Here’s how to legally avoid being taken to the CCMA if Nathan is unhappy about being dismissed

Simangele Mzizi, Fsp Business, 06 Oct. 2014

Tags: pre-dismissal arbitration, arbitration, ccma

Your employee Nathan, commits misconduct.

Because you understand the importance of implementing discipline in a legal manner, you follow your own disciplinary procedure and hold a disciplinary hearing before you dismiss him.

However, even though you held a hearing and even an appeal process, Nathan is unhappy about his dismissal and he takes you to the CCMA.

This means you have to prepare for a CCMA case and evidence will have to be heard all over again before the Commissioner rules on whether or not you acted fairly in dismissing Nathan.

Tedious isn’t in?

Well, there’s a way to avoid this process altogether.

Read on to find out how to legally avoid being taken to the CCMA if Nathan is unhappy about being dismissed.

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To avoid being taken to the CCMA if Nathan is unhappy about being dismissed, have a pre-dismissal arbitration

That’s right.
Pre-dismissal arbitration is a process where you ask the CCMA (or a bargaining council that’s accredited) to hold an arbitration concerning your employee’s conduct or capacity before you dismiss him.
So instead of holding a disciplinary hearing before you dismiss Nathan, you can use a pre-dismissal arbitration. It will replace your in-house disciplinary enquiry, internal appeal procedure, conciliation and further arbitration.
At a pre-dismissal arbitration, the Arbitrator will decide for you whether Nathan has committed misconduct. He will also decide whether dismissal or some other penalty or ruling is appropriate. The decision has the same effect as a CCMA arbitration award.
This means, if the verdict is dismissal and Nathan is unhappy about it, he can’t refer a dispute to the CCMA alleging unfair dismissal or unfair labour practice. The only way to challenge the decision would be a review to the Labour Court on one of the grounds for review.
Here’s the bottom line: There’s a way to legally avoid being taken to the CCMA if Nathan is unhappy about being dismissed. It’s in pre-dismissal arbitration.

PS: For more information on pre-dismissal arbitration, check out the Labour Law for Managers Loose Leaf Service.

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