Employees legal position

21/08/2024

Shout out to my newest followers! Excited to have you onboard! Issa Mapukata, Entleibali Francina, Itumeleng Letsoalo

29/05/2024

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28/05/2024

Voting is a fundamental right.

before you go vote. Don't forget your SA ID, and vote at your registered station. One ballot, one mark. Learn more: https://bit.ly/3Rld2ZF

28/05/2024

Suffarage:
noun
1. The right to vote in political elections.

Voting is a powerful tool, therefore never undervalue your ability to cast one.

28/05/2024

Consult before making a decision.

09/05/2024

Here is another trivial question people might need answers too.
Questions
Can you demand a letter of recommendation from your former employer, who has dismissed you?
Legal question
In the ordinary sense of the law, can an employee who has been dismissed request a letter of recommendation as a remedy in conjunction with an order of compensation?
Currently, an employee who has been unfairly dismissed may seek compensation, reinstatement or re-employment (performance order), or either of the above.
Let's talk about the settlement agreement concluded in Conciliation.
The legal question of whether an employee can effectively use a settlement agreement to acquire a letter of recommendation from the employer during the subsistence of conciliation proceedings. Since no law governs whether a letter of recommendation can form part of a settlement agreement, the only limitation a conciliator is bound by in drawing up a settlement agreement is that it must be legal or permissible in the ordinary sense of the law. As a result, a settlement agreement to that effect is binding on both parties. Put differently, a party can request a letter of recommendation to form part of a settlement agreement
How about in an Arbitration proceeding?
In arbitration proceedings, an arbitration award is regulated by the prescripts of the Labour Relations Act. According to the restrictions thereof, a performance act or compensation may be given in lieu of a substantively unfair dismissal. Hence, the question that emerges is whether an employee may ask for a letter of recommendation to be ordered as a performance requirement in addition to a compensation order in a dispute that involves a breakdown of the employment (intolerable relationship), provided that the dismissal has been shown to be substantively unfair.
As interesting as the question may sound, there is no law that allows the arbitrator to issue an arbitration award that is outside the scope of the LRA. Thus, such an arbitration award is reviewable.
Summary
In conciliation proceedings, parties are free to enter into a settlement agreement that compels an employer to issue a recommendation letter to his or her former employee. However, in arbitration proceedings, the opposite can be said and such an order is not binding upon parties irrespective of whether the dismissal is unfair.

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KME Mbuyisa (Founder)
BA, PGD Labour Law, LLB

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27/01/2023

https://www.facebook.com/100070255398257/posts/244150537936791/?app=fbl

Every employee has the right not to be unfairly dismissed or to be subjected to unfair labour practice. Read below information sheet to learn more on what is an Unfair Labour Practice, Automatically Unfair Dismissal, and the time-frame to refer disputes relating to the above. https://www.ccma.org.za/categories/info-sheets/

10/01/2023

CCMA's home page.
Click and scroll down to find referral forms.

The Commission for Conciliation, Mediation and Arbitration (CCMA) is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.

10/01/2023

Application for condonation for unfair dismissal cases

The CCMA has time-frames in which you can refer a dispute.
The time-frames may vary from the date on which you were aware of your dismissal and the date on which you dismissal was effected.
In the event that a prospective applicant fails to apply for conciliation before that time-frame, he or she is required to apply for condonation.
Condonation is a preliminary hearing, which may be done on paper if unopposed or set down for a hearing.
In the event that the conciliator or any other party recognises that condonation was not dealt during proceedings. Those proceedings must be put to a stop and allow the applicant to make a formal application for condonation. ( Failure to apply for condonation denies the CCMA jurisdiction to conciliate or arbitration)

10/01/2023

LRA for 7.13 ( Request for Arbitration)

In the event that conciliation has failed and a certificate to that effect has been issued or the 30 day period has lapsed prior to the conclusion of conciliation, the applicant may apply for arbitration. ( please note that the fact that conciliation has failed does not automatically forward your dispute to the next stage "arbitration", the applicant is under obligation to apply for arbitration and failure to do so with the statutory time frames deems your application abandoned.)

10/01/2023

LRA Form 7.11
This forms enables applications for conciliation. (All disputes are conciliated before being referred to arbitration or adjudication.)
In the top left corner of this form, listed or itemised are all types of disputes the CCMA has exclusive jurisdiction to conciliate. ( Not all labour disputes may be referred to the CCMA.)

A payslip, salaries advise, copy of contract or any documents with the companies particulars [phone number, email, physical address, full name of the business " In the event being hired by an individual at his or her own capacity"]

Know the type of dispute you propose to bring before the CCMA, i.e unfair dismissal, unfair labour practice etc...