SECTION C: LRA (25 MARKS) Flashcards
Dismissals / Unfair Labour Practices
The law & principles regarding employee dismissals have undergone significant changes over the past 15 to 20 years especially because courts emphasised the concept of fairness. It was left to the Industrial Court to determine whether the dismissal of an employee was fair or not within the parameters of the “unfair labour” concept introduced in 1979 in the Labour Relations Act, 1956.
The Industrial Court set, in conjunction with international principles, 2 important requirements for a fair dismissal:
- Substantive fairness.
- Procedural fairness.
These principles are now embodied in our legislation.
The Main Principle with regard to dismissal / unfair labour practices:
Every employee has the right not to be unfairly dismissed or not to be subjected to an unfair labour practice. (Section 185)
Definition of Dismissal
A dismissal means that:
1. Employer has terminated employment with/without notice.
2. Employee employed in terms of fixed-term contract of employment expects employer:
- to renew fixed-term contract on same/similar terms but employer offered to renew it on less favorable terms or did not renew it.
- To retain employee in employment on indefinite basis but otherwise on same/similar terms as fixed-term contract but employer offered to retain employee on less favorable terms or did not offer to retain employee.
3. Employer refused to allow employee to resume work after taking maternity leave in terms of any law, collective agreement or contract of employment.
4. Employer who dismissed a number of employees for same /similar reasons has offered to re-employe one or more of them but refuses to re-employ another (selective re-employment).
5. Employee terminated employment with/without notice because employer made continued employment intolerable for employee (constructive dismissal).
6. Employee terminated employee with/without notice because new employer, after transfer in terms of section 197/section 197A, provided that employee with employment conditions that are substantially less favorable than those provided by old employer.
Automatically Unfair Dismissals (Section 187)
Certain reasons for dismissals re considered so unjust theat they are declared to be automatically unfair. Should any employer terminate the services of his employee under the following circumstances, it is automatically considered an unfair dismissal, without the employee having to allege an unfair dismissal & the the employer trying to prove the contrary:
- Employee exercised right to freedom of association.
- Employee disclosed information- lawfully required/entitled to give.
- Employee exercised rights conferred by LRA.
- Employee participated in proceedings in terms of LRA.
- Employee participated in or supported protected strike.
- Employee refused to perform his duties on protected strike.
- Pregnancy, intended pregnancy of employee or any related to pregnancy.
- Unfair discrimination by employer.
- Dismissal in context of transfer in terms of Section 197 or 197A.
-Employee made a protected disclosure.
-Employer locked employee out - did not accept proppsal for change in conditions of employment (a dismissal lock-out).
Date of Dismissal
PGLL - Pg 347
Requirements for a fair dismissal
The 2 golden rules in order to ensure fair dismissal are:
1. Substantive Fairness - There must be a faif & valid reason for the dismissal.
2. Procedural Fairness - Employee must have fair trial consistent with the rules of natural justice.
Name 3 Grounds on which termination of employment might be legitimate?
- Conduct of employee.
- Capacity of employee.
- The operational requirements of the employer.
Disciplinary procedures prior to dismissal.
Employers should adopt disciplinary rules that establish the standard of conduct required of their employees. Rules must create certainty & consistency in the application of discipline. Standards of conduct must be clear & made available to employees in a way that is easily understood.
Courts have endorsed concept of corrective/progressive discipline - hereby employees would know & understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling & warnings.
Formal procedures do not have to be involved every time rules are broken - informal advice & correction is most effective way to deal with minor violations of work discipline.
- Repeated misconduct will warrant warnings (verbal or written).
- More serious infringements / repeated misconduct may call for a final (written) warning.
Disciplinary Records
Employers should keep records for employees specifying nature of any disciplinary transgressions, actions taken by employer & reasons for the actions.
Dismissal of employee for misconduct
One of the duties of an employee is to refrain from misconduct during his/her services with the employer. Employee must at all times act in accordance with acceptable practice, rules & policy of the employer.
Misconduct is an offence or infraction of a rule governing conduct of employees at the workplace.
Substantive Fairness
- “Valid reason” meaning a lawful reason according to common law, a contract of employment or an agreement, a valid or lawful reason such as assault, theft or insubordination.
- A lawful reason is not necessarily fair on its own, only if it’s impossible to continue the employment relationship. Dismissal should only be used as a last resort after other solutions have been considered.
- Dismissal is only justified after repeated incidents, unless the misconduct has a criminal element, e.g. theft, assault or fraud.
- There are no fixed rules related to the number of warnings which must precede a dismissal, however these warnings must be issued for the same or a related offense.
- The employer must be consistent in his/her treatment of cases, similar cases should be treated the same.
- All circumstances in the case must be considered, e.g. nature of the misconduct, service record & length of service of the worker, mitigating factors & possible prejudice to the employer.
- It is the employer’s responsibility to prove, on a balance of probabilities, that the dismissal is fair according to the known facts.
Test used for Substantive Fairness
- Does a disciplinary rule exist that governs the relevant conduct?
- Is the rule reasonable?
- Was the employee aware of the rule or should he reasonably have been aware of it?
- Was the rule breached?
- Was the employee aware of any consequences related to the breach of the rule?
- Has the disciplinary code been consistently enforced?
- Is dismissal the appropriate decision under the circumstances?
Procedural Fairness
Fair Hearing
- Must comply with own disciplinary code.
- Employee must be notified of charge against him/her and what her rights are at the hearing.
- A disciplinary hearing should be held as soon as possible after the incident, however, the worker must be given sufficient time to prepare his case.
- The worker has the right to state his case at the hearing, according to the rule of natural justice (the audi alteram partem rule), to call witnesses and to cross-examine witnesses called by management.
- Employees also have the right to be represented or assisted by a co-employee as well as the right to an interpreter.
- The chairperson must be unbiased and must not prejudice the case.
- Reasons for decision and the right to appeal.
Dismissal for incapacity / poor work performance.
Substantive Fairness
1. Test for substantive fairness is whether employer can fairly be expected to continue with employment relationship, bearing in mind the merits of the case.
2. Factors to be considered, include:
- Nature of the incapacity.
- Extent & degree of employee’s inablitiy to perform, likelihood of recovery or improvement.
- Size of and possible effect on employer’s operations.
- Effect on welfare, safety and morale of other employees.
- Status of employee, his service record & length of service.
- Period of absence in the case of incapacity.
- The cause of the incapacity or poor performance.
Procedural Fairness
- Onus is on employer to ensure that he has taken reasonable steps to assist the employee.
Employer should consult with employee about his incapacity.
- Medical treatment or placement elsewhere in the company should be considered.
- Inform employee of his poor performance & possible consequences of non-improvement.
- Provide training or consider placement elsewhere.
- Before employee is dismissed, proper hearing should be conducted
Dismissal for Operational Requirements (sec 189 & sec 189A)
- Employer terminates the services of an employee for operational requirements such as technological changes within a company or downturn in the economy which necessitated retrenchment of employees.
- When employer contemplates dismissing employees for reasons based on his operational requirements, specific requirements must be met.
Unfair labour practices
Means any unfair act or omission that arises between an employer and employee.
This may include:
- Any unfair conduct of employer relating to the promotion, demotion or training of an employee.
- The provision of benefits to an employee.
- The unfair suspension of an employee or disciplinary action short of dismissal in respect of an employee.
- The failure or refusal of employer to reinstate or re-employ former employee in terms of any agreement or an occupational detriment on account of employee having made protected disclosure defined in the Protected Disclosures Act, 2000.
Unfair Labour Practices - Promotions
Unfair Conduct - failure to meet objective standards - may include arbitrary, capricious/ inconsistent conduct.
Promotion - Managerial Prerogative. Employer can promote Employee he thinks is the best or most suitable candidate for the position. Employer must act fairly with managerial prerogative limited - Employer must act procedurally & substantively fair
Unfair Labour Practices - Substantive Fairness
Reasons why Employer decided to prefer one Employee to others for promotion. Employer retains the discretion to appoint person he considers most suitable candidate for post. May take subjective considerations into account - performance at interview. Not interfere- Employer’s discretion unless employer failed to apply his mind in the selection of the candidate.
Unfair Labour Practices - Procedural Fairness
- All candidates must be afforded reasonable opportunity to promote their candidature.
- Follow procedures - source may be legislation, collective agreement, company policy or established practice.
-Employee may challenge composition and/or competency of selection panel.
-Employee acting in more senior position - do not have automatic right to be promoted. Must be considered. - Promotion should involve reward - higher salary (higher status without higher salary).
- Employer must consider the development of the employee. Promotion and training affirmative action measures- duty of employer to train and develop employee’s in the concept of AA.
Unfair Labour Practices - Demotion
Reverse of promotion - Employee moved to lower rank/level. Normally instead of dismissal. As disciplinary measure, demotion allowed only in circumstances - dismissal is justified but because of mitigating factors Employer decides not to dismiss employee.
