Dismissals

Code of Good Practice

  • Introduction
  • Fair reasons for dismissal
  • Misconduct
  • Fair procedure
  • Disciplinary records
  • Dismissals and Industrial action
  • Guidelines in cases of dismissal for misconduct
  • Incapacity: Poor work performance
  • Guidelines in cases of dismissal for poor work performance
  • Guidelines in cases of dismissal arising from ill health or injury

CCMA

Perfect Partners act in the best interests of our clients and handle our staff and union matters in a proffessional and fair manner, in doing so we can enjoy our 85% success rate in all our CCMA cases. This results in an co-operarative environment, high work performance rate, increased productivity and the most important profitability.

CCMA Prosseses

In Limine

In limine is a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction

Conciliation

Conciliation is a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement. At conciliation a party may appear in person or only be represented by a director or employee of that party or any member, office bearer or official of that party's registered trade union or registered employer's organisation. The meeting is conducted in an informal way.

The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the commissioner and each party may also be held. Parties are encouraged to share information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.

A commissioner is given wide functions in conciliation. The commissioner may determine a process which may include mediation, facilitation or making recommendations in the form of an advisory arbitration award. A commissioner may cause persons and documents to be subpoenaed, and has the power to enter and inspect premises and seize any book, document or object that is relevant to the dispute. The commissioner's role is to try to resolve the dispute within 30 days of it being referred to the CCMA. If the dispute is settled, an agreement will normally be drawn up and that ends the matter. The commissioner will issue a certificate recording that the dispute has been settled.

Con/Arb

Section 191(5A) makes provision for the Con-arb process, which is a speedier one-stop process of conciliation and arbitration for individual unfair labour practices and unfair  dismissals. In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to-

  • dismissals for any reason relating to probation;and
  • any unfair labour practice relating to probation

If no objection is received, this process may be used for any other dispute (conduct, capacity, continued employment intolerable, less favourable terms after a s197 or s197A transfer, reason for dismissal unknown, or an unfair labour practice).

This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.

The CCMA must give both parties at least 14 days' notice of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date. If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both parties.

Objections to the con-arb process

No objection will be allowed for disputes relating to probation. An employee may object by indicating such on the LRA form 7.11.An employer may object to this process by giving written notice to the CCMA at least 7 days prior to the hearing.

NOTE: Regardless of the employer objecting to this process, the employer must attend the conciliation. If you have a labour problem it is very important that you take steps immediately. The statutory time periods for referring disputes are as follows- Unfair dismissal -the dismissed employee must refer the dispute to the CCMA or council within 30 days of the date of the dismissal. If the employer makes a final decision to dismiss, say for example, the outcome of an appeal hearing, the matter must be referred within 30 days of that final decision to dismiss. Unfair labour practices- the employee must refer the matter to the CCMA or council within 90 days of the date of the act or omission, which allegedly constitutes an unfair labour practice. If an employee only became aware of the occurrence at a later date, the matter must be referred within 90 days of the employee becoming aware of such occurrence. Discrimination - the employee must refer the matter to the CCMA or council within six months of the act or omission that constituted unfair discrimination. If the above time periods have lapsed, the referring party must apply for condonation- he/ she is required to make application to the CCMA to condone the reason that he/she failed to refer the case timeously. This application should preferably be dealt with prior to the conciliation taking place as it is a jurisdictional fact that needs to be dealt with. However, the LRA states that the Commission can condone a late referral at any time. Calculate the days by excluding the first day and including the last day, all days are counted, including weekends and public holidays. weekends and public holidays are included.

The Commissioner considers the following when deciding whether or not to grant condonation:

  • the degree of lateness of the referral;
  • the reason for the lateness;
  • the prospects of success on the merits; and
  • the prejudice to both parties which includes the importance of the matter to each party.

The applicant may make use of the CCMA's pro forma affidavits when applying for condonation.

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