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LABOUR LAW IN SOUTH AFRICA. A PRESENTATION BY VAN DER HEEVER & ASSOCIATES at 08:30 on 12 FEBRUARY 2004. WEBSITE: www.vanderheever.co.za EMAIL: [email protected] TEL: (011) 789 1110 FAX: (011) 787 3955. Note: To view in Full Screen - Right mouse click and select “Full Screen”. - PowerPoint PPT Presentation
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1
LABOUR LAWLABOUR LAWIN SOUTH AFRICAIN SOUTH AFRICA
A PRESENTATION BY
VAN DER HEEVER & ASSOCIATES
at
08:30
on
12 FEBRUARY 2004
WEBSITE: www.vanderheever.co.zaEMAIL: [email protected]
TEL: (011) 789 1110 FAX: (011) 787 3955
Note: To view in Full Screen - Right mouse click and select “Full Screen”Note: To view in Full Screen - Right mouse click and select “Full Screen”
2
CURRENT LABOUR TRENDS & OUTLOOK
The concepts of job security and social security have gone hand in hand in the
South African Labour market until recently. An employee climbing the corporate
ladder at a large company could expect reasonable job security, decent health
benefits, regular salary increases and a solid retirement package.
The entire principle of job security has been affected by so many factors that that
concept probably needs to be redefined in a South African context. Factors,
which have struck at job-security, are the following:
1.
Globalization: Due to large merger and acquisition activities in transnational
companies, local companies have invariably been affected. International
corporate activity has accounted for many closures of unwanted or unneeded
companies. There has also been the reintroduction of conglomerates that
disinvested in the 80’s and early 90’s e.g. Mobil and General Motors;
2.
The information age has meant a larger scale of access to information so that
"corporate knowledge" is no longer residing exclusively in the "old guard". Due to
the facilitation of information through digitisation, younger employees are
blooming at an earlier stage of their careers, which is nowadays referred to as
the baby-boom era;
3
3.
Health reasons: Workflow pressures, increases in tension levels have had a
debilitating effect on middle aged workers and in many instances burnout and
early redundancies occur;
4.
Corporate Downsizing:
5.
Employment Equity:
6.
Tighter budgets have crimped salary hikes, trimmed health care and other
benefits. In addition, guaranteed pensions i.e. defined benefit schemes are
increasingly being replaced by retirement savings plans (defined contribution
plans) such as individually funded plans often using unit trusts as the underlying
investment. The risk of investment performance has effectively been transferred
to employees.
7.
Introduction of new technology.
8.
Relatively shorter product and services life cycles.
4
SOUTH AFRICAN LABOUR MARKET
The most accurate survey on the extent of employment in both the formal and
informal sectors in the country, is contained in Statistics South Africa's Labour
Force Survey of March 2003.
A total of 11 565 000 people were estimated to be employed in both sectors in
March 2003.
Table A below sets out the labour market statistics as at March 2003:
TABLE A: LABOUR MARKET TRENDS IN MARCH 2003ACCORDING TO THE OFFICIAL DEFINITION OF UNEMPLOYMENT
95% confidence intervals
Lower Limit('000)
Estimate('000)
UpperLimit
('000)abc
de
Total employedTotal unemployed (official definitionTotal economically active = a + b
Total not economically activeTotal aged 15-65 years = c + d
11 2985 026
16 442
12 37228 964
11 5655 250
16 815
12 74029 555
11 8325 473
17 187
13 10830 145
f Official unemployment rate = b * 100/c 30,2% 31,2% 32,2%
gLabour market participation rate = c *100/e
56,1% 56,9% 57,7%
h Labour absorption rate = a * 100/e 38,4% 39,1% 39,9%
It will be noticed that the official unemployment rate is estimated to be 31,2%.
Note that this figure could be as high as 42,1% if a wide definition is given to
unemployment.
South Africa has 29.6 million people aged between 15 - 65 years of which 16.8
million are economically active, 11.6 million employed and 5.3 million
unemployed.
12.7 million of age group 15-65 are not economically active for various reasons.
5
LABOUR TRENDS IN THE WORKPLACE
Whereas the workplace during the 80's and early 90's was characterised by
stereotype full time employment contract, many employers have resorted to
atypical contracts of employment in order to keep labour costs in check. These
atypical contracts of employment took at least the following forms:
Flexi-time contract
Temporary employment contracts
Fixed term employment contracts
Consultancy agreements
Outsourcing agreements
Employer and/or workplace fragmentation structures.
Each of these contracts are regulated by their own terms. The concept of full
time, permanent employment seems to be giving way to these atypical
agreements.
Negotiation and conclusion of contracts of employment is a highly specialised
field and especially in the field of employing executives for companies, specialist
advice is normally sought before these contracts are concluded. Not enough
time is being spent on negotiating relevant and appropriate terms of employment.
A further trend in the workplace is that employers have sought to contain their
costs of labour by employing employees on a basis of total cost to company.
Apart from its function of cost containment, this type of contract also serves the
purpose of giving the company a full conspectus of its true labour costs. In this
way, companies can more readily quantify their actual labour costs.
Due to the increase in competition, the concept of employee differentiation has,
similar to product differentiation, come to the fore in order to make businesses
more competitive.
6
The business of staff differentiation comes down to sorting out the A, B and C
Players in the workplace. Note the difference in terminology between
differentiation and discrimination. Differentiation is certainly not a form of unfair
discrimination which we will touch upon later in this seminar.
Differentiation is uninfluenced by race, culture or religion. It might be that gender
comes into play. A system of differentiating between A, B and C Players is quite
an acceptable practice in grading employees in a particular workplace. In fact, it
is an essential management function.
A Players possess essentially 4 E's in business - i.e.
high levels of Energy,
the ability to Energise employees, suppliers and customers around them
Edge to make those difficult 50/50 decisions; and
finally, capability of Executing and performing on their commitments.
All these attributes are of course embraced and connected by passion. It is this
element of passion which separates A players from B players. The B's are the
heart and guts of the company and they are critical to its operational success.
They essentially have at least three of the four "E" attributes, and they have the
potential of achieving all four. Employers devote a lot of energy towards
improving these Players into A's. It is the manager's job to convert a B player
into an A player but sometimes it never happens.
C players enervate rather than energise. They procrastinate rather than deliver.
C players are also characterised by poor execution.
7
T h e s y s t e m o f d i f f e r e n t i a t i o n c a n b e d e p i c t e d i n t h e f o l l o w i n g g r a p h :
D e a l i n g w i t h t h e b o t t o m 1 0 % , o r C p l a y e r s , i s o n e o f t h e t o u g h e s t t a s k s f o r
m a n a g e r s . A b o u t 3 / 4 ' s o f t h e b o d y o f L a b o u r L a w i s d e v o t e d t o w a r d s t h i s
u n p r o d u c t i v e g r o u p . I t i s t h e r e f o r e l i t t l e w o n d e r t h a t t h e p r o d u c t i v i t y r a t e i n t h e
c o u n t r y i s l a g g i n g b e h i n d t h a t o f i t s m a i n t r a d i n g p a r t n e r s . I n a f r e e l a b o u r
m a r k e t w h i c h i s r e g u la t e d o n l y b y m a r k e t f o r c e s a n d u n t r a m m e l e d b y l e g i s l a t i o n ,
C p l a y e r s w i l l u s u a l l y e n d u p d i s m i s s e d .
8
In South Africa this would mean that 1.1million economically active people will
lose their jobs and with a labour absorption rate of only 10% of school-leavers, of
which there are 500 000 per year, society ends up with an additional burden of
1.55 million unemployed people per annum. This would swell the unemployment
level to a whopping 45 or 55% level depending on the definition one accords the
term "unemployment".
The South African legislature has, however, seen fit to interfere in the labour
market by introducing laws that protect employees against unfair dismissal, unfair
retrenchments and unfair discrimination. Managers cannot however, afford to
shirk their responsibility of differentiating their workforce into A, B and C players
and they accordingly require a deeper understanding of the law relating to unfair
dismissal, retrenchment and unfair discrimination. A better understanding of
these topics will equip the manager in future to face up to his or her responsibility
of differentiating employees. Without this differentiation, companies cannot even
attempt to become more competitive and therefore assume a meaningful role in
the global economy.
The job of creating employee differentiation in the workplace becomes gradually
more difficult over time and managers sometimes make themselves guilty of
"gaming the rules". Practices to watch out for are that managers will sometimes
sneak people, who are planning to retire, into the bottom 10% category. It is also
not uncommon to find the names of ex-employees and deceased employees in
these lists!
9
It is clear that it is only the A and B Players in a company that deliver positive
ROI. C Players invariably come up with a negative ROI. A strong case has been
advocated for removing the bottom 10% at the company's year-end. if free labour
market forces had any say in the matter. It might seem cruel at first but retaining
the 10% amounts to a false kindness. At the end of the day it kills productivity
and is one of the main catalysts of unemployment. Retaining only A and B
players in a company leads to higher productivity, positive ROI's for companies,
creates a more harmonious workforce and a sound relationship with
management. This will create scope for a better labour absorption rate in the
economy which will in no small measure contribute towards a lower
unemployment rate.
10
AIDS AND HIV TESTING
Section 7 of the Employment Equity Act 55 of 1998 (the EEA) as well as Section
36 of our Constitution form the pillars on which basis HIV and Aids testing are
rendered permissible.
If the grounds for testing are not within the four corners of these Acts, it will be
held that the testing amounts to unfair discrimination.
Section 7(2) of the Employment Equity Act 55 of 1998 states that : “testing of an
employee to determine that employee’s HIV status is prohibited unless such
testing is determine to be justifiable by labour courts”.
The courts use different approaches in relation to the aforesaid subsection. One
case says that HIV testing is absolutely prohibited in the absence of an order by
the Labour Court - Joy Mining, a division of Harnischfeger (SA) (Pty) Ltd v
Numsa & others (2002) 23 ILJ 391 (LC) (Joy Mining case). On the other hand,
the Labour Court held that if HIV testing is done anonymously and/or on a
voluntary basis, it falls outside the ambit of Section 7(2) of the EEA and an order
from the Labour Court is not necessary – Irvin & Johnson L v Trawler and Line
Fishing Union & others (2003) 4 (BLLR) 379; 2003 (3) SA 212 (LC) "(I & J case)".
It is therefore essential to take a closer look at these conflicting decisions.
In the Joy Mining case, which was an application for an order permitting the
testing of employees for HIV status, the Court first considered whether it would
be justifiable in granting such an order in terms of Section 7(2) of the EEA as well
as the factors which should be taken into account in formulating the court’s order.
The court found that there is a difference between a voluntary and involuntary
testing, but held that ultimately, all testing requires the Labour Court’s sanction.
11
In the Irvin & Johnson case the applicant also approached the court wishing to
arrange for voluntary and anonymous HIV testing within its trawling division. The
applicant set out in its application the reasons for requesting this test and also
the education and awareness programs which it had introduced in the workplace.
It furthermore alluded to the fact that the Elisa and Abbott tests would be used on
the employees which is a rapid test using a small blood sample obtained via a
pin prick. The test results are obtained voluntary and anonymous and record the
age and job category of the individual employees. Moreover, it was said that
these tests would be conducted by an independent professional testing agency,
on an ongoing basis accompanied by pre-test and post-test counselling. If it is
therefore apparent that the employer will only receive the percentages and
number of employees that tested positively there would be no discrimination
against the employees on the basis of his/her HIV status. No prejudicial influence
would be drawn from the refusal of the employee to submit to testing.
The purpose of Section 7 of the EEA is clearly to prohibit an employer from unfair
discrimination against an employee inter alia on the basis of the employee’s
medical condition. If the HIV testing is therefore anonymous, it falls outside the
ambit of Section 7 (2).
However in PFG Building Glass (Pty) Ltd v Ceppawu & others (2003) 5 BLLR
475 (LC) Pillay, J. held that it is not sufficient for HIV testing to be anonymous to
fall outside the ambit of Section 7 (2) of the EEA. It must also be done with the
employee’s consent in other words, on a voluntary basis. In the case of
voluntary testing, it is entirely up to the employee to decide if he or she is to be
tested or not, and no adverse consequences can follow from the employee’s
decision.
12
Pillay, J. considered Section 7 (2) of the EEA in the light of the Constitution and
noted that the rights affected by Section 7 (2) are, inter alia, the right to freedom
and security of a person, the right to dignity and the right of privacy. Should an
employee therefore give his informed consent to HIV testing, Section 7 (2) of the
EEA will not constitute a limitation of the right to freedom and security of the
person and it is therefore not required to obtain a labour court approval for the
HIV testing.
Should the employee however refuse to consent or the consent is obtained from
the employee without the employee being fully informed, such testing will be
prohibited in the absence of a Labour Court order.
FORMULATION OF RULES ON HIV TESTING
We recommend as:
Rule 1
Rule 2
Rule 3
Rule 4
Ensure that the testing serves a meaningful business purpose;
Employees should be tested across the board - therefore not
targeted towards certain individuals;
Filling in and signing of voluntary and anonymous test
consents are highly recommended;
Retain the confidentiality of the results by letting the testing
lab. retain them - conclude a confidentiality agreement with
the pathologists.
13
HIVTESTING
SE
C 3
6 O
F T
HE
CO
NS
TIT
UT
ION S
EC
7(2) OF
TH
E E
EA
HIV TESTING
UNLESS LABOUR COURTORDER
JOY MINING CASE
NO
TE
ST
ING
HIV TESTING
NO NEED FOR LABOURCOURT
I & J CASE
TE
ST
MU
ST
BE
AN
ON
YM
OU
S
HIVTESTING
NO NEED FORLABOUR COURT
PFG BUILDING GLASS CASE
TE
ST
MU
ST
BE
AN
ON
YM
OU
S TE
ST
MU
ST
BE
VO
LU
NT
AR
Y
and
REQUIREMENTS
14
UNFAIR DISCRIMINATION
At the heart of the prohibition against unfair discrimination lies a recognition that
the purpose of our new Constitution and democratic order is the establishment of
a society in which all human beings will be accorded equal dignity and respect,
regardless of their membership of particular groups (President of the Republic of
South Africa & another v Hugo 1997 (4) SA 1 (CC))
Section 16(1) of the Employment Equity Act 55 of 1998 states that :
“No person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or more grounds,
including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion, culture,
language and birth”.
The questions after reading the court’s view of unfair discrimination in the Hugo’s
case and Section 6 (1) of the EEA are the following:
1. Are the grounds of unfair discrimination limited or is it infinitely wide?
2. Who precisely is a employee which sub section 1 is talks about?
After the recent events of the Judge Desai matter in India, there were various
viewpoints as to whether Judge Desai must resign or not.
It is quite evident that, after al the dust has settled down, his employer, being the
Department of Justice and Constitutional Development, will still continue with his
employment.
15
Now suppose that his employer decided to end his employment even though the
complainant withdrew the case against the Judge. Is it possible that it might be
held that their ending of his employment boils down to unfair discrimination?
If you read the Hugo’s case carefully, one sees that the Court’s view is that all
human beings will be accorded equal dignity and respect, regardless of their
membership of a particular group. The question that arises is, should a Judge be
accorded a higher level of dignity than that of an ordinary human being? Can it
be contemplated that because a Judge belongs to the group of the Judiciary, he
must be judged on a higher level? This is surely not contemplated by the Hugo’s
case. The court’s view is that all human beings should be accorded EQUAL
dignity and respect.
It could therefore be said that a hypothetical dismissal of Judge Desai would
have amounted to unfair discrimination.
Unfair discrimination also surfaced in another matter involving a Judge.
16
In Satchwell v The President of the Republic of South Africa, the Constitutional
Court held that Section 8 and 9 of the Judge’s Remuneration and Conditions of
the Employment Act 88 of 1989 were invalid. This section did not provide for
pensions and gratuities for persons in a permanent same sexlife partnership.
Although the other respondent did not deny that the discrimination was unfair and
did not suggest that the provisions were justifiable in terms of Section 36 of the
Constitution, it is arguable whether this defence would have availed the
respondent in any way.
It is therefore apparent from the two aforesaid scenarios that the grounds for
unfair dismissal is unlimited and if a person falls into the ambit of the definition of
employee in terms of the Employment Equity Act 55 of 1988, unfair
discrimination in relation to the person’s workplace is also relevant to that person.
In order for an employee to establish a claim based on unfair discrimination in
terms of the Constitution, the LRA and the EEA, the employee is to establish the
following elements:
1. He or she is engaged in an employer/employee relationship;
2. Does the differentiation amount to discrimination?
3. If discrimination is established, one must determine whether it is
discrimination based on a specified ground or if it is not based on a
specified ground;
4. On a specified ground, then discrimination will have been established;
5. If on an unspecified ground, employee has the burden to prove that
objectively, the ground is based on attributes and characteristics which
have the potention to impair the fundamental human dignity of persons as
human beings or to affect them adversely in a comparably serious manner.
17
RACIAL DISCRIMINATION AND AFFIRMATIVE ACTION
Although discrimination based on race is one of the specific prohibited grounds
contained in the Constitution and the Employment Equity Act, Section 6 (2) of the
Employment Equity Act states that it is not unfair discrimination to take
affirmative action measures consistent with the purpose of the Employment
Equity Act or to distinguish, exclude or prefer any person on the basis of an
inherent requirement of a job.
The following example of the effect of affirmative action measures in practice
recently appeared in a local newspaper:
ABC has a vacancy for a computer software programmer and receives two
applications - from Mr. Jones, a white male, and Mr. Malebo, a black male.
Both Jones and Malebo qualified and obtained the appropriate information
technology (IT) degree, although Jones has four years' working experience
while Malebo has no work experience in the IT field.
In assessing the applicants, the company decided to appoint Jones in the light of
his experience. Malebo feels hard done by and accuses the company of applying
discriminatory employment practices. Is he justifiably aggrieved?
If an employer use certain selection criteria to establish whether a person is
qualified for a position, it is of vital importance that affirmative action and the EEA
are correctly applied in the workplace. In this example it is clear that the EEA
prohibits discrimination solely on the grounds of lack of experience.
It is recommended that employers seek advice in relation to implementing
appropriate and effective policies to avoid potential liability.
18
A white applicant, in Auf Der Heide Auf Der Heide v University of Cape Town
2000 (21) ILJ 1758 (LC) was unsuccessful in application for a permanent
university position since discrimination against the applicant could not be proven.
This was the case even though the candidate may or may not have been
appointed on a basis of affirmative action. In this matter the Labour Court
remarked that the potential beneficiary of an affirmative action program does not
have to prove actual disadvantage, but that it is sufficient if he/she is a member
of a group that have been disadvantaged by general society discrimination
whether direct or indirect. However a non-South-African black does not fall
within such category.
Although the courts will not readily interfere with appointments of affirmative
action candidates, the following are a few instances where the Court did in fact
do so:
1. If the employer has ignored its own policies in respect of the appointment
of affirmative action candidates. The arbitrator ruled in Meyer v the SA
Police Service 2002 ILJ 974 (BCA) that the refusal on the part of the
SAPS to promote the applicant to the rank of Captain was in breach of its
own employment equity plan and constitutes an unfair labour practice.
2. If the employer has appointed an unsuitable candidate. The employer
usually enjoys managerial prerogative and it is normally not the task of the
court or the arbitrator to determine whether the appointee is able to do the
job. The function of the court in arbitrator is to determine rather whether
the process, which was followed, was in order.
3. In circumstances where a person who did not apply for the position was
appointed.
4. In circumstances where the selection process which was followed, was
irregular. The court found that the appointment of a woman, related to the
mayor, who participated in the selection process was irregular, - De Kock
v Municipality of Villiersdorp 2001 BLLR 1111 (LC).
19
CCMA
The CCMA was established by virtue of Section 112 of the 1995 Labour
Relations Act which commenced on 1 January 1996. The CCMA’s vision is to
promote social justice and economic growth, with the social partners, by
transforming relations in the labour market. The CCMA seeks to achieve this by
delivering high quality, low-cost dispute resolution and prevention services.
Their mission statement is the following:
“For ourselves, we held the professional, integrity and service and the
value of sharing trust with the relationships for the CCMA, we hold
ourselves accountable for sustaining our vibrant, diverse community,
united by a thirst for learning and strengthened by self-discipline. For the
public, we hold fast our commitment for transforming labour relations by
resolving disputes fairly and sharing our knowledge widely for Africa, we
hold high the ideals of the equality, social justice and shared prosperity.
The function of the CCMA is the following:
The CCMA will -
• conciliate disputes
• arbitrate certain disputes that remain unresolved after conciliation;
• facilitate the establishment of workplace forums and statutory councils;
• compile and publish information and statistics about its activities; and
• consider applications for accreditation and subsidy by bargaining councils
and private agencies.
The CCMA may –
20
• Supervise ballots for unions and employer organisations;
• Give training and advise on the establishment of collective bargaining
structures; workplace structuring; consultation processes; termination of
employment, employment equity programmes; and dispute prevention.
CASE LOAD
The CCMA presently handles and administers case loads never considered
possible. The CCMA logs and processes some 417 new cases each day. This
means that they receive a new case every minute of every working day. During
the period 1 April 2002 to 31 March 2003 a total of 118 051 disputes were
referred to the CCMA. The number of referrals received during this period,
represented a 7% increase over the number of referrals received during the
previous financial year. The screening and allocating teams, better known as
SAT, located at the front desk of each CCMA provincial office, screened out 34%
of the 118 051 referrals and deemed them to be outside the jurisdiction of the
CCMA. Another 12% of these “Jurisdictional” cases were dealt with at the point
of entry by pre-conciliation. The purpose of improving the front office desk
services as the CCMA is to implement a quick, cost-effective resolution of
uncomplicated disputes.
Unfair dismissal disputes account for the largest percentage of issues in dispute.
These disputes account for 82% of the CCMA's case load.
21
DISPUTE REFERRALS BY ISSUE
100% 82%
8%
1% 3% 3% 3%
Other Collective Severance Mutual Unfair Unfair Bargaining Pay Interest Labour Dismissal
Practice
71% of disputes referred to the CCMA are settled by conciliation. A decrease
was noted in this type of dispute resolution which may be attributed to the Con-
Arb process introduced by the amendment to the Labour Relations Act
promulgated in August 2002. Con-Arb’s purpose is an attempt to expedite the
dispute resolution process due to the fact that the conciliation and arbitration take
place as a continuous process on the same day.
Ref
erra
ls
22
ARBITRATION
Of the arbitrations conducted in 2002/2003 financial year, 52% resulted in an
award being made, 21% was settled by referral back to conciliation, 9% were
dismissed due to the non-attendance by either the complainant or both parties,
and 9% were withdrawn or settled by the parties prior to the arbitration taking
place. Of the total arbitration awards, 60% were in favour of the employee and
40% were in favour of the employer.
FUTURE PLANS
According to the CCMA’S Annual Report for the 2002/2003 financial year, it is
indicated that its priority focus will shift to the unrepresented
applicant/unorganised workers. Applicants without representation constitutes
75% of all referrals to the CCMA and the CCMA’s dispute prevention department
is aiming to reach this constituency by way of community radio, offering training
and information services to advise officers and through the use of best practice
video aimed at workers.
23
CCMA RULES
The CCMA rules were amended in 2003, but there is no need to go through each
and every part of the rules, though some amendments need to be considered to
appreciate the true intention of the author of the rules.
The first rule that needs attention is Rule 10.
Rule 10 reads as follows:
“1. The party must refer a dispute to the commission for conciliation by
delivering a completed LRA 7.11 form.
2. The referring party must:
a. sign the referral document in accordance with Rule 4;
b. attach to the referral document written proof in accordance
with Rule 6, that the referral was served on the other parties
to the dispute;
c. If the referral document is filed out of time, attach an
application for condonation in accordance with Rule 9.
3. The commission must refuse to accept the referral document until
sub-rule 2 has been completed."
It is therefore clear that non-compliance with the sub-rule 2 of Rule 10 will result
in a refusal from the commission to accept form 7.11.
24
The three requirements for the acceptance of LRA form 7.11 is therefore the
following:
1. Form 7.11 must be signed by the party or by a person entitlement in terms
of the Act or the rules to represent the party in proceedings;
2. If the referral document is served on the other party by way of fax or
registered post, confirmation of same must be annexed to the referral
document. If the referral document is served on the other side by way of
personal service, a statement must be attached to the referral document
confirming this service.
3. A dispute for unfair dismissal, must be referred to the commission within 30
(thirty) days of the date of the dismissal. If the matter is not referred within
30 days, the applicant must apply to the commission to condone his late
filing of the referral document. This application together with the applicant’s
affidavit as well as confirmation of service of the application and affidavit on
the other side, must be attached to the referral document.
25
The other rule that needs some attention is Rule 34 with the heading “How to
request a pre-dismissal arbitration in terms of Section 188A. According to
Section 188A of the Labour Relations Act of 1995 an employer may request the
commission to conduct a pre-dismissal arbitration in circumstances where the
employee agreed to this process. Usually the employment contract makes
specific provision for this process and the signing of the contract by the
employee, provides for the employee’s consent.
A copy of this signed contract together with LRA form 7.19 will initiate the
procedure by the commission. The commission will furthermore require payment
of a prescribed fee before commencement of this procedure. After 21 days of
receiving the request and the prescribed fee, the commission must notify the
parties to the pre- dismissal arbitration of when and where the pre-dismissal
arbitration will be held. The commission will furthermore give the parties at least
14 days notice of the commencement of the pre-dismissal arbitration. If the
matter is resolved before the commission’s notice, the prescribed fee will be
refunded to the employer.
26
PROCEDURAL FAIRNESS
HEARING HELD AFTER DECISION TO DISMISS - RULES FOR CURINGNATURAL JUSTICE TRANSGRESSION
MAMABOLO v. RUSTENBERG REGIONAL LOCAL COUNCIL 2001 (1) SA135 (SCA)
The Appellant had been appointed by the Respondent Council as an RDP
director on 16 May 1995. His appointment was governed by Clause 6.2.7 of
regulations promulgated in terms of Section 48(1)(a) of the Labour Relations Act
28 of 1956.
Clause 6.2.7 provided for the appointment by the Respondent of permanent
employees on probation for a fixed period not exceeding 6 months and provided
further that if an employee had successfully completed the probationary period,
the Respondent should confirm that employees appointment in writing.
If the Respondent was, however, of the opinion that an employee was not fit for
the post concerned, on or before the date of completion of the probationary
period, it could either:
(a) in writing and stating the reasons therefor, extend the probationary period
once only for a fixed period not exceeding 6 months; or
(b) give the employee at least one working month's written notice of its intention
to terminate his or her employment.
On 28 November 1995 the Respondent extended the contract for a further 6
months. On 14 May 1996 the Respondent gave him one month from 16 May of
intention to dismiss him.
Appellant challenged the validity of the extension of the probationary period and
the resolution to terminate his services.
27
Appellant argued that because he had successfully completed his probationary
period by 28 Nov 1995, the Respondent had no longer been entitled to extend
his probation period and that, upon completion of the probationary period by 28
Nov 1995, he had become a permanent employee notwithstanding the absence
of confirmation in writing.
Appellant further argued that the decision to terminate had been procedurally
unfair because, when he had been invited to make representation to the
Respondent's Council meeting on 28 May 1996, the decision to dismiss had
already been taken.
The Court held as to the validity of the extension of the probationary period that
the whole basis of the Appellant's employment had been that he was required to
serve a probationary period of 6 (six) months. If the Respondent wished to
appoint him, his permanent employment had to be confirmed in writing. A failure
to confirm such appointment or the mere expiry of period would not mean that he
is a permanent employee.
28
Court held further that although it was true that a right to be heard after the event,
when the decision had already been taken, was seldom an adequate substitute for
right to be heard before the decision was taken, in certain instances a Court could
accept as sufficient compliance with the rules of natural justice a hearing held after a
decision had been taken where:
1 there had been a sufficient interval between taking of the decision and its
implementation to allow for a fair hearing.
2 the decision maker retained a sufficiently open mind to allow him- or herself to
be persuaded that the decision should be changed; or
3 the affected individual had not thereby suffered prejudice.
Court held further that the decision taken on 14th May had in substance been
provisional and not final. The Respondent's assurance to the Appellant that it would
keep an open mind appeared to have been demonstrated by its invitation to the
Appellant to address it on 28th May.
The termination of the Appellant's employment had been valid.