A specialist labour attorney can advise on where a dispute should be referred to and institute the proceedings on behalf of an employer.
An employer's disciplinary policies are to be 'reasonable, lawful and fair' in terms of circumstances and operational requirements.
It is advisable to pre-empt and prevent possible disputes by engaging with a labour expert well in advance of potential disputes.
In order to avoid unpleasant and costly surprises, it is recommended that formal disciplinary hearings be chaired by a labour expert.
Lack of a written contract of employment is not only a criminal offence but could also severely compromise an employer's position in a dispute.
Should a dispute end up in the Labour Court, it is highly recommended that the employer be represented by a specialist labour lawyer.
Conciliation is the first step of the two-step process that takes place when a labour dispute is referred to the CCMA. During conciliation, the commissioner will try to get the employer and employee to agree to a solution to the problem. Since neither of the parties may be represented by an attorney, they either can appear in person or be represented by a trade union or employers’ organisation.
Disputes that could not be resolved during conciliation, are referred to arbitration where a commissioner will hear both sides of the argument before making a ruling. In general, legal representation would be allowed during the arbitration proceedings except where a worker was dismissed for misconduct or not performing job duties properly. The commissioner may however, make an exception depending on the merits of a particular case.
Employers are required to have a disciplinary code that sets out how the worker is expected to behave in the workplace. A skilled legal professional can tailor the disciplinary policy to the specific needs of a business.
The disciplinary code regulates the behaviour of employees in the workplace and also stipulates the consequences when a worker is guilty of not complying with the rules. It serves as a management aid to an employer to manage the business and ensure that workers are acting in accordance with the company policy.
Even though the reasons for the dismissal of an employee may have been valid, it is likely to be deemed an ‘unfair dismissal’ by the CCMA if the correct disciplinary procedures were not followed by the employer.
Ever so often, a disciplinary hearing is considered to be unfair simply because the person chairing the hearing alleged to have been influenced by, or siding with, the employer.
In order to avoid this unpleasant and costly pitfall, it is recommended that formal disciplinary hearings be chaired by a labour expert to ensure that the hearing is conducted in accordance with labour laws and the dismissal would be substantively and procedurally fair.
Our experienced labour lawyer will quickly assess and establish if a company adheres to the basic requirements set out by the Labour Act and point out potential problems that could be avoided.
"It might be said that it is the ideal of the employer to have production without employees and the ideal of the employee is to have income without work."E. F. Schumacher
The purpose of referring a dispute to the CCMA is to resolve it. There are three main categories of labour disputes:
The statutory dispute resolution process requires that all disputes first be referred to the CCMA or a bargaining council for reconciliation.Read More
Only after a failed attempt at conciliation or the expiry of the prescribed time limits for conciliation, may the parties go to the next level of dispute resolution, i.e. the Labour Court.
Whereas the CCMA is usually the forum in case of relatively uncomplicated individual disputes, more complicated disputes are referred to the Labour Court. The employer needs to know to which forum a dispute should be referred and a labour attorney can give advice on this subject and even institute the proceedings on behalf of the employer. Different types of disputes have different time limits in which the employer must give the accused notice of the proceedings and a labour attorney can send these notices within the specified times, whilst ensuring that the notices comply to labour law specifications.Read More
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