Study Unit 7 Part 2

Question 1

what does S188 of the LRA provide for?

Answer 1

A dismissal is not auto unfair, it is unfair if the employer fails to prove that the dismissal is for a fair reason related to the employees 1.CONDUCT, 2.CAPACITY 3.OPERATIONAL REQUIREMENTS

Question 2

Substantive Fairness

what must an employer prove regarding dismissals for misconduct?

Answer 2

-Employer must prove that the reason for any dismissal for misconduct is fair
BY:
1.determining the existence of facts that constitute a reason to dismiss
2.determine whether dismissal is a fair penalty based on those facts

Question 3

what are the different types of conduct that justify dismissal?

Answer 3

Assault
Damage to property
Abusive language
Sexual harassment
Insubordination
Dishonesty
Absenteeism & time-related offences
Alcohol & drug abuse
Conflict of interest
Desertion
Intimidation
Negligence

Question 4

what did the Makhoba v CCMA case state regarding dismissing an employee for social media comments?

Answer 4

An employee can be dismissed for disparaging comments made on social media

Question 5

what are the factors that must be determined if a dismissal is substantively fair?

Answer 5

1.Did employee contravene a workplace rule or standard regulating conduct ?
2.If yes,
a) was the rule valid and reasonable
b) was employee aware or could employee have been expected to be aware of rule
c) was the rule consistently applied
d) was dismissal an appropriate sanction for contravention of the rule

Question 6

Factors that determine the substantive fairness of a dismissal

1.Did employee contravene a workplace rule or standard regulating conduct ?

Answer 6

This is a matter of fact and the onus is on the employer to establish
-Employees can also be accountable even if they didn’t actually contravene the rule but attempted to contravene the rule

Question 7

Factors that determine the substantive fairness of a dismissal

was the rule valid and reasonable?

Answer 7

There must be a valid workplace rule and if that rule is unlawful or unreasonable it is not the basis of fair dismissal

Question 8

Factors that determine the substantive fairness of a dismissal

was employee aware or could employee have been expected to be aware of rule?

Answer 8

Employee can reasonably be expected to have knowledge of the rule

Question 9

Factors that determine the substantive fairness of a dismissal

was the rule consistently applied?

Answer 9

Employer should apply the penalty consistently with regards to the way in which the penalty has applied to other employees in the past + between 2 or more employees who participate in the misconduct

Question 10

Factors that determine the substantive fairness of a dismissal

was dismissal an appropriate sanction for contravention of the rule?

Answer 10

Appropriatness is ased on seriousness of misconduct + impact on employee relationship

Question 11

Factors that determine substantive fairness of a dismissal

what did the Sidumo v Rustenburg Platinum Mines case state regarding the appropriatness of a dismissal?

Answer 11

a) Here, CC overturned the reasonable employer test endorsed by the SCA
b) CC held that commissioners are required to consider totality of circumstances and decide whether dismissal was an appropriate sanction
c) Factors:
Factors that commissioner applies for appropriatness
-importance of the breached rule
-asis of the employees challenge to the dismissal
-harm caused by employees conduct
-whether additional training may result in the employee repeating the misconduct
-effect of dismissal on the employee’
-long-service record of the emloyee

Question 12

Procedural Fairness for dismissals

what is the procedure that must be followed regarding dismissals?

Answer 12

1.Conduct investigation
2.Inform employee of allegations and give
reasonable time to prepare response
3.Provide employee opportunity to state
case/response
4.Inform employee of outcome in writing

Question 13

what is required of employer to satisfy requirement of procedural fairness in misconduct cases according to the Avril Elizabeth Home for the Mentally Handicapped case?

Answer 13

-An investigation into the the factual circumstances of the case
-The formulation of allegations of misconduct against the emplooyee
-Notice of those allegations to the employee
-An opportunity for employee to state their case

Question 14

Incapacity

what are the two forms of incapacity?

Answer 14

*Medical incapacity - Ill health/injury:
loss of physical or mental faculties
needed to perform job
*Poor work Performance: lack of
skills/qualities necessary to perform
tasks

Question 15

Incapacity

what are the responsibilities of the employer for medical incapacity?

Answer 15

1.Determine if ill-health injury
of permanent or temporary
nature
2.Accomodate the employee
a)If permanent: what devices/tools can be bought to assist employee, is there
a possibility of alternative employment
b)If temp but employee need
substantial time to recover: can temporary employee be used
3.Employee must be given an opportunity to state case prior to any decision to dismiss

Question 16

Incapacity

what if the medical incapacity is due to occupational injury or disease?

Answer 16

Occupational Injury/disease and
reasonable accommodation:
Employer will be held to higher
standard However, no obligation to
create a job if none exists

Question 17

Incapacity

what factors will the arbitrator consider in determing the substantive fairness of a dismissal for occupational health/injury?

Answer 17

1.Whether employee is capable of
performing the work for which he/she
was employed
-If not capable:
a.To what extent can employee perform
b.To what extent can employees work
circumstances/ duties be adapted
c.Availability of suitable alternative
work

Question 18

Incapacity

what are the procedural requirements for dismissal relating to medical incapacity?

Answer 18

1.Employee must be afforded an opportunity to state a case in response to employer’s investigation into employee’s incapacity.
2.Employee has right to be assisted by trade union rep or fellow employee in this process

Question 19

Incapacity

what is poor performance?

Answer 19

an inability to meet required
performance standard

Question 20

Incapacity

what is dismissal for poor performance during probation?

Answer 20

Purpose of probation: opportunity for employer to evaluate employee’s performance before confirming the appointment

Question 21

Incapacity

what are the responsibilities of the employer in regards to poor performance of probationary employees?

Answer 21

1.Must regularly assess
performance and give employee feedback (areas of poor performance)
2.Must assist to address areas of poor performance by giving instruction, training,
guidance and counselling
3.Must give fair opportunity to improve
4.If poor performance continues can extend probationary period or dismiss
5.If employer wants to dismiss: may only do so after giving employee opportunity to
make representations and considering them (entitled to be assisted

Question 22

Incapacity

How does the commissioner determine whetehr the dismissal of a probationary employee is fair?

Answer 22

commissioner ought to accept reasons that are less compelling than would be
the case if the employee was not
on probation

Question 23

Incapacity

what are the employers responsiilty if the poor performance occurs after probation?

Answer 23

Must not dismiss unless:
Employee given appropriate evaluation,
instruction, training, guidance or counselling;
+
employee continues to perform unsatisfactorily after reasonable period
of time given for improvement

Question 24

Incapacity

How will the arbitrator determine that the dismissal after probation was unfair?

Answer 24

1.Whether employee failed to meet
performance standard
a.Employer brings evidence for PP
b.Employer can set standards that must be met+ determine whether the standard was met
c.Court interfers when the standard was unreasonable
2.Whether employee failed to meet
performance standard
3.If performance standard not met, whether:
a.Employee aware of standard
b.Employee given fair opportunity to meet
standard; and
3.Dismissal appropriate for not meeting
standard

Question 25

Incapacity

when is dismissal appropriate after probation?

Answer 25

if employer can show that alternatives to dismissal were at least considered
However, employer not obliged to create alternative employment for incompetent employee

Question 26

Incapacity

what are the procedural requirements for dismissal due to PP after probation?

Answer 26

A.Employee must be afforded an opportunity to state a case in response to employer’s investigation into employee’s poor performance.
B.Employee has right to be assisted by trade union rep or fellow employee in this process

Question 27

Other forms of Incapacity

what are other forms of incapacity?

Answer 27

Lack of qualification
Incompatibility
Dismissals at the behest of a third party
Impossibility of performance (permanent / temporary)

Question 28

Operational requirements

what are dismissals due to operational requirements according to S189 and S189A of the LRA?

Answer 28

S189-small scale retrenchments
(employers who employ less than 50
employees and retrenches a relatively
small group of employees)
S189A- large scale retrenchments
(formula set out in LRA to determine if it is
large scale

Question 29

Operational Requirements

what is the substantive fairness of dismissal due to OR?

Answer 29

1.Be bona fide
2.Operationally justifiable on rational grounds - *SA Commercial Catering & Allied Workers Union v Woolworths *
3. a measure of last resort - National Union of Mineworkers v Black Mountain

A company can retrench to become more competitive and to increase
profits. Mazista Tiles v NUM

Question 30

Operational Requirements

what is the FAIR CRITERIA to determine if a dismissal due to OR is substantively fair?

Answer 30

1.Length of service, skills, qualifications, performance
2.Last in first out (LIFO) most commonly used criteria
3.Bumping must be considered if there is little or no disruptive effect to business

Question 31

Operational Requirements

what is bumping?

Answer 31

Horizontal Bumping- An employee whose position is redundant displaces an employee with shorter service in a similar job category
Vertical Bumping-An employee with longer service displaces a junior employee with shorter service

Question 32

Operational Requirements

what is the UNFAIR CRITERIA to determine if dismissal due to OR is unfair?

Answer 32

Union membership, sex, pregnancy, age, other discriminatory grounds

affirmative action not regarded as applicable when selecting employees for retrenchment

Question 33

Operational Requirements Procedural Fairness

What is the procedura that must be followed for dismissals due to OR?

Answer 33

Employer must issue written notice inviting parties to consult when the employer contemplates retrenching

Question 34

Operational Requirements Procedural Fairness

what information must the notice of intention to retrench contain according to S189(3) of the LRA?

Answer 34

1.Reasons for retrenchment
2.Alternatives considered
3.Number of employees employed
4.Selection criteria
5.Timing of dismissals
6.Severance pay
7.Possible assistance
8.Possible future employment
9.Total no of employees retrenched retrenched in the last 12 months

Question 35

Operational Requirements Procedural Fairness

what is the hieraarchy that must be followed in S189(1) to identify the appropriate consulting party when an employer considers dismissal due to OR?

Answer 35

• Parties identified in collective agreement
• If no collective agreement, workplace forum and registered trade union
• If no workplace forum, only registered trade union
• If no registered trade union, employees to be affected or their representatives

Question 36

Operational Requirements Procedural Fairness

what are the facts of the Royal Bafokeng case regarding the appropriate consulting party for dismissals due to OR?

Answer 36

A.The dismissed employees who were members of AMCU disputed fairness of procedure that led to their dismissals: they were not afforded opportunity to consult with employer prior to dismissal
B.Employer had recognition agreement with majority union (NUM), which included
consulting on dismissals for operational requirements
C.Employer consulted with majority union over the retrenchments and entered into a
retrenchment agreement that was extended to all other employees, including AMCU members

Question 37

Operational Requirements Procedural Fairness

what did the court in the Royal Bafokeng Mines case state regarding the appropriate consulting party?

Answer 37

AMCU challenged the constitutionality of sections 189(1)(a-c)
Majority judgment of CC found section 189 is rational, sound and fair
Therefore, minority union has no claim to be consulted in circumstances where the
employer is required to consult a majority union in terms of a collective agreement

Question 38

Operational Requirements Procedural Fairness

what is the purpose of consulting the appropriate party?

Answer 38

For genuine attempts to be made
by consulting parties to reach consensus on appropriate measures regarding:

• How to avoid retrenchment
• How to minimise no of retrenchments
• To change timing of retrenchments
• To mitigate adverse effects of retrenchment
• Method of selecting employees to be retrenched
• Severance pay

Question 39

Operational Requirements

How is severence pay determined due to dismissals because of retrenchments?

Answer 39

One week’s remuneration for every completed and continuous year of service with employer (section 41 of BCEA)

Not entitled to severance pay if employee
unreasonably refuses to accept employer’s
offer of alternative employment with that
employer or any other employer