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Unfair Dismissal: Part two of three

The Labour Relations Act, is the most important Act in regards to unfair dismissals.

The Labour Relations Act is the most important Act with regards to unfair dismissals. The development of the legislation for unfair dismissal is based on international legal principles. Sections 186 and 187 of the Labour Relations Act is prescriptive. There are a number of instances which would be automatically unfair dismissals.

Membership of a trade union (or employer’s organisation) is enshrined both in the Constitution as well as the Labour Relations Act. In particular, the Act details the right of union membership, which is listed in the requirements. Because of this protection, any employer who dismisses an employee for membership in a trade union is dismissing the employee unfairly.

MUST READ: Unfair Dismissal: Part one of three

Related to this is the right of an employee to seek office as a worker’s representative, for example as a shop steward or trade union representative. A dismissal by the employer, for this reason, would constitute an unfair dismissal as well, provided that the office of representative is executed outside office hours or with the employer’s express consent and permission during work hours.

Chapter four of the LRA deals with the right of strike action in terms of collective bargaining with an employer. This means that if all of the requirements and regulations for a strike action are met by the employees and the union, they are permitted to strike as part of their organisational rights. If the employer dismisses any employee or group of employees for engaging in such a protected strike action, then same is to be considered as an automatically unfair dismissal. Also, if an employee refuses to do the additional work of another employee who is on strike, unless that work is essential for health and safety, or to protect life, then a dismissal for such reasons would also be unfair.

The termination of an employment contract is a matter of considerable debate when it comes to labour matters. There are two legs to the fairness requirement. Firstly, a dismissal must be procedurally fair, and secondly, it must be substantively fair.

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From a procedural fairness aspect, there are processes that must be followed for a dismissal. These may differ from workplace to workplace, as each company, or industry, for example mining, or agriculture or metalworking, may have sector specific processes and companies within those sectors may have their own processes, which must be made clear to the employees and be accepted as such. Usually there are warnings for infringements in the workplace which make the employee aware that they have infringed a rule, or a law, and that they are being disciplined for it. After a set number of warnings, the employer may dismiss the employee for a number of reasons. If the process was followed correctly, that is procedurally fair, however, if there is noncompliance with processes, then it may be procedurally unfair.

In terms of substantive fairness, there must be good reasons, or good cause for the dismissal. It cannot be based on a random whim but must be a concrete and accepted reason. For example, for misconduct, such as fighting in the work place, or stealing, or in the case of operational requirements, that the employee cannot do their job properly. Same may constitute good substantive fairness in the dismissal process.

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