Labour Consulting Services
Archive for February, 2012
CONSTRUCTIVE DISMISSAL
Feb 13th
Section 186 (e) of the Labour Relations Act (LRA) defines constructive dismissal as having occurred when “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Many employers adopted a “resign to avoid dismissal” policy; in short, this would involve an employee being given a clear choice, resign or you will be dismissed.
Employees were given a choice to “resign” to either avoid disciplinary action, or a threat of dismissal. It has the potential of relieving all company resources associated with the hearing (chairperson, complainant and witnesses) from arduous and time consuming duties. These circumstances offer the employee, who may have “resigned” an opportunity to argue and claim constructive dismissal.
Any company’s disciplinary procedure is best served by proceeding with initiated disciplinary action in the face of a resignation. This serves two purposes. Firstly, the potential for a subsequent constructive dismissal claim is minimised, secondly the integrity of the company’s disciplinary procedure is upheld.
For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
ILL-HEALTH, INJURY DISMISSALS
Feb 6th
The Labour Relations Act (LRA) obligates employers to do everything humanly possible to avoid the dismissal of ill or injured employees. This obligation primarily flows from the fact that an employee’s ill health or injury is a so-called “no fault” scenario and, as such attempts to preserve the employee’s employment must receive priority.
That’s not to say that incapacitated employees cannot be fairly dismissed; on the contrary, the dismissal of staff due to their ill-health or injury may indeed be fair as long as the provisions of section 10 and 11 of Schedule 8 of the LRA have been complied with.
Employers are required to fully investigate the extent of an employee’s incapacity. Is the incapacity temporary or permanent? How serious is the ill-health or injury? Is it possible to replace with a temporary appointment? How might the employee’s job design and/or work environment be modified to accommodate the employee? During the process, the employee is to be afforded a full opportunity to state their case.
For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za