Salient Features of the LRA (19)

1. Salient Features of the LRA (19)

2. Salient features • Amended 3 times since 1995 • 1996,1998,2002 • Governs relationship between A. Employer – employee [individual labour law], including; • Methods of Termination • Grounds for Dismissal and procedures to be followed • Unfair labour practice • Remedies for unfair labour practices

3. LRA salient features cont B. Employer /employer organisations – trade unions [collective bargaining relationship], and LRA regulates: • Freedom of assoc • Trade union organisational rights • Collective agreements • Bargaining councils • Industrial action and related procedures

4. A.Individual Labour Law: Dismissal and unfair labour practice • Previously – lawfulness took precedent over fairness • Chapter VIII - • LRA – need lawfulness and fairness • Fairness requires • Fair reason [substantively fair] • Valid – objective test, and • fair – dismissal appropriate sanction • Fair procedures [procedurally fair] • Follow correct steps • If either missing – dismissal is unfair

5. LRA – s186 – 6 Forms of Dismissal(24) • Termination of contract by employer with or without notice • Failure to renew fixed term contract against expectation • History – mines and rolling over of contracts • S186(c) introduces new clause - reasonable expectation - created by employer • Objective test • Ackerman v United Cricket Board [2004] *3 • [Case study P25] • Refusing employee work post Maternity leave • Selective re- employment • S186(d) – covers excluded employees

6. Cont. 5. Constructive dismissal • S186(e) – covers employees who’s lives are made unbearable at work by employers • Ntsabo v Real Security (2003) - *7 – sexually molested and resigned • SALSTAFF v Swiss Port SA (Pty) ltd(2003)– pregnant employee harassed and threatened • Goliath v Medscheme Pty Ltd 1996 – employees perception not everything • Riverview Manor Pty Ltd v CCMA (2003) - *7 –medical doctor demoted • Test – reasonable person test • Mvamekla v AMG Engineering – allowing employee to resign instead of facing hearing is not constructive dismissal

7. cont 6. S197 or 197A bus. transfer – resignation - due to lesser conditions by new employer. [LRA 2002] • Covered by S 186(f) • Note - a dismissal is not necessarily unfair

8. LRA – 4 Forms of Unfair Labour Practice (26) 2002 Amendment to LRA introduced 4 forms of unfair labour practice • Employers unfair conduct iro promotion, demotion, benefits or training • Unfair suspension or unfair disciplinary action • Failure to reinstate or re-employ ito agreement

9. Forms of Unfair Labour Practice cont • Occupational detriment [introduced 2002] – e.g. victimises [other than dismissal] employee for contravening the Protected Disclosures Act – 26 of 2000 • See Grieve v Denel 2003*13 – threat of disciplinary action for disclosure is ‘occupational detriment’ • Cf CWU v Mobile Telephone Networks 2003 *13– employees accusation based on rumours – not good enough – disclosure not protected

10. Automatically Unfair Dismissals • S187 – if dismissed for any reason listed in 187; • Presumption dismissal is unfair • Damages are highest as far as unfair dismissals are concerned

11. S187 - Automatically unfair dismissals (27) • If the reason for dismissal is: • Exercise of Freedom of association • Participated in – supported a legal/protected strike • Refused to do strikers work in strikers absence • based on employee refusing to accept a demand • Numsa v Zeuna-Starker Bop (Pty) Ltd [2003] –dismissed as refused to accept final wage offer

12. Automatically Unfair Dismissals,cont • Due to, or related to, pregnancy • Solidarity obo McCabe v SA Institute for Medical Research [2003]* 8 - non renewal of contract • Mnguni v Gumbi 2004*8 – pregnant and tired – awarded 24 months! • Based on unfair discrimination • SACTWU v Rubin Sportware [2003] - dismissed due to age, but prior to retirement age • Ackerman v United Cricket Board [2004] *8 • Dismissal relating to transfer of business ito s197/197(A) [LRA 2002] • Due to employees protected disclosure ito Protected Disclosure Act [LRA 2002]

13. Other grounds of dismissal (29) • If dismissal is not automatically unfair, 3 grounds for dismissal recognised by our law. [Sch. 8 LRA ]. Employer to show dismissal related to: • Employees conduct • Employees capacity • Operational requirements • If employer cannot show this the dismissal is unfair.

14. 1.Misconduct • Schedule 8: Guidelines- Code of Good Practice – key aspects of dismissal for reasons related to conduct and capacity, there must be: • Substantive Fairness • Reasonable rule • Awareness of rule • Consistantly applied • Dismissal appropriate punishment [ mitigation?]

15. Misconduct cont • Dismissal must be procedurally fair • Corrective discipline encouraged • Warnings – oral or written • Distinguish minor from serious offences, from very serious offences [no warning required] • Dismissal last option

16. Disciplinary Hearings (34) • Compulsory if potential of dismissal • Unless agreed otherwise, no legal representation • Notice of allegations to be given • Get signed receipt • Use understandable language • Give reasonable time to prepare • Procedure - see P31 Hand out • Recent cases: • Khula Enterprise Finance v Madipane [2004]*15- chair • Schoon v MEC Dept Finance, Northern Province [2003]

17. 2. Incapacity [2nd Ground for dismissal](33) • Employee incapable of performing • Dismissal needs to be substantially and procedurally fair • Examples: • Illness or injury • Addictions • Incompetence/poor work performance

18. Incapacity cont • Illness/injury – must show: • Temporary or permanent • Period of absence • Nature of the job • Availability of temporary replacement • Accommodate the disability – esp if work related injury • Tither/Trident Steel [2004] *10

19. Incapacity cont • Incompetence/ poor work performance • Reasonable evaluation, instruction, training guidance and counselling required first [ss8(1)e and 8(2)a – Sch 8 LRA] • Danza v Wanza [2003] *10 • Cf Kreutsch/Chet Industries [2004] *10 • On employment – can use probation • Reasonable period – depends on job, time to evaluate etc • Cannot be used to create insecurity

20. Probation • Amended 2002 – s8 Code of Good Practice • Purpose – evaluate employees performance before confirming appointment • during period – asses, instruct, guide and train • If below standard – advise and give reasons • Dismiss or renew probation

21. Probation cont • If dismissal follows – allow representations • Test for dismissal – reasons can be less compelling than after completion of the period • If contested: Con – Arb follows

22. After probation – if poor work performance (35) • Pre dismissal : • Instruct train and guide • Awareness of shortcomings • Time given to improve • Representations by employee to be considered • Alternatives to be considered

23. S188A Pre-dismissal arbitration [2002] (36) • Employer with employees consent, (consent can be incorporated in contract of employment if senior employees) request CCMA arbitrate prior to dismissal • Avoids duplication of hearings • Fee covered by employer • Legal rep only by agreement • Decision final, but review by Labour Court • Can put a referral clause into a contract of employment – for senior employees

24. 3.Operational requirements – s189 [Dismissal – 3rd ground] (37) • ‘no fault’ – eg - retrenchment • Needs of the business • Need legitimate commercial rationale • Procedure set out s189 – includes: • Prior consultation [ vs negotiation] • Asap • with union or affected employees • Exhaustive and good faith required

25. Operational requirements Cont. – consensus seeking (37) • S189 [as amended 2002] sets out consultation requirements, including: • Must be meaningful joint consensus seeking process • Measures to avoid dismissals [examples p38..] • Minimise numbers [eg allow voluntary retrenchment]

26. consensus seeking cont • Minimise effects where retrenchment inevitable [eg help apply for other positions] • Where inevitable, method of selecting employees [eg LIFO, skills, early retirement etc] • Severance pay [ minimum 1 weeks for each completed year]

27. consensus seeking cont • Offer of alternative employment - if refused, no need for retrenchment package • Employer cannot prejudge situation • Employer has final say • See Atlantis Diesel Engines case 1994

28. Operational requirements Cont. – Written notice to consult • Notify contemplating dismissal [s189 -amended 2002] • Invite consultation • Disclose all relevant information, including: • Reasons • Alternatives considered & why rejected • Proposed employees likely to be affected

29. Written notice to consult cont (40) • Proposed method of proposed selection • Proposed timing • Proposed severance pay • Proposed assistance to employees • Possibility of re-employment

30. Written notice to consult, cont. • And [2002] • Total no. of employees employed • Dismissals for same reason [operational requirements] over the past 12 months • Notice to be given timeously • Privileged info need not be disclosed

31. Operational requirements- process cont. • Employer must respond to representations made – and give reasons if disagree with proposals • [2002] if representations made in writing the response to be in writing • Written notice of final decision to all parties to be given by management

32. S189A Dismissals: operational requirements - >50 employees [2002 intro](40) • Applies if dismissing >10 of up to 200 employees, or 20 of >200 < 300etc • Makes provision for a facilitation process ie. Either party may request the involvement of a facilitator • Sets out time periods that have to lapse before further steps can be taken [eg 60 days before can terminate, or strike] – see too S 189 A (3)

33. Forums and Procedures for Resolving Disputes (46)

34. Three Forums for labour disputes(45) • CCMA • To ease bottlenecks • Most disputes referred to CCMA • Bargaining Council • Sectors have their own bargaining council • Negotiate collective agreements • Similar powers to CCMA • Disputes to the Council and not CCMA • Court • Labour court • Labour appeal court • Superior Courts Bill of 2003, if passed into law – abolishes above court. High Court gets jurisdiction for labour matters with Supreme Court of appeal hearing labour appeals

35. 3 Processes for resolving labour dispute (46) • Conciliation • Commissioner hears both parties and attempts to help them reach agreement • No decision is imposed • Arbitration • Commissioner hears both parties and imposes a decision – final and binding • Rules of evidence apply • Adjudication • Courts – allow legal representation

36. S193 LRA: Remedies for unfair dismissal and unfair labour practices(49) • S193 LRA – 3 remedies • Reinstatement • Re-employment • Compensation [see s194] • If misconduct, incapacity or operational requirement – max 12 months compensation • If automatically unfair – max 24 months compensation

37. Remedies cont • Court will not order reinstatement where: • Employee does not want it • Relationships intolerable • Where not practical to do so • Where the dismissals unfairness is related to procedure only.

38. S197 transfer of contract of employment; and 197A – transfer on insolvency –[2002] (51) • S197 - If transfer of a business as going concern: • New employer substituted in place of the old • all rights and obligations are transferred to new employer • Anything done by old employer is considered to have been done by the new employer • No interruption of employees service • Transport Fleet Maintenance v Numsa 2004 *2

39. s197 cont • The agreement to be in writing • The old employer must reach agreement with the new on : • Accrued leave pay to be transferred • Severance pay that would have been due • Any other payments that have accrued • NB - Which employer will pay the above [record in writing]

40. 197 cont • Old employer to disclose the terms to the employees affected • For 12 months after transfer the old employer is jointly liable with new employer for leave, severance or other payments due if payment is due as a result of employees dismissal for operational requirements or employers liquidation – unless old employer shows it complied with the section

41. s197A transfer on Insolvency [2002](51) • Transfer of business if old employer is insolvent • New employer automatically substituted in all contracts of employment • Rights and obligations between old employer and each employee remain between old employer and employee • Continuity of service continues with new employee

42. 197 B Disclosure of information re insolvency • Employer facing financial difficulties that may result in sequestration must advise affected parties [s189 parties] • Court papers to be supplied to affected parties

43. Collective Labour- Bargaining • See the very good summary in the notes! P51