SCORPION ADVISES LUBALALO IS SAFE!

THE FACTS

Lubabalo Maketa from Kempton Park, Gauteng said he took part in a protected strike on 26 February although he was not  a union member.

The following day he was denied access to the company’s premises to resume his duties.

Instead he was given a notice for hearing and was charged with gross insubordination for taking part in the strike when he was not a part of the union. He attended a hearing on 9 March and was told to wait for an outcome.

After more than a week he was called to the office and given a letter of cancellation.

The following week he was called to receive another notice for a hearing which he attended on 3 April and was told to wait for an outcome which may take more than a week.

He said since then he has been suspended but he was not served with a suspension letter. He has also not received a salary since being suspended on 27 February and wants to know what he can do.

I called SCORPION LEGAL PROTECTION to find out how they can help Lubabalo.

SOLUTION

A labour legal advisor indicated where the matter is covered under their terms and conditions they will assist the client by referring the matter to the CCMA.

In Lubabalo’s case, the matter would be referred to the CCMA as an Unfair Labour Practice as his right to strike is covered in the Labour Relations Act.

The strike in this case was a protected strike which means there should be no adverse results for the employee from taking part in a protected strike.

Even as a non-union member Lubabalo is also protected. Lubabalo, however said he was charged with insubordination which means he must have been given an instruction that he did not carry out. However, Lubabalo should have been given a notice of suspension, setting out the disciplinary charges he will face.

Suspension without pay may only be adopted after the employee has been found guilty of misconduct.

Therefore the employer’s conduct, especially regarding the suspension without pay and the fact that the hearing has been postponed more than once may amount to unfair labour practice.

The disciplinary hearing must also be concluded within a reasonable time and the employer’s conduct is grossly unreasonable. It is also safe to say that should the employee be subsequently dismissed the dismissal will be automatically unfair. Therefore, the reader can refer the unfair labour practice dispute to the CCMA or the relevant bargaining council.