2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province PROCEDURAL FAIRNESS WORKSHOP Facilitators: Winnie Everitt, Mapalo Tsatsimpe,

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Presentation transcript:

2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province PROCEDURAL FAIRNESS WORKSHOP Facilitators: Winnie Everitt, Mapalo Tsatsimpe, Prince Kekana, Terry Moodley Scribes: Stephen Bana, Hlalele Molotsi

CODE OF GOOD PRACTICE 2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province

S138(6) The Commissioner must take into account any code of good practice that has been issued by NEDLAC or guidelines published by the Commission in accordance with the provisions of this Act that is relevant to a matter being considered in the arbitration proceedings COMMISSIONERS INDABA November 2008 Sun City

S188(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act 2008 COMMISSIONERS INDABA November 2008 Sun City

S203(3) Any person interpreting or applying this Act must take into account any relevant code of good practice COMMISSIONERS INDABA November 2008 Sun City

S115(2)(g) Publish guidelines in relation to any matter dealt with in terms of this Act. S115(2)(A)(c) The process by which arbitration or arbitration proceedings are initiated and the form, content and use of that process COMMISSIONERS INDABA November 2008 Sun City

S115(6)(a); (b) and (c) (a) A rule made under subsection 2 (cA) or 2(A) must be published in the government gazette. The Commission will be responsible to ensure that the publication occurs. (b) A rule so made will not have any legal force or effect unless it has been so published. (c) A rule so made takes effect from the date of publication unless a later date is stipulated COMMISSIONERS INDABA November 2008 Sun City

S115(6) Any person interpreting or applying this Act must take into account any relevant code of good practice COMMISSIONERS INDABA November 2008 Sun City

S117(6) The governing body must prepare a code of conduct for the commissioners and ensure that they comply with the code of conduct in performing their functions COMMISSIONERS INDABA November 2008 Sun City

HOW TO APPROACH PROCEDURAL FAIRNESS  IN THE ABSENCE OF NEGOTIATED PROCEDURES- ITEM 4 OF CODE APPLIES  WHERE NEGOTIATED PROCEDURES IN PLACE- EITHER COLLECTIVE AGREEMENTS OR CONTRACTS OF EMPLOYMENT APPLY 2008 COMMISSIONERS INDABA November 2008 Sun City

FAIR ENQUIRY IN TERMS OF ITEM 4 OF CODE  NOTIFICATION OF ALLEGATIONS  REASONABLE TIME  ASSISTANCE OF A REPRESENTATIVE  OPPORTUNITY TO STATE A CASE  DEPARTURES FROM CODE  ANALYSIS OF THE ABOVE 2008 COMMISSIONERS INDABA November 2008 Sun City

FAIR ENQUIRY IN TERMS OF EXISTING PROCEDURES  COLLECTIVE AGREEMENTS  Procedure should be tested against the Collective Agreement and not the Code  Must examine actual procedure followed  CONTRACTS  must be tested against the Code  Code applies in case of Conflict 2008 COMMISSIONERS INDABA November 2008 Sun City