'n Regsvergelykende studie van die minimum prosedurele vereistes vir die billike ontslag van 'n werknemer op grond van wangedrag

[摘要] English: The South African labour law stands central to the economic development of South Africa and the relationship between employer and employee is therefore very important. The dismissal of an employee is the strictest possible sanction in the workplace. It does not only end the service relationship, but also deprives the employee of his source of income. The status of the person changes from being an employee and breadwinner to being unemployed and dependent. This holds economic and social consequences not only for the individual, but also for the economy of the country. The fairness of the employee's dismissal is therefore crucial. The Constitution of the Republic of South Africa reconfirms the importance hereof by the right to fair labour practices �?a right everyone is entitled to. This right is included in the Labour Relations Act of 1995 and especially in the principle that everyone is entitled not to be dismissed unfairly. Focus areas dicussed in this thesis are the importance of and the manner in which discipline is applied in the workplace, as well as the principle of procedural fairness within the international area. This thesis discusses the international debate on fairness and considering various interests against the background of legislation, application and exclusion. The development of the notion of 'fairness is discussed within the South African context, before focusing on procedural fairness in the workplace. The individual employee's rights and the employer's responsibility during disciplinary processes are dicussed in this thesis. The specific focus of this study includes the following aspects of a fair process: �?the employee should know what the charge against him entails; �?the employee should receive a fair opportunity to prepare himself; �?the employee should get the opportunity to state his side of the case and to put questions to witnesses of the employer; �?the employee has the right to receive assistance during the process; and �?the employer should notify the employee of the decision in writing. This study recommends that employers should revise their internal codes to fulfil the objectives of the Labour Relations Act, Schedule 8, Item 4 and to simplify the total disciplinary process in the workplace without parting with the principles of fairness, and also that legal representation should be allowed. The recommendation is that a new category should be created for small business employers in order to simplify the dismissal process and that employees are excluded for the first 12 months of service, and therefore cannot claim against the employer. A Code of Good Practice for dismissal in a small business and a control form to be completed by the employer were created. It is also suggested that the model for renumeration after dismissal should be adapted in cases where either the employer or the employee did not comply with the internal procedures and that cost orders at the CCMA/councils should be reinvestigated to avoid abuse. Dismissal has been and always will be an action in dispute. Therefore, the process should be clear and should give the necessary direction, in order to ensure that workplace disputes can be settled within an open and democratic society, within the framework of the Constitution.

[发布机构] University of the Free State