Labour Vanguard

 1.Did the worker break a rule or a standard of conduct ?

2.Was this rule or standard conduct fair and reasonable to the worker?

3.Was the worker aware of the rule or standard conduct ,or shouldthe worker have known?

4.Did the employer apply the rule or standard in a consistentmanner (examples of previous case in the workplace)

5.Was the dismissal the best kind of disciplinary action to takeor could the employer use another disciplinary method ,like final writtenwarning for example

 (If the answers of these question is no;then you can take up the case and argue unfair dismissal at CCMA 

 2.CONSTRUCTIVE  DISMISSALS

Section 186 (e) of the labour Relations Act (LRA)defines aConstruction Dismissal as when :

 An employee terminated a contract of employment with or withoutnotice because the Employer made continued employment intolerable for theemployee.

A distinguishing feature of a constructive dismissal is that theemployee ,rather than the employer terminates the contract of employment ,withor without notice ,normally by resigning .

The alleged forced resignation allows an employee to claim to havebeen dismissed .Any successful constructive dismissal claim will depend on thefollowing important issues :

Whether the employment contract was indeed brought to an end by the employee ,namely by resigning ;Whether the employer did indeed make the continued employment intolerable;Whether The employee had no reasonable alternative other than to resign. 

Onus of proving rest the above important issues is with theemployee and not the employer (like unfair dismissal –section 189e LRA )

 EMPLOYER ACTIONS –FOR CONSTRUCTIVE DISMISSAL CLAIMS TO BE  SUCCESSFUL

Unilateral changes to terms and conditions of employment ,abuse,assault ,forced transfer ,Sexual harassment,Failure to payment to remuneration.False allegations of misconduct or non-performance ,An offer of inferior employment coupled with the threats that the employee will be dismissed if he/she doesn’t accept it ;An employee’s decision to resign rather than to accept unlawful deductions from his salary;Employer’s conduct renders it impossible for the employee to work 

The range of employer actions that could give rise to asuccessfully constructive dismissal claim is endless .

SUSPENSIONS

The most common form of employee suspension takes place when anEmployer suspends an employee as aprecautionary measure prior to and until the employee attends a disciplinaryhearing enquiry ,details of which have been included in a notice to theemployee to attend a disciplinary enquiry .“

….an unfair labour practice means any unfair act or omission thatarises between an employer and an employee involving the unfair suspension ofan employee or any other disciplinary ction short of dismissal in respect of anemployee”     

WORKPLACE FORUMS

A Workplace Forum is a committee of employees elected to representall employees in the workplace .This committee meets regularly  with employees to discuss and try to reachagreement on issues which affect them.

SETTING UP A WORKPLACE FORUM

Workplace Forum can only be set up in a workplace where there are more the 100 workers Only one union  which has majority members in the workplace can apply for set up a workplace forumTo set up Workplace forum the Union must apply for to the CCMA .The commissioner will assist the Union and the management to set u a Workplace Forum and The commissioner will help the parties draw up a constition for the workplace forum .After the constitution has been agreed the commissioner will set up the first election  

HELP FROM OUTSIDE

The workplace Forum can bring outside experts to help them on any matter .This expert must be given any relevant information the workplace forum  is entitled to.

RETRENCHMENTS

Dismissals for operational reasons

Employers must consult the workers/unions

Employers and the union must attempt to reach agreement

The Employers must give information