A dismissal can take a number of forms. These categories are dismissals for misconduct, incapacity (ill health or poor performance) and operational requirements. In addition, a dismissal can also be automatically unfair. In the latter category, it is not necessary to prove that a dismissal is unfair. (Read this article to find out how you can prove fairness in a disciplinary procedure.)
Automatically Unfair Dismissals: Unpacked
There are a number of types of automatically unfair dismissals that can take place in a workplace. These are an employee being dismissed because of, for example:
- Their right to freedom of association,
- They refused to do the work of a striking employee,
- A section 197 transfer ,
- The Protected Disclosures Act 2000.
What Does A Dispute Resolution Process Look Like?
When any dispute raises its head in your organisation, you need to attempt to resolve this with internal procedures in your company. (Note that you need to apply these consistently as, if you don’t, you could face fines and the like.)
If the dispute is not resolved through internal disciplinary procedures, the dispute will be taken to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council. (The latter will only be applicable if your company is a unionised environment.)
Disputes surrounding dismissals must be referred for conciliation within 30 days. This is from the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal. All other disputes must be referred to mediation within a reasonable time. There is a prescribed 90-day time limit for the referral of a dispute to arbitration or to the LC if conciliation fails.
The dispute that is referred to the CCMA will be either a dispute of right or a dispute of interest:
- A dispute of right is based on a legal or contractual right.
- A dispute of interest is not based on an existing right. Employees, or their unions, approach their employers to establish a new right. If the employer does not want to/cannot give the employees what they want these employees are free to exercise their right to strike.
Sign up for Global Business Solutions’ Arbitration Presenters’ Course where you will be able to advance your understanding of dispute resolution.