HR-Chapter 14 Flashcards
Managing Labour relations in the workplace (19 cards)
Dealing with grievances
-A grievance arises when an employee is dissatisfied with a matter within the organization
-Grievances must be investigated, the cause identified and addressed effectively to the satisfaction of the employee
-It is important to promote a climate of open communication with employees to listen to employee grievances and to respond effectively
-In unionized companies where there is a collective agreement, a grievance procedure outlines the process an employee is to follow
Substantive fairness
-Concerns the reason for the dismissal-the employee can only be dismissed for a fair reason
-Some reasons are automatically unfair
-LRA provides permissible reasons for dismissal under 3 headings, misconduct ,incapacity and the employer’s operational requirements
-The reason for dismissal must also be adequate or justifiable in the circumstances
-Dispute concerning an unfair dismissal should be referred to the CCMA/ labour court
Misconduct
is the behavior for which the employee can be held accountable or blameworthy, and which the employee could have avoided
Incapacity
Refers to the employee’s inability to perform the work adequately
Operational requirements
Refers to the requirements based on the economic, technological, structural, or similar needs of the employer
Procedural fairness
-A dismissal must also be effected in accordance with a fair procedure
-The LRA and Code of Good Practice: Dismissal, provides guidelines for employers to follow before dismissing an employee
Substantive fairness and procedural fairness are independent criteria
-A dismissal will be unfair if the employer failed to follow a fair procedure, no matter how compelling the reason for the dismissal
When forced with an alleged unfair dismissal , three issues need to be addressed
-Whether the complainant is in fact an employee because only employees are protected against unfair dismissal
-Whether there was in fact a dismissal
-It must be established whether or not the dismissal was fair
Procedurally fair/substantively fair
-In accordance with a fair procedure
-For a reason
The LRA provides for three dispute-resolution bodies to determine disputes of right:
-Bargaining councils
-The CCMA
-The labour courts
Dispute resolution
-Disputes are a natural occurrence in the employment relationship
-Disputes can be either managed in house or by using the statutory mechanisms and processes outside the organization provided by the LRA.
2 types of disputes
1)A dispute of interest
2)A dispute of right
A dispute of interest
Dispute concerning something to which the employees are not legally entitled. A demand for higher wages. Best left for collective bargaining
A dispute of right
Disputes concerning the interpretation or application of a right that already exists under law. e.g. a dispute relating to unfair dismissal which are best resolved through adjudication or arbitration
Conciliation and mediation
-Unfair dismissal disputes must be referred to CCMA within 30 days of date of dismissal
- A commissioner meets with parties and explores ways to resolve dispute by agreement
-Parties may represent themselves or be represented by a colleague or a union official, or by an employers’ organization
-The commissioner must attempt resolution within 30 days of referral. If dispute is resolved, an agreement is drawn up, and commissioner issues a certificate recording the outcome
-Where conciliation fails, disputes referred to arbitration or to adjudication by the labor court
“CON-ARB”
-Where dispute concerns dismissal or unfair labor practice relating to probation, commissioner must start arbitration immediately after conciliation fails
Arbitration
-Refer to arbitration within 90 days of date of certificate
-May be represented by a lawyer, colleague, or by an employer’s org
-In cases of misconduct or incapacity dismissals, legal representation only allowed if parties and commission consent
-Each party is entitled to give evidence, call witnesses, question the other party’s witnesses and address closing arguments.
Adjudication
Labor court proceedings are more formal than at CCMA or council, and governed by the Labor Court Rules
Steps to be followed in resolving disputes
1)Follow the in-house dispute procedure if there is such a procedure
2)Refer the dispute to the CCMA or to a council if relevant
3)If not resolved through conciliation ,depending on the nature of the dispute three possibilities exist:
-Arbitration
-Adjudication by labor court
-Protected strike/lock-out
