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Legal 2

LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS

Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed … the assistance of a trade union representative or fellow employee.”

It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.

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UNNECESSARY SUSPENSIONS CAN PROVE COSTLY


Employees are suspended from duty for different reasons that may include:

  • One form of suspension is a temporary lay-off of employees due to operational circumstances. That is, during retrenchment consultations, either party may suggest temporary layoffs as an alternative to retrenchment. This might be implemented where the employees agree to the lay offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid but would still be employees of the employer. 

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EMPLOYERS MUST TAKE MITIGATING CIRCUMSTANCES SERIOUSLY

Even where it has been proved beyond any doubt at arbitration that an employee has committed an extremely serious offence, the employer will not have discharged its legal duty to prove that the employee deserved to be dismissed.

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GAPS IN THE LRA LEAVE PARTIES GUESSING


In the mid 1990s the old labour legislation was repealed and was replaced by our current Labour Relations Act (LRA) negotiated between government, employers and trade unions. Due to the fact that parties had substantially different agendas they were often unable to agree on a number of important details of law which were therefore omitted from the LRA. Some detail as to the intention of the law is provided in the form of codes of good practice. For example, included in Schedule 8 of the LRA is The Code of Good Practice: Dismissal which guides parties as to procedures and principles that should be followed.

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Double jeopardy a danger for employees


This is the second in a series of articles on changes and dangers in Labour Law.
 
In the interests of fairness arbitrators and judges sometimes depart from the basic principles of law and look at the unique circumstances of the case. Double Jeopardy is just such a principle of law where exceptions may need to  be made. Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct or poor performance. Normally, such discipline would be found to be unfair. However, a second disciplinary process might be justified if the employer is able to present:

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