Dismissals – procedure for success
Human resource management in any business is such an important job. Your employees are a valuable resource to your company in the same way that a chemical resource is important to a soap manufacturer, if not more so. The HR department has important roles in the success of any business in its current position as well as when it grows. There are many acts and laws that HR practitioners need to follow. The Employment Equity Act looks at reducing unfair discrimination and ensuring that companies comply with the country’s demographics. The Basic Conditions of Employment Act, as the wording suggests, details the minimum rights that an employee has. For example an employee may have more than 15 working days leave (21 consecutive leave days), but no less. The Skills Development Act sets criteria for interactions with the SETAs. One of the most important acts in the HR world is the Labour Relations Act. The Labour Relations Act governs unfair dismissals and the procedure with which an employee may approach the CCMA with a case against his/her employer. These many acts, which are only a handful of other acts that guides one with the running of a company, can be rather difficult to navigate and one small wrong move may have disastrous financial implications for your company. For example if you are in the unfortunate position where you have an under performer and would like to dismiss them, if the procedures are not followed correctly the employee may have a case against you at the CCMA.
The CCMA (Commission for Conciliation, Mediation and Arbitration) has been set up to try and facilitate repairing the relationship between an employee and employer once the relationship has turned sour. Unfortunately every company at some stage has had a CCMA case. The difficulty about the CCMA is that the preparation that employers need to do far surpasses the preparation that employees need to do. Your company must be able to prove all its actions were justified and that no discrimination took place. Not following procedures, lack of preparation and document gathering may result in a lost case.
The key is to learn about the legislation so that you know what you are allowed to do and what you are not allowed to do. If you have followed the correct procedures and compiled your file of evidence then you won’t have any issues with an unfair dismissal.
Part of the correct procedures include giving sufficient training and guidance to employees with careful monitoring and evaluations on an on going basis as well as decent communication. Communication for under performers is critical. It is imperative that a staff member knows that they are not performing and why. Corrective action needs to be taken to improve the employee – dismissing the person is the last resort.
If you have dismissed somebody and they took you to the CCMA where you lost the case, the recently amended Labour Relations Act makes it more difficult for employers to challenge CCMA arbitration awards. The amendments to the Labour Relations Act 66 of 1995 provide that security in the form of compensation awarded in terms of an arbitration award must be furnished and/or ; in the cases of retrospective re-instatement, 24 month’s salary must be furnished prior to launching a review application in the Labour Court. Costly losses at the CCMA, plus the 24 months of the employee’s salary in the case of a review application seem like the old saying of “prevention is better than the cure” is even more evident.
For example if you don’t follow the correct procedure when dismissing 10 members of staff earning R20 000 per month and end up losing at the CCMA. You will be required to lodge R2.4 million rand with the Labour Courts before they will look at your appeal. It is best to follow all the correct procedures.