Transcript LRA 3 - FASSET

Salient Features of the LRA
(19)
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
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
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
LRA – s186 – 6 Forms of
Dismissal(24)
1. Termination of contract by employer with or without notice
2. Failure to renew fixed term contract against expectation
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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]
3. Refusing employee work post Maternity leave
4. Selective re- employment
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S186(d) – covers excluded employees
Cont.
5. Constructive dismissal
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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
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
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
Forms of Unfair Labour Practice
cont
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Occupational detriment [introduced 2002] – e.g.
victimises [other than dismissal] employee for
contravening the Protected Disclosures Act – 26
of 2000
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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
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
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
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]
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.
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?]
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
Disciplinary Hearings (34)
 Compulsory if potential of dismissal
 Unless agreed otherwise, no legal representation
 Notice of allegations to be given
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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]
nd
[2
2. Incapacity
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
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
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
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
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
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
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
3.Operational requirements – s189
[Dismissal – 3rd ground] (37)
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‘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
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]
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]
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
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
Written notice to consult cont (40)
– Proposed method of proposed selection
– Proposed timing
– Proposed severance pay
– Proposed assistance to employees
– Possibility of re-employment
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
Operational requirementsprocess 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
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)
Forums and Procedures for
Resolving Disputes (46)
Three Forums for labour
disputes(45)
 CCMA
– To ease bottlenecks
– Most disputes referred to CCMA
 Bargaining Council
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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
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
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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
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.
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
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]
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
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
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
Collective Labour- Bargaining
 See the very good summary in the notes!
P51