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THIS week, Labour Guides looks at unfair dismissals.

UNFAIR DISMISSALS

According to the Labour Relations Act "Every employee has the right not to be unfairly dismissed". It is stressed that however provocative and unacceptable the behaviour of an employee has been, the employer must ensure that the steps taken in dismissing an employee are procedurally correct.

AUTOMATICALLY UNFAIR DISMISSALS
In terms of the new Act every employee has the "right to freedom of association". The employee may join or be a member of a trade union, workplace forum or any other structure approved by the Act. The Act similarly also covers any person seeking work. It is made quite clear that an employer who prevents an employee or prospective employee from participating in any proceedings or exercising any of the rights in terms of the freedom of association clauses of the act may be charged with "automatically unfair dismissal" of the employees concerned.

A dismissal is automatically unfair if the employer acted as discussed above or dismissed an employee because :-

1. the employee participated or supported a strike, proposed strike or protest action that was "protected" in terms of the Act.
2. the employee refused to do the work of an employee taking part in a "protected" strike.
3. the employee took action or indicated his intention to take action in terms of the rights conferred on an employee in terms of the Act.
4. of the employees pregnancy or any reason related to her pregnancy. (Note: This clause must be observed by all employers who wish to avoid the mine fields of labour action.)
5. the employer unfairly discriminated against an employee on any arbitrary basis including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

DISMISSAL DUE TO INCAPACITY DUE TO ILL HEALTH OR INJURY
Incapacity for ill health or injury may be permanent or temporary. Before making a decision in the matter the employer should obviously investigate the extent of the injury or ill health.

The following matters must be considered in assessing whether a dismissal for injury or ill health is fair or not;

1. Is the employee incapable of doing his or her work? If the answer is yes, then,
2. The extent to which the employee is not able to do his or her work. The fact that an employee is ill or injured does not automatically mean that he or she is not able to perform the work. This point must be carefully considered.
3. Can the employee's work circumstances or duties be adapted to enable the employee to carry our his or her duties? e.g. it might be necessary to adopt or change a machine or equipment to suit the injured employee, and
4. Is there any alternative work available which would be more suitable to the employee in the light of his or her ill health or injuries?

RETRENCHMENTS
Dismissal due to an employer's operational requirements is known as retrenchment.

Before embarking upon a retrenchment exercise or rationalisation program which will involve dismissals, an employer must first consult,

1. any person (including a trade union) that the employer is obliged to consult in terms of a collective agreement;
2. a workplace forum if the employees affected by the retrenchment are members of a workplace forum;
3. any trade union whose members are likely to be affected by the proposed dismissals This means that an employer is not only obliged to consult with a majority union but all or any unions who have members who might be affected;
4. where there is no trade union, the employer must consult with the employees who are likely to be affected by the dismissals and/or their representatives.

1. the first object is to find ways to avoid retrenchments altogether. e.g. The parties may agree on short-time, no overtime work, alternate positions, reduced wages or even lay-offs as a solution;
2. if retrenchment is unavoidable the consulting parties must try and reduce the number of employees who will be retrenched;
3. the parties must try, by means of consultation, to reduce the harsh effects of retrenchments. e.g. The employer may agree to give the employees time off to seek alternative work before dismissal, or introduce training programs to make them more likely to find alternative employment;
4. the parties must attempt to agree on the method of selecting those employees to be retrenched. e.g. They may agree to use the last-in-first-out (LIFO) principle, or may agree to retain employees with a particular skill or knowledge;
5. once the parties have come to an agreement about all the above matters they must then attempt to agree on the severance payment to be paid to the employees to be dismissed.

1. the reasons for the retrenchment, e.g. if the reasons is economic, details statements of account or auditing reports should be disclosed;
2. any alternatives to dismissal considered by the employer before deciding to dismiss, and the reasons why the alternatives were rejected;
3. the number of employees likely to be affected, and the job categories so affected;
4. the method of selection of employees to be retrenched, e.g. LIFO, etc.;
5. the timing of the proposed retrenchment. E.g. The retrenchment may constitute single retrenchment, or may be phased over a particular period of time;
6. the severance package proposed;
7. any assistance which the employer proposes offering the employees likely to be affected, e.g. training, etc.;
8. the possibility of a future re-employment of retrenched employees if and when the position improves.

The Act says an employee commits an unfair labour practice in respect of any unfair act or omission that arises, between employer and employee involving unfair discrimination, either directly or indirectly, against an employee on "any arbitrary ground including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, believe, political opinion, culture, language, marital status or family responsibility".

Although the discrimination referred to above relates to conduct between employer and employee, the Act says that in this regard an "employee" includes an "Applicant for employment". In other words, it is not acceptable for a prospective employer to discriminate against a job seeker on the grounds mentioned above. This does not of course mean that an employer is not allowed to discriminate when he or she chooses a candidate for employment. As stated above, each time a prospective employer chooses one candidate in favour of another, he or she is discriminating against unsuccessful candidates. What it does mean however, is that the discrimination must not be arbitrary and based solely or mainly on the grounds mentioned above, ie. race, gender etc. If the selection is found to be unfair discrimination, it will be unfair labour practice under the new Act, and the employee may well seek and be given either compensation and/or the job which he or she originally applied for.

There are two exceptions or defences to an unfair labour practice based on discrimination. These are:-

1. If the discrimination is based on the inherent requirements or needs of the particular job - eg. if the position advertised is for a doctor, it is reasonably expected that the successful candidate will be a qualified doctor. Or if the position advertised is for a nurse in a nursing home with female patients, it may be appropriate (and not arbitrary) to hire a female nurse.
2. The second defence is what is commonly referred to as affirmative action. The Act says the following:

   An employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. Affirmative action is an extremely sensitive issue, and an entire book can be written on this topic alone. The purpose of an affirmative action programme is to promote and encourage persons who have been discriminated against in the past. This can of course apply to any racial group, sex or class of persons (eg. physically handicapped) who have been prejudiced as a result of unfair policies, practices, attitudes and obstructions in the past.

   At this stage, there is no specific legal requirement requiring an employer to implement an affirmative action programme. However, we believe that the law will be changed in the near future to incorporate affirmative action practices. It should be noted that a job applicant is not entitled to rely on affirmative action as a weapon to demand a job. It is rather up to an employer to defend his or her action in making a particular choice - ie based on the policy of affirmative action. But, remember, before an employer can successfully raise the argument it must prove that it had an affirmative action policy programme in place, and is not merely acting in a random manner. If it has not implemented such a programme the employer can easily be accused of acting in an unfair and discriminatory way.