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Strong labour law protection is sometimes hurtful to employers

by , 26 February 2015
Here in South Africa, labour law tends to protect the employee more than the employer. Especially when it comes to firing someone who deserves to be fired.


Here are just a few of the obstacles employers encounter when they try to dismiss the employees who deserve to be be fired:

Here's why it's so hard to fire an employee in South Africa

Labour expert, names the following challenges

-    A plethora of procedures must be followed before a dismissal can be considered to be fair;

-    There is stringent and numerous criteria for deciding whether the reason for a dismissal is fair;

-    Broad discrepancy between judges and arbitrators as to the interpretation of the labour law;


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- Make sure your HR policies and procedures are appropriately aligned to labour legislation;
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- The areas and level of risk there is in terms of non-compliance within your company.

With the recent labour law changes and the hefty in creases in penalties for non-compliance, it has become more critical than ever to ensure that HR is fully aligned to the changes in the laws.

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-    The provision that, where a dismissal is judged to be unfair, the arbitrator may reinstate the employee or impose a heavy compensation order of up to 24 months' pay in some cases against the employer;

-    The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this it's still required to present its case first at the unfair dismissal hearing; and

-    Despite the fact that many employers don't have the expertise to defend cases at the CCMA, the law makes it difficult for them to use legal experts as representatives.

As a result, to protect themselves from situations like these, employers have gotten into the habit of signing more and more fixed-term contracts. At the end of the established period of time, if the employee is considered to be unsuitable for the job, the employer won't sign a new contract.

Due to several cases brought to the law instances, impending legislation may ban the use of fixed-term contracts except in cases where the employer can prove that the job itself is temporary.


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