During this time of economic uncertainty, businesses are leaning heavily on their workforce to ‘ride the storm’ and emerge stronger. This is a highly pressurised situation and not all parties play fair, which is why terms like substantially fair, procedurally unfair and automatically unfair have emerged and where the law, thankfully, offers much needed clarity.
This is according to Nicol Myburgh, Head of Human Resources at CRS Technologies, integrated HR and HCM solutions and services provider.
From an HR and labour force perspective the Labour Relations Act (LRA) clearly outlines specific conditions when dismissal of employees is automatically unfair, says Myburgh.
“When talking about unfair dismissals it can be categorised between procedurally and substantively unfair, procedurally fair means that all relevant and required procedures were followed throughout, from initiation to sanction irrespective of the merits of the case, a case can be substantively fair and still be procedurally unfair,” he says.
“Substantively fair means that a case was decided on its merits and according to a fair reason without any underhanded sanctions being made,” Myburgh continues.
CRS Technologies outlines what the LRA says about the conditions that govern automatically unfair dismissal.
Essentially dismissal based on one or more of the following circumstances constitute automatically unfair action.
- Participation in or supporting, or indicating an intention to participate or support a lawful strike or protest action;
- Refusal to do work normally done by an employee on a lawful strike;
- Refusing to accept a demand in respect of a matter of mutual interest between them and their employer;
- An employee exercised a right conferred by the LRA or participated in any proceedings in terms of the LRA;
- For reasons related to an employee’s pregnancy;
- As a result of unfair discrimination;
- Related to a transfer, or a reason related to a transfer as contemplated in section 197 or 197A of the LRA; and
- In contravention of the Protected Disclosures Act of 2000, by the employer, because of the employee having made a protected disclosure
The LRA states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements.
“Should it be found that an automatically unfair dismissal occurred, the CCMA may award the employee a maximum amount not exceeding twenty-four months remuneration. In contrast, should it be found that just an unfair dismissal occurred the CCMA may award the employee a maximum amount not exceeding twelve months remuneration,” Myburgh adds.
CRS Technologies advises employers and employees on the impact of cases of automatically unfair dismissal, for example – an employee has only 30 days from the date on which the dispute arose to open a case.
“If the case is an unfair labour practice, an employee has only 90 days and, with discrimination cases, an employee has six months. It is not necessary for the employee to inform the employer, the CCMA must give parties at least 14 days’ notice in writing,” says Myburgh.
In conclusion, there is no doubt any case of automatically unfair dismissal can have far reaching consequences, but the law, in theory, has been designed to protect the interests of all parties.
END
About CRS HR & Payroll Solutions
CRS HR & Payroll Solutions is a provider of services and solutions to the Human Resources and Payroll markets in Africa in general and South Africa in particular.
Established in 1985, the company has served as the premier provider of HR systems, solutions and remuneration products to business across expanding market segments.
Our product portfolio encompasses everything the decision maker in business requires to support the rollout of an effective HR and payroll strategy.
The company’s foremost reputation as a reliable service provider and trader in rapidly expanding market segments and to blue chip companies is underpinned by its affiliation and partnership with a number of respected, industry-regulatory bodies.
CRS is a signatory to the Information Technology Association (ITA) and a member of the Payroll Authors Group of South Africa.
It is also a member of the South African Payroll Association, South African Rewards Association and the Institute of People Management.
Its expertise and business acumen within these mission-critical aspects of business management have ensured that it remains an ultra-competitive, secure and unrivalled market performer.
CRS provides a service to numerous countries throughout Africa, including Egypt, Kenya, Nigeria, Namibia, Botswana, Swaziland, Lesotho and Mozambique.
The continent is viewed as being a thriving, high-growth market and one that the company will continue to add value to.
CRS Technologies contact:
Bernice Houston
Sales & Marketing
T: +27 11 259 4700
C: +27 83 777 8864
F: +27 11 259 4750
Editorial contact:
Gloria Malan
(c) 082 340 2876
Email:
