Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
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- Date Issued: 2013
Strikes in the transport sector
- Authors: Grigor, Marius Hugo
- Date: 2013
- Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
- Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
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- Date Issued: 2013