They’re rich, well-researched and easy to customize. Send a dismissal letter to the employee after the termination meeting with return receipt requested, or hand the dismissal letter to the employee at the end of the meeting. A mandate over South-West Africa was conferred upon the United Kingdom, "for and on behalf of the government of the Union of South Africa", which was to handle administrative affairs under the supervision of the league. Based on work performance. An employee will have to prove that there was a dismissal and the employer will then have to prove that the dismissal was fair (failing which the dismissal will be considered unfair). 49 (2003) 24 ILJ 662 (CCMA) 50 (2002) 11 BLLR 1081 (LC) 51 The Labour Relations Act No. Unfair suspension of an employee or any other disciplinary action short of dismissal Example: The discussion focuses upon three major concerns in the law on unfair dismissal: (1) a comparison of the British require-ment of "reasonableness" in dismissal cases with the American arbi-tration requirement that there be a "just cause" for dismissal; (2) a A demotion in another case also justify the claim of constructive dismissal. Courses are accredited in SA & Internationally by the ADR International Register, as well as the South African Association of Mediators (SAAM).Accreditation by a governing body is a key requirement to becoming a mediator. The mere presence of the coronavirus in South Africa does not constitute a valid reason to stay away from work. Date updated: April 2020 Note: Despite a finding that there was a valid reason for the dismissal, in all of the circumstances the dismissal was found to be harsh. A dismissal that could have been avoided but was not avoided is a dismissal that is without a fair reason ’ (my italics). An employer may look to demote an employee as an alternative to dismissal after The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. It allows them to explain clearly what improvement is needed and should give you an opportunity to put your side of the situation The ADR International Register administrates a global standard in the Alternative Dispute Resolution industries. Rules. Serious safety breach – forklift Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243]. The Labour Court in Braamfontein on Friday heard an urgent application by the union seeking an order that will prevent the SABC from going ahead with its plans to reduce its workforce. Both employers and employees in South Africa need to bear in mind the principle in our labour law that protects employees from being forced into resigning. It’s difficult to prove constructive dismissal - not many claims win. The dismissal letter documents the meeting for the employee and becomes part of the employee's personnel file. When a senior-level executive isn't meeting expectations in his job performance, it's in the company's best interests to address the situation … Both comments and pings are currently closed. With some employees also opting to self-quarantine, there are a number of labour law considerations that South African businesses will have to … In such a case the dismissal is a dismissal that could have been avoided. when the dismissal of an employee for misconduct or incapability is appropriate. While the arbitrator accepted this as a valid reason, the demotion was still unfair because the employer had failed to consult with the employee before making the offer. To qualify to bring a claim for unfair dismissal, you must meet the following requirements relating to time limits, length of service, employment status and fact of dismissal.. Time limits. Senior executives should be strong leaders and examples for other staff members. disciplinary procedure is sometimes the best way for your employer to tell you when something is wrong. The Commissioner then has to decide to either dismiss the employee’s claim or grant it in full or partly. Day 2 - Bono - Future of dispute resolution in South Africa >> Download File. But resigning is a big step. 9 The Republic of South Africa Act 200 of 1993 was replaced by the Constitution of the Republic of South Africa Act 108 of 1996 (the South African Constitution). which has resulted in my loss of confidence in your ability to discharge the functions of your position, A number of international and local companies have requested that their employees work from home due to the dire consequences of the COVID-19 coronavirus pandemic. You’ll also need to work out how much money you might get. Resigning for the aforementioned reasons have no basis in a Constructive Dismissal claim. As can be seen from the above, there is sufficient support for the view that alternatives can be implemented unilaterally by employers. If you’re drafting a policy, get help when you need it with our company policies templates. 10 The values of equality and dignity are mentioned in sec 1 of the South African Constitution and rights to equality and dignity are specifically protected in sees 9 and 10. University of South Africa v Reynardt [2010] ZALAC 9 – unfair implementation of an affirmative action plan, once the targets have been met 2009 Director General of the Department of Labour v Comair Limited [2009] ZALC 78 – review of the Director General’s public powers if an employer is non-compliant with its obligations in terms of the EEA Employees who stay away from work without a valid reason, may face disciplinary action.. The application of Tanzania Employment & Labor Relations Act (2004) in regard to unfair dismissal was also cited by this paper so as to enhance the relevancy of the findings and recommendations made. 18 Mar 2020 1:45 pm. You might be able to solve your problem without resigning. You must start your claim for unfair dismissal within 6 months from the date of the dismissal. Accordingly, Constructive Dismissal cannot be claimed by an Employee who resigned for other reasons, including but not limited to, finding alternative employment, deciding to pursue a different career path or venturing into the world of entrepreneurship. Day 2 - Ncume - An Employer's substance abuse policy and cannibas ... Day 3 - Bolli - Unfair dismissal and discriminatory practices in Mauritius >> Download File. Demoting a Senior Executive. This action constitutes a demotion with prejudice because of your [e.g., neglect of supervisory responsibilities, unacceptable conduct in your supervisory capacity, etc.] We assist our members in the CCMA and Labour Court to … By Jonathan Jones, Director, Norton Rose Fulbright The Labour Appeal Court has confirmed that even if an employee has consented after an enquiry to a demotion as an alternative to dismissal, the demotion may still be unfair. Muela Hydropower Project Contractors and four others (1997), the Labour Court, basing itself on the ILO Convention 158 and case law of South Africa, ruled that as a matter of precedent, "an employee earmarked for retrenchment must be notified in good time of the intended action and consulted on alternatives". This entry was posted on 30 Dec 2020,08:07AM at 8:07 AM and is filed under South Africa. In Plaatjies vs RK Agencies (2005, 1 BALR 77) the employer offered the employee an alternative post at a lower salary due to the fact that the employer had lost a major contract. You can follow any responses to this entry through the RSS 2.0 feed. Day 2 - Dr Shah - Minimum wages and basic conditions of employment >> Download File. 6 of 1995, South Africa 52 Jooste v Transnet Ltd t/a South African Airways Page | - 19 - Voluntary resignation of an employee, merely to avoid appearing at the disciplinary process, may not necessarily constitute constructive dismissal (Claassen, 2014). In Jooste v Transnet Ltd t/a South African Airways, it was held that, ... and provided a sufficient basis for a claim of constructive dismissal. Labour law and advice for employees on retrenchments, unfair labour practices, harassment, salary disputes, discrimination etc. An agreed demotion may still be unfair. A lot of people think resigning and claiming constructive dismissal is a good option for dealing with problems at work. In another case, even though here the employer had a valid reason to offer the employee an alternative post at a lower salary, as it lost a major contract, the arbitrator still regarded the demotion as unfair. 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