Study Unit 7 Part 2 Flashcards
what does S188 of the LRA provide for?
A dismissal is not auto unfair, it is unfair if the employer fails to prove that the dismissal is for a fair reason related to the employees 1.CONDUCT, 2.CAPACITY 3.OPERATIONAL REQUIREMENTS
Substantive Fairness
what must an employer prove regarding dismissals for misconduct?
-Employer must prove that the reason for any dismissal for misconduct is fair
BY:
1.determining the existence of facts that constitute a reason to dismiss
2.determine whether dismissal is a fair penalty based on those facts
what are the different types of conduct that justify dismissal?
Assault
Damage to property
Abusive language
Sexual harassment
Insubordination
Dishonesty
Absenteeism & time-related offences
Alcohol & drug abuse
Conflict of interest
Desertion
Intimidation
Negligence
what did the Makhoba v CCMA case state regarding dismissing an employee for social media comments?
An employee can be dismissed for disparaging comments made on social media
what are the factors that must be determined if a dismissal is substantively fair?
1.Did employee contravene a workplace rule or standard regulating conduct ?
2.If yes,
a) was the rule valid and reasonable
b) was employee aware or could employee have been expected to be aware of rule
c) was the rule consistently applied
d) was dismissal an appropriate sanction for contravention of the rule
Factors that determine the substantive fairness of a dismissal
1.Did employee contravene a workplace rule or standard regulating conduct ?
This is a matter of fact and the onus is on the employer to establish
-Employees can also be accountable even if they didn’t actually contravene the rule but attempted to contravene the rule
Factors that determine the substantive fairness of a dismissal
was the rule valid and reasonable?
There must be a valid workplace rule and if that rule is unlawful or unreasonable it is not the basis of fair dismissal
Factors that determine the substantive fairness of a dismissal
was employee aware or could employee have been expected to be aware of rule?
Employee can reasonably be expected to have knowledge of the rule
Factors that determine the substantive fairness of a dismissal
was the rule consistently applied?
Employer should apply the penalty consistently with regards to the way in which the penalty has applied to other employees in the past + between 2 or more employees who participate in the misconduct
Factors that determine the substantive fairness of a dismissal
was dismissal an appropriate sanction for contravention of the rule?
Appropriatness is ased on seriousness of misconduct + impact on employee relationship
Factors that determine substantive fairness of a dismissal
what did the Sidumo v Rustenburg Platinum Mines case state regarding the appropriatness of a dismissal?
a) Here, CC overturned the reasonable employer test endorsed by the SCA
b) CC held that commissioners are required to consider totality of circumstances and decide whether dismissal was an appropriate sanction
c) Factors:
Factors that commissioner applies for appropriatness
-importance of the breached rule
-asis of the employees challenge to the dismissal
-harm caused by employees conduct
-whether additional training may result in the employee repeating the misconduct
-effect of dismissal on the employee’
-long-service record of the emloyee
Procedural Fairness for dismissals
what is the procedure that must be followed regarding dismissals?
1.Conduct investigation
2.Inform employee of allegations and give
reasonable time to prepare response
3.Provide employee opportunity to state
case/response
4.Inform employee of outcome in writing
what is required of employer to satisfy requirement of procedural fairness in misconduct cases according to the Avril Elizabeth Home for the Mentally Handicapped case?
-An investigation into the the factual circumstances of the case
-The formulation of allegations of misconduct against the emplooyee
-Notice of those allegations to the employee
-An opportunity for employee to state their case
Incapacity
what are the two forms of incapacity?
*Medical incapacity - Ill health/injury:
loss of physical or mental faculties
needed to perform job
*Poor work Performance: lack of
skills/qualities necessary to perform
tasks
Incapacity
what are the responsibilities of the employer for medical incapacity?
1.Determine if ill-health injury
of permanent or temporary
nature
2.Accomodate the employee
a)If permanent: what devices/tools can be bought to assist employee, is there
a possibility of alternative employment
b)If temp but employee need
substantial time to recover: can temporary employee be used
3.Employee must be given an opportunity to state case prior to any decision to dismiss
Incapacity
what if the medical incapacity is due to occupational injury or disease?
Occupational Injury/disease and
reasonable accommodation:
Employer will be held to higher
standard However, no obligation to
create a job if none exists
Incapacity
what factors will the arbitrator consider in determing the substantive fairness of a dismissal for occupational health/injury?
1.Whether employee is capable of
performing the work for which he/she
was employed
-If not capable:
a.To what extent can employee perform
b.To what extent can employees work
circumstances/ duties be adapted
c.Availability of suitable alternative
work
Incapacity
what are the procedural requirements for dismissal relating to medical incapacity?
1.Employee must be afforded an opportunity to state a case in response to employer’s investigation into employee’s incapacity.
2.Employee has right to be assisted by trade union rep or fellow employee in this process
Incapacity
what is poor performance?
an inability to meet required
performance standard
Incapacity
what is dismissal for poor performance during probation?
Purpose of probation: opportunity for employer to evaluate employee’s performance before confirming the appointment
Incapacity
what are the responsibilities of the employer in regards to poor performance of probationary employees?
1.Must regularly assess
performance and give employee feedback (areas of poor performance)
2.Must assist to address areas of poor performance by giving instruction, training,
guidance and counselling
3.Must give fair opportunity to improve
4.If poor performance continues can extend probationary period or dismiss
5.If employer wants to dismiss: may only do so after giving employee opportunity to
make representations and considering them (entitled to be assisted
Incapacity
How does the commissioner determine whetehr the dismissal of a probationary employee is fair?
commissioner ought to accept reasons that are less compelling than would be
the case if the employee was not
on probation
Incapacity
what are the employers responsiilty if the poor performance occurs after probation?
Must not dismiss unless:
Employee given appropriate evaluation,
instruction, training, guidance or counselling;
+
employee continues to perform unsatisfactorily after reasonable period
of time given for improvement
Incapacity
How will the arbitrator determine that the dismissal after probation was unfair?
1.Whether employee failed to meet
performance standard
a.Employer brings evidence for PP
b.Employer can set standards that must be met+ determine whether the standard was met
c.Court interfers when the standard was unreasonable
2.Whether employee failed to meet
performance standard
3.If performance standard not met, whether:
a.Employee aware of standard
b.Employee given fair opportunity to meet
standard; and
3.Dismissal appropriate for not meeting
standard
Incapacity
when is dismissal appropriate after probation?
if employer can show that alternatives to dismissal were at least considered
However, employer not obliged to create alternative employment for incompetent employee
Incapacity
what are the procedural requirements for dismissal due to PP after probation?
A.Employee must be afforded an opportunity to state a case in response to employer’s investigation into employee’s poor performance.
B.Employee has right to be assisted by trade union rep or fellow employee in this process
Other forms of Incapacity
what are other forms of incapacity?
Lack of qualification
Incompatibility
Dismissals at the behest of a third party
Impossibility of performance (permanent / temporary)
Operational requirements
what are dismissals due to operational requirements according to S189 and S189A of the LRA?
S189-small scale retrenchments
(employers who employ less than 50
employees and retrenches a relatively
small group of employees)
S189A- large scale retrenchments
(formula set out in LRA to determine if it is
large scale
Operational Requirements
what is the substantive fairness of dismissal due to OR?
1.Be bona fide
2.Operationally justifiable on rational grounds - *SA Commercial Catering & Allied Workers Union v Woolworths *
3. a measure of last resort - National Union of Mineworkers v Black Mountain
A company can retrench to become more competitive and to increase
profits. Mazista Tiles v NUM
Operational Requirements
what is the FAIR CRITERIA to determine if a dismissal due to OR is substantively fair?
1.Length of service, skills, qualifications, performance
2.Last in first out (LIFO) most commonly used criteria
3.Bumping must be considered if there is little or no disruptive effect to business
Operational Requirements
what is bumping?
Horizontal Bumping- An employee whose position is redundant displaces an employee with shorter service in a similar job category
Vertical Bumping-An employee with longer service displaces a junior employee with shorter service
Operational Requirements
what is the UNFAIR CRITERIA to determine if dismissal due to OR is unfair?
Union membership, sex, pregnancy, age, other discriminatory grounds
affirmative action not regarded as applicable when selecting employees for retrenchment
Operational Requirements Procedural Fairness
What is the procedura that must be followed for dismissals due to OR?
Employer must issue written notice inviting parties to consult when the employer contemplates retrenching
Operational Requirements Procedural Fairness
what information must the notice of intention to retrench contain according to S189(3) of the LRA?
1.Reasons for retrenchment
2.Alternatives considered
3.Number of employees employed
4.Selection criteria
5.Timing of dismissals
6.Severance pay
7.Possible assistance
8.Possible future employment
9.Total no of employees retrenched retrenched in the last 12 months
Operational Requirements Procedural Fairness
what is the hieraarchy that must be followed in S189(1) to identify the appropriate consulting party when an employer considers dismissal due to OR?
- Parties identified in collective agreement
- If no collective agreement, workplace forum and registered trade union
- If no workplace forum, only registered trade union
- If no registered trade union, employees to be affected or their representatives
Operational Requirements Procedural Fairness
what are the facts of the Royal Bafokeng case regarding the appropriate consulting party for dismissals due to OR?
A.The dismissed employees who were members of AMCU disputed fairness of procedure that led to their dismissals: they were not afforded opportunity to consult with employer prior to dismissal
B.Employer had recognition agreement with majority union (NUM), which included
consulting on dismissals for operational requirements
C.Employer consulted with majority union over the retrenchments and entered into a
retrenchment agreement that was extended to all other employees, including AMCU members
Operational Requirements Procedural Fairness
what did the court in the Royal Bafokeng Mines case state regarding the appropriate consulting party?
AMCU challenged the constitutionality of sections 189(1)(a-c)
Majority judgment of CC found section 189 is rational, sound and fair
Therefore, minority union has no claim to be consulted in circumstances where the
employer is required to consult a majority union in terms of a collective agreement
Operational Requirements Procedural Fairness
what is the purpose of consulting the appropriate party?
For genuine attempts to be made
by consulting parties to reach consensus on appropriate measures regarding:
- How to avoid retrenchment
- How to minimise no of retrenchments
- To change timing of retrenchments
- To mitigate adverse effects of retrenchment
- Method of selecting employees to be retrenched
- Severance pay
Operational Requirements
How is severence pay determined due to dismissals because of retrenchments?
One week’s remuneration for every completed and continuous year of service with employer (section 41 of BCEA)
Not entitled to severance pay if employee
unreasonably refuses to accept employer’s
offer of alternative employment with that
employer or any other employer
