LABOUR LAW in a Nutshell April 2025
PART 2: DISPUTE PSYCHOLOGY: How do we assess the risks of possible dismissal and formulate a strategy to get the best outcome?
In PART 1 we looked at the similarities between the emotional roller-coaster we experience when confronted with a sudden shock in our personal lives. The experience is like the shock of dealing with a dispute in the workplace which could end in dismissal.
In both situations, we travel through the same five stages of grief: denial, anger, bargaining, depression and acceptance.
Let’s assume you’ve managed to somehow get through these stages, and you’ve come to the acceptance stage. It’s now time to take a deep breath and deal with the practical realities of your situation. This will help you to think as objectively as possible to decide how you’re going to handle it for the least risk – and the best possible outcome.
Step back and consider your four main options: fixing the working relationship, legal action, settlement or resignation.
RELATIONSHIP
Regardless of what or who’s caused the problem, ask yourself –
What effect has the problem had on the quality of the working relationship? If it’s been damaged, can it be fixed?
If so, use a simple problem-solving process. Discuss the causes and effects of the problems on the working relationship with your employer. Then consider what specific conduct or behaviours you or your boss should stop and which should start.
Use this to find common ground and agree on viable solutions to continue working together. These could include an apology or a warning. Consider using a mediator to help this work successfully.
If this doesn’t fix the relationship, or if you or your employer thinks it’s damaged beyond repair and can’t be fixed, you’d need to consider other options. Let’s start with the legal option.
LEGAL
Identify what your legal rights are. Have you got compelling facts to support your rights – or not? What are your prospects of success in an arbitration at the CCMA?
If you think you’ve got a strong case, you can take your chances in the CCMA. Or you can use it to negotiate a possible settlement with your employer. The employer may be interested in negotiating a settlement payment either because there’s a risk they could lose – or simply for “convenience” to get it done and out of their way.
The “inconvenience” is the time, effort and costs involved in having to defend the case. And there could be a risk of negative publicity which could damage their reputation. As the employee, you’d have the same inconvenience – but more because you’d be dealing the case without a salary to keep you afloat. And of course there’s the stress!
The reality is that no matter how strong you think your case may be, you can never be certain it’ll go your way. Nor can your employer be certain they’ll win.
The uncertainty is a strong reason to consider other options to get certainty. A possible settlement is an option to discuss with your employer. It doesn’t matter who starts the conversation – the discussions would be “without prejudice” or “off the record”.
SETTLEMENT
The main benefits of agreeing a settlement are certainty of the outcome and avoiding a possible dismissal record on your CV which can make getting another job very difficult.
You need to weigh up these benefits against the satisfaction of possibly winning your case against your employer.
The win could come with an order for your employer to reinstate you and to pay you some financial compensation. Or it could be to only pay you compensation with no reinstatement. Another benefit of course would be that your CV would show that you’d been unfairly dismissed.
But this satisfaction could be short-lived if your employer decides to take the arbitration award on review to the Labour Court. You’d then be in for a 2-3 year wait for the court process to unfold until you get the outcome – and there’d probably be legal costs as well.
If none of these options seem viable, you could consider the option of resignation.
RESIGNATION
You could decide to use the fourth option: resignation. You can resign with immediate effect. But if you do, your employer can still hold you to the notice period in your contact of employment. This means they can proceed with disciplinary action in your absence and dismiss you. The same could happen if you resign with notice.
For this reason, resignation can be risky. The degree of risk depends on how the employer chooses to react to your resignation in the face of disciplinary charges.
Employers often accept a resignation without notice, or more precisely, they waive their right to enforce the notice period. This enables them to avoid the inconvenience of continuing with the disciplinary action.
It would also benefit you because you could walk away with a certain outcome and without a dismissal on your work record. Unfortunately, this would not stop your employer from giving an unfavourable reference about you to a prospective new employer who might call to enquire.
TIP: It’s a good idea to try and step back from the immediate panic or anger you may feel when you’re faced with the possibility of losing your job. Whatever happens, life will continue.
When you’ve accepted that you need to deal with your situation, carefully consider the four options which are available to you.
Consider the risks and possible benefits of each option. Then decide which would be the least risky for you in the present moment and in the long term. Also consider taking professional advice to guide you through your thinking and decision-making process.
PATRICK DEALE
Labour lawyer & mediator
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