Labour law - Dismissals

Question 1

What steps should an er take to avoid a challenge for unfairly terminating a probationary contract?

Answer 1

Schedule 8 LRA - Code of Good Prac (Dismissals):

1. Must have a fair and valid reason to terminate the contract
2. Send a letter to the ee stating the:
   a) cause of termination,
   b) inviting ee to a disciplinary hearing
   c) grounds for contemplated termination
3. Disciplinary hearing
4. If grounds still hold after the hearing, the er must issue a termination notice of not less than 7 days to the ee
5. After 7 days, employment is terminated and er must pay all terminal dues and provide ee with a certificate of service

Question 2

Can an er dismiss an ee who is on probation based on unsatisfactory peformance?

Answer 2

No, unless the er has done the following:

1. Given the ee appropriate evaluation, training, guidance or counselling and
2. After a reasonable period of time for improvement, the ee continues to perform unsatisfactorily

Question 3

What does the procedure prior to dismissing an ee on probation look like?

Answer 3

1. Investigate the reasons for the ee’s unsatisfactory performance;
2. Consider other ways, short of dismissal, to remedy the issue;
3. Advise ee of the aspects he is failing to meet in accordance with the required performance standards;
4. If er believes the ee is incompetent, must advise ee on aspects he is incompetent;
5. The er can then either:
   a) extend the probationary period OR
   b) dismiss the ee only after he has invited the ee to make representations;
6. If er choses dismissal/ extends probationary period: must advise ee of rights to refer the matter to council that has juris or to the CCMA

Question 4

What are the grounds for fair dismissal?

Answer 4

1. Misconduct
2. Operational requirements
3. Incapacity (poor work perfomance or injury)/ illness

Question 5

What must an er demonstrate in order to avoid a claim of unfair dismissal?

Answer 5

1. Had a fair reason to dismiss the ee
2. Followed a fair procedure (allowing ee an opportunity to respond to the proposal of dismissal, before taking a final decision)

Question 6

What constitutes an automatic unfair dismissal ito sec 187 LRA?

Answer 6

1. Ee participated in/ supported a protected strike;
2. Ee refused to do work normally done by a striking ee (unless that work is necessary to prevent an actual danger to life, personal safety or health);
3. Er compels the ee to accept a demand iro any matter of mutual interest (lock-out dismissal; ex: forcing ee to accept new Ts & Cs of employment);
4. EE took action/ indicated an intention to do so against his er;
5. Ee’s pregnancy or intended pregnancy;
6. Er unfairly discriminated against ee (directly/ indirectly) on any arbitrary ground (remember: the only justification grounds are if dismissal is due to an inherent job req or based on age);
7. Transfer or reason related to a transfer of a business as a going concern;
8. Er contravenes the Protected Disclosures Act on account of the ee making a protected disclosure.

Question 7

Where must you refer a dispute re unfair dismissal?

Answer 7

CCMA for conciliation (within 30 days after dismissal).

Refer to Labour Court for adjudication if conciliation fails (within 90 days).

Question 8

What is the max penalty a Court may award against an er if he is found to have unfairly dismissed an ee?

Answer 8

Payment of 24 month salary of ee (2 years)

Question 9

Can an ee refer his unfair dismissal dispute to the CCMA for arbitration?

Answer 9

Yes, only if he is a single ee who cannot afford costs of LC litigation OR if the er employs less than 10 ees.

Question 10

What can an aggrieved party seek as relief from the LC if the er does not comply with a fair procedure (sec 189 and 189A)?

Answer 10

1. Order er to comply with a fair procedure;
2. Interdict/ restrain er from dismissing an ee before a fair procedure was followed;
3. Direct the er to reinstate an ee until it has complied with a fair procedure;
4. Make an award for compensation.

Must apply for procedural unfairness within 30 days after er has given notice to terminate OR the date on which ee was dismissed (if no notice)

Question 11

What remedies are available to an ee for being unfairly dismissed?

Answer 11

1. To be reinstated on same Ts and Cs prior to dismissal;
2. To be re-employed (could be on new Ts and Cs);
3. To receive compensation (12 months max)

Question 12

What constitutes an unfair labour practice?

Answer 12

An unfair act or omission that arises between an er and an ee involving:

1. Conduct of er re promotion, demotion, probation (excl. dismissals re probation), or training of ee, or provision of benefits to ee;
2. Unfair suspension of ee or other unfair disciplinary action short of dismissal;
3. Failure or refusal to re-instate ee or re-employ former ee ito any agreement;
4. Occupational detriment (other than dismissal) which contravenes the Protected Disclosures Act

Question 13

Where do you refer an ULP dispute?

Answer 13

To CCMA or Bargaining Council:

1. Conciliation (within 90 days);
2. Arbitration (if unresolved)

Question 14

Where can an ee refer a dispute re sexual harassment ?

Answer 14

To the CCMA

Question 15

Name 4 alternatives to retrenchment that the er should consider.

Answer 15

1. Voluntary retrenchment;
2. Granting extended unpaid leave;
3. Reducing or changing Ts and Cs of employment;
4. Training ees for other available positions.

Question 16

Operational requirements are recognised as grounds for dismissal of an employee.

1. On what needs of the employer must the requirements be based?
2. Such a dismissal requires a fair procedure. What are the three requirements for fairness named in section 189?

Answer 16

1. Economical, technological, structural or similar.
2. a) Er must consult the person he is required to consult ito a collective agreement;

b) engage in a meaningful joint consensus-seeking process in an attempt to reach consensus on, inter alia, appropriate measures to avoid and/ or minimise the number of dismissals (stop hiring, stop overtime, offer voluntary retrenchment or early retirement);

c) Issue a written notice inviting the other consulting party to consult with it and disclose in writing all relevant info

Question 17

What is a collective agreement?

Answer 17

Written agreement re Ts and Cs of employment or any matter of mutual interest, concluded by one or more registered trade unions and one or more ers, registered ers’ organisation or one or more of each

Question 18

To whom does the BCEA not apply to?

Answer 18

1. State Security Agency
2. Unpaid volunteers working for charity
3. Persons undergoing vocational training of which any Ts and Cs is reglated by another statute
4. Persons employed on vessels at sea iro which the Merchant Shipping Act applies
5. Independent contractors

Question 19

Which factors must be considered in determining the seriousness of misconduct?

Answer 19

1. Is there a rule in the workplace that regulates the misconduct (disciplinary code and procedures of er for ex)?
2. If a rule exists, is it valid or reasonable?
   a) Rule must be made available to ee and know about it
   b) Rule must be common knowledge to all ees;
   c) Rule is part of the er’s past practice

Question 20

What is incapacity?

Answer 20

Inability (injury/ illness) or incompetence to do the work

Question 21

What factors must be taken into account before dismissing an ee based on incapacity as a result of poor work performance?

Answer 21

Er can set performance standards for ees. If those standards aren’t met, er must consider the following:

a) is the ee aware of the performance standards?

b) has the ee been given a chance to meet the er’s performance standards or to improve?

c) will dismissal be an appropriate sanction?

Question 22

What factors must be taken into account before dismissing an ee based on incapacity as a result of illness or injury?

Answer 22

a) Extent of the ee’s health (perm/ temp)

b) Results of ee’s medical exam by medical prac/ assessment by occupational therapist

c) Can the needs of the ee be accomodated by adapting his existing work, workplace, working equipment?

d) Are there alternatives to dismissal?

Question 23

Where must a dispute re fairness of dismissal for conduct or capacity be referred to?

Answer 23

CCMA for conciliation (within 30 days) and arbitration if it fails.

Question 24

What is the cap for an ee claiming compensation whose dismissal is found unfair?

Answer 24

12 months salary max

Question 25

What primary remedy will the CCMA afford to the ee?

Answer 25

Reinstatement unless:

1. Ee does not want to;
2. The circums surrounding dismissal are such that continued employment would be intolerable;
3. It is not reasonably practical for the er to reinstate the ee;
4. The dismissal was only unfair because the er did not follow a fair procedure.