Getting to grips with the Labour Relations Act of South Africa – all you need to know about how it operates  

Getting to grips with the Labour Relations Act of South Africa – all you need to know about how it operates

 

This article is an informative yet easily digestible summary of The Labour Relations Act South Africa which is guided by Section 27 of the Constitution.

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The Labour Relations Act entrenches the rights of workers and employers to form organisations for collective bargaining.  In conjunction with the Basic Conditions of Employment Act, it also safeguards social justice in the establishment of rights and duties of employers and employees, regulates the organisational rights of trade unions, and deals with strikes and lockouts, workplace forums and other ways of resolving disputes.  Through the Commission for Conciliation Mediation and Arbitration (CCMA), Labour Court and Labour Appeal Court it also deals with strikes and lockouts, workplace forums and other ways of resolving disputes.

 

Labour Relations Act, labour relations

 

Who does the labour Relations Act apply to?

The Labour Relations Act applies to employers, employees, trade unions and employer organisations.  However, it does not apply to members of:

  • The National Defence Force
  • The National Intelligence Agency
  • The South African Secret Service

Hence, the Labour Relations Act covers the laws that govern labour in South Africa and is guided by Section 27 of the Constitution, which entrenches the rights of workers and employers to form organisations for collective bargaining.

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Employer and Employee Organisations

In terms of the Act, all employees and employers have freedom of association which invariably means that they reserve the right to form, join and participate in the activities of registered organisations and that their membership means that they cannot be discriminated against.

 

The difference between a registered and unregistered union

Unions that are registered with the Department of Labour (DoL) are overseen by constitutions that abide by the principle of calling for a ballot prior to holding a strike or lockout.  Within the union, they also rule against racial as well as gender discrimination.  While organisations do not have to be registered with the DoL, registered unions however, are entitled to more organisational rights than otherwise.

 

What organisational rights entail

Trade union representatives reserve the right to carry out the following activities provided that such do not disrupt work activities.

  • Enter an employer’s premises with the intention to recruit new members
  • Conduct meetings and ballots in the workplace
  • Deduct trade union subscriptions from the salaries of members
  • Request relevant information from employees that is not legally privileged

Should a certain number of trade union members, that is, not less than 10 exist within the workplace, representatives can be elected to exercise organisational rights.

The higher the number of members a trade union has the higher the number of representatives it can choose, hence the more rights it will have in the workplace.  Should a union have organisational rights in the workplace its representatives will be entitled to oversee certain functions as follows:

  • Assist employees with grievance and disciplinary hearings
  • Monitor employer compliance in terms of Labour Law
  • Report on contraventions of the Labour Relations Act.

Union representatives are also entitled to a reasonable period of paid leave in order to perform such tasks.

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How a union acquires organisation rights

Registered trade unions need to first follow the correct procedure in order to exercise organisational rights within the workplace.  Employers should be given fair warning of the union’s intention to exercise its rights and the union should prove that there is adequate support with respect to its endeavours within the organisation.

In the case where an agreement cannot be reached in terms of granting organisational rights the matter can be referred to the CCMA.  A commissioner will be appointed in an attempt to resolve the dispute through conciliation and if the dispute cannot be resolved either party can request that the matter be settled through arbitration.

  • The right to strike

Instead of approaching the CCMA a union may choose to strike.  However, should it do so it will need to wait for a period of one year prior to requesting the CCMA to grant organisational rights.

 

Union Security Agreements

Two types of agreements provide additional security and boost the bargaining power a union has.

  • Agency shop agreement

The agency shop agreement is a system whereby non-union employees are required to pay a certain amount of money into a special fund as a result of them benefiting from the union’s activities in the workplace or sector.

  • Conditions
    • The agency shop agreement system can only be put in place if the majority of employees in the workplace are members of the union
    • The amount of money paid into the special fund by non-union employees cannot exceed a normal member’s subscription amount
    • The fund should be used exclusively for the purposes of advancing the socio-economic interests of employees and may not, for example, be used to pay political parties. However, it can be used for example in a campaign against a VAT increase.
  • The closed shop agreement

The closed shop agreement entails that the employer and union both agree to compulsory union membership.  Those workers who do not wish to join a union can face dismissal and expulsion from the union will also result in dismissal.

  • Conditions
    • The union must be a majority union where the relevant employer and the union in question both agree to a closed shop system.
    • A ballot must be held among employees in question and a two thirds majority must be in favour of the closed shop system in order for it to be implemented.
    • Funds used are also restricted to the advancement of the socio-economic interests of its members.

 

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What takes place when employees do not wish to join a union

When employees refuse to belong to a union on the grounds of conscience they are referred to as conscientious objectors.   In this case, they can request that their contribution be paid into a fund managed by the Department of Labour (DoL).   Where a closed shop agreement is concerned conscientious objectors who are dismissed may challenge their dismissal in the Labour Court.  Should the Labour Court find in favour of the objector, the union and not the employer will be required to pay due compensation.

Should at least one third of the employees sign a petition to end the agreement at least three years after a closed shop agreement was made a ballot should be held to establish whether the agreement should continue.

 

Collective bargaining

The Labour Relations Act promotes what is termed: centralised collective bargaining which describes employers in a sector or area of work who join forces to bargain with one or more unions who may be representing their employees.  For instance, a group of mining companies may join forces in order to negotiate with mineworkers’ unions.

Three systems are involved in collective bargaining.

  • Collective agreement

The collective agreement is a simple agreement between an employer, for example, the Chamber of Mines and a union/s, for example, the National Union of Mineworkers.   The collective agreement only affects these two parties concerned.

  • Conditions
    • Both parties must agree to a collective agreement.

 

  • Bargaining councils

A bargaining council agreement covers a wide range of issues for example wages, benefits and grievance procedures and extends to all employers and employees within the boundaries of the council’s representation provided that certain requirements are adhered to.

  • Conditions
    • In order to establish a bargaining council there should be sufficient representation in both the union and employer organisations. The degree of representation must be approved by the National Economic Development and Labour Council (NEDLAC).
  • Rights
    • It is the task of bargaining council agents to monitor and enforce all collective agreements. Hence, they have the power to issue compliance orders, publish the contents of collective agreements and conduct investigations into various complaints.

 

Statutory Councils

A statutory council is a weaker version of the bargaining council.  It cannot be extended to any parties external to the council without the approval of the Minister of Labour.

  • Conditions
    • There must be a 30% representation on both sides in order to establish a statutory council which means that at least 30% of the workers must be employed by 30% of the employers in the sector.

 

  • Rights
    • Even in a workplace that has no union members unions that are members of a statutory council are entitled to organisational rights of access, ballots, meetings and stop order facilities.

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Public Service Co-ordinating Bargaining Council

Set up by Section 35 of the Act, the Public Service Co-ordinating Bargaining Council (PSCBC) is one of the most important bargaining councils and is responsible for negotiating common issues among public service employees.  It has the right to establish additional bargaining councils for various sectors involved in public service.  See http://www.pscbc.org.za for further information.

 

The Labour Relations Act makes provision for workplace forums

The Labour Relations Act also makes provision for workplace forums that encourage all employees, including non-trade union members to engage in promoting their own interests in the workplace.  Workplace forums comprise elected workers who engage with interested parties regularly to discuss conditions in the workplace.  Such issues handled by workplace forums are better suited to resolution through consultation as opposed to collective bargaining, for instance, education and training, job grading, criteria for increases or bonuses, product development plans and mergers or transfers of ownership.

Workplace forums also have the right to present other proposals to the employer which should be given due consideration.  The employer must provide the forum with concrete reasons should such proposals be rejected.

The aim of workplace forums is to establish a dialogue in the workplace that will boost efficiency in the workplace and employers can consult workplace forums regarding various issues.   While workplace forums do not remove the employer’s right to make unilateral decisions, they increase employee representation in the workplace.

 

Joint decision-making issues

Joint decision-making issues refer to certain workplace issues that are set aside by the Act which means that employers are required to consult with workplace forums regarding these particular issues as follows:

  • Disciplinary procedures and codes
  • Rules that govern social benefit schemes such as housing or provident funds
  • Workplace rules that are not related to employee conduct
  • Affirmative action measures

N.B.  Did you know?  In terms of the Labour Relations Act employees cannot strike over joint decision-making issues

As prescribed by collective agreements between employers and representative trade unions, issues can either be added to or removed from this list.

As far as such issues are concerned agreement must be reached otherwise they should be referred to the CCMA.  Should the matter fail to be resolved the employer can request that it be resolved through arbitration.

Employees may not strike over joint decision-making issues.

Establishing a workplace forum

The setting up of a workplace forum is restricted to a representative and registered trade union or group of unions and a workplace forum may only be established in a workplace consisting of more than 100 employees.  The process is overseen by the CCMA who appoints a commissioner to assist both parties in coming to an agreement in terms of the functions of the forum.  Should agreement not be reached the CCMA will establish a forum that abides by the rules of the Act.

Guidelines for the constitution of a workplace forum, in particular the process of electing a workplace forum can be found in Schedule 2 of the Act.

Special rights are assigned to trade unions who are recognised by employers as the bargaining agent for all employees.  In this case, they may apply to the CCMA to set up a trade union based workplace forum which means that the union can appoint forum representatives without holding an election.

A workplace forum can only be dissolved if there is a private agreement that allows for this.  Should there be no private agreement in place, a workplace forum can only be dissolved if a representative from the trade union requests a ballot that results in a majority vote in favour of the dissolution of the forum.

  • The rights of workplace forum representatives
    • Each member of the workplace forum must be given a realistic amount of time off to carry out duties and/or receive training with no salary deductions.
    • An employer must provide facilities in order for the forum to operate.
    • Workplace forums may invite experts to attend meetings

 

Workplace forums – how they operate

Workplace forums operate by conducting three types of meetings.

  • Holding regular meetings with representatives
  • Holding regular meetings with the employer during which session the employer must present a report on the company’s performance and financial situation. The employer must also report on the company’s financial situation and any future plans on a yearly basis.
  • Holding meetings with other employees in the workplace to report on activities and any joint decisions made by those at the meeting as well as the employer.
  • Meetings are conducted during working hours and workers concerned are entitled to full wages.

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Industrial Action

All industrial action, including strikes, lockouts and picketing is regulated by the Labour Relations Act.   The Act allows for the constitutional rights of employees to strike and provides recourse to employers to seek recourse via lockouts.

When a worker can strike and when an employer can lockout

Disputes over matters of mutual interest between employers and employees may involve strikes and lockouts.  Such include:

  • Wage increases
  • The demand for the recognition of a union as a collective bargaining agent
  • The demand to establish or join a bargaining council
  • The demand for organisational rights
  • The demand to suspend or negotiate unilateral changes in the workplace
  • Unprotected lockouts or strikes by the other party
  • Workers may, in certain cases, strike over retrenchments

 

What a lockout entails

A lockout takes place when an employer decides to withdraw work from employees or closes the workplace during a labour dispute.

 

Strikes

Refusing to work only constitutes a strike if two or more workers participate in the action. As long as the refusal to work has a common work-related purpose, the workers concerned may work for different employers.  For example, a domestic worker cannot strike alone yet mineworkers working for different employers are able to do so.

Varying degrees of strike action exist, including:

  • go-slows involving workers decreasing productivity rates
  • work-to-rule which means that employees do no more than the bare minimum required by the rules of the workplace in question
  • intermittent strikes which takes place when employees start and stop the same strike action over a period of time
  • overtime bans which take place when workers refuse to do any voluntary or compulsory overtime work

Two types of strike action exist:

 

Protected Strikes

The first involves protected strikes which provide workers with a certain degree of security in the sense that they cannot be dismissed for striking unless they engage in activities involving misconduct during the strike and employers cannot get a court interdict to stop the strike. Employers are also not allowed to seek damages due to production losses during the strike and they must continue to provide food and accommodation should such form part of the employees’ wages, although employers can reclaim such funds by applying to the Labour Court once the strike has ended.

In terms of the Labour Relations Act workers must follow certain steps in order to commence a protected strike.

  • The issue over which workers intend to strike must first be referred to a bargaining or statutory council or the CCMA.
  • The council concerned or CCMA must attempt to resolve the issue through conciliation within a 30 d ay period.
  • Should the matter remain unresolved a certificate to this effect must be issued.
  • The employer concerned must be given 48 hours’ notice of the intended strike by workers unless the employer is the State where in this instance a 7 day notice period is required.

Union members may force a registered union to hold a ballot prior to holding a protected strike.  A special procedure for disputes also exists which concerns refusals to bargain.  In such instances workers must obtain what is termed an advisory award prior to the strike which cannot force parties to bargain.

  • Exceptions

There are certain situations whereby workers do not need to follow procedure.  Such include:

  • Should the strike be in response to an unprocedural lockout
  • Should the strike be allowed in terms of the conditions of a collective agreement
  • Where the parties to the dispute are council members and the matter has been dealt with in terms of the constitution of the council
  • Should an employer unilaterally change an employee’s working conditions

 

Unprotected Strikes

If proper procedure is not followed or if any of the following apply a strike will not be protected:

  • A collective agreement is in place that protects the issue being disputed from strike action
  • In terms of this Act, or any collective agreement, the matter must be referred to arbitration or to the Labour Court.
  • The issue is regulated by an arbitration award, collective agreement or sectoral determination.
  • The parties are involved in providing an essential service, for example the South African Police Service (SAPS) and any service that protects personal or public safety or maintenance service, that is where the interruption of that service will physically destroy the working area.

 

Lockouts

A lockout takes place when an employer prevents employees from entering the workplace in an attempt to force them to accept a demand.  As with strike action, there are protected lockouts and unprotected lockouts.

 

Protected Lockouts

In the case of a protected lockout workers cannot apply to the court to get an interdict against the action and the lockout does not constitute a breach of contract on the part of the employer.  As is the case with protected strikes employers are not required to pay wages while a protected lockout is underway and employees cannot sue their employers for any losses sustained.  Nevertheless, an employer cannot dismiss an employee who has been locked out and replacement labour can only be hired if the lockout is in response to a strike and for the duration of the lockout.  As with protected strikes, the same rules apply to food and clothing.

In order for a lockout to be protected, employers must follow proper procedure – which is the same as the procedure for holding a protected strike:

  • The issue over which workers intend to strike must first be referred to a bargaining or statutory council or the CCMA.
  • The council concerned or CCMA must attempt to resolve the issue through conciliation within a 30 day period.
  • Should the matter remain unresolved a certificate to this effect must be issued.
  • The employer concerned must be given 48 hours’ notice of the intended strike by workers unless the employer is the State where in this instance a 7 day notice period is required.

 

  • Exceptions

As with protected strikes, there are certain cases in which this procedure does not have to be followed.  Such include:

  • when the parties to the dispute are members of a council that has dealt with the dispute within its constitution
  • when the lockout has been allowed by the procedures in a collective agreement
  • when the lockout is in response to an unprocedural strike.

 

Picketing

Only a registered trade union has the right to authorise a picket and it can only be held in a public place outside of the workplace, unless the union has the employer’s permission to picket.  The picket must be peaceful and must follow the Code of Good Practice on Picketing issued by NEDLAC.

 


Labour Relations Act, Labour Relations

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Dismissal and disciplinary procedure

Dismissal involves any of the following:

  • A contract of employment has been terminated by an employer with our without notice.
  • An employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew the contract on less favourable terms or did not renew it at all
  • An employer refuses to allow a female employee to resume work after taking maternity leave in terms of any law, collective agreement or her contract of employment or was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date of birth of her child.
  • An employer who dismisses 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
  • An employee terminates a contract of employment with our without notice because the employer made continued employment intolerable for the employee

 

When can an employee be dismissed?

An employee can only be dismissed for misconductincapacity or business-related (i.e. operational) reasons.   However, proper procedure for dismissal must always be followed.

Misconduct entails an employee having deliberately or carelessly broken a rule at the workplace, for example, stealing. In such cases, a person may only be dismissed once the employer has followed proper procedure for dismissal due to incapacity.

Incapacity means that the worker has been unable to perform his or her duties properly because of ill health or lack of skills, that is inability.  If an employee is not doing their job properly, he or she can only be dismissed once the employer has followed proper procedure for incapacity.

Dismissal for operational reasons means that the company needs to dismiss a person due to downsizing or alteration to the business set-up, and not because of a failing on the part of the employee. This is usually referred to as retrenchment. The 2002 Amendments Act distinguishes between different types of retrenchment, and there are various procedures for retrenchment which must be followed.

There are also special procedures for dismissal during probation periods.

 

Disciplinary Procedure

An employer must maintain a fair and consistent approach to any disciplinary procedure and should also make sure that all employees are aware of acceptable and reasonable standards of behaviour expected of them at the workplace.

Employers should adopt disciplinary rules that establish the standard of conduct required of their employees and rules must be clear and must be consistently applied. The courts have endorsed the concept of corrective or progressive discipline.  Attempts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling sessions and warnings.

Employers should keep disciplinary records for each of their employees which should specify the nature of any breach of rules, the actions taken by the employer and the reasons for the actions.

Before deciding what form of disciplinary action is appropriate, management must first meet with the employee concerned and explain the nature of the rule that has allegedly been broken. The employee must be given an opportunity to explain his or her conduct. Note that this meeting does not constitute a formal hearing.

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Unfair dismissal

It is never permissible to dismiss someone due to any of the following reasons:

  • Participation in or support of a strike or protest action
  • Refusal to perform tasks normally undertaken by an employee who at the time was taking part in a strike or was locked out (exceptions are made for work that is necessary in order to prevent danger to life, personal safety or health)
  • An employee refusing to accept a demand or offer on any matter of mutual interest between the employer and the employee, for example, a wage increase
  • Due to the employee taking or intending to take action against the employer by exercising any right or participating in any proceedings in terms of the Act
  • Due to transfer of business
  • Due to pregnancy, intended pregnancy, or any issues related to pregnancy
  • Due 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

 

Informal procedure

With regards to minor misconduct, the employer or supervisor may informally advise, caution and/or reprimand the employee. It is not necessary to issue a written warning.

Offences  of a first time nature that call for informal action include incompetence, absence without permission, working under the influence of alcohol, and arriving late for work.

 

Formal procedure

In terms of the Act, damaging company property calls for formal action. The employer must have a disciplinary code that ensures that the discipline is meted out progressively.  Offences that call for formal action include the following:

  • The refusal to carry out a lawful instruction
  • fighting;
  • The threat of violence
  • Actions that are a threat to the wellbeing and/or safety of self and/or others
  • Damage and/or misuse of company property and premises
  • Disruption of employer activities
  • Presenting and/or falsifying information for personal gain
  • Falsifying, misrepresenting or defrauding an employer
  • Negligence
  • Unauthorised possession
  • Illegal industrial action
  • Loafing and slack time-keeping
  • Failure to adhere to rules
  • incompetence
  • Bribery and corruption

 

Written warnings

Written warnings are appropriate when an employee fails to respond to verbal warnings or if the offence is serious. The appropriate manager may only issue a written warning after meeting with the employee concerned. This warning must briefly describe the nature of the breach of conduct and must be properly served to the employee and he or she should be asked to sign acceptance of receipt of the notice.  Should the employee refuse to sign, the employer should record this fact on the notice and state the date, time, and place where the notice was served.  Written warnings remain valid for six months.

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Final Written Warning

Final written warnings are appropriate when a worker has received a written warning(s) for the same or similar breach of rules, or if a written warning is considered to be inappropriate because of the seriousness of the breach.  The manager concerned may issue a final written warning after meeting with the employee concerned or after a disciplinary hearing.

Again, the warning must briefly describe the nature of the breach and the notice must be properly served to the employee. The employee must sign acceptance of receipt of the notice. Refusal to sign should be recorded on the notice and one must always state the date, time, and place where the notice was served.

Employees who dispute a final written warning when there has been no disciplinary hearing may ask for a formal hearing in order to review the warning within seven days of receiving it. Final written warnings remain valid for 12 months. The manager concerned must inform the employee that failure to heed a final written warning may result in their being dismissed

.

Disciplinary Inquiry

A disciplinary hearing must be held if action stronger than a written warning is warranted (in the opinion of the manager concerned), or if a worker has received a final written warning and requests a formal hearing.

An employee may be suspended on full pay pending such a hearing if the presence of the employee at the workplace jeopardises any investigation into the alleged misconduct, or poses any threat to the safety or well-being of any other employee, including management.

The manager concerned must give the employee at least three working days’ notice of the time and date of a hearing, and the charge against him or her.  The notice must be properly served and the employee should be asked to sign acceptance of receipt of the notice.  Should the employee refuse to sign the employer should record this fact on the notice, stating the date, time, and place where the notice was served. Employees must be informed that they are allowed to have a representative at the hearing (a fellow employee or shop steward). The following individuals must be present at the hearing:

  • Chairperson (the director/general manager or a nominee)
  • A management representative who will present the evidence against the employee charged
  • The employee concerned
  • The employee’s representative (a fellow employee or a shop steward)
  • Any witnesses that management or the employee wish to call upon
  • An interpreter should this be necessary

 

The employee concerned must be informed in writing of decisions to take disciplinary action within seven days of a hearing.

At a hearing, employees charged and their representatives must be given full opportunity to present their case and to cross-examine any witnesses called in support of the charge. They must also have reasonable access to documents and objects relevant to the charge.

The absence of the person charged and/or the representative at the hearing shall not invalidate the proceedings if good and reasonable cause can be shown for not attending.

At the conclusion of the hearing the chairperson should make a finding of guilty or not guilty.  In the event of a staff member being found guilty, the chairperson must ask both the employee or the representative and the management to make submissions on the appropriate disciplinary action. The chairperson will then decide what disciplinary action needs to be taken. The employee must be informed of this decision in writing within seven days.

Employees may be dismissed with notice, in terms of the notice periods prescribed in their conditions of employment, or they may be summarily dismissed (i.e. dismissed with no notice).  Employees who are dismissed must be informed of their right to appeal, or to refer the dispute within 30 days of the date on which they were dismissed.

The parties may include in their disciplinary provisions that if the employee is not satisfied with the outcome of the disciplinary inquiry, the dispute can be referred to arbitration for a final and binding decision.  Alternatively, appeals must be noted in writing within five days of the decision.  The appropriate management concerned may decide to hear further evidence or allow further submissions to be made. They will then confirm, vary or uphold any appeal. Should the dismissal be confirmed, the date of the dismissal shall be that date on which the original decision to dismiss was given.

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Appeal

An appeal may be lodged in writing with the employer within seven days of receipt of notice of intended disciplinary action. The employee must forward reasons why an appeal is sought. Once the appeal has been considered and granted, it must be heard within seven days from the date the request was made.

Should the employee not be satisfied with the employer’s decision he or she may refer the matter to the Bargaining Council or to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act, 66 of 1995.

If a private arbitrator is decided upon, the parties will also have to agree in terms of the payment of costs.

 

Remedies for unfair dismissal

In the case where a dismissal is deemed unfair, the onus is on the employer to prove that the dismissal is fair.  If the dismissal is unfair, the Labour Court or arbitrator may re-instate or re-employ the employee in other suitable work from the date of dismissal unless any of the following conditions apply:

  • The employee concerned does not wish to be re-employed or reinstated
  • The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
  • it is not practical or reasonable for the employer to re-instate or re-employ the employee
  • The dismissal is only unfair because the employer did not follow a fair procedure

If a dismissal is automatically unfair, or if a dismissal based on the employer’s operational requirements is found to be unfair, the Labour Court may also make any another appropriate order as necessary.

 

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Compensation

If a dismissal is unfair because the employer did not follow fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last date of the hearing of the arbitration or adjudication. The amount should be calculated at the employee’s rate of remuneration on the date of dismissal.

However, if the employee caused unreasonable delay in initiating the claim, compensation is not payable for that period of delay.

If the dismissal is automatically unfair, the compensation amount must be just and equitable. However, it should not be more than 24 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.

If the dismissal is unfair because the employer did not prove that the reason for dismissal was fair and relating to the employee’s conduct, capacity or the employer’s operational requirements, compensation must be just and equitable, i.e., not less than the remuneration that the employee would have been paid from the date of dismissal until the last date of the hearing (calculated at the employer’s rate of remuneration on the date of dismissal) and not more than 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.

An award of compensation is in addition to, and not a substitute for, any other amount that the employee is entitled to in terms of any law, collective agreement or contract of employment.

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Transfer of a contract of employment

Transfer of a contract of employment is discussed in Section 197 of the Labour Relations Act. Contracts of employment may not be transferred to another employer without the worker’s consent, unless:

  • The whole or part of a business, trade or undertaking is transferred by the old employer as a going concern (i.e., a business that is making a profit)
  • The whole or part of a business, trade or undertaking is transferred as a going concern while being wound up, sequestrated, or insolvent
  • The whole or part of a business, trade or undertaking is transferred as a scheme, arrangement or compromise to avoid winding-up, sequestration or insolvency unless otherwise agreed, the rights and obligations between the old employer and each employee at the time of the transfer continue in force. Anything done before the transfer by the old employer remains valid for each employee. Transfers do not affect the continuity or conditions of employment

Referring disputes

Any party may refer a dispute in writing within 30 days of the date of the dismissal to a council (including a bargaining council, and a statutory council formed in terms of Chapter 3 of the Labour Relations Act) if the parties fall within the registered scope of that council. If no council has jurisdiction, the dispute may be referred to the Commission for Conciliation and Mediation (CCMA).

The party who refers the dispute must satisfy the council or the CCMA that a copy of the referral has been served on all the other parties involved. The council or the CCMA will then try to resolve the dispute through conciliation.

If the dispute remains unresolved, or if 30 days has expired since the referral and the dispute remains unresolved, the council or the CCMA must arbitrate the dispute at the request of the employee if:

  • The employee has alleged the reason for dismissal is related to the employee’s conduct or capacity
  • The employer made continued employment intolerable
  • The employee does not know the reason for dismissal

An award (decision or outcome) is usually made within 14 days of referral to arbitration. The time limits are designed to ensure that disputes are dealt with as swiftly as possible. The employee may refer the dispute to the Labour Court for adjudication if he or she has alleged that the reason for dismissal is:

  • Automatically unfair
  • Based on the employer’s operational requirements
  • The employee’s participation in a strike

At the request of any party, the Director of the CCMA must refer the dispute to the Labour Court, if he or she considers it to be appropriate.

Parties may object referral to the Labour Court within five days of receipt of the application, together with the grounds for objection.

The Labour Court has the power to order reinstatement or compensation, but their power is not limited to this.

The arbitrator has the power to determine any dispute referred to it on reasonable terms.

BOTI offers business training courses on the Labour Relations Act across South Africa.  Book now!

https://boti.co.za/courses/human-resources-management-and-labour-relations-training-course-course/

 

 

 

 

 

 

 

 

 

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