IVAN ISRAELSTAM - CEO OF LLMC
Over 25 years in the labour law field
Four years experience as CCMA commissioner
Author of two labour law books
Labour law columnist in premier publications
In demand as speaker at conferences, seminars and on electronic media
Articles
BOTCHED DISMISSALS CAN RUIN EMPLOYERS
BOTCHED DISMISSALS CAN RUIN EMPLOYERS
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 8887944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it. . Web address: www.labourlawadvice.co.za.
It is often due to the vagaries of the law that employers lose dismissal cases on the grounds of failing to follow procedure at the CCMA or in labour Court.
For example, the Labour Relations Act (LRA) is unclear what is meant by “sufficient time” to be given to ‘illegal’ strikers before dismissing them.
The inability to make sense of the law of fair disciplinary procedure can be very costly for employers. That is:
o The LRA requires the CCMA or Labour Court to reinstate unfairly dismissed employees. The employer will often be ordered to pay such employees all remuneration calculated back to the date of the dismissal.
o Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.
o If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.
Employers sometimes reinstate the employee before the matter gets as far as court or arbitration so as to avoid the risk of heavy penalties being imposed by the CCMA or Labour Court.
However, reinstating the employee and then dismissing him/her again (using the proper procedure this time) can be risky for employers. For example, in the case of Unitrans Zululand (Pty) Ltd vs Cebekhulu (as reported in People Dynamics, October 2003) the employer retrenched Cebekhulu but, realising that the retrenchment procedure was faulty, withdrew the retrenchment and restarted consultation procedures. The Court found that these new consultations were “merely an attempt to paper of the cracks” of the botched procedure followed during the first set of consultations.
It is therefore not a safe option for employers to implement retrenchments inexpertly. The only route to follow is to obtain expert advice before dismissing employees for any reason.
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 8887944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it. . Web address: www.labourlawadvice.co.za.
It is often due to the vagaries of the law that employers lose dismissal cases on the grounds of failing to follow procedure at the CCMA or in labour Court.
For example, the Labour Relations Act (LRA) is unclear what is meant by “sufficient time” to be given to ‘illegal’ strikers before dismissing them.
The inability to make sense of the law of fair disciplinary procedure can be very costly for employers. That is:
o The LRA requires the CCMA or Labour Court to reinstate unfairly dismissed employees. The employer will often be ordered to pay such employees all remuneration calculated back to the date of the dismissal.
o Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.
o If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.
Employers sometimes reinstate the employee before the matter gets as far as court or arbitration so as to avoid the risk of heavy penalties being imposed by the CCMA or Labour Court.
However, reinstating the employee and then dismissing him/her again (using the proper procedure this time) can be risky for employers. For example, in the case of Unitrans Zululand (Pty) Ltd vs Cebekhulu (as reported in People Dynamics, October 2003) the employer retrenched Cebekhulu but, realising that the retrenchment procedure was faulty, withdrew the retrenchment and restarted consultation procedures. The Court found that these new consultations were “merely an attempt to paper of the cracks” of the botched procedure followed during the first set of consultations.
It is therefore not a safe option for employers to implement retrenchments inexpertly. The only route to follow is to obtain expert advice before dismissing employees for any reason.