There is a report in Business Day this morning about the expulsion of Julius Malema – Julius Malema expelled from the ANC. View or download the report and see how many times words suggesting criminal conduct are used when what Malema did had nothing whatsoever to do with crime. If the ANC thought there was any criminal conduct they should have reported it to the police.
Malema is a member of a private body, the ANC, and has been found to have breached its constitution and rules. Where is the crime – defined as ‘A social harm that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceedings; also termed a criminal wrong’. A crime involves the idea of injury to the ‘State of collective community’.
Given the situation concerning Malema why did the ANC believe that what he is alleged to have done required him to be charged with an offence, found guilty and sanctioned with expulsion. Not only that but he was put on trial and now has another right to appeal against his sentence having previously failed in his appeal against his conviction.
In theory, but not necessarily in practice, labour law adopts a completely different approach. It is accepted that if employers believe a crime has been committed by an employee it should be referred to the police for investigation, prosecution and punishment.
Despite, or in addition to doing that, employers have the right to fairly dismiss employees without having to adopt a formal procedure and should never do what the ANC has done. The process is one of ‘dialogue and reflection’ and only obliges employers to provide the employee with a written statement of allegations and allow the employee the right to be heard (the hearing). There is no requirement of any trial and words like offence, charges, guilt, sentence and sanction simply confirm to an unbiased observer that the employer has no proper understanding of what is required in terms of the Labour Relations Act and the Code of Good Practice: Dismissal.
Employers need only allege or aver that upon investigation there are certain facts that need an explanation and provide the employee with a right to be heard. There is no right to appeal. Employers must show that the reason to dismiss is related to the employee’s conduct or capacity (usually poor performance), and that the relationship of trust or confidence has been seriously damaged or destroyed. If there is no definite proof of gross misconduct employers are obliged to notify the employee that the dismissal will take effect at least four weeks later.
In most instances the employer will simply pay the employee out instead of requiring the employee to work out the notice period.
If that is done the employer will have acted lawfully, validly and fairly, assuming that a fair procedure, as outline above, was followed.
It must again be stressed that there is only a need to allow the employee a right to be heard and no formal hearing is required, unless employers have bound themselves to do so by any form of agreement.
Good for you Graham and at least I seem to have converted one person to appreciating that employers are not ‘masters’ when it comes to transgressions by their ‘servants’. They are on the same level and employers must protect the business and not punish the employee.
There is a report in Business Day this morning about the expulsion of Julius Malema – Julius Malema expelled from the ANC. View or download the report and see how many times words suggesting criminal conduct are used when what Malema did had nothing whatsoever to do with crime. If the ANC thought there was any criminal conduct they should have reported it to the police.
Malema is a member of a private body, the ANC, and has been found to have breached its constitution and rules. Where is the crime – defined as ‘A social harm that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceedings; also termed a criminal wrong’. A crime involves the idea of injury to the ‘State of collective community’.
Given the situation concerning Malema why did the ANC believe that what he is alleged to have done required him to be charged with an offence, found guilty and sanctioned with expulsion. Not only that but he was put on trial and now has another right to appeal against his sentence having previously failed in his appeal against his conviction.
In theory, but not necessarily in practice, labour law adopts a completely different approach. It is accepted that if employers believe a crime has been committed by an employee it should be referred to the police for investigation, prosecution and punishment.
Despite, or in addition to doing that, employers have the right to fairly dismiss employees without having to adopt a formal procedure and should never do what the ANC has done. The process is one of ‘dialogue and reflection’ and only obliges employers to provide the employee with a written statement of allegations and allow the employee the right to be heard (the hearing). There is no requirement of any trial and words like offence, charges, guilt, sentence and sanction simply confirm to an unbiased observer that the employer has no proper understanding of what is required in terms of the Labour Relations Act and the Code of Good Practice: Dismissal.
Employers need only allege or aver that upon investigation there are certain facts that need an explanation and provide the employee with a right to be heard. There is no right to appeal. Employers must show that the reason to dismiss is related to the employee’s conduct or capacity (usually poor performance), and that the relationship of trust or confidence has been seriously damaged or destroyed. If there is no definite proof of gross misconduct employers are obliged to notify the employee that the dismissal will take effect at least four weeks later.
In most instances the employer will simply pay the employee out instead of requiring the employee to work out the notice period.
If that is done the employer will have acted lawfully, validly and fairly, assuming that a fair procedure, as outline above, was followed.
It must again be stressed that there is only a need to allow the employee a right to be heard and no formal hearing is required, unless employers have bound themselves to do so by any form of agreement.
Ahead of you on this one, although your previous blogs inspired my own. http://focussedoutcomes.co.za/?p=166 refers.
Good for you Graham and at least I seem to have converted one person to appreciating that employers are not ‘masters’ when it comes to transgressions by their ‘servants’. They are on the same level and employers must protect the business and not punish the employee.