Item 92 of the CCMA's draft Guidelines: Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, they should be able to show that the employee's offence was so serious that it made "a continued employment relationship intolerable".
Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer's property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss.
This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
• Mitigating circumstances such as the employee's length of service, previous disciplinary record, personal circumstances and others.
• The nature of the job in that, for example, while sleeping on the job might be most serious for a security guard, it may not merit dismissal for a backroom clerk.
• Other circumstances attached to the case such as whether the security guard fell asleep because he or she had to work a double shift without a break, which could render dismissal too harsh a penalty.
In the case of Humphries & Jewel (Pty) Ltd v FEDCRAW & others (CLL Vol 15 No 10, May 2006) the Labour Appeal Court found that "The relationship of trust, mutual confidence and respect which underlies the employment relationship" were at issue.
"Unless there are facts that show that the employment relationship was not detrimentally affected by the employee's misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship."
However, the concept of "intolerability" is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation.
This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh.
They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness.
The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer from having to continue a relationship with the employee.
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I react on a internet vacancy and after the interview I've got the job. But I ask since January for a workers agreement without success. My employer said to me yesterday that he wont give me a agreement as I am not working for him but for myself. I earned commission for stands I sold but he subtracted over R40 000 for marketing costs. That was not told to me in the interview. He doesnt subtract LBS from me as he stated that I work for myself and I have to arrange it with SARS. What can I do to protect myself and not sitting on the street when he decide he wants me to leave.
ReplyDeleteHi Ina,
ReplyDeleteCan we safely deifne you as an employee. The law defines employees under Section 213 of the Labour Relations Act as :
"employee "54 means –
(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee";
There are further definitions under section 200(A) as follows:
. Presumption as to who is employee
(1) Until the contrary is proved, a person, who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;
(e) the person is economically dependent on the other person for whom he or she works or renders services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
If any of the above applies to you, you are subjected to an employment relationship, contract or not. you are deemed a permanent employee, even in the absence of the employment contract, the Basic Conditions of the Employment Act, by default, applies.
nkel@vodamail.co.za
0711 904 636
N. Kellerman
Contact me for any further assistance.