EXTRACTS FROM THE LABOUR RELATIONS ACT - Unfair Dismissals
185. Right not to be unfairly dismissed
EXTRACT FROM THE LABOUR RELATIONS ACT:
185. Right not to be unfairly dismissed
Every employee has the right not to be unfairly dismissed.
186. Meaning of dismissal
"Dismissal" means that-
187. Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is-
(ii) participating in any proceedings in terms of this Act;
(2) Despite subsection (1)(f)-
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-
(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.51
189. Dismissals based on operational requirements
(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-
(2) The consulting parties must attempt to reach consensus on
(3) The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to-
(4) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).
(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting.
(6) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
(7) The employer must select the employees to be dismissed according to selection criteria-
190. Date of dismissal
(1) The date of dismissal is the earlier of-
(2) Despite subsection (i)-
191. Disputes about unfair dismissals
(1) If there is a dispute about the fairness of a dismissal, the dismissed employee may refer the dispute in writing within 30 days of the date of dismissal to-
(2) If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the 30-day time limit has expired.
(3) The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer.
(4) The council or the Commission must attempt to resolve the dispute through conciliation.
(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved-
(6) Despite subsection (5)(a), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-
(7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.
(8) The director must notify the parties of the decision and refer the dispute-
(9) The director's decision is final and binding.
(10) No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.
192. Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
193. Remedies for unfair dismissal
(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-
(3) If a dismissal is automatically unfair or, if a dismissal based on the employer's operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances.53
194. Limits on compensation
(1) If a dismissal is unfair only because the employer did not follow a fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last day of the hearing of the arbitration or adjudication, as the case may be, calculated at the employee's rate of remuneration on the date of dismissal. Compensation may however not be awarded in respect of any unreasonable period of delay that was caused by the employee in initiating or prosecuting a claim.
(2) The compensation awarded to an employee whose dismissal is found to be unfair because the employer did not prove that the reason for dismissal was a fair reason related to the employee's conduct, capacity or based on the employer's operational requirements, must be just and equitable in all the circumstances, but not less than the amount specified in subsection (1), and not more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.
(3) The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.
195. Compensation is in addition to any other amount
An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.
196. Severance pay
(1) An employer must pay an employee who dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of this subsection.
(2) The Minister, after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (1) by notice in the Government Gazette.
(3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer is not entitled to severance pay in terms of subsection (1).
(4) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law.
(5) An employer or a category of employers may apply to the Minister for exemption from the provisions of subsection (1) as if the application is one in terms of the Basic Conditions of Employment Act and the Minister may grant an exemption as if it were an exemption granted in terms of that Act.
(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-
(7) The employee who refers the dispute to the council or the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(8) The council or the Commission must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount.
197. Transfer of contract of employment
(1) A contract of employment may not be transferred from one employer (referred to as "the old employer") to another employer (referred to as "the new employer") without the employee's consent, unless-
(2) (a) If a business, trade or undertaking is transferred in the circumstances referred to in subsection (1)(a), unless otherwise agreed, all the rights and obligations between the old employer and each employee at the time of the transfer continue in force as if they were rights and obligations between the new employer and each employee and, anything done before the transfer by or in relation to the old employer will be considered to have been done by or in relation to the new employer.
(3) An agreement contemplated in subsection (2) must be concluded with the appropriate person or body referred to in section 189(l).
(4) A transfer referred to in subsection (1) does not interrupt the employee's continuity of employment. That employment continues with the new employer as if with the old employer.
(5) The provisions of this section do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of, and sentenced for, any offence.
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