MRL3702 - EXAM MAY / JUNE 2016

LIST SIX ACTIONS THAT ARE DEFINED AS "DISMISSAL" IN SECTION 186 (1)(a) to (f)

(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- (i) took maternity leave in terms of any law, collective agreement or her contract of employment; or (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. (f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

STEPS FOR PROCEDURALLY FAIR DISMISSAL

1 Did the employer conduct an investigation to determine whether there are grounds for dismissal? 2 Did the employer notify the employee of the allegations (in a form and language that the employee could reasonably understand)? 3 Did the employee get reasonable time to prepare? 4 Was the employee allowed to state a case in response to the allegations? 5 Was the employee allowed the assistance of a union representative or co-employee? 6 Did the employer, after the enquiry, communicate the decision taken, and furnish the employee with written notification of the decision as well as the reasons for the decision? 7 If the employee is dismissed, did the employer remind her/him of any rights to refer the matter to a bargaining council or the CCMA? Special reminder 1: Discipline against a union representative or an employee who is an office bearer or official of a union, should not be instituted without first informing and consulting with the union. Special reminder 2: An employer can dispense with a predismissal hearing only under exceptional circumstances, namely in crisis-zone situations (where there is a danger to life or property) and if the employee waives her/his to a hearing.

LIST THE TERMS AND CONDITIONS OF EMPLOYMENT THAT ARE NON-VARIABLE CORE TERMS IN TERMS OF THE BCEA

1. 4 MONTHS MATERNITY LEAVE 2. MAXIMUM WORKING HOURS 3. PROVISIONS RELATING TO NIGHT WORK 4. NOT LESS THAN 2 WEEKS ANNUAL LEAVE 5. PROVISIONS RELATING TO SICK LEAVE

WHAT ARE THE THREE POSSIBLE OUTCOMES WHEN A PROBATION PERIOD EXPIRES

1. The probationary period may be extended to enable the employee to improve her/his performance but only if it is justified. This would, for example, be where the job requirements are so complicated that a longer probationary period is required to determine whether the employee is, in fact, suitable for the job. 2. The employee may be dismissed, which will be where the employee's employment is not confirmed and the employee is not offered permanent appointment. 3. The employee can be appointed as a permanent employee.

WHAT ACTIONS OF THE EMPLOYER ARE CONSIDERED TO BE FORMS OF A REFUSAL TO BARGAIN

A refusal to bargain includes: • the employer's refusal to recognise a union as a bargaining agent, • the employer's refusal to establish a bargaining council, • the employer's withdrawal of recognition of a collective bargaining agent, • the employer's resignation as a party to a bargaining council, and • the employer disputing appropriate bargaining units, levels and topics.

DISTINGUISH BETWEEN A "STRIKE" AND "PROTEST ACTION"

A strike is the partial or complete concerted Refusal to work, or the retardation or obstruction of work, by people who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory 'Protest action' is defined in the LRA as follows: '... the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interests of workers, but not for a purpose referred to in the definition of strike ...'

LIST THE FOUR COMMON LAW DUTIES OF THE EMPLOYER AND THE FOUR COMMON LAW DUTIES OF THE EMPLOYEE

Employer : 1. To remunerate the employee 2. To provide the employee with work 3. To provide safe working conditions 4. To deal fairly with the employee Employee: 1. To render services to the employer 2. To work competently and diligently 3. To obey lawful and reasonable instructions 4. To serve the employer's interests and act in good faith (also called a 'fiduciary duty')

IF A STRIKE IS PROTECTED MAY AN EMPLOYER DISMISS THE STRIKING EMPLOYEES

If an employer dismisses employees who took part in a protected strike, the dismissals would be automatically unfair. The employer may, however, fairly dismiss employees who engage in unlawful conduct (misconduct) during such a protected strike. If, for example, the striking employees assault or intimidate co-employees or damage property, the employer may dismiss such employees.

WHAT DOES THE RIGHT TO FREEDOM OF ASSOCIATION THAT WORKERS ENJOY, ENTAIL?

In the workplace, freedom of association entails the right of workers to: • form and join trade unions of their choice, • to participate in these unions' lawful activities, • to organise and bargain collectively with the employer, and • to strike.

EXPLAIN WHAT JOINTLY AND SEVERALLY LIABLE MEANS

Joint and several liability means that the employee can satisfy her/his claim by taking action against the employer and the client but the employee must start with the employer. If she/he does not perform, the employee can take action against the client.

DISCUSS THE NATURE OF DISMISSAL OF EMPLOYEES WHO WENT ON MATERNITY LEAVE AND WHETHER THEIR DISMISSAL WAS JUSTIFIED

STEP 1 is to determine whether there was a dismissal. The employer did not allow the employee to resume employment after maternity leave, and this conduct by the employer qualifies as a dismissal. STEP 2 is for the employer to show that the dismissal was not unfair. However, where the dismissal was because of the employees pregnancy it will be an automatically unfair dismissal and the employer will not be able to show that the dismissal was not unfair. The employer, however, indicates that Mary was not dismissed because of her pregnancy but because of misconduct. During her maternity leave, the employer discovered that she previously stole money. Since the reason for the dismissal is misconduct, the employer will get the opportunity to prove that the dismissal was not unfair. Although the employer could show substantive fairness (proving theft), he did not follow the correct procedure. He did not inform Mary of the charges against her and did not hold a proper disciplinary hearing. The dismissal would therefore be unfair.

DISTINGUISH BETWEEN A TRADE UNION AND A WORKPLACE FORUM

TRADE UNION • A union is a juristic body • A union deals with wage-related issues • A union can embark on industrial action FORUM • A forum is not a juristic body • A forum deals with non-wage-related issues • A forum cannot embark on industrial action

LIST THE FIVE ORGANISATIONAL RIGHTS THAT TRADE UNIONS CAN ENJOY IN A WORKPLACE IN TERMS OF THE LRA, AND INDICATE THE LEVEL OF REPRESENTATION A TRADE UNION NEEDS IN A WORKPLACE TO ACQUIRE EACH OF THESE RIGHTS.

The LRA provides for five organisational rights: • the right of access to the premises of the employer, • the right to have trade union membership fees deducted by way of a stop order, • the right to elect shop stewards, • the right of shop stewards to get time off for trade union activities, and • the right to disclosure of information. If a union represents the majority of workers, it will have access to all organisational rights. If the union is sufficiently representative, it will have access only to certain organisational rights.

IS AN EMPLOYER OBLIGED TO CONTINUE REMUNERATING MEMBERS OF WPU WHO ARE ENGAGED IN THE PROTECTED STRIKE

The common-law rule of 'no work, no pay' applies to strikes and lock-outs. This rule is based on the fact that the contract of employment is reciprocal in nature, that is, performance by the employer (payment of salaries) depends on performance by the employee (making her/his services available). The position is retained by the LRA, which provides that an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or lock-out. There is, however, one exception to this rule. If the employees' remuneration includes payment in kind in the form of accommodation, the provision of food and other basic amenities of life, the employer may not withhold such payment in kind during a strike or lock-out. However, the employees must request that payment in kind continues. The employer may recover the monetary value of the payment in kind from the employees after the end of the strike or lock-out by way of civil proceedings instituted in the Labour Court.

THE DEFINITION OF "OPERATIONAL REQUIREMENTS" IN THE LRA DISTINGUISHES BETWEEN FOUR BROAD CATEGORIES OF "OPERATIONAL REQUIREMENTS" LIST THE FOUR CATEGORIES.

The term 'operational requirements' is defined in the LRA, and the definition distinguishes between four broad categories of operational requirements: • economic needs, • technological needs, • structural needs, and • similar needs.

DURING CONSULTATIONS BETWEEN THE EMPLOYER AND THE TRADE UNION PRIOR TO DISMISSAL FOR OPERATIONAL REASONS, THE PARTIES MUST ATTEMPT TO REACH CONSENSUS ON SIX MATTERS. LIST THESE MATTERS

There are six matters about which the parties must endeavour to reach agreement/consensus: • appropriate measures to avoid the dismissals, • appropriate measures to minimise the number of dismissals, • appropriate measures to change the timing of the dismissals, • appropriate measures to mitigate the adverse effects of the dismissals, • the selection criteria, and • severance pay.

DISTINGUISH BETWEEN THE FOLLOWING FORMS OF SEXUAL HARASSMENT: "VICTIMIZATION", "QUID PRO QUO HARASSMENT" AND "SEXUAL FAVOURITISM"

Victimisation An employee is victimised or intimidated for failing to submit to sexual advances Quid pro quo harassment Employment circumstances, for example, promotion or an increase, are influenced by the employer, manager or a co-employee to coerce an employee to surrender to sexual advances Sexual favouritism A person in a position of authority in the workplace rewards only those who respond to her/his sexual advances.

LIST FIVE OF THESE JUSTIFIABLE CIRCUMSTANCES FOR MEDICAL TESTING OF EMPLOYEES

legislation permits or requires the testing, or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits, or the inherent requirements of a job.