All the answers to your unique business lifestage questions
The Basic Conditions of Employment Act applies to all employers and workers and regulates employment conditions such as leave, working hours, employment contracts, employee records, deductions, pay slips, overtime and termination.
If you do not abide by these policies the Department of Labour may fine you or sentence you to prison.
The Labour Relations Act
Labour law is such that many employers feel it is virtually impossible to fi re an employee without incurring the wrath of the Commission for Conciliation, Mediation and Arbitration (CCMA).
However, this is not necessarily the case. The Labour Relations Act states that you may dismiss an employee for the following reasons:
- Misconduct (the employee has done something seriously wrong).
- Unacceptable performance (the employee does not do the job properly).
- Incapacity (the employee cannot do the job properly due to illness or disability).
- Retrenchment (the employer is cutting down on staff).
Whatever the reason, if you dismiss an employee, the law states that it must be fair.
Fairness is decided in two ways:
Substantive fairness weighs up whether the punishment fits the crime. It examines whether the rule that was broken was valid and necessary; whether the employee knew the rule; whether you consistently applied the rule; and whether there were any mitigating factors.
Procedural fairness means that you must follow due process before dismissing an employee. This includes the following:
- You must warn the employee that his or her work or behaviour is unacceptable, and that he or she will be dismissed if it continues.
- The employee must understand the charges and be given enough time to prepare a defence.
- You must give the employee a chance to present his or her side of the story.
- The employee is allowed to ask a colleague to represent him/her, and must be given an opportunity to cross-examine any evidence.
An employee can take you to the CCMA if they feel that they have been unfairly dismissed, or to resolve other disputes under the Labour Relations Act.
The CCMA appoints a commissioner who will try to help you reach an agreement through conciliation (mediation). If you and your employee cannot agree, there will be a CCMA hearing (arbitration) or the matter will be referred to the Labour Court.