LABOUR LAW. ARR 214 Theme 10

Transcription

1 LABOUR LAW ARR 214 Theme 10

2 E/R AND E/E TOGETHER CAN MOVE MOUNTAINS/CARS?

3 THERE IS A SAYING: IF YOU WANT LOYALTY, GET A DOG

4 FROM MOST EMPLOYEES YOU WILL NOT GET THIS

5 NOTHING COMPARES TO THIS- HOW FAR MAY WE EXPECT LOYALTY?

6 THE END OF THE STORY ABOUT A DOG..

7 THEME 10 W O R K P L A C E D I S C I P L I N E : D I S M I S S A L P G L ( : ) ; W L ( : ) ; P L L ( : ) L R A C O D E O F G O O D P R A C T I C E : D I S M I S S A L ; A V R I L E L I Z A B E T H H O M E F O R T H E M E N T A L L Y H A N D I C A P P E D V C C M A A N O T H E R S [ ] 9 B L L R ( L C ) ; T R U S T E E S F O R T H E T I M E B E I N G O F T H E N A T I O N A L I N F O R M A T I C S N E T W O R K T R U S T V J A C O B S O N A N D O T H E R S ( ) I L J ( L C ), S I N D A N E V P R E S T I G E C L E A N I N G S E R V I C E S ( ) 3 1 I L J ( L C ), N A P E V I N T C S ( P T Y ) L T D C O R P O R A T E S O L U T I O N S [ ] J O L ( L C )

8 THEME 10 (LEARNING OUTCOMES) Define a dismissal. Know and comprehend the meaning and extent of automatically unfair dismissals. Know and comprehend the meaning and extent of other unfair dismissals. Comprehensively discuss the requirements for a fair dismissal. Be acquainted with matters pertaining to disputes about unfair dismissals. Distinguish between substantive and procedural fairness. Be acquainted with the Code for Good Practice: Dismissals Discuss the remedies for unfair dismissals. Discuss applicable case law.

9 THEME 10 (INTRODUCTION) Current principles pertaining to dismissal Industrial Court i.t.o. its unfair labour practice jurisdiction under the LRA of Can t be hired and fired according to the employer s free will. Dismissal must be fair. Industrial Court laid down 2 requirements for a fair dismissal: o Substantive fairness o Procedural fairness Therefore unfair if there was no valid reason for the dismissal or if there was no fair procedure during the dismissal. LRA codifies laws, court decisions and other principles and creates the right not to be unfairly dismissed. LRA also defines dismissal. See Nape-case for dismissal by labour brokers. Some dismissals are declared automatically unfair. LRA recognizes 3 grounds as valid reasons for dismissals: 1. Conduct of employee. 2. Capacity of employee. 3. Operational requirements of employer. Every employee has the right not to be unfairly dismissed (sect 23 Constitution).

10 DISMISSALS TO THE CCMA/BC/LC??

11 THEME 10 (DEFINE DISMISSAL) Dismissal is defined as follows: 1. When employer terminated contract of employment with/without notice E.g. summary dismissal for misconduct or dismissal after notice by employer. Previously - notice was sufficient. Employer could terminate contract by simply giving notice. Now employer must adhere to requirements of substantive and procedural fairness. 2. When employee reasonably expected employer to renew fixed term contract on the same/similar terms, but employer renewed it on less favorable terms or didn t renew it Concluded for specified period and terminates automatically upon expiration of that period. Employer is dismissing employee if he renews contract on less favorable terms. Employer will be dismissing employee if he doesn t renew contract when the employee can prove that he had reasonable expectation that contract would be renewed. (See Sindane-case). 3. When employer refused to allow employee to resume work after maternity leave Automatically unfair. 4. When employer dismissed number of employees for the same/similar reasons and reemployed some of them but refused to re-employ others Selective re-employment is automatically unfair. 5. Employee terminated contract of employment because employer made continued employment intolerable for employee Constructive dismissal is automatically unfair because the resignation of employee due to unreasonable and excessive pressure by employer, is not a voluntary resignation, but a situation akin to dismissal. Employee must prove that employer had rendered working relationship intolerable and that he had no option but to resign. 6. Employee terminated contract because new employer, after transfer i.t.o. sect 197/197A, provided employee with substantially less favourable conditions of employment than those provided by previous employer

12 THEME 10 (AUTOMATICALLY UNFAIR DISMISSALS) In the main, dismissal is automatically unfair if employee is dismissed because he has exercised his rights. Automatically unfair dismissals are the following: 1. Dismissal because employee is exercising right to freedom of association. 2. Dismissal because employee has disclosed info that he s lawfully required/ entitled to disclose. 3. Dismissal because employee is exercising any of the rights conferred by LRA. 4. Dismissal because employee participates in proceedings i.t.o. LRA. 5. Dismissal because employee participates/supports protected strike. 6. Dismissal because employee refuses to perform duties of other employees while they are participating in protected strike or during a lock-out. 7. Dismissal lock-out. 8. Dismissal because of employee s (intended) pregnancy. 9. Dismissal because of employer s unfair discrimination. It includes direct/indirect discrimination on one of the following grounds: race, gender, sex, pregnancy, ethnic/social origin, colour, sexual orientation, age, disability, religion, belief, political view, culture, language, birth, HIV-status, marital status or family responsibility. 10.Dismissal in the context of a transfer/reason related to a transfer i.t.o. sect 197 or 197A. 11. Dismissal because employee made protected disclosure. Note that a dismissal may be fair if the reason is based on the following: o an inherent requirement of the job; or o a dismissal based on age, if the employee has reached normal/agreed-upon age for retirement.

13 RIGHTS ARE GUARANTEED BY THE CONSTITUTION?

14 THEME 10 (DATE OF DISMISSAL) Can be determined in most instances. If it can t be determined (e.g. if there is 2 dates), the date is the earlier date on which the contract was terminated or the date on which the employee left the service of the employer. Date in case of a fixed term contract is date on which it was renewed on less favourable terms or the date of refusal to renew.

15 THEME 10 (REQUIREMENTS FOR FAIR DISMISSAL I) Employer must prove that dismissal relates to employee s conduct, to employee s capacity or is based on employer s operational requirements (substantive fairness) and that a fair procedure was adopted (procedural fairness). Dismissal will be regarded as fair if it was both substantially and procedurally fair. Categories of dismissal are: 1. Dismissal for misconduct. 2. Dismissal for incapacity/poor work performance. 3. Dismissal for employer s operational requirements Two requirements must be complied with in all of the above categories in order to ensure the fairness of a dismissal: o Substantive fairness. o Procedural fairness.

16 THEME 10 (REQUIREMENTS FOR FAIR DISMISSAL II) Substantive fairness Can be described as valid and fair reason : o Valid Lawful reason that will justify dismissal. Misconduct, incapacity or poor work performance and operational requirements are valid reasons (if they are of a serious nature). o Fair Considering all the circumstances, dismissal is the only appropriate sanction. No alternative sanction can be considered. Employer can only dismiss employee if he has valid and fair Employer can only dismiss employee if he has valid and fair reason to do so. Blameworthiness of employee must also be considered. Employer is required to act consistently in application of disciplinary rules, without being rigid and inflexible. Like cases should be treated alike. Before employer decides on dismissal, alternatives to dismissal should be considered. When dismissal is decided upon, employer must indicate whether it s a summary dismissal or dismissal with a period of notice. (That will depend on the disciplinary code and the reason for dismissal)

17 THEME 10 (REQUIREMENTS FOR FAIR DISMISSAL III) Procedural fairness At common law, no procedure was required before dismissing employee. It indicates the adoption of a fair procedure during dismissal. Employee who faces dismissal, should be given the opportunity to state his case in relation to charges brought against him and to bring mitigating circumstances to employer s notice. Fair procedure includes requirement that employee be notified in writing: o charge in order to prepare for hearing; o right to representation/assistance by a fellow-employee; o right to be assisted by an interpreter; o right to call witnesses; o right that the chairperson at hearing is unbiased; o right to appeal (if provided for); and o right to prompt, but fairly timed, disciplinary hearing. Employer must have regard to Code of Good Practice: Dismissal or any other code issued in terms of sect 51 of the LRA.

18 THEME 10 (DISPUTES REGARDING UNFAIR DISMISSAL) All disputes regarding unfair dismissal CCMA and/or bargaining council for conciliation. If conciliation fails arbitration/ adjudication. Some cases regarding dismissal to bargaining/statutory council or CCMA, others to Labour Court. Bargaining/statutory council with jurisdiction or CCMA (if there is no council with jurisdiction) may resolve dispute regarding the under-mentioned by way of arbitration: o Dismissal for misconduct/incapacity o Constructive dismissal o Cases where employee alleges that he does not know reason for dismissal o Cases where employee alleges that reason for dismissal is that employer provided substantially less favourable employment conditions after a transfer i.t.o. sect 197 & 197A o Dismissal of probationary employee must be referred for con-arb. Labour Court has exclusive jurisdiction to adjudicate the following alleged unfair dismissals: o Dismissal which is automatically unfair. o Dismissal based on employer s operational requirements. o Dismissal because of participation in unlawful/unprotected strike. o Dismissal because employee refused to join, was refused membership or or was expelled from trade union party to a closed shop agreement. o Dismissal that constitutes occupational detriment as envisaged in Protected Disclosures Act of Learn the diagrams on pp and the info related thereto (p 280). If there is a dispute regarding the fairness of dismissal, the dismissed employee may refer dispute within 30 days of date of dismissal to the council/ccma (if it falls within jurisdiction of council/ccma). If employee indicates good reasons, period of 30 days may be extended. Employee must proof that copy was delivered to employer. Council/CCMA must attempt to resolve dispute by way of conciliation. If certificate of non-resolution is issued, or if 30 days have passed since council/ccma has received referral and dispute is still not settled, the council/ccma must arbitrate matter at request of employee or employee may refer dispute to Labour Court for adjudication.

19 THEME 10 (BURDEN OF PROOF REGARDING DISMISSAL) In any instance of any dismissal, employee must prove existence of dismissal. If existence of dismissal is proved, employer must prove that dismissal was fair.

20 THEME 10 (REMEDIES FOR UNFAIR DISMISSAL) Remedies are as follows: 1. Order for reinstatement If court/arbitrator finds dismissal unfair. From any date not earlier than date of dismissal. 2. Order for re-employment If court/arbitrator finds dismissal unfair. Employee may be re-employed in in work in which he was employed before dismissal, or any other reasonable work. 3. Order for compensation Amount must be fair in circumstances but may not exceed equivalent of 12 months remuneration. Order is additional to any other amount employee is entitled to i.t.o. law, collective agreement or contract of employment. Will rather be ordered than reinstatement or re-employment in following circumstances: If employee can t be reinstated/re-employed. If circumstances surrounding dismissal is of such a nature that continued employment relationship would be intolerable. Where it is not reasonably practicable for employer to reinstate/re-employ employee. Where dismissal was only procedurally unfair. Any suitable order If dismissal is automatically unfair or if dismissal based on operational requirements is found to be unfair, Labour Court may order any appropriate order in circumstances (e.g. interdict).

21 THEME 10 (CODE OF GOOD PRACTICE: DISMISSAL) Code encourages disciplinary measures (other than dismissal). Item 3 (dealing with disciplinary measures other than dismissal) is of importance: ocertain measures may be considered before dismissal takes place. oall employers must adopt disciplinary rules establishing the standard of conducted expected from employees. ocourts accepted concept of corrective or progressive discipline. This approach regards aim of discipline as a manner in which employees will know and understand the standard expected of them.

22 CASE LAW Avril Elizabeth- Home case :informal process envisaged Trustees for the time being.v Jacobson : confirms Avril Elizabeth case- Schedule 8 envisages expedient process, not reminiscent of a criminal case of law Sindane: Fixed term contract-no no dismissal. Effluction of time Definition of dismissal Nape: defnition of dismissal demand by third party-labour broking, request for removal, Client, broker, employee, right stand not to be unlawfully dismissed, cannot contract that out. STUDY THE CASE LAW..

23 NEXT LECTURE Dismissal (Misconduct)