Throughout our history, Barnard Incorporated has assisted corporates and employers organisations in a variety of industries with resolving labour disputes. We are experienced in the areas of disciplinary proceedings, termination and appointment, involving executives and employees alike. In a complex area of the law, we also provide advice and assistance during retrenchment proceedings and on the transfer of contracts of employment during corporate restructures.
Where our clients are faced with the prospect of disciplinary hearings and subsequent dismissal of executives or employees we provide assistance by ensuring that all measures taken are procedurally correct and the reasons for dismissal are legal, fair and reasonable. The aforesaid approach not only limits the institution of proceedings for unfair dismissals, but also the risk of compensatory claims being successful in the end.
Due to the importance of policies and procedures being diligently set out in a company we assist our clients to clearly indicate identified transgressions and the concomitant consequences. We ensure that our clients advise their employees of these policies and procedures to ensure that their employees bear sound knowledge thereof.
Subsequent to dismissing an employee, employers are often faced with the matter being referred to the CCMA (unless there is a bargaining council involved in which case it should be heard by the bargaining council) for unfair dismissal – either for
- Procedural fairness; or
- Substantive fairness
For a dismissal to comply with the requirement of procedural fairness, the following procedure is to be complied with:
- The employer should conduct an investigation to determine whether there are grounds for dismissal;
- The employer should inform the employee of the allegations in a language that is understandable;
- The employee should be allowed the opportunity to state his case in response to the allegations, and further be allowed a reasonable time to prepare a response and to be assisted by a trade union representative or fellow employee;
- After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of such decision.
Schedule 8 of the Code of Good Practice to the Labour Relations Act 66 of 1995 sets out the following grounds for a substantively fair dismissal:
Generally, it is not regarded as appropriate to dismiss an employee based on a first offence. An exception to this general rule is if the misconduct is serous and of such gravity that the continued relationship between the employer and the employee will be regarded as intolerable.
Examples of serious misconduct includes:
- gross dishonesty;
- willful damage to property;
- willfully endangering the safety of fellow employees;
- physical assault of an employer or fellow employee; and
- gross insubordination.
Section 188 of the Labour Relations Act states that a dismissal which is not automatically unfair, is unfair if the employer fails to prove that there is a fair reason for the dismissal
- relating to the employee’s conduct or capacity; or
- based on the employer’s operational requirements; and
- that the dismissal was effected in accordance with a fair procedure.
- the nature of the job;
- the period of absence;
- the seriousness of the illness or injury.
Incapacity may be permanent or temporary. In the even that an employee is ill and temporarily unable to work in these circumstances the employer should investigate the extent of the incapacity or the injury. If an employee is likely to be absent for an unreasonably long time, the employer should investigate all of the possible alternatives short of dismissal, including
An employer should also consider adapting the duties of employee in cases of permanent incapacity.
- POOR WORK PERFORMANCE:
- failed to meet a performance standard and, if so, whether the employee was aware, or could reasonably have been expected to be aware of the required performance standard; and
- was given a fair opportunity to meet the required performance standard.
In these instances, it should be determined whether or not the employee
In order to be successful with a retrenchment in a subsequent Labour Court or CCMA dispute, the employer must fulfill the duty of proving that the retrenchment was fair in all aspects. Further thereto, the employer must ensure that the correct procedure is followed in that:
- The employer consults with the employee if it intends to dismiss one or more of the employees based on operational requirements;
- During the aforementioned consultation the employer and the employee must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on the various factors mentioned in Section 189(2) of the Labour Relations Act;
- Written notice should be provided to the employee for the aforementioned consultation to take place;
- When the employer makes a decision that the employees must be dismissed based on operational requirements (such as economical, technological, structural or similar needs), the employer must select the employees to be dismissed according to selection criteria that have been agreed to by the consulting parties, alternatively, if no criteria have been agreed upon, criteria that is fair, reasonable and objective.
If a restructure or transfer of business takes place (in whole or in part) as a going concern, Section 197 of the Labour Relations Act becomes applicable:
- The new employer is automatically substituted by the old employer in respect of all contracts of employment which were in existence before the date of transfer;
- All of the rights and obligations between the old employer and an employee at the time of transfer will remain in existence between the employee and the new employer;
- Anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the commission of an unfair labour practice or act of unfair dismissal, is considered to have been done by or in relation to the new employer; and
- The transfer does not affect the employee’s continuity of employment, and an employee’s contract of employment continues with the new employer as if with the old employer.
- An agreement, setting out the above terms, must be in writing and concluded between either the old employer, the new employer, or the old and new employer acting jointly on the one hand; and, the appropriate body or person referred in terms of Section 189(1), on the other.
- The aforementioned agreement should thus set out the above terms, the transfer of the business, the new employer, the rights and obligations remaining in place, as well as all relevant information that will allow it to engage effectively in the negotiations.
- The old employer must agree with the new employer to a valuation as at the date of transfer of: the leave pay accrued to the transferred employees of the old employer; the severance pay that would have been payable to the transferred employees of the old employer in the event of a dismissal by reason of the employer’s operational requirements; and any other payments that have accrued to the transferred employees but have not been paid to the employees of the old employer.
- The old employer must further conclude a written agreement that specifies: which employer is liable for paying any amount referred to above, and in the case of apportionment of liability between them, the terms of the apportionment; and, what provision has been made for any payment contemplated above if any employee becomes entitled to receive payment.
- Further to the above, the old employer must disclose the terms of the aforementioned agreement to each employee who after the transfer becomes employed by the new employer, as well as take any other measure that may be reasonable in the circumstances to ensure that adequate provision is made for any obligation on the employer that may arise.