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Labour guides has received a number of enquiries about the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Bill 1997. The Act and Bill are available from the Government Printer in Pretoria. Jutas stocks analyses of the legislation.
Please note that the Employment Bill 1997 is only a draft bill published for public comment and is not yet law. It is this Bill that Cosatu is objecting to as being too employer-friendly.
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BT Labour Guides will be updated daily, based on questions and feedback received from browsers. BT Labour Guides can be contacted on:
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Fax: 487-1385
Mail: btimes@tml.co.za
Post: Box 7248, JHB, 2000
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Prepared by Rael Solomon and
The Labour Consultancy.
THIS week, This week Labour Guides' Rael Solomon takes a look at how incorrect procedures can cost employers dearly.
INCORRECT PROCEDURES CAN
COST EMPLOYERS DEARLY |
In a recent landmark Labour Court decision handed down on the 28th of August 1997 by acting Judge P. Maserumule, it was held that in terms of section 194.1 of the Labour Relations Act, that if a dismissal was unfair only because the employer did not follow a fair procedure compensation must be paid from the time of the employee’s dismissals to the last day of arbitration. Commissioners arbitrating such cases do not have any discretion and must make the acquired award of compensation for unfair dismissals.
This can result in employees who are arbitrarily dismissed without employers following the necessary procedure, could be awarded compensation even though they may have admitted to gross misconduct such as theft.
Examination and understanding by all employers of The Labour Relations Act 66 of 1995 has become essential. We quote below extracts from the Act which have to be studied by employers.
185 Right not to be unfairly dismissed.
Every employee has the right not to be unfairly dismissed.
186 Meaning of dismissal
“Dismissal” means that:-
(a) an employer has terminated a contract of employment with or without notice;
(b) 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 it on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she:-
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(i) took maternity leave in terms of any law, collective agreement or her
contract of employment; or
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(ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;
(d) an employer who dismissed 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; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
187. Automatically unfair dismissal
(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5.49 or, if the person for the dismissal is:-
(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV; 50
(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the employer by:-
- (i) exercising any right conferred by this Act; or
- (ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sec, ethnic or social origin, colour sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
(1) Despite subsection (1)(f):-
- (a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
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(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove:-
(a) that the reason for dismissal is a fair reason:-
- (i) related to the employee’s conduct or capacity; or
- (ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure
(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act. 51
189. Dismissal based on operational requirements
(1) When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult-
(a) any person whom the employer is required to consult in terms of a collective agreement;
(b) if there is no collective agreement that requires consultation, a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum;
(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals;
(d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.
(2) The consulting parties must attempt to reach consensus on
(a) appropriate measures:-
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(i) to avoid the dismissals;
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(ii) to minimise the number of dismissals;
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(iii) to change the timing of the dismissals; and
- (iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to:-
(a) the reasons for the dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take affect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed; and
(h) the possibility of the future re-employment of the employees who are dismissed.
(4) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).
(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting.
(6) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
(7) The employer must select the employees to be dismissed according to selection criteria-
(a) to have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and objective.
192. Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
193. Remedies for unfair dismissal
(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may:-
- (a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
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(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
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(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless;-
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(a) the employee does not wish to be reinstated or re-employed;
- (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
- (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
- (d) the dismissal is unfair only because the employer did not follow a fair procedure.
(3) 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 in addition may make any other order that it considers appropriate in the circumstances.
194. Limits on compensation
(1) If a dismissal is unfair only because the employer did not follow a fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last day of the hearing of the arbitration or adjudication, as the case may be, calculated at the employee’s rate of remuneration on the date of dismissal. Compensation may however not be awarded in respect of any unreasonable period of delay that was caused by the employee in initiating or prosecuting a claim.
(2) The compensation awarded to an employee whose dismissal is found to be unfair because the employer did not prove that the reason for dismissal was a fair reason related to the employee’s conduct, capacity or based on the employer’s operational requirements, must be just and equitable in all the circumstances, but not less than the amount specified in subsection (1), and not more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
(3) The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
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