By MICHAEL BAGRAIM, Consultant at Bagraims Attorneys
Statistics put out by the CCMA reveal that almost 80% of cases referred to the body relate to cases of unfair dismissal. In Michael’s experience, many of these have arisen because the employer messed up the processes required. The changes to the legislation should have a positive impact in this regard since the process will be clearer and simpler.
Proposed changes to the Labour Relations Act (LRA) take account of the needs and challenges of the small business environment in our country, and should provide much-needed relief to the on-the-ground reality of employment issues small businesses face.
Well-known Cape Town labour lawyer and DA MP, Michael Bagraim, explains that new regulations relating to Schedule 8 of the Act were gazetted by the Department of Employment and Labour in January this year. The changes are available for public comment until 22 March. Michael encourages small business-owners and organisations working in the field to take up the opportunity to comment since the proposed changes “could be a game-changer for small businesses and their willingness to employ staff”.
As Michael explains, “Since the LRA was introduced in 1996, the regulations regarding the dismissal or retrenchment of an employee have not been revised. The processes that were built up over many years have led to a situation in which it has become extremely onerous for an employer to dismiss a worker, and a small business employer essentially is treated in the same way as a corporate employer, even though the small business does not have vaguely the same resources or expertise available
as the corporate business has.”
The negative impact of these processes – which are largely seen in the processes applied by the CCMA (the Commission for Conciliation, Mediation and Arbitration), an independent body that resolves workplace disputes in South Africa – is seen in the fact that small businesses are reluctant to employ staff, rather opting where possible for the greater use of technology or mechanisation, or indeed through retarding the growth of the firm.
The changes would allow for a simple process when an employer needs to dismiss someone. In essence, it involves the employer considering two issues: the merits of the case; and whether what has been done has been fair. Michael believes that both of these can easily be thought through: “These are quite easy to apply. For the merits, the employer should give thought to what the person did wrong, and whether the infringement justifies dismissal. As for fairness, the employer should consider the process applied and ask whether, if the employer themselves were on the receiving end of such behaviour, they would regard it as fair or not. If not, then the process followed would probably not be deemed to have been fair.” Michael points out that core to the fairness issue is that the other party must have been allowed to tell their side of the story.
See the Government Gazette with the proposed changes here. You can comment on the proposed changes. Send an email to Kopano.kgatlhanye@labour.gov.za by mid-March 2025.
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