PEMA5122 LU 6 PDF

PEMA5122 Learning Unit 6 – Dismissals and Other Ways of Terminating Employment Contracts (READ PAGE 23 OF THE MO) Theme 1 – Termination of Employment by ways other than dismissal PM: Chapters 7, 8 & 9 Schedule 8 - Code...

PEMA5122 Learning Unit 6 – Dismissals and Other Ways of Terminating Employment Contracts (READ PAGE 23 OF THE MO) Theme 1 – Termination of Employment by ways other than dismissal PM: Chapters 7, 8 & 9 Schedule 8 - Code of Good Practice: Dismissal  LO1: Explain the ways in which an employment contract may be terminated other than by dismissal.  Termination as a result of resignation by employee  Unilateral decision by employee communicated to employer – orally or in writing  May not be withdrawn without employer consent, even when there is regret  Termination period should be in line with BCEA, may be worked or employer can decide paid resignation without work “payment in lieu of notice” (sections 37 and 38)  See SAMWU case page 91  Resignation could not be retracted by employee – in this instance it was not even in the heat of the moment because of the procedure followed by employee  Employer cannot assume that employee resigned, it must be communicated  If not communicated and the employee does not come to work, employer must still follow procedure to terminate contract – employee must be afforded opportunity to explain even after absenting from hearing  See Quinn case page 91  Unless employee clearly resigns, that cannot be seen as resignation LO1: Explain the ways in which an employment contract may be terminated other than by dismissal.  Termination on completion of an agreed period or task  FTC come to end upon: specified event, completed task/project or fixed date (not retirement)  Termination by mutual agreement  The parties to the contract both want employment relationship to end – agree to notice period – see page 92 for example  Termination on grounds of impossibility of performance  Contract comes to an end and no performance required  Death of director/manager does not affect employment contract see example 1.4 on page 92  Termination as a result of insolvency of the employer  See definitions on page 93  Insolvency is regulated Insolvency Act and LRA, business rescue regulated by CHPT 6 of Companies Act 2008  Upon insolvency business is handed over to liquidator who will make efforts to pay creditors with what is left in the business – contracts suspended for 45 days pending liquidator decision  Employees have preferential claim for salaries  Termination as a result of retirement  No universal retirement age. Depends on: agreement, workplace practice, and pension fund rules  May not unilaterally be introduced by employer – term must be agreed upon (See: Karan case – p94)  “Procedurally fair” dismissal cannot be said to be unfair dismissal – employer prove fairness  PEMA5122 Learning Unit 6 – Dismissals and Other Ways of Terminating Employment Contracts Theme 2 – Fair Dismissals: Substantive and Procedural fairness PM: Chapters 7, 8 & 9 Schedule 8 - Code of Good Practice: Dismissal LO2: Provide a definition of the term ‘dismissal’ as per the Labour Relations Act (LRA).  See section 186(1) of the LRA  Make use of break down method I have shown you with section 186(2) LO3: Differentiate between the various kinds of dismissals for which the LRA section 186(1) makes provision.  Termination by employer with or without notice  Employer refusal/failure to renew FTC or appoint employee indefinitely after reasonable expected by employee  Refusal to allow employee to resume after maternity leave  Selective re-employment  Constructive dismissal  Constructive dismissal ITO secs 197 and 197A (transfer) LO4: Explain under what circumstances a dismissal is considered to be ‘fair’ in terms of the LRA.  Under the following circumstances dismissal would be considered ‘fair’:  Misconduct by the employee;  The employee’s incapacity; and  Operational requirements  Familiarise yourself with chapter 9 + pages 148 – page 154  The employer must have a sound reason and follow proper process  LO5: Differentiate between substantive and procedural fairness.  Substantive fairness page 125  The Code: Dismissal (Schedule 8 of LRA)  Employee breaches a valid workplace rule – the code requires workplaces to adopt disciplinary rule so that employees know what is expected of them (code of conduct)  Must be communicated  In manner that can be understood  Procedure must consider size of workplace and nature of work  Some rules can be reasonably expected to be known – do not steal  See requirements of substantive fairness p125 – p126, Van Tonder case – substantively unfair as it was proven theft was a mistake see analysis in last textbox on p126  Self study: appropriateness of dismissal, team misconduct and misconduct outside of working hours  Procedural fairness page 129  Must be considered as important as substantive fairness – example shows that substantively fair dismissals which are procedurally unfair can be disputed, page 129  Think of natural principle of justice “audi alteram partem” – give employee fair opportunity to present their case  See important illustration on page 130  Hearing not required only in exceptional circumstances – real threat of danger or waiver by employee  LO6: Advise a client on the requirements for substantive fairness in respect of dismissals on the following grounds: Misconduct  See requirements of substantive fairness for misconduct dismissals applied on p125 and p126, Van Tonder case – substantively unfair as it was proven theft was a mistake see analysis in last textbox on p126  Questions to be asked in line with the code (the answer to all questions must be yes to meet requirement of fairness):  1.Did the “accused” employee breach a rule?  2. Was the rule valid and reasonable?  3. Was the employee aware of the valid/reasonable rule?  4. Was rule consistently applied by employer?  5. Is dismissal the appropriate “sanction” in the circumstance?  Reminder: make note on team misconduct and misconduct outside of the workplace  LO6: Advise a client on the requirements for substantive fairness in respect of dismissals on the following grounds: Operational requirements  See brief definition of “operational requirements” on page 137  In this regard for there to be a fair reason for dismissal related to operational reasons the employer would have to prove that the “no-fault” dismissal truly resulted from the below reasons:  Economical (should be a last resort – financial difficulty) – Welch case p 137;  Technological / Structural (new technology or restructuring making jobs redundant); or  A similar need to the above judged on a case-by-case basis  Compatibility (Erasmus + Zeda case p 138 ) – not taken lightly, must be only acceptable outcome and must be accompanied by proper procedure;  Necessary changes to Ts and Cs of agreement unreasonable refusal of necessary changes permits dismissal MWASA case p 139  FTC employee cannot be dismissed for operational reasons – only for breach or if early termination allowed ito contract LO6: Advise a client on the requirements for substantive fairness in respect of dismissals on the following grounds: Incapacity (both for poor work performance as well as for illness/injury).  See section 188 of LRA  Incapacity is seen as the employee’s inability to do their job as a result of poor work performance or ill health/injury: page 132 graph  poor work performance: during/after probation  ill health/injury: temporary/permanent inability to perform  Neither intentional nor negligent – no fault dismissal on employee’s part  Differentiate between misconduct and incapacity (page 132) LO7: Advise a client on the requirements for procedural fairness in respect of dismissals on the following grounds: Misconduct  The Code: Dismissals provides guideline to procedural fairness for misconduct dismissals (page 130 graph)  1. Employer: investigate ground for dismissal and properly notify employee of allegations  2. Employee: allowed to state case, reasonable time to prepare and allowed assistance of TU of co-employee  3. Employer: written decision to employee and give reasons if dismissed and well as information about right of recourse  What are the reasons employer may provide for not having a hearing prior to dismissal?  Consult/inform TU where employee is a rep/office-bearer  Dismissal date is either at end of notice or after all salaries have been paid – page 140 example LO7: Advise a client on the requirements for procedural fairness in respect of dismissals on the following grounds: Operational requirements  Page 149  See section 189 (big employer - small retrenchment/small employer - any number) + 189A (big employer – large scale retrenchment) let us look at graph on page 147 for additional requirement  Procedural fairness places consultation at the nucleus of the process:  1. When and whom to consultation  2. Invite to consult including the following written information:  Reasons  Alternatives considered and why alternative rejected  Number of employees/job categories to be affected  Proposed method of selection  When dismissal are likely to occur  Severance pay proposed  See details from p142 to 143 of other relevant information (meeting, disclosure of information, selection criteria and severance pay)  Read Astrpak (same/more pay = unreasonable refusal, less pay = reasonable refusal) + AMC (consultation is not constitution right) cases page 144 LO7: Advise a client on the requirements for procedural fairness in respect of dismissals on the following grounds: Incapacity (both for poor work performance as well as for illness/injury)  ILLNESS/INJURY  Fair process serves purpose of job security and employee input of alternative to dismissal  See Williams case on page 135 – dismissal unfair as employee was not consulted regarding alternative  See table on page 135, right hand column:  Consultation employer/employee (represented)  Employer consider medical information  Reasonable accommodation  See factors to be considered in box 2  POOR WORK PERFORMANCE  Employee on probation: either extend for reasonable period or dismiss at end of probation period  Employee after probation: employee is reasonably aware of work standard > given fair opportunity to meet standard > employer considered options to remedy lack of standard. Throughout process employee must be consulted with opportunity to respond  PEMA5122 Learning Unit 6 – Dismissals and Other Ways of Terminating Employment Contracts Theme 3 – Unfair and Automatically Unfair Dismissals PM: Chapters 7, 8 & 9 Schedule 8 - Code of Good Practice: Dismissal  LO8: Differentiate between an ‘unfair dismissal’ and an ‘automatically unfair dismissal’.  https://www.ccma.org.za/unfair-labour-practice/  See section 185(a) + 188 of the LRA for definition of dismissal and section 187 for automatically unfair dismissals  Section 187 AUTOMATICALLY UNFAIR DISMISSALS  Employer acts contrary to sec 5 (employee freedom of association)  Employer dismiss employees who show intention or actually participcate/support strike or protest (sec 67) (a)  Employee intent or refusing to work during strike or was locked out – unless work prevents danger to life, personal safety or health (b)  Employee refuse to accept demand where outcome is of mutual interest with employer (employer abusing power) (c)  Employee intended or actually took action against employer (d)  Reason related to pregnancy (e)  Employer direct/indirect discrimination on arbitrary grounds (f)  Sec187(2) dismissal fair if based on inherent job requirement and based on age if employee reached retirement age  Reason related to transfer secs 197 + 197A (g)  Employer contravene PDA (h)  Section 188 OTHER UNFAIR DISMISSAL  Dismissal is unfair employer fails to prove that dismissal is for fair reason (conduct, capacity, or operational requirements) and fair procedure was followed – see code of good practice (schedule 8)  LO9: Identify whether a dismissal is automatically unfair in terms of section 5 of the LRA, based on a given set of facts.  Read section 5 again “Employee’s right to freedom of association” and ensure that you understand employee protection under this section in relation to trade unions, workplace forum, exercising rights conferred by the LRA and participating in proceedings as per LRA  PEMA5122 Learning Unit 6 – Dismissals and Other Ways of Terminating Employment Contracts Theme 4 – Dispute Resolution Mechanisms PM: Chapters 7, 8 & 9 Schedule 8 - Code of Good Practice: Dismissal LO10: Discuss the role of the Commission for Conciliation, Mediation, and Arbitration (CCMA) and Labour Court in unfair dismissal disputes  See section 191  P103 “CCMA and BCs” 6.2  CCMA is empowered by the LRA with authority to resolve labour disputes and to provide advice and training on labour relations:  page 103  Arbitration of unfair dismissals relating to misconduct/incapacity  CCMA does not have jurisdiction to hear unfair dismissal disputes if members of BC or in registered scope of BC p103  Labour court may adjudicate on unfair dismissals if CCMA director deems it appropriate based on section 191(6)  LO11: Explain the differences between conciliation mediation and arbitration  Conciliation p103 Third party (commissioner) assists the disputing parties to settle their matter, commission determines process and can include mediation, fact finding recommendation and arbitration Cases of unfair dismissal should be referred for conciliation  After conciliation matter related to misconduct and incapacity are referred for arbitration – automatically unfair dismissal + operational reasons must be adjudicated by LC  See graph on page 104  Arbitration p104  Third party (arbitrator) hands down final award, in process he deems necessary – can only be reviewed and not appealed (defined p 105)  Matters to be arbitrated:  unfair dismissal for misconduct/incapacity  Constructive dismissal as a result of transfer  Employee unaware of reason for dismissal  Can take place in BC or CCMA  LO13: Explain the jurisdiction of the courts in labour disputes PAGE 106  CCMA  Previously discussed: conciliation, mediation and arbitration  LC  Same status as HC (wide powers of adjudicating labour matters), review arbitration awards  Automatically unfair dismissal, strike/lock-out dismissal and dismissal for operational reasons  See example on page 107  LAC  Highest court of appeal in labour matters LO12: Apply to a given set of facts, the process to be followed in an unfair dismissal dispute with specific reference to the documents necessary to proceed with such a matter  Let us turn to pages 107 - 114