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Week beginning Sunday, 25 May 1997 | ||
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The Labour Consultancy. DUE to demand from readers, BT Labour Guides, in association with The Labour Consultancy, will continue to address the issue of dismissals.We also examine the proliferation and new powers of trade unions in collective bargaining. Mr. Larry Shear, a Commissioner with the Commission for Conciliation, Mediation and Arbitration comments on the protection afforded by the Labour Relations Act to employees and employers engaged in legal strikes or lockout. We also have a selection of letters from browsers reflecting their concerns and problems in navigating the complexities of the new legislation.
Employers have the perception that no matter what they do, or whether they have followed the correct procedure in dismissing an employee; they remain vulnerable to a claim for compensation. Judging by recent mediation and arbitration decisions, their fears are fully justified. Any employee who has been dismissed has the right to take their case to the Commission for Conciliation, Mediation and Arbitration (CCMA) and register a dispute. There is every likelihood that a mediation hearing will be scheduled at the CCMA and if conciliation fails, the whole matter could be referred to arbitration. In a recent case arbitrated by the CCMA, an employee who was dismissed for stealing a second-hand paint roller registered a dispute. He was found to have been fairly dismissed. The employer had to attend a hearing for a failed mediation and then another for arbitration.
It is now illegal to discriminate against an employee who is a member of a trade union, thus opening the door to resolving disputes by means of collective bargaining. Employees may belong to trade unions and trade union officials may enter an employer's place of business to recruit members. They may request such information from the employers that the union needs to strengthen their hand at the bargaining table. Clause 16 of the L.R.A. states that an employer must disclose to a trade union representative all relevant information that will allow the representative to perform effectively his functions with regard to collective bargaining. This change in circumstance ensures that trade unions and employers can now enter into meaningful negotiations.
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A recent example of the success of collective bargaining was the announcement by Mr. Brian Angus of The Steel and Engineering Industries Federation of South Africa (SEIFSA) that they had agreed to six month's maternity leave being paid to their female employees. This is a remarkable precedent and stands in stark contrast to the recent past when dismissal of pregnant employees often took place. Under the L.R.A. such actions could lead to 24 months remuneration being awarded in compensation.
SMALL UNIONS PROLIFERATING One such union is the Job Secure Union founded in January. Henk Venter, the general secretary of the union, says that they have already signed up 400 members. The union makes use of qualified consultants and attorneys thus assuring it's members a highly professional service if the need arises. They also train their members to perform their duties as union officials. He also claims that the union's activities have already produced a better workplace environment for many of its members and have assisted employers to improve their productivity. Mr Venter said that forming the Job Secure Union required little specialist knowledge, assistance being readily available from the Registrar. All requirements are clearly defined by the clauses of the Labour Relations Act. Clause 69 of the LRA Registration of Trade Unions advises that any trade union may apply for registration by submitting to the Registrar of Trade Union -
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A Legal strike is a strike where the employees have followed the procedures of the Act. Legal strikes are referred to as Protected Strikes. The Act gives specific protection to employees who are engaged in a protected strike. These are:
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REMUNERATION AND ACCOMMODATION An employee engaged in a strike is not entitled to receive remuneration (wages) during the period he or she is on strike. If an employee receives accommodation (housing) or food as part of his wages, he or she may not be removed from the accommodation and the employer must continue to supply food during the strike. However, the employer may ask the Labour Court, at a later stage, to refund the costs of accommodation and food. Question: What is the position regarding non-protected strikes or lockouts? The Labour Court may give an order preventing or restraining participation in an unprocedural strike or lockout; and may also order the unprotected employee to pay compensation to the employer for any losses cause by the non-procedural strike. Normally 48 hour's notice must be given before a restraining order is given by the Court, unless the Court is satisfied that the matter is so urgent that a shorter period is fair and reasonable. Please note, the failure to follow the terms and procedures of the Act may be a ground for dismissal. Of course, as in any dismissal, the dismissal must be justified and fair in all respects. |
