An employer may look to demote an employee as an alternative to dismissal after The Labour Court in Braamfontein on Friday heard an urgent application by the union seeking an order that will prevent the SABC from going ahead with its plans to reduce its workforce. Rules. The application of Tanzania Employment & Labor Relations Act (2004) in regard to unfair dismissal was also cited by this paper so as to enhance the relevancy of the findings and recommendations made. This action constitutes a demotion with prejudice because of your [e.g., neglect of supervisory responsibilities, unacceptable conduct in your supervisory capacity, etc.] It’s difficult to prove constructive dismissal - not many claims win. 18 Mar 2020 1:45 pm. Accordingly, Constructive Dismissal cannot be claimed by an Employee who resigned for other reasons, including but not limited to, finding alternative employment, deciding to pursue a different career path or venturing into the world of entrepreneurship. You’ll also need to work out how much money you might get. 49 (2003) 24 ILJ 662 (CCMA) 50 (2002) 11 BLLR 1081 (LC) 51 The Labour Relations Act No. 6 of 1995, South Africa 52 Jooste v Transnet Ltd t/a South African Airways Page | - 19 - Voluntary resignation of an employee, merely to avoid appearing at the disciplinary process, may not necessarily constitute constructive dismissal (Claassen, 2014). An employee will have to prove that there was a dismissal and the employer will then have to prove that the dismissal was fair (failing which the dismissal will be considered unfair). when the dismissal of an employee for misconduct or incapability is appropriate. Unfair suspension of an employee or any other disciplinary action short of dismissal Example: Date updated: April 2020 You must start your claim for unfair dismissal within 6 months from the date of the dismissal. To qualify to bring a claim for unfair dismissal, you must meet the following requirements relating to time limits, length of service, employment status and fact of dismissal.. Time limits. This entry was posted on 30 Dec 2020,08:07AM at 8:07 AM and is filed under South Africa. It allows them to explain clearly what improvement is needed and should give you an opportunity to put your side of the situation A demotion in another case also justify the claim of constructive dismissal. When a senior-level executive isn't meeting expectations in his job performance, it's in the company's best interests to address the situation … While the arbitrator accepted this as a valid reason, the demotion was still unfair because the employer had failed to consult with the employee before making the offer. An agreed demotion may still be unfair. 9 The Republic of South Africa Act 200 of 1993 was replaced by the Constitution of the Republic of South Africa Act 108 of 1996 (the South African Constitution). Day 2 - Ncume - An Employer's substance abuse policy and cannibas ... Day 3 - Bolli - Unfair dismissal and discriminatory practices in Mauritius >> Download File. Send a dismissal letter to the employee after the termination meeting with return receipt requested, or hand the dismissal letter to the employee at the end of the meeting. Labour law and advice for employees on retrenchments, unfair labour practices, harassment, salary disputes, discrimination etc. Dismissal is when your employer ends your employment - reasons you can be dismissed, unfair and constructive dismissal and what to do if you're dismissed Senior executives should be strong leaders and examples for other staff members. As can be seen from the above, there is sufficient support for the view that alternatives can be implemented unilaterally by employers. Muela Hydropower Project Contractors and four others (1997), the Labour Court, basing itself on the ILO Convention 158 and case law of South Africa, ruled that as a matter of precedent, "an employee earmarked for retrenchment must be notified in good time of the intended action and consulted on alternatives". promotion, demotion, probation or training of an employee or the provision of benefits Example: If all employees pass a test and all except one are promoted, the employer might be guilty of unfair conduct against that employee. Demoting a Senior Executive. With some employees also opting to self-quarantine, there are a number of labour law considerations that South African businesses will have to … In Jooste v Transnet Ltd t/a South African Airways, it was held that, ... and provided a sufficient basis for a claim of constructive dismissal. They’re rich, well-researched and easy to customize. In such a case the dismissal is a dismissal that could have been avoided. Day 2 - Bono - Future of dispute resolution in South Africa >> Download File. By Jonathan Jones, Director, Norton Rose Fulbright The Labour Appeal Court has confirmed that even if an employee has consented after an enquiry to a demotion as an alternative to dismissal, the demotion may still be unfair. Demotion as an alternative to retrenchment. The mere presence of the coronavirus in South Africa does not constitute a valid reason to stay away from work. disciplinary procedure is sometimes the best way for your employer to tell you when something is wrong. Serious safety breach – forklift Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243]. The discussion focuses upon three major concerns in the law on unfair dismissal: (1) a comparison of the British require-ment of "reasonableness" in dismissal cases with the American arbi-tration requirement that there be a "just cause" for dismissal; (2) a Both employers and employees in South Africa need to bear in mind the principle in our labour law that protects employees from being forced into resigning. A mandate over South-West Africa was conferred upon the United Kingdom, "for and on behalf of the government of the Union of South Africa", which was to handle administrative affairs under the supervision of the league. Note: Despite a finding that there was a valid reason for the dismissal, in all of the circumstances the dismissal was found to be harsh. The Commissioner then has to decide to either dismiss the employee’s claim or grant it in full or partly. The dismissal letter documents the meeting for the employee and becomes part of the employee's personnel file. 10 The values of equality and dignity are mentioned in sec 1 of the South African Constitution and rights to equality and dignity are specifically protected in sees 9 and 10. A dismissal that could have been avoided but was not avoided is a dismissal that is without a fair reason ’ (my italics). You might be able to solve your problem without resigning. University of South Africa v Reynardt [2010] ZALAC 9 – unfair implementation of an affirmative action plan, once the targets have been met 2009 Director General of the Department of Labour v Comair Limited [2009] ZALC 78 – review of the Director General’s public powers if an employer is non-compliant with its obligations in terms of the EEA Courses are accredited in SA & Internationally by the ADR International Register, as well as the South African Association of Mediators (SAAM).Accreditation by a governing body is a key requirement to becoming a mediator. In another case, even though here the employer had a valid reason to offer the employee an alternative post at a lower salary, as it lost a major contract, the arbitrator still regarded the demotion as unfair. We assist our members in the CCMA and Labour Court to … Resigning for the aforementioned reasons have no basis in a Constructive Dismissal claim. The ADR International Register administrates a global standard in the Alternative Dispute Resolution industries. A lot of people think resigning and claiming constructive dismissal is a good option for dealing with problems at work. In Plaatjies vs RK Agencies (2005, 1 BALR 77) the employer offered the employee an alternative post at a lower salary due to the fact that the employer had lost a major contract. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. Based on work performance. You can follow any responses to this entry through the RSS 2.0 feed. A number of international and local companies have requested that their employees work from home due to the dire consequences of the COVID-19 coronavirus pandemic. 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