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MAJOR LEGAL CHANGES ALARM EMPLOYERS


This is the first in a series of articles on changes and dangers in labour law.

Over the past year the Department of Labour has introduce new legislation with far reaching significance for employers. These major amendments have increased the already powerful stranglehold that legislation has on productive business management and employment creation.

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PROVING FRAUD REQUIRES HIGH LEVEL SKILLS


Workplace fraud, by its nature, is a secretive act. It is a type of dishonesty that is normally committed in such a way that its very existence is concealed. Collins Concise Dictionary defines fraud as “deliberate deception, trickery or cheating intended to gain an advantage”. This means that those frauds for which employees have been caught are likely to be only the tip of the iceberg. As shown in the Rope constructions case reported later in this article, even apparent frauds discovered by employers may go unpunished because of lack of proof that the accused was in fact the fraudster.

In order to prove fraud the employer must show that the accused employee was the one who committed the act and that he/she did so for gain. However, such gain would not have to be confined to direct financial advantage. The fraud could be committed for the advantage of a friend or family member or could be a means towards gaining the perpetrator a job. For example, claiming false qualifications for a job would be fraudulent in the sense that the job applicant would be gaining employment based on a lie.

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FORMAL VS INFORMAL DISCIPLINARY HEARINGS


The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for a right to be heard in the statute. That is, section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Important elements of this quote include:

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BEWARE DISMISSALS BASED ON SPITE


We are all human and can be subject to emotional decision making. That said, when it comes to business decisions should always be made on the facts at hand as they pertain to the business. Knee-jerk reactions based on emotions can lead quickly down a slippery slope.

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DISMISSALS UNFAIR IF EMPLOYMENT RELATIONSHIP STILL TOLERABLE


Schedule 8 of the Labour Relations Act (LRA) says that dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.

While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:

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