1. Salient Features of the LRA (19)

2. Salient features  Amended 3 times since 1995 –1996,1998,2002  Governs relationship between A. Employer – employee [individual labour law], including;  Methods of Termination  Grounds for Dismissal and procedures to be followed  Unfair labour practice  Remedies for unfair labour practices

3. LRA salient features cont B. Employer /employer organisations – trade unions [collective bargaining relationship], and LRA regulates:  Freedom of assoc  Trade union organisational rights  Collective agreements  Bargaining councils  Industrial action and related procedures

4. A.Individual Labour Law: Dismissal and unfair labour practice  Previously – lawfulness took precedent over fairness –Chapter VIII -  LRA – need lawfulness and fairness  Fairness requires –Fair reason [substantively fair]  Valid – objective test, and  fair – dismissal appropriate sanction –Fair procedures [procedurally fair]  Follow correct steps  If either missing – dismissal is unfair

5. LRA – s186 – 6 Forms of Dismissal(24) 1.Termination of contract by employer with or without notice 2.Failure to renew fixed term contract against expectation  History – mines and rolling over of contracts  S186(c) introduces new clause - reasonable expectation - created by employer  Objective test  Ackerman v United Cricket Board [2004] *3  [Case study P25] 3.Refusing employee work post Maternity leave 4.Selective re- employment  S186(d) – covers excluded employees

6. Cont. 5. Constructive dismissal  S186(e) – covers employees who’s lives are made unbearable at work by employers  Ntsabo v Real Security (2003) - *7 – sexually molested and resigned  SALSTAFF v Swiss Port SA (Pty) ltd (2003)– pregnant employee harassed and threatened  Goliath v Medscheme Pty Ltd 1996 – employees perception not everything  Riverview Manor Pty Ltd v CCMA (2003) - *7 –medical doctor demoted  Test – reasonable person test  Mvamekla v AMG Engineering – allowing employee to resign instead of facing hearing is not constructive dismissal

7. cont 6. S197 or 197A bus. transfer – resignation - due to lesser conditions by new employer. [LRA 2002]  Covered by S 186(f)  Note - a dismissal is not necessarily unfair

8. LRA – 4 Forms of Unfair Labour Practice (26) 2002 Amendment to LRA introduced 4 forms of unfair labour practice  Employers unfair conduct iro promotion, demotion, benefits or training  Unfair suspension or unfair disciplinary action  Failure to reinstate or re-employ ito agreement

9. Forms of Unfair Labour Practice cont Forms of Unfair Labour Practice cont  Occupational detriment [introduced 2002] – e.g. victimises [other than dismissal] employee for contravening the Protected Disclosures Act – 26 of 2000 –See Grieve v Denel 2003 *13 – threat of disciplinary action for disclosure is ‘occupational detriment’ –Cf CWU v Mobile Telephone Networks 2003 *13 – employees accusation based on rumours – not good enough – disclosure not protected

10. Automatically Unfair Dismissals  S187 – if dismissed for any reason listed in 187; –Presumption dismissal is unfair –Damages are highest as far as unfair dismissals are concerned

11. S187 - Automatically unfair dismissals (27)  If the reason for dismissal is: –Exercise of Freedom of association –Participated in – supported a legal/protected strike –Refused to do strikers work in strikers absence –based on employee refusing to accept a demand  Numsa v Zeuna-Starker Bop (Pty) Ltd [2003] – dismissed as refused to accept final wage offer

12. Automatically Unfair Dismissals,cont –Due to, or related to, pregnancy  Solidarity obo McCabe v SA Institute for Medical Research [2003] * 8 - non renewal of contract  Mnguni v Gumbi 2004 *8 – pregnant and tired – awarded 24 months! –Based on unfair discrimination  SACTWU v Rubin Sportware [2003] - dismissed due to age, but prior to retirement age  Ackerman v United Cricket Board [2004] *8 –Dismissal relating to transfer of business ito s197/197(A) [LRA 2002] –Due to employees protected disclosure ito Protected Disclosure Act [LRA 2002]

13. Other grounds of dismissal (29)  If dismissal is not automatically unfair, 3 grounds for dismissal recognised by our law. [Sch. 8 LRA ]. Employer to show dismissal related to: –Employees conduct –Employees capacity –Operational requirements  If employer cannot show this the dismissal is unfair.

14. 1.Misconduct  Schedule 8: Guidelines- Code of Good Practice – key aspects of dismissal for reasons related to conduct and capacity, there must be:  Substantive Fairness –Reasonable rule –Awareness of rule –Consistantly applied –Dismissal appropriate punishment [ mitigation?]

15. Misconduct cont  Dismissal must be procedurally fair  Corrective discipline encouraged –Warnings – oral or written –Distinguish minor from serious offences, from very serious offences [no warning required]  Dismissal last option

16. Disciplinary Hearings (34)  Compulsory if potential of dismissal  Unless agreed otherwise, no legal representation  Notice of allegations to be given –Get signed receipt –Use understandable language –Give reasonable time to prepare –Procedure - see P31 Hand out –Recent cases: –Khula Enterprise Finance v Madipane [2004]*15- chair –Schoon v MEC Dept Finance, Northern Province [2003]

17. 2. Incapacity [2 nd Ground for dismissal](33)  Employee incapable of performing  Dismissal needs to be substantially and procedurally fair  Examples: –Illness or injury –Addictions –Incompetence/poor work performance

18. Incapacity cont  Illness/injury – must show: –Temporary or permanent –Period of absence –Nature of the job –Availability of temporary replacement –Accommodate the disability – esp if work related injury –Tither/Trident Steel [2004] *10

19. Incapacity cont  Incompetence/ poor work performance –Reasonable evaluation, instruction, training guidance and counselling required first [ss8(1)e and 8(2)a – Sch 8 LRA] –Danza v Wanza [2003] *10 –Cf Kreutsch/Chet Industries [2004] *10 –On employment – can use probation  Reasonable period – depends on job, time to evaluate etc  Cannot be used to create insecurity

20. Probation  Amended 2002 – s8 Code of Good Practice  Purpose – evaluate employees performance before confirming appointment  during period – asses, instruct, guide and train  If below standard – advise and give reasons –Dismiss or renew probation

21. Probation cont  If dismissal follows – allow representations  Test for dismissal – reasons can be less compelling than after completion of the period  If contested: Con – Arb follows

22. After probation – if poor work performance (35)  Pre dismissal : –Instruct train and guide –Awareness of shortcomings –Time given to improve –Representations by employee to be considered –Alternatives to be considered

23. S188A Pre-dismissal arbitration [2002] (36)  Employer with employees consent, (consent can be incorporated in contract of employment if senior employees) request CCMA arbitrate prior to dismissal –Avoids duplication of hearings –Fee covered by employer –Legal rep only by agreement –Decision final, but review by Labour Court –Can put a referral clause into a contract of employment – for senior employees

24. 3.Operational requirements – s189 [Dismissal – 3 rd ground] (37)  ‘no fault’ – eg - retrenchment  Needs of the business  Need legitimate commercial rationale  Procedure set out s189 – includes: –Prior consultation [ vs negotiation]  Asap  with union or affected employees  Exhaustive and good faith required

25. Operational requirements Cont. – consensus seeking (37)  S189 [as amended 2002] sets out consultation requirements, including: –Must be meaningful joint consensus seeking process –Measures to avoid dismissals [examples p38..] –Minimise numbers [eg allow voluntary retrenchment]

26. consensus seeking cont –Minimise effects where retrenchment inevitable [eg help apply for other positions] –Where inevitable, method of selecting employees [eg LIFO, skills, early retirement etc] –Severance pay [ minimum 1 weeks for each completed year]

27. consensus seeking cont  Offer of alternative employment - if refused, no need for retrenchment package  Employer cannot prejudge situation  Employer has final say –See Atlantis Diesel Engines case 1994

28. Operational requirements Cont. – Written notice to consult  Notify contemplating dismissal [s189 - amended 2002]  Invite consultation  Disclose all relevant information, including: –Reasons –Alternatives considered & why rejected –Proposed employees likely to be affected

29. Written notice to consult cont (40) –Proposed method of proposed selection –Proposed timing –Proposed severance pay –Proposed assistance to employees –Possibility of re-employment

30. Written notice to consult, cont.  And [2002] –Total no. of employees employed –Dismissals for same reason [operational requirements] over the past 12 months  Notice to be given timeously  Privileged info need not be disclosed

31. Operational requirements- process cont.  Employer must respond to representations made – and give reasons if disagree with proposals –[2002] if representations made in writing the response to be in writing  Written notice of final decision to all parties to be given by management

32. S189A Dismissals: operational requirements - >50 employees [2002 intro](40)  Applies if dismissing >10 of up to 200 employees, or 20 of >200 10 of up to 200 employees, or 20 of >200 < 300etc  Makes provision for a facilitation process ie. Either party may request the involvement of a facilitator  Sets out time periods that have to lapse before further steps can be taken [eg 60 days before can terminate, or strike] – see too S 189 A (3)

33. Forums and Procedures for Resolving Disputes (46)

34. Three Forums for labour disputes(45)  CCMA –To ease bottlenecks –Most disputes referred to CCMA  Bargaining Council –Sectors have their own bargaining council –Negotiate collective agreements –Similar powers to CCMA –Disputes to the Council and not CCMA  Court –Labour court –Labour appeal court –Superior Courts Bill of 2003, if passed into law – abolishes above court. High Court gets jurisdiction for labour matters with Supreme Court of appeal hearing labour appeals

35. 3 Processes for resolving labour dispute (46)  Conciliation –Commissioner hears both parties and attempts to help them reach agreement –No decision is imposed  Arbitration –Commissioner hears both parties and imposes a decision – final and binding –Rules of evidence apply  Adjudication –Courts – allow legal representation

36. S193 LRA: Remedies for unfair dismissal and unfair labour practices(49)  S193 LRA – 3 remedies  Reinstatement  Re-employment  Compensation [see s194] –If misconduct, incapacity or operational requirement – max 12 months compensation –If automatically unfair – max 24 months compensation

37. Remedies cont  Court will not order reinstatement where: –Employee does not want it –Relationships intolerable –Where not practical to do so –Where the dismissals unfairness is related to procedure only.

38. S197 transfer of contract of employment; and 197A – transfer on insolvency –[2002] (51)  S197 - If transfer of a business as going concern: –New employer substituted in place of the old –all rights and obligations are transferred to new employer  Anything done by old employer is considered to have been done by the new employer  No interruption of employees service  Transport Fleet Maintenance v Numsa 2004 *2

39. s197 cont  The agreement to be in writing  The old employer must reach agreement with the new on : –Accrued leave pay to be transferred –Severance pay that would have been due –Any other payments that have accrued –NB - Which employer will pay the above [record in writing]

40. 197 cont  Old employer to disclose the terms to the employees affected  For 12 months after transfer the old employer is jointly liable with new employer for leave, severance or other payments due if payment is due as a result of employees dismissal for operational requirements or employers liquidation – unless old employer shows it complied with the section

41. s197A transfer on Insolvency [2002](51)  Transfer of business if old employer is insolvent –New employer automatically substituted in all contracts of employment –Rights and obligations between old employer and each employee remain between old employer and employee –Continuity of service continues with new employee

42. 197 B Disclosure of information re insolvency  Employer facing financial difficulties that may result in sequestration must advise affected parties [s189 parties]  Court papers to be supplied to affected parties

43. Collective Labour- Bargaining  See the very good summary in the notes! P51