It has become so easy in South Africa at the moment to sue the EMPLOYER for an UNFAIR DISMISSAL or even UNFAIR LABOUR PRACTICE.

There a number of ways that this can be achieved.

For each way, however, there is always a defence.

It is far better though to ensure that the Employer has preventative measures in place, like a vaccine, so as to avoid any lawsuit.

The employee however has the right to proceed with any unfair labour practice or any unfair dismissal lawsuit against the employer.

These take the following basic forms and more information will be supplied upon request:-

1. A PROCEDURALLY UNFAIR DISMISSAL

Most employers forget that by law one what is required is a CODE OF GOOD CONDUCT.

This takes the form of an easy to read but specific Disciplinary Procedures Booklet which should detail the exact manner in which a Disciplinary Action and a dismissal must be conducted in a procedurally correct and fair manner.

If an employer implements a dismissal on an employee without bringing the Employee to a fair and unbiased disciplinary hearing, clearly that can become an unfair dismissal.

There should be no summary dismissal.

A DISMISSAL CAN BE CONSTRUED AS BEING UNFAIR if the dismissal was handled in a procedurally defective or in a procedurally unfair manner.

In terms of the Rules of AUDI ALTAREM PARTEM and PRESUMPTION OF INNOCENCE the responsibility of providing a fair and procedurally correct format in which to argue a dismissal rests with the employer.

If the employer is being sued by the employee for an unfair dismissal, the onus would be ON THE EMPLOYER to prove either at the CCMA or in Court that the dismissal was NOT unfair.

It therefore becomes a simple matter for the employee to sue the employer.

The best way of avoiding a lawsuit in terms of a procedurally unfair dismissal is to ensure the following:

1.1 that there is a proper and easy to understand disciplinary code book specifically written for an individual employer.

1.2 that all employees are fully aware of this code booklet, that it has been fully explained to them and that they understand how to implement ALL procedures

1.3 that the letters of appointment of each employee confirm that such a code book exists and that all employees will abide by the rules and procedures contained therein

1.4 that the disciplinary hearing is handled in a proper, effective and unbiased fashion and in this regard therefore, the following must be achieved:

(i) that a proper summons by the employer is issued to the employee detailing the exact nature of the offence;

(ii) that if the employee requires full and further particulars of the claim against him / her, these must be provided;

(iii) that the employee be given a proper and adequate opportunity of preparing a proper defence;

(iv) that the employee be allowed the right to representation by either a fellow worker or a shop steward (should there be Trade Union involvement);

(v) that the disciplinary hearing is preferably conducted by a practitioner not in the employ of the company who is also a Commissioner of Oaths;

(vi) to ensure that proper Minutes are kept Officer and that the Presiding Officer construes to writing his / her Award and Sanction, clearly recording how the Sanction and Verdict were arrived at.

Any defect in the above could be construed as a procedurally unfair dismissal.

2. SUBSTANTIVE UNFAIR DISMISSALS

For every single dismissal there must be a proper, cogent and substantiated reason for said dismissal.

This is referred to as substantive.

If there is no good and proper reason for any dismissal, or if the reason for dismissal is in dispute, the employee is at liberty to institute proceedings against the employer.

3.INSTITUTING PROCEEDINGS FOR UNFAIR LABOUR PRACTICES & UNFAIR DISMISSALS.

It is very easy for any employee to proceed against an employer in terms of any alleged unfair labour practice or any alleged unfair dismissal.

If the employer belongs to a Bargaining Council the employee is at liberty to refer the matter for CONCILIATION to that Bargaining Council.

If however the employer is not associated with any Bargaining Council, the employee is at liberty to refer the matter to the CCMA for CONCILIATION.

A conciliation either at a Bargaining Council or the CCMA is a method by which the Commissioner will facilitate A DISCUSSION between the parties and attempt to MEDIATE.

The Commissioner has no decision making powers but will assist and advise both parties to reach an agreement of settlement, which could be reinstatement or alternatively financial compensation.

If no agreement of settlement can be reached, clearly, the employee is at liberty to proceed further either by way of ARBITRATION or alternative to the LABOUR COURT under various circumstances.

It is advisable for the parties to prepare in advance a Statement of Case - from the point of the Applicant (employee) it will be necessary to have drafted a professional statement of case and in terms of the employer it is far better for them to have drafted a professional Statement of Defence.

Although these may not necessarily be proper instruments to be used at the conciliation, they will guide both parties through their submissions before the Commissioner.

However, should conciliation fail, these statements of case may form the basis of both the matter on behalf of the Applicant as well as the Defence on behalf of the employer.

It is therefore advisable that these statements be drafted by professional and qualified practitioners in the field of labour law.

4. UNFAIR DISMISSALS FROM RETRENCHMENT

If a retrenchment procedure or even a short time procedure is not handled in accordance with the laid down labour laws, the employees or their representative trade unions have the right to embark upon instituting proceedings against the employer.

Professional advice should therefore be gained by the Employer before embarking upon such an exercise.

5. CORRECT PROCEDURES

Should any party not be certain of their rights with regard to Unfair Labour Practices and Unfair Dismissals or should any party not be aware of how to institute proceedings or defend proceedings, please send us an e-mail to justice@iafrica.com , make use of our contact form or alternatively  a telefax to 511 6395.

6. ASSISTANCE AND HELP FOR EMPLOYERS

For all Employers in South Africa, help and assistance is only an e-mail away. Should you have any problems, need advice on about or employment or require defence to litigation, kindly issue an urgent e-mail to:- EmployerHotLine@labourjustice.com. Alternatively, send us an e-mail to justice@iafrica.com, or make use of our contact form. Or telefax us on (021) 511 6395.

7. EMPLOYEES (Applicants) SEEKING TO LITIGATE AGAINST EMPLOYERS