Archive for Dismissals

Can an employer defame his employee in a dismissal letter?

Posted in Dismissals, Employee misconduct, Questions and Answers with tags , on March 4, 2010 by labourlawoffices

It is quite routine for an employer to issue an employee with a letter of dismissal when the employment relationship comes to an end at the employer’s initiative. This could relate to either prior misconduct of the employee, incapacity due to poor performance or ill health or even retrenchment. What happens when an employer has held a disciplinary enquiry with an employee and the employee has been found guilty of say fraud and theft? Can the employer now in a letter of dismissal communicate to the employee (and the world out there) the detail of the reasons for the dismissal. On the face of it such reasons and advice would be defamatory of the employee. The employee has after all not been found guilty in a criminal court of such misconduct and may never in future be so convicted.

An employer dictating a dismissal letter containing such prima facie defamatory matter to the secretary of the firm is publishing defamatory matter to a third party. An employer has a moral, social and legal duty to communicate the reasons for an employee’s dismissal to him / her. The publication of the contents of the letter of dismissal to the typist is, however, regarded as a privileged occasion. Publication to the typist of the contents of the letter of dismissal to be typed is publication in the exercise of the duty to inform the employee of the reasons for termination of his employment. It will therefore not constitute defamation.

Photo Credit: http://www.flickr.com/photos/anniebee/92853447/

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Termination of employment during Probation period

Posted in Dismissals, Questions and Answers with tags , , on October 30, 2009 by Maggie

Question:

Termination of employment during Probation period – irrespective of duration of probation period: May I terminate an employee with 24 hours notice and with what reasons?

Answer:

An employer does not have to wait for a probation period to have run its course before effecting the dismissal of a probationary employee.  It would therefore, in appropriate cases be permissible to effect the dismissal of a probationary employee during the probation period itself.  Ordinarily a probationary employee may be dismissed for incapacity / poor work performance.  If that is indeed the case, then no less than one week’s notice of termination has to be given to the employee.  If, however, the employee has misconducted him / herself, and is found guilty of serious misconduct, summary termination is permissible.  Such dismissal will, however, have nothing to do with the probationary nature of the employment then.

Care should be taken not to be seen to have dismissed a probationary employee too soon.  The purpose of probation is to give an employer the opportunity to evaluate the employee’s performance before confirming the appointment.  The period allowed for such assessment should therefore be proper and fair in the circumstances.

Photo credit: http://farm3.static.flickr.com/2415/2246558373_4bf0167cd8_m.jpg

Where to go with an individual retrenchment dispute?

Posted in Dismissals, Questions and Answers, Unfair Dismissal with tags , , , on October 8, 2009 by labourlawoffices

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

Legal rights of pregnant women at work

Posted in Basic Conditions of Employment, Dismissals with tags , , , , , on June 15, 2009 by labourlawoffices

Being pregnantLabour legislation affords a pregnant female employee four consecutive months’ unpaid maternity leave, which may commence at any time from 4 weeks before the expected date of birth or from a date from which a medical practitioner or midwife certifies that leave is necessary for the health of the mother or child.  No employee may work for 6 weeks after the birth (whether or not the child is born alive or miscarries), unless a medical practitioner or midwife certifies that it is safe for her to do so.  The only obligation on an employee is that she must notify the employer in writing of the date on which she intends to start maternity leave within 4 weeks of such date or when reasonably practicable.

Pregnant or nursing mothers who choose to return to work are also protected.  Employers may not employ them in work that is hazardous to the health of mother or child, and if the mother is required to do night work, the employer must offer her suitable alternative employment if there is a threat to her health and if reasonably practicable.

The wages of new and expectant mothers on maternity leave are covered by the State in terms of the provisions of the Unemployment Insurance Act.

An employer may not dismiss a female employee in any circumstances merely because she is pregnant.  The dismissal of women on the ground of pregnancy or for a reason related to her pregnancy or intended pregnancy is rendered automatically unfair by the Labour Relations Act, 1995.  The provisions of the Employment Equity Act, 1998 protects a woman from unfair discrimination based on her pregnancy, for example being denied promotion, being forced to take unpaid leave or made to work in conditions that endanger her health or that of her unborn child.  An employer’s refusal to permit an employee to resume employment after she was on maternity leave in terms of any law, collective agreement, or her contract of employment is regarded as a form of dismissal.  An employee who commits serious misconduct before or during her maternity leave may still of course be dismissed for such misconduct.  An employer may not dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or because she has become physically incapable of doing her work as a result of pregnancy.  So for example a woman who develops lengthy bouts of post-natal depression which renders her incapable of working, may not be dismissed because of the operational requirements of her job.  An employee who does not disclose at the time of appointment that she is pregnant can not be dismissed for “deceiving” her employer about her pregnancy.

An employee who has been unfairly dismissed by reason of her pregnancy or a reason related to her pregnancy will ordinarily be entitled to re-instatement, alternatively compensation up to a maximum of 2 years’ remuneration.  Dismissal by reason of an employee’s pregnancy is regarded as a form of automatically unfair dismissal and is adjudicated on by the Labour Court.  A dismissed employee must first refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council operating in the industry / sector in which the employee was employed.  If the dispute is not capable of settlement / resolution under conciliation by the CCMA / Bargaining Council the employee is entitled to refer the dispute to the Labour Court for adjudication.

When can you review an unfair dismissal award? Constitutional Court lays down the Law

Posted in Unfair Dismissal with tags , , , , on September 3, 2007 by labourlawoffices

The highest court of the country has laid down the law in its recent judgement in the unfair dismissal case of Sidumo and another versus Rustenburg Platinum Mines. The decision also affected the legal principles applicable to the review of CCMA arbitration awards.

The case involved the dismissal of the employee for reasons relating to misconduct. The commissioner found the employee guilty of misconduct but found that no dishonesty was involved. Based on the employee’s clean service record of 15 years, the commissioner reinstated him with three months compensation subject to a written warning valid for three months. Both the Labour and Labour Appeal Courts agreed with the outcome and refused any review relief. The Supreme Court of Appeal found that the employee’s dismissal was fair, hence the employee ended up with no relief.

A key finding of the Appeal Court was that in deciding unfair dismissal disputes, CCMA commissioners should not lightly interfere because it is the employer’s function in the first place to decide on punishment. The Constitutional Court decided that a commissioner is not required to defer to an employer’s dismissal decision. In reaching a decision the commissioner must have regard to all relevant circumstances. The standard of review to be applied when a decision by a commissioner on a dismissal dispute is sought to be reviewed was stated as follows: Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach?

The Court held that compulsory arbitration proceedings in the CCMA constitute administrative action, but held that it was not subject to the provisions of the Promotion of Administrative Justice Act. It held that the requirements of section 33 of the Constitution, which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, applied. The Court concluded that having regard to the reasoning of the commissioner, based on the material before him, it could be said that his conclusion was one that a reasonable decision-maker could reach.

The effect of this decision is that it is now more difficult to show that an award should be reviewed and set aside. Whereas before the decision, the test for review was whether based on the evidence available at the hearing the decision made was justifiable with regard to the reasons therefore, now unless a finding of unreasonableness can be sustained, an award will stand.