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Do you want to change the terms of your employment contracts? Stop! You canʼt force employees to sign it!

by , 21 January 2016
Have you changed some of your terms and conditions of employment? And now you want to dismiss employees for not accepting them? Stop! If you fire your employee, this will be automatically unfair and you'll find yourself in hot water at the CCMA!

Don't dismiss employees for this, or any one of these 7 reasons because it's automatically unfair (Section 187 of the Labour Relations Act 66 of 1995).

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Don't dismiss an employee for one of these 8 reasons, it's automatically unfair!

It's an automatically unfair dismissal if you fire an employee for any one of these reasons, so don't do it:
  1. Don't dismiss an employee for not accepting new terms and conditions of employment
  2. You mustn't dismiss an employee for belonging to a union or workplace forum
  3. Don't victimise an employee for actions he's legally obliged to do
  4. You can't dismiss employees who are on strike
  5. Don't dismiss employees who refuse to do the work of striking workers
  6. Never dismiss an employee due to pregnancy
  7. You can't dismiss employees if you transfer your business as a going concern
  8. Don't dismiss someone for being a whistleblower

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So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
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So what will you have to pay if a dismissal is automatically unfair?

If you dismiss an employee and the reason is automatically unfair, you may have to:
  • Reinstate him to his position within your company; and
  • Pay compensation of a maximum of 24 months' remuneration based on his rate of remuneration at the time of dismissal. This means you need to have a final counselling session that will be a fair hearing. You can't just dismiss him.
But none of this means you can't dismiss an employee because of his conduct, capacity or your operational requirements. You must just follow fair procedure and make sure you dismiss him for the right reasons!



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