Chapter VIII: Unfair Dismissal
191. Disputes about unfair dismissals

See flow diagrams Nos. 10 , 11 , 12 and 13 in Schedule 4.

1. If there is a dispute about the fairness of a dismissal, the dismissed employee may refer the dispute in writing within 30 days of the date of dismissal to-

1. a council, if the parties to the dispute fall within the registered scope of that council; or

2. the Commission, if no council has jurisdiction.

2. If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the 30-day time limit has expired.

3. The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer.

4. The council or the Commission must attempt to resolve the dispute through conciliation.

5. If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved-

1. the council or the Commission must arbitrate the dispute at the request of the employee if-

1. the employee has alleged that the reason for dismissal is related to the employee's conduct or capacity, unless paragraph (b)(iii) applies;

2. the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or

3. the employee does not know the reason for dismissal; or

2. the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-

1. automatically unfair;

2. based on the employer's operational requirements;

3. the employee 's participation in a strike that does not comply with the provisions of Chapter IV; or

4. because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

6. Despite subsection (5)(a), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-

1. the reason for dismissal;

2. whether there are questions of law raised by the dispute;

3. the complexity of the dispute;

4. whether there are conflicting arbitration awards that need to be resolved;

5. the public interest.

7. When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.

8. The director must notify the parties of the decision and refer the dispute-

1. to the Commission for arbitration; or

2. to the Labour Court for adjudication.

9. The director's decision is final and binding.

10. No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.

11.  

1. The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.

2. However, the Labour Court may condone non-observance of that timeframe on a good cause shown.