If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to- a Bargaining Council, if the parties to the dispute fall within the registered scope of that Bargaining Council or the CCMA, if no council has jurisdiction.
A referral must be made within –
- 30 days of the date of a dismissal or, 90 days of the date of the act or omission in case of anunfair labour practice.
If the employee shows good cause at any time, the Bargaining Council or the CCMA may permit the employee to refer the dispute after the relevant time limit above has expired by way of a condo nation hearing where a commissioner will consider the following:
- The degree of lateness of the referral
- The reason for the lateness
- The prospects of success on the merits
- The prejudice to both parties which includes the importance of the matter to each party
An employee whose contract of employment is terminated by notice, may refer the dispute to the CCMA or Bargaining Councilonce the employee has received a notice of dismissal.The employee must satisfy the council or the Commission that a copy of the 7/11 referral has been served on the employer.
The Bargaining Council or the CCMA must firstly attempt to resolve the dispute through conciliation. If the dispute remains unresolved, or if 30 days have expired since the Bargaining Council or the CCMA received the referral and the dispute remains unresolved-
The Bargaining Council or the CCMA must then arbitrate the dispute at the request of the employee if-
(i) the employee has alleged that the reason for dismissal related to the employee’s conduct or capacity,
(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable – Constructive Dismissal
(iii) or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187;
(iv) the employee does not know the reason for dismissal; or
(v) the dispute concerns an unfair labour practice; or
The employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-
automatically unfair; based on the employer’s operational requirements; the employee’s participation in a strike that does not comply with the provisions ofChapter IV; or because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.
The Bargaining Council or CCMA must commence the arbitration immediately after the conciliation, certifying that the dispute remains unresolved if the dispute concerns –
- the dismissal of an employee for any reason relating to probation;
- any unfair labour practice relating to probation;
- any other dispute in respect of which no party has objected to the matter being dealt with in terms of this subsection.
The director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-
(a) the reason for dismissal;
(b) whether there are questions of law raised by the dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards that need to be resolved;
(e) the public interest.
When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.
The director must notify the parties of the decision and refer the dispute-
to the CCMA for arbitration; or to the Labour Court for adjudication. The director’s decision is final and binding. No person may apply to any court of law to review the director’s decision until the dispute has been arbitrated or adjudicated, as the case may be.
A dispute to the Labour Court for adjudication must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.However, the Labour Court may condone non-observance of that timeframe on good cause shown as per above.
If an employee is dismissed by reason of the employer’s operational requirements following consultation procedure in terms of section 189 that applied to that employee only, the employee may elect to refer the dispute either to arbitration at a Bargaining Council or CCMA or to the Labour Court.
An employee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act.
ONUS IN DISMISSAL DISPUTES
The employee must always establish the existence of the dismissalby way of a Notice of a Dismissal in any proceeding concerning any dismissal. If the existence of the dismissal is established, the employer must then always prove that the dismissal was fair.
Employers must note that the LRA recognises three grounds on which termination of employment might be legitimate. These are: The conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business
REMEDIES FOR UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE
If the Commissioner finds that a dismissal was unfair, the Commissioner may-
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c)order the employer to pay compensation to the employee.
The Commissioner must require the employer to reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c)it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.
If a dismissal is automatically unfair or, if a dismissal based on the employer’s operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances.
A Commissioner may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
LIMITS ON COMPENSATION
Compensation may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal, if the dismissal was found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both.
If a dismissal is automatically unfair the compensation must not be more than the equivalent of 24 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
The compensation awarded in respect of an unfair labour practice must not be more than the equivalent of 12 months’ remuneration.
COMPENSATION IS IN ADDITION TO ANY OTHER AMOUNT.
An order or award of compensation made is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.