DISMISSAL FOR LATE COMING
In a recent decision of the Bargaining Council, the employer’s termination of the employee’s employment as a result of his continuous late coming was declared unfair. The employee had a medical condition of which the employer was aware and which required him to use unreliable public transport to get to work. The employer did not accommodate the employee and the termination was declared unfair.
Legal representation in termination disputes arising out of alleged misconduct or poor performance is not allowed. That provision of the Labour Relations Act has since been declared invalid but the declaration has been suspended for 36 months.
In the interim, yet again the CCMA has been tasked with a challenge to this Rule. The CCMA Commissioner found that the Promotion of Administration of Justice Act applies and that if a matter is both serious and complex legal representation is warranted.
The Bargaining Council has held that the purpose of a final warning is to communicate to the employee that he or she is on the threshold of dismissal and that if they should in the future transgress the employer’s disciplinary code any sanction less than a termination of the employment would be contraindicated.
DO WARNINGS EXPIRE?
Although there is no rule as to when a warning would expire and each individual employer may have its own workplace regulation, these regulations must be consistently applied. A warning which has lapsed i.e if a warning is to remain valid for 6 months and this is the 7th month may still be referred
to in a Disciplinary Hearing if only to show that progressive discipline has been applied.
When an employer requested that his employee report to the office and explain why he had arrived late for work, the employee refused. This refusal constituted the grounds of a disciplinary action against the employee. The employee showed no remorse and was openly defiant of the employer. The termination of his employment was determined fair.
WHAT DOES REINSTATEMENT MEAN
When the CCMA or Labour Court orders reinstatement it means that the employee is to be restored to the position that he/ she was prior to the termination of employment. It does not mean the conclusion of a new contract of employment.