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Amended Labour Relations Act

by lloyd last modified 2010-08-30 05:09

188. Other unfair dismissals

Labour Relations Act (No. 66 of 1995 )
as amended by the
Amendment - Afrikaans Labour Relations Act 1998, Amendment - Labour Relations Act 1996, Amendment - Labour Relations Act 1998, Amendment - Labour Relations Act 2000, and  Amendment - Labour Relations Act 2002

Chapter 8 : Unfair dismissal and unfair labour practice


188. Other unfair dismissals

(1)           A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

 

(a) that the reason for dismissal is a fair reason-

 

(i)         related to the employee's conduct or capacity; or

 

(ii)        based on the employer's operational requirements; and

 

(b) that the dismissal was effected in accordance with a fair procedure.

 

(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

 

49.         See Schedule 8, the Code of Good Practice: Dismissal.

 

188A.  Agreement for pre-dismissal arbitration

 

(1)          An employer may, with the consent of the employee, request a council, an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee.

 

(2)          The request must be in the prescribed form.

 

(3)          The council, accredited agency or the Commission must appoint an arbitrator on receipt of –

 

(a) payment by the employer of the prescribed fee; and

 

(b) the employee’s written consent to the inquiry.

 

(4)           

(a) An employee may only consent to a pre-dismissal arbitration after the employee has been advised of the allegation referred to in subsection (1) and in respect of a specific arbitration.

 

(b) Despite subparagraph (a), an employee earning more than the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, may consent to the holding of a pre-dismissal arbitration in a contract of employment.

 

(5)          In any arbitration in terms of this section a party to the dispute may appear in person or be represented only by –

 

(a) a co-employee

 

(b) a director or employee, if the party is a juristic person

 

(c)  any member, officer bearer or official of that party’s registered trade union or registered employers’ organisation; or

 

(d) a legal practitioner, o agreement between the parties.

 

(6)          Section 138, read with the changes required by the context, applies to any arbitration in terms of this section.

 

(7)          An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to –

 

(a) the secretary of the council, it the arbitration is held under the auspices of the council;

 

(b) the director of the accredited agency, if the arbitration is held under the auspices of an accredited agency.

 

(8)          The provision of sections 143 to 146 apply to any award made by an arbitrator in terms of this section.

 

(9)          An arbitrator conducting an arbitration in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, direct what action, if any, should be taken against the employee.

 

(10)       

(a)   A private agency may only conduct an arbitration in terms of this section if it is accredited for this purpose by the Commission.

 

(b)   A council may only conduct an arbitration in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for this purpose by the Commission.


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