The South African labour law stands central to the economic development of South
Africa and the relationship between employer and employee is therefore very important.
The dismissal of an employee is the strictest possible sanction in the workplace. It does
not only end the service relationship, but also deprives the employee of his source of
income. The status of the person changes from being an employee and breadwinner to
being unemployed and dependent. This holds economic and social consequences not
only for the individual, but also for the economy of the country. The fairness of the
employeeâs dismissal is therefore crucial. The Constitution of the Republic of South
Africa reconfirms the importance hereof by the right to fair labour practices â a right
everyone is entitled to. This right is included in the Labour Relations Act of 1995 and
especially in the principle that everyone is entitled not to be dismissed unfairly.
Focus areas dicussed in this thesis are the importance of and the manner in which
discipline is applied in the workplace, as well as the principle of procedural fairness
within the international area. This thesis discusses the international debate on fairness
and considering various interests against the background of legislation, application and
exclusion. The development of the notion of âfairnessâ is discussed within the South
African context, before focusing on procedural fairness in the workplace.
The individual employeeâs rights and the employerâs responsibility during disciplinary
processes are dicussed in this thesis. The specific focus of this study includes the
following aspects of a fair process:
⢠the employee should know what the charge against him entails;
⢠the employee should receive a fair opportunity to prepare himself;
⢠the employee should get the opportunity to state his side of the case and to
put questions to witnesses of the employer;
⢠the employee has the right to receive assistance during the process; and
⢠the employer should notify the employee of the decision in writing.
This study recommends that employers should revise their internal codes to fulfil the
objectives of the Labour Relations Act, Schedule 8, Item 4 and to simplify the total
disciplinary process in the workplace without parting with the principles of fairness, and
also that legal representation should be allowed.
The recommendation is that a new category should be created for small business
employers in order to simplify the dismissal process and that employees are excluded
for the first 12 months of service, and therefore cannot claim against the employer. A
Code of Good Practice for dismissal in a small business and a control form to be
completed by the employer were created. It is also suggested that the model for
renumeration after dismissal should be adapted in cases where either the employer or
the employee did not comply with the internal procedures and that cost orders at the
CCMA/councils should be reinvestigated to avoid abuse.
Dismissal has been and always will be an action in dispute. Therefore, the process
should be clear and should give the necessary direction, in order to ensure that
workplace disputes can be settled within an open and democratic society, within the
framework of the Constitution.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-10042011-112211 |
| Date | 04 October 2011 |
| Creators | Deacon, Hendrik Jacobus |
| Contributors | Prof JV du Plessis |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-10042011-112211/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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