This month's employment briefing highlights ten procedural
steps that often get overlooked by employers, which ultimately may
jeopardise the entire case.
According to section 37(2) of the Employment and Labour
Relations Act, 2004 (the "ELRA"), a termination of
employment by an employer is deemed unfair if the employer is
unable to prove that:
- the reason for the termination is
valid;
- the reason is a fair reason; and
- the employment was terminated in
accordance with a fair procedure.
In our experience at the Commission for Mediation and
Arbitration ("CMA"), it is a far greater challenge to
prove that fair procedure was adhered to than to prove the fairness
and validity of a reason for termination of an employment contract.
This is due to a lack of codification, and the technical nature of
some of the procedure.
