12 JANUARY 2012
For those who have just arrived back at work, welcome back and we wish you a great 2012, may it be healthy and prosperous.
We are expecting a massive strike season in the months of June / July 2012 and we are expecting the amendments to the Labour Law to be tabled at the first sitting of parliament during 2012.
The CCMA has published guidelines on how to run arbitrations at the CCMA and anyone who is running their own arbitrations would be well advised to read them and to fully understand the import of the structure of these guidelines. There is going to be a lot more pressure on arbitrators to reinstate employees and should the dismissal be found to be incorrect in its merits, the arbitrators have been enjoined to follow the core value of the Labour Relations Act i.e. the security of employment. It is absolutely imperative that whenever a dismissal takes place the employer should very carefully look at both legs of this dismissal, i.e. the procedure (how it is done via a disciplinary hearing or consultation) and the merits (why the dismissal took place). In order to be successful in an arbitration, the employer has to discharge the onus to show that the reason for dismissal is good and that the process in effecting the dismissal is in line with both the Labour Relations Act and the CCMA Guidelines.
There have been a few cases with regard to Trade Union liability to damage done during the course of a legal or an illegal strike. There is going to be more liability placed on Trade Unions and it looks like employers will be pursuing the Trade Unions for any damages in the future. Contingency plans by employers should be fully in place before June or before the wage negotiation season. Once a legal strike has been declared and management have received notification of the commencement of the strike, the management may legally embark upon a lockout enabling the management to bring in scab labour to perform the employees duties whilst the strike persists. Normally employees are not paid whilst out on strike but their jobs are protected if the strike is legal. Any bad behavior committed whilst on strike must be witnessed by individuals or filmed, or in some way recorded. This bad behavior will lead to disciplinary hearings which could lead to dismissal even if the strike action was legal.