BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.
Go to: www.labourlawadvice.co.za
The LRA places the full burden of proof of fair dismissals on the employer. The employees only have to prove that they were in fact dismissed. This means that arbitrators are expected to assume that a dismissal was unfair until the employer has proven otherwise. This provision means that employers need to be extra careful and meticulous when considering dismissing their employees.
Despite the fact that this employee-friendly legislation has been in place for 28 years and has been well publicised many employers still bungle their dismissals.
There are several ways in which employers can and do botch employee dismissals. For example, employers might fail to give the employees an opportunity to prepare a defence or to allow them to defend themselves before being fired. Uninitiated employers often fail to gather relevant evidence or to present it properly at disciplinary or arbitration hearings. Other employers mess up hearings by appointing biased presiding officers or by denying the employees the right to interpreters.
Untrained employers may also fail to provide proof that the employees knew the rule that they were alleged to have broken or might fail to ensure that the rule in question was a fair one. This can be an extremely expensive mistake.
A case in point is that of Legend Logistics vs SATAWU and seven others (Lex Info. 24 October 2024. Labour Court case number JR1373/21). Here seven truck drivers were fired for incitement, intimidation and orchestrating unprotected industrial action.
The employees had held a meeting after hours and outside of the employer’s premises. At the meeting they discussed whether they would report for work the next day, which was a normal working day. The employees had contacted a work colleague of theirs, Mr Coetzee, to inform him of the said meeting.
At the bargaining council arbitration the employer alleged that the employees were prohibited by company rules from holding meetings without permission even if said meetings were held outside working hours and outside the premises. The employer also alleged that the notification to Mr Coetzee of the meeting constituted intimidation and incitement to strike. However, the arbitrator rejected this claim due to the complete lack of evidence to back it up. The arbitrator also found the employer’s rule banning meetings that took place both outside working hours and outside the business premises to be unjust and invalid. He therefore found that the dismissals of the 7 employees were unfair and ordered the employer to reinstate them with 8 months’ backpay each. If the truck drivers each earned R20 000 per month the backpay awarded would have come to R1 120 000.
On review the Labour Court upheld the arbitrator’s decision and stated that the employer’s case had been so weak that the employees would not even have been obligated to present any evidence.
This very costly outcome highlights the need for employers to understand that, while they are entitled to devise and enforce their own rules, those rules must not infringe on employees’ basic rights such as the constitutional right to gather peacefully.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.
Date Posted: 25 Nov 2024