Salient Features of the LRA Salient Features of the LRA (19) (19)

Salient featuresSalient features

Amended 3 times since 1995Amended 3 times since 1995– 1996,1998,20021996,1998,2002

Governs relationship between Governs relationship between A. Employer – employee A. Employer – employee [individual labour law[individual labour law], ],

including;including; Methods of TerminationMethods of Termination Grounds for Dismissal and procedures to be followedGrounds for Dismissal and procedures to be followed Unfair labour practiceUnfair labour practice Remedies for unfair labour practicesRemedies for unfair labour practices

LRA salient features contLRA salient features cont

B. Employer /employer organisations – trade B. Employer /employer organisations – trade unions [unions [collective bargaining relationshipcollective bargaining relationship], and ], and LRA regulates:LRA regulates: Freedom of assocFreedom of assoc Trade union organisational rightsTrade union organisational rights Collective agreementsCollective agreements Bargaining councilsBargaining councils Industrial action and related proceduresIndustrial action and related procedures

A.Individual Labour Law:A.Individual Labour Law: Dismissal and unfair labour practice Dismissal and unfair labour practice Previously – lawfulness took precedent over fairnessPreviously – lawfulness took precedent over fairness

– Chapter VIII - Chapter VIII -

LRA – need lawfulness LRA – need lawfulness andand fairness fairness Fairness requires Fairness requires

– Fair reason [substantively fair]Fair reason [substantively fair] Valid – objective test, andValid – objective test, and fair – dismissal appropriate sanctionfair – dismissal appropriate sanction

– Fair procedures [procedurally fair]Fair procedures [procedurally fair] Follow correct stepsFollow correct steps

If either missing – dismissal is unfairIf either missing – dismissal is unfair

LRA – s186 – 6 Forms of LRA – s186 – 6 Forms of Dismissal(24)Dismissal(24)

1.1. Termination of contract by employer with or without noticeTermination of contract by employer with or without notice2.2. Failure to renew fixed term contract against expectationFailure to renew fixed term contract against expectation

History – mines and rolling over of contractsHistory – mines and rolling over of contracts S186(c) introduces new clause - reasonable expectation - S186(c) introduces new clause - reasonable expectation -

created by employercreated by employer Objective testObjective test Ackerman v United Cricket Board [2004] *3Ackerman v United Cricket Board [2004] *3 [Case study P25][Case study P25]

3.3. Refusing employee work post Maternity leave Refusing employee work post Maternity leave 4.4. Selective re- employmentSelective re- employment

S186(d) – covers excluded employeesS186(d) – covers excluded employees

Cont.Cont.

5. Constructive dismissal5. Constructive dismissal S186(e) – covers employees who’s lives are made unbearable at S186(e) – covers employees who’s lives are made unbearable at

work by employerswork by employers Ntsabo v Real Security (2003)Ntsabo v Real Security (2003) - *7 – - *7 – sexually molested and resignedsexually molested and resigned SALSTAFF v Swiss Port SA (Pty) ltdSALSTAFF v Swiss Port SA (Pty) ltd (2003)–(2003)– pregnant employee pregnant employee

harassed and threatenedharassed and threatened Goliath v Medscheme Pty Ltd 1996Goliath v Medscheme Pty Ltd 1996 – employees perception not – employees perception not

everythingeverything Riverview Manor Pty Ltd v CCMA (2003Riverview Manor Pty Ltd v CCMA (2003) - *7) - *7 –medical doctor –medical doctor

demoteddemoted Test – reasonable person test Test – reasonable person test Mvamekla v AMG EngineeringMvamekla v AMG Engineering – allowing employee to resign instead – allowing employee to resign instead

of facing hearing is not constructive dismissalof facing hearing is not constructive dismissal

contcont

6. S197 or 197A bus. transfer – resignation - 6. S197 or 197A bus. transfer – resignation - due to lesser conditions by new employer. due to lesser conditions by new employer. [LRA 2002][LRA 2002]

Covered by S 186(f)Covered by S 186(f)

Note - a dismissal is not necessarily unfairNote - a dismissal is not necessarily unfair

LRA – 4 Forms of Unfair Labour LRA – 4 Forms of Unfair Labour Practice (26)Practice (26)

2002 Amendment to LRA introduced 4 forms 2002 Amendment to LRA introduced 4 forms of unfair labour practiceof unfair labour practice

Employers unfair conduct iro promotion, Employers unfair conduct iro promotion, demotion, benefits or trainingdemotion, benefits or training

Unfair suspension or unfair disciplinary Unfair suspension or unfair disciplinary actionaction

Failure to reinstate or re-employ ito Failure to reinstate or re-employ ito agreementagreement

Forms of Unfair Labour Practice Forms of Unfair Labour Practice contcont

Occupational detriment [introduced 2002] – e.g. Occupational detriment [introduced 2002] – e.g. victimises [other than dismissal] employee for victimises [other than dismissal] employee for contravening the Protected Disclosures Act – 26 contravening the Protected Disclosures Act – 26 of 2000 of 2000

– See See Grieve v Denel 2003Grieve v Denel 2003 *13*13 – threat of disciplinary – threat of disciplinary action for disclosure is ‘occupational detriment’action for disclosure is ‘occupational detriment’

– Cf Cf CWU v Mobile Telephone Networks 2003 *13CWU v Mobile Telephone Networks 2003 *13 – – employees accusation based on rumours – not good employees accusation based on rumours – not good enough – disclosure not protectedenough – disclosure not protected

Automatically Unfair DismissalsAutomatically Unfair Dismissals

S187 – if dismissed for any reason listed in S187 – if dismissed for any reason listed in 187;187;– Presumption dismissal is unfairPresumption dismissal is unfair– Damages are highest as far as unfair dismissals Damages are highest as far as unfair dismissals

are concernedare concerned

S187 - Automatically unfair S187 - Automatically unfair dismissals (27)dismissals (27)

If the reason for dismissal is:If the reason for dismissal is:– Exercise of Freedom of associationExercise of Freedom of association– Participated in – supported a legal/protected Participated in – supported a legal/protected

strikestrike– Refused to do strikers work in strikers absenceRefused to do strikers work in strikers absence– based on employee refusing to accept a based on employee refusing to accept a

demanddemand Numsa v Zeuna-Starker Bop (Pty) Ltd [2003]Numsa v Zeuna-Starker Bop (Pty) Ltd [2003] – –

dismissed as refused to accept final wage offerdismissed as refused to accept final wage offer

Automatically Unfair Dismissals,contAutomatically Unfair Dismissals,cont

– Due to, or related to, pregnancyDue to, or related to, pregnancy Solidarity obo McCabe v SA Institute for Medical Research Solidarity obo McCabe v SA Institute for Medical Research

[2003][2003] * 8* 8 - non renewal of contract - non renewal of contract Mnguni v Gumbi 2004Mnguni v Gumbi 2004 *8*8 – pregnant and tired – awarded 24 – pregnant and tired – awarded 24

months!months!

– Based on unfair discriminationBased on unfair discrimination SACTWU v Rubin Sportware [2003]SACTWU v Rubin Sportware [2003] - dismissed due to age, but - dismissed due to age, but

prior to retirement ageprior to retirement age Ackerman v United Cricket Board [2004Ackerman v United Cricket Board [2004] *8] *8

– Dismissal relating to transfer of business ito s197/197(A) Dismissal relating to transfer of business ito s197/197(A) [LRA 2002][LRA 2002]

– Due to employees protected disclosure ito Protected Due to employees protected disclosure ito Protected Disclosure Act [LRA 2002]Disclosure Act [LRA 2002]

Other grounds of dismissal (29)Other grounds of dismissal (29)

If dismissal is not automatically unfair, 3 If dismissal is not automatically unfair, 3 grounds for dismissal recognised by our law. grounds for dismissal recognised by our law. [Sch. 8 LRA ]. Employer to show dismissal [Sch. 8 LRA ]. Employer to show dismissal related to:related to:– Employees conductEmployees conduct– Employees capacityEmployees capacity– Operational requirements Operational requirements

If employer cannot show this the dismissal is If employer cannot show this the dismissal is unfair.unfair.

1.Misconduct1.Misconduct

Schedule 8: Guidelines- Code of Good Schedule 8: Guidelines- Code of Good Practice –Practice – key aspects of dismissal for key aspects of dismissal for reasons related to conduct and capacity, reasons related to conduct and capacity, there must be: there must be:

Substantive FairnessSubstantive Fairness– Reasonable ruleReasonable rule– Awareness of ruleAwareness of rule– Consistantly appliedConsistantly applied– Dismissal appropriate punishment [ mitigation?]Dismissal appropriate punishment [ mitigation?]

Misconduct contMisconduct cont

Dismissal must be Dismissal must be procedurallyprocedurally fair fair Corrective discipline encouragedCorrective discipline encouraged

– Warnings – oral or writtenWarnings – oral or written– Distinguish minor from serious offences, from Distinguish minor from serious offences, from

very serious offences [no warning required]very serious offences [no warning required]

Dismissal last optionDismissal last option

Disciplinary Hearings (34)Disciplinary Hearings (34)

Compulsory if potential of dismissalCompulsory if potential of dismissal Unless agreed otherwise, no legal representation Unless agreed otherwise, no legal representation Notice of allegations to be givenNotice of allegations to be given

– Get signed receiptGet signed receipt– Use understandable languageUse understandable language– Give reasonable time to prepareGive reasonable time to prepare– Procedure - see P31 Hand outProcedure - see P31 Hand out– Recent cases:Recent cases:– Khula Enterprise Finance v Madipane [2004]*15- Khula Enterprise Finance v Madipane [2004]*15- chairchair– Schoon v MEC Dept Finance, Northern Province [2003]Schoon v MEC Dept Finance, Northern Province [2003]

2. Incapacity [22. Incapacity [2ndnd Ground for Ground for dismissal](33)dismissal](33)

Employee incapable of performingEmployee incapable of performing Dismissal needs to be substantially and Dismissal needs to be substantially and

procedurally fairprocedurally fair Examples:Examples:

– Illness or injuryIllness or injury– AddictionsAddictions– Incompetence/poor work performanceIncompetence/poor work performance

Incapacity contIncapacity cont

Illness/injury – must show:Illness/injury – must show:– Temporary or permanentTemporary or permanent– Period of absencePeriod of absence– Nature of the jobNature of the job– Availability of temporary replacementAvailability of temporary replacement– Accommodate the disability – esp if work Accommodate the disability – esp if work

related injuryrelated injury– Tither/Trident Steel [2004] *10Tither/Trident Steel [2004] *10

Incapacity contIncapacity cont

Incompetence/ poor work performanceIncompetence/ poor work performance– Reasonable evaluation, instruction, training Reasonable evaluation, instruction, training

guidance and counselling required first [ss8(1)e guidance and counselling required first [ss8(1)e and 8(2)a – Sch 8 LRA]and 8(2)a – Sch 8 LRA]

– Danza v Wanza [2003] *10Danza v Wanza [2003] *10– Cf Kreutsch/Chet Industries [2004] *10Cf Kreutsch/Chet Industries [2004] *10– On employment – can use probationOn employment – can use probation

Reasonable period – depends on job, time to Reasonable period – depends on job, time to evaluate etcevaluate etc

Cannot be used to create insecurityCannot be used to create insecurity

ProbationProbation

Amended 2002 – s8 Code of Good PracticeAmended 2002 – s8 Code of Good Practice Purpose – evaluate employees performance Purpose – evaluate employees performance

before confirming appointmentbefore confirming appointment during period – asses, instruct, guide and during period – asses, instruct, guide and

traintrain If below standard – advise and give reasonsIf below standard – advise and give reasons

– Dismiss or renew probationDismiss or renew probation

Probation contProbation cont

If dismissal follows – allow representationsIf dismissal follows – allow representations Test for dismissal – reasons can be less Test for dismissal – reasons can be less

compelling than after completion of the compelling than after completion of the periodperiod

If contested: Con – Arb followsIf contested: Con – Arb follows

After probation – if poor work After probation – if poor work performance (35)performance (35)

Pre dismissal :Pre dismissal :– Instruct train and guideInstruct train and guide– Awareness of shortcomingsAwareness of shortcomings– Time given to improveTime given to improve– Representations by employee to be consideredRepresentations by employee to be considered– Alternatives to be consideredAlternatives to be considered

S188A Pre-dismissal arbitration S188A Pre-dismissal arbitration [2002] (36)[2002] (36)

Employer with employees consent, (consent can Employer with employees consent, (consent can be incorporated in contract of employment if be incorporated in contract of employment if senior employees) request CCMA arbitrate prior senior employees) request CCMA arbitrate prior to dismissal to dismissal – Avoids duplication of hearingsAvoids duplication of hearings– Fee covered by employerFee covered by employer– Legal rep only by agreementLegal rep only by agreement– Decision final, but review by Labour CourtDecision final, but review by Labour Court– Can put a referral clause into a contract of Can put a referral clause into a contract of

employment – for senior employeesemployment – for senior employees

3.Operational requirements – s189 3.Operational requirements – s189 [Dismissal – 3[Dismissal – 3rdrd ground] (37) ground] (37)

‘‘no fault’ – eg - retrenchmentno fault’ – eg - retrenchment Needs of the businessNeeds of the business Need legitimate commercial rationaleNeed legitimate commercial rationale Procedure set out s189 – includes:Procedure set out s189 – includes:

– Prior consultation [ vs negotiation]Prior consultation [ vs negotiation] AsapAsap with union or affected employeeswith union or affected employees Exhaustive and good faith requiredExhaustive and good faith required

Operational requirements Cont. – Operational requirements Cont. – consensus seeking (37)consensus seeking (37)

S189 [as amended 2002] sets out S189 [as amended 2002] sets out consultation requirements, including:consultation requirements, including:– Must be meaningful joint consensus seeking Must be meaningful joint consensus seeking

processprocess– Measures to avoid dismissals [examples p38..]Measures to avoid dismissals [examples p38..]– Minimise numbers [eg allow voluntary Minimise numbers [eg allow voluntary

retrenchment]retrenchment]

consensus seeking contconsensus seeking cont

– Minimise effects where retrenchment inevitable Minimise effects where retrenchment inevitable [eg help apply for other positions][eg help apply for other positions]

– Where inevitable, method of selecting Where inevitable, method of selecting employees [eg LIFO, skills, early retirement etc]employees [eg LIFO, skills, early retirement etc]

– Severance pay [ Severance pay [ minimumminimum 1 weeks for each 1 weeks for each completed year]completed year]

consensus seeking contconsensus seeking cont

Offer of alternative employment - if refused, Offer of alternative employment - if refused, no need for retrenchment packageno need for retrenchment package

Employer cannot prejudge situationEmployer cannot prejudge situation Employer has final sayEmployer has final say

– See Atlantis Diesel Engines case 1994See Atlantis Diesel Engines case 1994

Operational requirements Cont. – Operational requirements Cont. – Written notice to consultWritten notice to consult

Notify contemplating dismissal [s189 -Notify contemplating dismissal [s189 -amended 2002]amended 2002]

Invite consultationInvite consultation Disclose all relevant information, including:Disclose all relevant information, including:

– ReasonsReasons– Alternatives considered & why rejectedAlternatives considered & why rejected– Proposed employees likely to be affectedProposed employees likely to be affected

Written notice to consult cont (40)Written notice to consult cont (40)

– Proposed method of proposed selectionProposed method of proposed selection– Proposed timingProposed timing– Proposed severance payProposed severance pay– Proposed assistance to employeesProposed assistance to employees– Possibility of re-employmentPossibility of re-employment

Written notice to consult, cont.Written notice to consult, cont.

And [2002]And [2002]– Total no. of employees employedTotal no. of employees employed– Dismissals for same reason [operational Dismissals for same reason [operational

requirements] over the past 12 monthsrequirements] over the past 12 months

Notice to be given timeouslyNotice to be given timeously Privileged info need not be disclosedPrivileged info need not be disclosed

Operational Operational requirements-requirements- process cont.process cont.

Employer must respond to representations made – Employer must respond to representations made – and give reasons if disagree with proposalsand give reasons if disagree with proposals– [2002] if representations made in writing the response to [2002] if representations made in writing the response to

be in writingbe in writing

Written notice of final decision to all parties to be Written notice of final decision to all parties to be given by managementgiven by management

S189A Dismissals: operational S189A Dismissals: operational requirements - >50 employees requirements - >50 employees

[2002 intro](40)[2002 intro](40) Applies if dismissing >10 of up to 200 Applies if dismissing >10 of up to 200

employees, or 20 of >200 < 300etcemployees, or 20 of >200 < 300etc Makes provision for a Makes provision for a facilitation processfacilitation process ie. ie.

Either party may request the involvement of Either party may request the involvement of a facilitatora facilitator

Sets out time periods that have to lapse Sets out time periods that have to lapse before further steps can be taken [eg 60 before further steps can be taken [eg 60 days before can terminate, or strike] – see days before can terminate, or strike] – see too S 189 A (3)too S 189 A (3)

Forums and Procedures for Forums and Procedures for Resolving Disputes (46) Resolving Disputes (46)

Three Forums for labour Three Forums for labour disputes(45)disputes(45)

CCMACCMA– To ease bottlenecksTo ease bottlenecks– Most disputes referred to CCMAMost disputes referred to CCMA

Bargaining CouncilBargaining Council– Sectors have their own bargaining councilSectors have their own bargaining council– Negotiate collective agreementsNegotiate collective agreements– Similar powers to CCMASimilar powers to CCMA– Disputes to the Council and not CCMADisputes to the Council and not CCMA

CourtCourt– Labour courtLabour court– Labour appeal court Labour appeal court – Superior Courts Bill of 2003, if passed into law – abolishes above Superior Courts Bill of 2003, if passed into law – abolishes above

court. High Court gets jurisdiction for labour matters with Supreme court. High Court gets jurisdiction for labour matters with Supreme Court of appeal hearing labour appealsCourt of appeal hearing labour appeals

3 Processes for resolving labour 3 Processes for resolving labour dispute (46)dispute (46)

Conciliation Conciliation – Commissioner hears both parties and attempts to help Commissioner hears both parties and attempts to help

them reach agreementthem reach agreement– No decision is imposedNo decision is imposed

ArbitrationArbitration– Commissioner hears both parties and Commissioner hears both parties and imposesimposes a a

decision – final and binding decision – final and binding – Rules of evidence applyRules of evidence apply

AdjudicationAdjudication– Courts – allow legal representationCourts – allow legal representation

S193 LRA: Remedies for unfair S193 LRA: Remedies for unfair dismissal and unfair labour dismissal and unfair labour

practices(49)practices(49) S193 LRA – 3 remediesS193 LRA – 3 remedies ReinstatementReinstatement Re-employmentRe-employment Compensation [see s194]Compensation [see s194]

– If misconduct, incapacity or operational If misconduct, incapacity or operational requirement – max 12 months compensationrequirement – max 12 months compensation

– If automatically unfair – max 24 months If automatically unfair – max 24 months compensationcompensation

Remedies contRemedies cont

Court will not order reinstatement where:Court will not order reinstatement where:– Employee does not want itEmployee does not want it– Relationships intolerableRelationships intolerable– Where not practical to do soWhere not practical to do so– Where the dismissals unfairness is related to Where the dismissals unfairness is related to

procedure only.procedure only.

S197 transfer of contract of S197 transfer of contract of employment; and 197A – transfer on employment; and 197A – transfer on

insolvency –[2002] (51)insolvency –[2002] (51) S197 - If transfer of a business as going S197 - If transfer of a business as going

concern:concern:– New employer substituted in place of the oldNew employer substituted in place of the old– all rights and obligations are transferred to new all rights and obligations are transferred to new

employer employer Anything done by old employer is considered to have Anything done by old employer is considered to have

been done by the new employerbeen done by the new employer No interruption of employees serviceNo interruption of employees service Transport Fleet Maintenance v Numsa 2004 *2Transport Fleet Maintenance v Numsa 2004 *2

s197 conts197 cont

The agreement to be in writing The agreement to be in writing The old employer must reach agreement The old employer must reach agreement

with the new on :with the new on :– Accrued leave pay to be transferredAccrued leave pay to be transferred– Severance pay that would have been dueSeverance pay that would have been due– Any other payments that have accruedAny other payments that have accrued– NB - Which employer will pay the above [record NB - Which employer will pay the above [record

in writing]in writing]

197 cont197 cont

Old employer to disclose the terms to the Old employer to disclose the terms to the employees affectedemployees affected

For 12 months after transfer the old For 12 months after transfer the old employer is jointly liable with new employer employer is jointly liable with new employer for leave, severance or other payments due for leave, severance or other payments due if payment is due as a result of employees if payment is due as a result of employees dismissal for operational requirements or dismissal for operational requirements or employers liquidation – unless old employer employers liquidation – unless old employer shows it complied with the sectionshows it complied with the section

s197A transfer on Insolvency [2002]s197A transfer on Insolvency [2002](51)(51)

Transfer of business if old employer is Transfer of business if old employer is insolventinsolvent– New employer automatically substituted in all New employer automatically substituted in all

contracts of employmentcontracts of employment– Rights and obligations between old employer Rights and obligations between old employer

and each employee remain between old and each employee remain between old employer and employeeemployer and employee

– Continuity of service continues with new Continuity of service continues with new employeeemployee

197 B Disclosure of information 197 B Disclosure of information re insolvencyre insolvency

Employer facing financial difficulties that Employer facing financial difficulties that may result in sequestration must advise may result in sequestration must advise affected parties [s189 parties]affected parties [s189 parties]

Court papers to be supplied to affected Court papers to be supplied to affected partiesparties

Collective Labour- Bargaining Collective Labour- Bargaining

See the very good summary in the notes! See the very good summary in the notes! P51P51