Labour Law PDF

Theme 6 Part 1 Dismissals Introduction  Section 185 LRA  Every employee has the right not to be—  (a) unfairly dismissed Right is provided to employees  Objective of the LRA is to promote job security. J van de Rheede 2 Types of dismissal –...

Theme 6 Part 1 Dismissals Introduction  Section 185 LRA  Every employee has the right not to be—  (a) unfairly dismissed Right is provided to employees  Objective of the LRA is to promote job security. J van de Rheede 2 Types of dismissal – s186 LRA “Dismissal” means that— a) an employer has terminated employment with or without notice; b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer- i) Renew a fixed term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it; or ii) Retain the employee in employment on an indefinite basis otherwise on the same or similar terms as the fixed term contract but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee; c) An employer refused to allow an employee to resume work after she – i) Took maternity leave in terms of any law, collective agreement or contract of employment J van de Rheede 3 Types of dismissal – s186 LRA d) An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; e) An employee terminated employment with or without notice because the employer made continued employment intolerable for the employee. f) An employee terminated employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer. J van de Rheede 4 A. Termination with or without notice Section 186(1)(a): this subsection reflects what the common law understands as been a dismissal: - Being the repudiation of a contract by the employer - Acceptance by the employer of the employees repudiation What must be proved for this dismissal: 1) An employment relationship existed between the parties 2) the relationship was terminated by the employer Question: can an employee be dismissed after an employment contract has been concluded but before the commencement of the employment. Answer is yes, once contract concluded parties become employer and emeployee J van de Rheede 5 B. Non-renewal of fixed term contract Section 186(1)(b): At common law a fixed term contract expires automatically on occurrence of specific date or specific event, thus no dismissal as contract has expired LRA: Employee is deemed to be dismissed if 1) such an employee reasonably expected the employer to renew the fixed term contract of employment on same or similar terms 2) but employer offered to renew on less favorable terms or not renew it at all 3) or the employee reasonably expected the employer to retain the employee indefinitely on the same or similar terms as the fixed terms contract but offered to retain employee on less favorable terms or not offer to retain employee at all - As far as reasonable expectation is concerned the onus of proving reasonable expectation rests on employee - To determine presence of reasonable expectation an objective test is applied which means there should be facts in existence which would lead a reasonable person to anticipate a renewal or anticipate the fact the employee would be retained. - This is usually based on an express or implied promise - The legislature included this form of dismissal to prevent employers from circumventing the LRA by keeping employees on fixed term contracts indefinitely and terminating it at will and without following a fair procedure J van de Rheede 6 C. Pregnancy or maternity leave Section 186(1)(c): The LRA deems an employee to be dismissed if the employer does not allow the employee to resume work after she has taken maternity leave in terms of any law, collective agreement or any contract of employment In terms of BCEA; employees are given 4 months unpaid maternity leave If employee is away longer than period provided for it is not seen as a dismissal, in such a case the employer can treat it as a case of desertion NB to note, employees are only deemed to be dismissed if they took maternity leave legitimately. J van de Rheede 7 D. Selective non-re-employment Section 186(1)(d)  An employer must have dismissed a number of employees for the same or similar reasons and offered to re-employ one or more but not another.  This form of dismissal is only possible if it is preceded by a conventional dismissal and the employees concerned were dismissed in similar circumstances for collective or comparable misconduct.  Dismissed employees who have obtained alternative employment and have no desire to resume employment with the former employer cannot claimed to have been dismissed merely because former colleagues have been re-employed. J van de Rheede 8 E. Constructive dismissal Section 186(1)e  An employee terminates employment with or without notice because the employer makes continued employment intolerable.  The requirements to prove are: 1. An employment relationship must exist at the time the employee leaves the employers service; 2. The employee must have brought the employment relationship to an end; 3. The employee must show that continued employment would be intolerable.  There must be a causal nexus between the employers conduct and the circumstances that led to the employee resigning. J van de Rheede 9 F. Section 197 and 197A dismissals Section 186(1)(f)  In terms of section 197 where a business is transferred as a going concern, the contracts of employment of employees are automatically transferred to the new employer.  A dismissal occurs if the employee terminates employment with or without notice because the new employer after a transfer in terms of section 197A provides the employee with conditions or circumstances at work that are less favourable than those provided by the old employer.  In such a case, the employee has an election to either leave employment and claim dismissal or compel the new employer to improve conditions. J van de Rheede 10  6. Terminations of contract that are not dismissals Terminations that are not dismissals:  Deemed dismissals - A number of statutes and regulations governing employment in the public sector contain provisions in terms of which employee’s are deemed dismissed if they are absent from work without leave for a specified period.  Expiry of an agreed period - A fixed term contract terminates on the expiry of a agreed period, or, the completion of a specified task, or, on the occurrence of an event. - No notice of termination is required. - This is a termination and not a dismissal.  Completion of specified task - A fixed term contract terminates on the expiry of a agreed period, or, the completion of a specified task, or, on the occurrence of an event. - No notice of termination is required. - This is a termination and not a dismissal. J van de Rheede 11 6. Terminations of contract that are not dismissals (cont.)  Repudiation - Repudiation by either party whether expressed or implied, gives the other party the right to terminate the contract.  Mutual agreement - In order for the contract to terminate by mutual agreement, there must be consensus between the parties.  Death of either party - Death of the employee results in termination, as well as death of employer, unless the employee is employed by a juristic person.  Insolvency of employer - Employee’s claims for wages, or, bonuses, or, leave pay due, at the time of the employers insolvency should be claimed from the employers insolvent estate.  Supervening impossibility - If either party becomes unable to perform its obligations permanently or for an unreasonable amount of time, this is a termination and not a dismissal Employment Law - PGJ Koornhof 12 6. Terminations of contract that are not dismissals (cont.)  By state action - Where an employer or employee is incapable of performing his or her obligations due to official action by the state, this constitutes a termination and not a dismissal.  Exercise of executive power - Certain public officials are appointed by the president by virtue of their powers as head of executive. - The removal of these officials constitutes a termination.  Transfer of business - Transfer of employees from the old to the new employer does not constitute a dismissal by the old employer. Employment Law - PGJ Koornhof 13 Dismissal under LRA  Section 185:  Every employee has the right not to be unfairly dismissed.  The function of s186 is simply to identify what the legislature considers a dismissal. J van de Rheede 14 Fair reason  There are three permissible and fair reasons for a dismissal under the LRA: 1. Misconduct 2. Incapacity 3. Operational requirements (retrenchment) J van de Rheede 15 Fair procedure  The Labour Relations Act (LRA) requires that a dismissal should not only be for a fair reason but that the fair procedure should be followed. J van de Rheede 16 Burden of proof  Burden of Proof  Employee must prove dismissal - The employee must prove: 1. That the worker was an employee at the time of the alleged dismissal. 2. That the employee was dismissed.  Employer must prove that it was fair - The employer must prove substantive fairness and procedural fairness. - Proof that the dismissal was substantively fair requires the employer to prove on a balance of probabilities that the employee committed misconduct, or was incapacitated, or operational requirements existed. - The employer must prove procedural fairness on a balance of probabilities. J van de Rheede 17 Remedies  Reinstatement: - This presupposes no break in employment. - Backpay is relevant.  Re-employment: - The employment contract ended on the date of the dismissal and the employment resumed on the date of re-employment. - No backpay is relevant. J van de Rheede 18 Remedies  Compensation: - In the case of ordinary dismissals an employee is entitled to a maximum of 12 months remuneration. (S186 of LRA) - In the case of automatically unfair dismissals, the employee is entitled to a maximum of 24 months remuneration. (S187 of LRA)  Other orders: - Settlement offers that are accepted results in litigation being avoided. J van de Rheede 19  Theme 6 Part 2 Automatically unfair dismissals Automatically unfair dismissals Section 187 LRA J van de Rheede 2 Section 187 LRA  (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is  (a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;  (b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;  (c) a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer; J van de Rheede 3 Section 187 LRA  (d) that the employee took action, or indicated an intention to take action, against the employer by –  (i) exercising any right conferred by this Act; or  (ii) participating in any proceedings in terms of this Act;  (e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;  (f ) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility; J van de Rheede 4 Section 187 LRA  Section 187(1) (cont)  (g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or  (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.  Section 187(2): Despite subsection (1)(f )—  a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;  a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. J van de Rheede 5 Dismissal contrary to section 5 Section 5 confers on employees a right to freedom of association and to belong to workplace forums  5. Protection of employees and persons seeking employment  (1) No person may discriminate against an employee for exercising any right conferred by this Act.  (2) No person may do, or threaten to do, any of the following-  (a) require an employee or a person seeking employment-  (i) not to be a member of a trade union or workplace forum;  (ii) not to become a member of a trade union or workplace forum; or  (iii) to give up membership of a trade union or workplace forum;  (b) prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or J van de Rheede 6 Dismissal contrary to section 5 (c)prejudice an employee or a person seeking employment because of past, present or anticipated-  (i) membership of a trade union or workplace forum;  (ii) participation in forming a trade union or federation of trade unions or establishing a workplace forum;  (iii) participation in the lawful activities of a trade union, federation of trade unions or workplace forum;  (iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do;  (v) disclosure of information that the employee is lawfully entitled or required to give to another person;  (vi) exercise of any right conferred by this Act; or  (vii) participation in any proceedings in terms of this Act. J van de Rheede 7 Dismissal contrary to section 5 Section 187 J van de Rheede 8 Strike dismissals & additional work during strikes  Section 187(1)(a) & (b) (a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV; (b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health. J van de Rheede 9 Dismissal in support of demand (c) a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer  It is automatically unfair to dismiss an employee for refusing to accept a demand in respect of any matter of mutual interest between the parties.  This section does not apply to individual employees which means that it only applies within the collective bargaining context.  A distinction can be made between a ‘lockout dismissal’ and an ‘ordinary dismissal’.  A lockout dismissal is when employees are dismissed conditionally, holding open the possibility of re-employment if they accept the demand.  This form of dismissal is relevant in the case of a lockout dismissal. J van de Rheede 10 Victimisation (d) that the employee took action, or indicated an intention to take action, against the employer by –  (i) exercising any right conferred by this Act; or  (ii) participating in any proceedings in terms of this Act;  This section prevents employers from dismissing employees for exercising any statutory rights or for participating in any proceedings in terms of the Labour Relations Act.  The employee must adduce evidence to show that the employer dismissed the employee for the above reason and not for any reason advanced by the employer. J van de Rheede 11 Pregnancy (e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy  Employee’s pregnancy – When it is confirmed and/or the employee has informed the employer that she is pregnant. An employees pregnancy may not be a reason for her dismissal.  Intended pregnancy – The phrase intended pregnancy is aimed at employees who announce that they plan to start a family.. An employees desire to start a family may not be a reason for their dismissal.  Any reason related to her pregnancy – anything surrounding the employees pregnancy. Also includes, absence from work for medical attention (doctors appointments) and changes in the employees physical appearance, neither of these grounds may be a reason for her dismissal.  If an employee is pregnant, this does not preclude an employer from dismissing the employee due to operational requirements provided that the court is persuaded that the employee was indeed dismissed due to operational requirements.  Operational requirements (retrenchment), misconduct, and incapacity are the only grounds for immediate dismissal and the employer bears the onus to prove such dismissal. J van de Rheede 12 Discrimination (f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;  This is the only form of unfair dismissal where defences are available to the employer i.e inherent requirement of the job and/or normal or agreed upon retirement age.  Affirmative action may not be raised by an employer as a defence.  Employers cannot dismiss non-designated employees in order to make employment equity targets.  Discrimination based on any of these grounds would automatically constitute an unfair dismissal.  Plausible defences for employer: Reaching agreed or set retirement and/or lacks an inherent requirement for the job. J van de Rheede 13 Transfer of business (g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A  In terms of S197 and S197A, the contracts of employments of employees pass automatically from one employer to another (from the old to the new).  If there is such a transfer, an employer wishing to sell their business to a purchaser may not dismiss employees if the purchaser does not wish to engage with the sellers employees.  The difference between this section and S186 is that in S186 (S186 references S197 in the LRA), the employee terminates employment due to receiving circumstances or conditions at work that are less favourable than what was provided from the old employer.  In circumstances of a business transfer, employment contracts transferred from old employer to new. Automatically unfair if the new employer dismisses employers due to not wanting to interact with new employees. J van de Rheede 14 Whistleblowers (h) a contravention of the Protected Disclosures Act 26 of 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act  This section renders dismissals automatically unfair if the employee is dismissed for making a protected disclosure.  A protected disclosure consists of a disclosure regarding the following: 1. That a criminal offence has been or is likely to be committed; 2. That the health and safety of an individual has been or is likely to be endangered; 3. That the environment is damaged or likely to be damaged. J van de Rheede 15  Theme 6 Part 3 Misconduct: Fair reason Misconduct: fair reason  Introduction  Substantive fairness  Code of Good Practice: Dismissal  Particular disciplinary offences J van de Rheede 2 Dismissal for Misconduct Introduction Misconduct is one of the three grounds recognised by the LRA for which a dismissal is permissible (the other two being operational requirements i.e retrenchment and incapacity) J van de Rheede 3 Dismissal for Misconduct Substantive fairness The substantive fairness of a dismissal for misconduct is assessed according to criteria set out in item 7 of the Code of Good Practice. J van de Rheede 4 Dismissal for Misconduct  Item 7 Code of Good Practice: Dismissal Any person who is determining whether a dismissal for misconduct is unfair should consider – a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and b) If a rule or standard was contravened, whether or not i) the rule was a valid or reasonable rule or standard; ii) the employee was aware or could reasonably be expected to be aware of the rule or standard; iii) the rule or standard was consistently applied; iv) dismissal was an appropriate sanction for the contravention of the rule or standard. J van de Rheede 5  Dismissal for Misconduct  Code of Good Practice: Dismissal: 6 factors: 1. Presence of rule in employer’s business  To justify a dismissal, an employer must prove that the employee breached a workplace rule.  The rule must be in existence.  The rule need not be in writing, it may be verbal or obvious.  Less obvious rules must be in writing.  Written rules may be found in the employment contract or collective agreement while verbal or obvious rules may be found in policies and practices. 2. Reasonableness of the rule  The rule which the employee broke must be valid and reasonable.  A workplace rule is regarded as valid if it falls within the employers contractual powers and if the rule does not infringe the law or the collective agreement.  A workplace rule is regarded as reasonable if it is operationally justified i.e if it serves to promote the employers business and the welfare of the employees generally. J van de Rheede 6 Dismissal for Misconduct  Code of Good Practice: Dismissal: 6 factors: 3. Knowledge of the rule by the employee  The employer must prove that the employee was or could reasonably be expected to have been aware of the rule.  The Code does not require actual knowledge since it is enough that the employee ought to have known that the conduct was prohibited. 4. Employee actually broke rule  This must be proved on a balance of probabilities.  Proof that the employee actually broke the rule presupposes the presentation of evidence and a proper investigation that link the employee to the offence.  Needs to have evidence and a investigation. Investigation must link employee to specific offence.J van de Rheede 7 Dismissal for Misconduct 5. Consistency (historical v contemporaneous inconsistency  Employee’s must be treated equally which is known as the parity principle.  It is unfair to dismiss an employee for an offence which the employer condoned in the past. This is know as Historical Inconsistency.  It is unfair to dismiss some of a number of employees who committed the same offence. This is known as Contemporaneous Inconsistency.  An employer may treat employees differently if a good reason exists. This is the exception to both historical and contemporaneous inconsistency. 6. Appropriate sanction - The principle that the penalty must fit the offence requires the employer to consider alternative sanctions prior to dismissal - All factors should be considered in determining the appropriate sanction - Factors: 1) Circumstances surrounding offence, 2) Employees disciplinary record is considered, 3) Employees blameworthiness, 4) Consistency J van de Rheede 8 Particular disciplinary offences 1. Dishonesty 2. Unauthorised use or possession of company property 3. Conflict of interest 4. Wilful damage to property 5. Wilful endangering of the safety of others 6. Assault and fighting 7. Intimidation 8. Insubordination 9. Abusive and racist language 10. Intoxication on duty J van de Rheede 9 Particular disciplinary offences 1. Dishonesty Dishonesty in the employment context takes various forms such as theft, fraud. - Dishonesty undermines the trust upon the employment relationship is built - Dismissal is justified in all cases of serious dishonesty, not just in those where employees enriched themselves materially at the expence of the employer. - Dismissal of an employee was held unjustified where employer had not made it clear that the employees where not authorised to remove the goods and where the goods were of no economic value, however, the low value of the goods maybe offset by an employers need to deter theft - To justify dismissal the test is: Whether employees action had rendered the relationship of the employer and employee intolerable J van de Rheede 10 Particular disciplinary offences 2. Unauthorised use or possession of company property - Property made available to employees by the employer must be used for work related purpose unless they obtain permission to use it for other reasons - Employees who use company vehicle for private use may be dismissed if there is rule prohibiting such use - Unauthorised possession of company property maybe a form of theft but it is wider than theft because it does not require the employee to deprive the employer of possession J van de Rheede 11 Particular disciplinary offences 3. Conflict of interest - Employees are required to devote their time to advancing the business interest of the employer - Conduct in which employees intentionally place themselves in a situation where their own interest conflict with those of the employer justifies dismissal - Employee need not be consciously seeking to further own interests, it is sufficient that the conduct breach the trust relationship J van de Rheede 12 Particular disciplinary offences 4. Wilful damage to property - To justify dismissal the damage must be wilful and substantial - The code suggest that negligence will not justify dismissal - Where the negligence was so gross that it can be assumed that the employee foresaw or should have reasonably foreseen the damage to property, dismissal may be justified - An employee who causes harm to property or who retards production through poor work performance may be disciplined after proper counselling and training, but dismissal for a first offence is generally unwarranted J van de Rheede 13 Particular disciplinary offences 5. Wilful endangering the safety of others - This offence usually takes form of a wilful disregard of safety rules and procedures. - Actual injury to others is not required. - An act that could reasonably have had that result is sufficient. - May be negligent or intentional, any wilful disregard of safety procedures. - If someone isn’t harmed, employee may still not escape liability. If action was reasonably likely to cause harm then employee may still be liable. J van de Rheede 14 Particular disciplinary offences 6. Assault and fighting - Assault is the intentional and unlawful application of force to a person or a threat that force will be applied. (may be threats, not limited to physical forms). - Force may take a number of forms and need not necessarily involve the application of physical force. - Threats of violence may suffice. - An employer may dismiss employees (assailants) even if the assault takes place off work premises provided that it relates to a work related reason. - Imposing a sanction, the employer should consider the circumstances of each employee involved in the fight i.e the circumstances surrounding the incident itself, and the backgrounds of the respective employees (disciplinary record). J van de Rheede 15 Particular disciplinary offences 7. Intimidation (this occurs when a person threatens another with harm) - Courts have accepted intimidation as a ground for terminating employment provided that it entails threats that have been uttered seriously and the employee concerned uttered the threats. - two-requirements: 1. Utter threats seriously; 2. Proof that the employee concerned uttered those words which intimidated someone else. J van de Rheede 16 Particular disciplinary offences 8. Insubordination - The courts have distinguished between insolence and insubordination. - Insolence consists of a lack of respect and cheekiness while insubordination is an employees refusal to obey the lawful and reasonable instructions from an employer. - Insubordination presupposes a calculated breach by the employee of the duty to obey the employers lawful and reasonable instructions. -Dismissal is justifiable only when the insolence is wilful and serious. Employee may escape liability if the insolence is meant as a jest or is unserious. -When the insubordination is serious and deliberate, dismissal may be justifiable for a single occurrence. J van de Rheede 17 Particular disciplinary offences 9. Abusive and racist language An isolated incident of verbal abuse may result in dismissal depending on the severity, malicious intent, whether it was directed to specific person, used in the presence of other employees, justification or where the user showed remorse - Dismissal may be appropriate for a single incident. J van de Rheede 18 Particular disciplinary offences 10. Intoxication on duty - Employees may be dismissed if they consume alcohol or drugs to the extent that they are rendered unfit to perform their duties. - Where intoxication is treated as incapacity as apposed to misconduct, counselling and rehabilitation may be required. - Alcohol or substance abuse are determined by way of breathalyser tests, blood tests, urine tests, and physical observation. - Intoxication may amount to misconduct or incapacity. - Intoxication amounting to incapacity, person may require counselling and rehabilitation (depends whether intoxication renders them unable to do their work duty). J van de Rheede 19  Theme 6 Part 4 Misconduct: Fair Procedure Misconduct-fair procedure  Introduction  Code of Good Practice: Dismissal  Investigation  Requirements for a fair hearing J van de Rheede 2 Procedural Fairness Introduction  Substantive fairness concerns the reason for the dismissal. (Theme 6 Part 3)  Procedural fairness concerns the pre-dismissal action. J van de Rheede 3 Procedural Fairness  Item 4 Code of Good Practice: Dismissal - The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. - The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. - The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision. J van de Rheede 4 Procedural Fairness INVESTIGATION (starting point)  The investigation usually takes the form of interviews and the gathering of evidence.  The Code of Good Practice: Dismissal requires a pre- hearing investigation, which need not be conducted formally.(informal investigation merely required.)  The pre-hearing investigation is the inquiry leading to the decision to charge the employee.  Its purpose is to establish whether there is a prima facie case against the employee. J van de Rheede 5 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 1. Adequate Notice 2. The Employee Must Be Aware Of The Charges 3. Hearing Must Generally Precede The Decision 4 The Hearing Must Not Be Unreasonably Delayed 5. The Employee Should Be Present At The Hearing 6. The Employee Must Be Permitted Representation 7. The Employee Must Be Allowed To Call And Question Witnesses 8. The Presiding Officer Should Keep Minutes 9. The Presiding Officer Should Be Impartial 10.The Decision J van de Rheede 6 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 1. ADEQUATE NOTICE (Timeframe)  The code requires the employer to notify the employee of the allegations using a form and a language that the employee can reasonably understand.  The employee must be given sufficient time to prepare. 2. THE EMPLOYEE MUST BE AWARE OF THE CHARGES (Informed of all elements of charge)  The employer must inform the employee of the allegations.  The employee cannot prepare a defence if the employee is ignorant of the charges that the employee is required to answer.  The charges should be formulated in precise terms and should spell out that a consequence of being found guilty may possibly be dismissal. J van de Rheede 7 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 3. THE HEARING MUST GENERALLY PRECEDE THE DECISION  The purpose of the hearing is to ensure that the employee has the opportunity to challenge the accusations of the employer.  It is unfair if a decision is taken first and a ‘sham’ hearing follows. 4. THE HEARING MUST NOT BE UNREASONABLY DELAYED  The hearing must be convened as soon as possible after the incident that lead to the disciplinary action so that the facts are still fresh in the minds of the parties and the witnesses.  One should however bear in mind that the parties require a reasonable period to prepare its case.  If there is a lengthy delay in instituting disciplinary action, the employer should provide some explanation for the delay. J van de Rheede 8 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 5. THE EMPLOYEE SHOULD BE PRESENT AT THE HEARING - Generally, a hearing held in the absence of the employee is unfair. - The employer may proceed with the hearing in the employee’s absence if the employee refuses to attend the hearing without good cause, or is absent and whereabouts unknown. If employee has a good reason for not attending, a hearing held in the employee’s absence will be unfair. - If employee applies for a postponement, the employer should decide – postponement should be granted if there is a plausible reason. - Mere physical presence is not enough(employee should reasonably understand the proceedings and the technical aspects of the proceedings). - The employee must be able to understand the proceedings - Where the employee is unable to understand, an interpreter should be provided. - The presiding officer should explain any technical aspects such as the law governing cross-examination. J van de Rheede 9 6. THE EMPLOYEE MUST BE PERMITTED REPRESENTATION  The purpose of representation is three-fold: 1. To provide moral support; 2. To ensure that justice is done, 3. To level the playing field between the employer and the employee.  An employee may be assisted by a trade union representative or an employee, however the employee does not have a right to legal representation.  Legal representation depends on the circumstances of the case.  A presiding officer may entertain a request for legal representation where the disciplinary hearing involves technical aspects.  Item 4 of the Code states employee is entitled to representation. Employment Law - PGJ Koornhof 10 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 7. THE EMPLOYEE MUST BE ALLOWED TO CALL AND QUESTION WITNESSES - Employee can call witnesses in their defence/mitigation and cross examine witnesses called by employer - Employer also has right to cross examine the employee's witness -Questions asked must relate to the charges 8. THE PRESIDING OFFICERS SHOULD KEEP MINUTES - Even though disciplinary inquires are not matters of public record minutes must be kept -Presiding officers should keep minutes of the proceedings - Minute keeping may be delegated - This is important in event of right to appeal, arbitration proceedings, and presiding officers' own information J van de Rheede 11 Procedural Fairness 9. THE PRESIDING OFFICER SHOULD BE IMPARTIAL - Who may chair? Managers, trained personnel, outsiders, CCMA commissioners. - Should keep an open mind and not be biased (there should be no suspicion/allegation of bias):  Should not have personal interest in the outcome, not involved in the incident, and not have any history with employee concerned.  If suspicion: Employee may apply for PO recusal. (Presiding Officer must consider the application for recusal but is not required to grant it). J van de Rheede 12 Procedural Fairness  REQUIREMENTS FOR A FAIR HEARING: 10. THE DECISION  There are two stages  First: pronouncement of guilt WHICH IS based on evidence  Second: An appropriate sanction should be handed down where employee found guilty  Reasons for dismissal or sanctions are preferable to provide credibility. This is needed if employee appeals or matter taken on review J van de Rheede 13 Procedural Fairness DOUBLE JEOPARDY - If an employee has been acquitted at the disciplinary inquiry or presiding officer has imposed a penalty less severe than dismissal the employee cannot be subjected to a second inquiry in respect of same offence. - The employer may not ignore the decision of a chairperson of a properly constituted disciplinary hearing and substitute it for its own decision. - If the charges are different this is acceptable. J van de Rheede 14 Procedural Fairness DISPENSING WITH DISCIPLINARY HEARING May, under exceptional circumstances, dispense with hearing  If employer cannot be reasonably expected to hold hearing - examples:  Protection of life and property(dismiss employee instantly)  Employees through conduct have waived right to hearing  Admission of guilt J van de Rheede 15 Procedural Fairness CONSEQUENCES OF PROCEDURAL UNFAIRNESS S193 of LRA - Subject to certain exceptions Labour Court or Arbitrator must grant reinstatement in all cases where a dismissal is proved to be unfair and employee so desires. - Except where employer merely failed to follow a fair procedure, in which case compensation may be awarded. J van de Rheede 16 Theme 6 Part 5 Incapacity Incapacity 1. Introduction 2. Poor work performance 3. Unsuitability and incompatibility 4. Ill-health/ injury J van de Rheede 2 Introduction  Three forms of Incapacity 1. Poor work performance 2. Unsuitability and incompatibility 3. Ill-health or injury J van de Rheede 3  1. Poor work performance- substantive fairness  Item 9, Code of Good Practice: Dismissal  Any person determining whether a dismissal for poor work performance is unfair should consider-  (a) whether or not the employee failed to meet a performance standard; and  (b) if the employee did not meet a required performance standard whether-  (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;  (ii) the employee was given a fair opportunity to meet the required performance standard; and  (iii) dismissal was an appropriate sanction for not meeting the required performance standard. J van de Rheede 4 1. Poor work performance The are two types of employees - Probationary employees - Tenured employees J van de Rheede 5  1. Poor work performance: probation Item 8(1): An employer may require a newly-hired employee to serve a period of probation before appointment is confirmed. - Probation provides employer the chance to assess the employees performance before confirming employment. - Probation period must be reasonable taking certain consideration into account. Considerations: nature of job, industry standard, and time required by employer to assess if employee suitable for the job - During this period the employee should be evaluated and the employer is required to provided employee with guidance, counselling and training to allow employee to perform satisfactory. - If Employee is performing below standard the employer must inform them of specific aspects which the employee has failed to meet the standard - After period of probation the employer can: 1) Confirm the appointment, 2) dismiss employee or 3) extend probation period J van de Rheede 6  Probation – Item 8(1)(j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on the expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period. - This item only applies for dismissals of poor work performance. - Dismissals of probationary employees for other reasons must be assed according to the same standard as would apply in the case of other employees. J van de Rheede 7  Tenured employees – Item 8(2) After probation, employee should not be dismissed for unsatisfactory performance unless the employer has:  1) Given the employee appropriate evaluation, instruction, training, guidance or counselling; and  2) After a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. J van de Rheede 8  Tenured employees – Item 8(3) – (4) Item 8 (3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory work performance and the employer should consider other ways, short of dismissal, to remedy the matter. - The investigation must be aimed at properly assessing the employee - Employees must be made aware of the repects in which performance is defective and they must be given an opportunity to explain Item 8 (4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or fellow employee. J van de Rheede 9  1. Poor work performance When is dismissal appropriate? - Before an employee is dismissed warnings should be issued and recorded - Termination of employment depends on the circumstances of each case and considers the following factors: 1) The length of the employees service. 2) The position occupied by the employee and the level of seniority. 3) The possibility of improvement. 4) The possibility of employee being transferred to another position in the enterprise. J van de Rheede 10 2. Unsuitability and incompatibility  Unsuitability - Where employee is unsuited to the work because of employees' character or disposition  Incompatibility - Employees are unable to fit in with the working environment and relates poorly to colleagues and clients J van de Rheede 11  3. Ill-health or Injury-substantive fairness  Item 11 – substantive fairness  Any person determining whether a dismissal arising from ill health or injury is unfair should consider-  whether the employee can perform the work; and  if the employee is not capable-  the extent to which the employee can perform the work;  the extent to which the employee's work circumstances might be adapted to accommodate the disability, or, where this is not possible, the extent to which the employee's duties might be adapted (duties changed to accommodate disability); and  the availability of any suitable alternative work (is there other work available employee can do). (First point of call is to determine if employee can do the work, if they can the inquiry stops there. However, if they are not capable one needs to look at extent they can perform the work and so forth) J van de Rheede 12  3. Ill-health or Injury  Item 10(1) – substantive fairness Incapacity on the grounds of ill-health or injury may be temporary or permanent. - If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include: the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. - In cases of permanent incapacity: the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee. J van de Rheede 13 3. Ill-health or Injury  Item 10(2) – (4) – procedural fairness Item 10 (2) In the process of the investigation referred to in subsection (1), the employee should be allowed to state a case in response and to be assisted by a trade union representative or fellow employee. Item 10 (3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. Item 10 (4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. J van de Rheede 14  3. Ill-health or Injury-substantive fairness Nature of incapacity - Consideration should be given to employees who are injured at work or who are incapacitated by work-related illness - Employees addicted to drugs and alcohol, may be counselled and rehabilitation may be an option - Rehabilitative steps need not be taken at employers expense J van de Rheede 15 3. Ill-health or Injury-substantive fairness Seriousness of the incapacity - Dismissal is inappropriate if absence is likely to be a short duration. However, situation is different if employee is repeatedly absent for brief periods. - The reasonableness of the employee's absence should be evaluated according to certain factors such as strategic importance of employees job, the length of service, ease at which employee can be temporarily replaced and the financial capacity of employer to replace employee J van de Rheede 16 3. Ill-health or Injury  Employer must investigate - Employers are obliged to investigate the extent of the employee’s disability, whether the employee can be assisted and the possible ways of adapting the employee’s work to accommodate the employee. - Expert evidence may be required to prove whether the work could not be adapted or alternative work could not be found - Possible alternatives to termination include: adapting incapacitated employees' current duties, providing reasonable assistance or equipment or finding alternative work J van de Rheede 17 Dismissal  When is it fair to dismiss?  The question that should be answered is: Can employer reasonably cope without suffering significant loss? - If the employer can cope then dismissal would not be fair, if the employer cannot reasonably cope then the dismissal would be fair J van de Rheede 18  Theme 6 Part 6 Operational Requirements  Operational requirements  Introduction  S189 of the LRA (all employers must comply with this section)  S189A of the LRA (utilised in case of large amounts of retrenchments) J van de Rheede 2 Introduction  What are operational requirements?  Operational requirements are requirements based on economic, technological, structural or similar needs. (T.E.S.S) J van de Rheede 3 Reasons for retrenchments  Lower demand in product/services – financial survival (economic needs).  New technology or working methods i.e. work positions become obsolete (technological needs).  Reorganisation of business structure (structural needs).  Economic concerns the financial management of the business.  Technological needs or requirements affect a number of employees that are required for the employer.  Structural needs or requirements concern the redundancy of posts after restructuring or reorganisation of the business. J van de Rheede 4 Operational requirements  Dismissals for Operational Requirements regulated by:  Section 189 and 189A of the LRA  Code of Good Practice on Dismissals based on Operational Requirements  Dismissals based on operational requirements should be substantively and procedurally fair. J van de Rheede 5 Operational requirements  The employer’s objective  Courts are generally weary to declare retrenchments unfair solely because the employer could have retained some or all of the employees.  The requirement is that the employer should have a bona fide rationale for retrenching the employees i.e. the retrenchments must be aimed at affecting savings.  The retrenchments must be linked to the professed operational goal.  Much depends on whether the dismissal can be avoided and the employers objective can still be attained.  When retrenchments are motivated solely by the desire to increase profits, the employer will be judged by a stricter standard. J van de Rheede 6 Operational requirements  The question:  Initially the question was whether there was a bona fide reason for the employer to retrench the employees.  The court held that the question is not simply whether the employer acted in good faith i.e. whether the employer had a bona fide reason for retrenching the employees.  The inquiry went further to prove that the dismissal was based on genuine operational requirements as defined and that fair procedure was followed.  Recently the courts held that the employees failure to prove that there was joint consideration of ways to avoid dismissals may lead to the dismissals being rendered substantively unfair. J van de Rheede 7 Operational Requirements Section 189 LRA: Contains both procedural and substantive aspects. J van de Rheede 8 Operational Requirements Retrenchment notice  Before the decision to retrench (retrenchments merely proposed), the employer must give reasonable notice of the proposed retrenchments to the employees or a registered trade union or a workplace forum.  The notice must be in writing.  The purpose of disclosing this information is to enable the employees or their representatives to prepare for the consultation and to produce sensible suggestions. J van de Rheede 9  Operational Requirements Disclosure of Information Retrenchment notice: should contain sufficient information  The employer should disclose 1. The reason for the proposed retrenchments; 2. The alternatives that were considered before proposing dismissals and the reason for rejecting each alternative; 3. The proposed method for selecting the employees to be dismissed; 4. The number of employees likely to be effected by the retrenchments and the categories in which they are employed; 5. The time when the dismissals are likely to take effect; 6. Severance pay; 7. The possibility of future re-employment; 8. The number of employees employed by the employer and the number of employees dismissed by the employer for operational requirements in the past year. J van de Rheede 10  Section 189 of the LRA What is the consultation? Consultation is a meaningful consensus seeking process. It is an opportunity for employees/representatives to meet with employer.  The consultation process is an attempt to reach agreement on a range of issues.  The consultation must be meaningful i.e. not merely a checklist approach and not a sham.  Attempts to consult must be real.  The consultation must be exhaustive and not superficial.  The test for whether there was a genuine consultation prior to the retrenchments is whether the employees or their representatives were given a fair opportunity to suggest ways in which job losses may be avoided or the effects of retrenchment reduced and the employer seriously considered the employees proposals.  Management should retain a mind sufficiently open to be persuaded by rational and practical alternatives. J van de Rheede 11  Section 189 of the LRA - when must consultation commence?  As soon as employer contemplates dismissals.  This indicates that the decision must not already have been finally taken by the employer when the employer begins the consultation.  The word ‘contemplates’ suggests that the employer should notify employees of the possibility of retrenchments as soon as management has decided in principle to adopt a policy which could conceivably result in retrenchments.  The test for determining when the employer contemplates retrenchments is objective. J van de Rheede 12  Section 189 of the LRA - who must be consulted? a) Any person with whom the employer is required to consult in terms of a collective agreement. b) If there is no collective agreement, then a workplace forum and any registered trade union whose members are likely to be affected by retrenchments. c) If there is no workplace forum, any registered trade union whose members are likely to be affected. d) If there is no trade union, then the employees likely to be affected by the dismissals. J van de Rheede 13  Section 189 of the LRA Subject matter of consultation: must engage in a meaningful joint consensus seeking process on: i) appropriate measures to  to avoid the dismissals;  to minimise the number of dismissals  to change the timing of the dismissals; and  to mitigate the adverse effects of the dismissals; ii) the method for selecting the employees to be dismissed; and iii)the severance pay for dismissed employees J van de Rheede 14  Section 189 of the LRA 1. Appropriate measures to avoid dismissals  Places employees in position to challenge merits of proposal to retrench  If some or all retrenchments can be avoided, then proposal to retrench is unnecessary i.e. it lacks a sound economic reason for it.  The test for whether retrenchments are necessary must be applied with a purpose intended to be served by the plan that led to the dismissals coming to the employers mind.  Alternatives to retrenchment include voluntary retirements, moratoriums of hiring new employees and short time.  The employer is not obligated to implement the alternatives, however they should be seriously considered. J van de Rheede 15 2. Appropriate measures to minimise the number of dismissals - The same considerations mentioned in Appropriate measures to avoid dismissals apply to this - If reasonable alternatives cannot avoid retrenchments in its entirety the question to ask is: can it reduce the number of dismissals? Employment Law - PGJ Koornhof 16  Section 189 of the LRA 3. Measures to change the timing of dismissals - At the commencement of the consultation the employer must indicate when it proposes to retrench employees. - If any alternatives are accepted time may be needed to evaluate their effects. J van de Rheede 17  Section 189 of the LRA 4. Measures to mitigate the adverse effects of dismissals - Once retrenchment becomes inevitable the employee parties must be afforded the opportunity to make representations on behalf of individuals that may be hard hit by the retrenchments or that time be given off work to seek employment. - Employers not required to seek employment for retrenched employees J van de Rheede 18  Section 189 of the LRA 5. The method for selecting the employees to be dismissed. - Employers must select employees to retrench according to a selection criteria: 1) One that has been agreed to by the consenting parties 2) Or if no agreement is reached the criteria used should be objective and fair J van de Rheede 19  Section 189 of the LRA 6. The severance pay for dismissed employees  Must pay at least one week’s wage for every year of continuous service with the retrenching employer.  LRA prescribes minimum, but should still consult as parties may agree to a higher amount - The amount should be based on the remuneration at the time of the retrenchment J van de Rheede 20  Final decision lies with employer  Decision to dismiss still lies with employer  Employer not bound to follow suggestions  Must seriously consider only  Test is whether management retained sufficiently open mind to be persuaded by practical/rational alternatives J van de Rheede 21  Section 189A  Section 189A places additional obligations on employers engaged in large-scale retrenchments  Section 189 remains relevant as well.  Therefore section 189 + section 189A requirements should be met by employers engaged in large scale retrenchments. - One of the differences between s 189 and s 189A is that; in S189A employees may strike to dissuade employer from retrenching - The employer OR employee may compel the other party to submit to facilitation by the CCMA OR an accredited agency - The facilitator is required to attempt to assist the parties to overcome points of departure - The facilitator is not empowered to make rulings on substantive matters only on procedural matters J van de Rheede 22 Section 189A Large Scale retrenchments Employer must have:  more than 50 employees, of which at least ten must be earmarked for retrenchment  If more than 200 employed, must contemplate dismissal of more than one tenth of workforce  Includes all employees dismissed for operational requirements within preceding 12 months J van de Rheede 23 Differences between substantive fairness and procedural fairness  SUBSTANTIVE FAIRNESS - 1) Whether dismissal gave effect to operational requirements, (Technological, economic, structural and similar needs of employer) -2) Was there proper consideration of alternatives to dismissal, must keep an open mind to alternatives? -3) Is selection criteria fair and objective J van de Rheede 24 Differences between substantive fairness and procedural fairness  PROCEDURAL FAIRNESS - 1) Whether retrenchment notice was issued - 2) Whether consultation was held -3) Whether employer consulted with relevant partes J van de Rheede 25