we have more money that he has to fight this", the more employers will find that they might even need a special "CCMA chequebook."

 

Employees are becoming very wise – they have learnt that the trump card they hold is being prepared. They have learnt that at best, the employer is seldom more than half-prepared – which quite simply, is just not good enough.

 

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Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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