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NCV 3 Management Practice Hands-On Support Slide Show - Module 2

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This slide show has been designed to complement the learner guide NCV 3 Management Practice Hands-On Training by Bert Eksteen, Alma van Rensburg & Elize Oosthuizen, published by Future Managers Pty Ltd. For more information visit our website www.futuremanagers.net

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NCV 3 Management Practice Hands-On Support Slide Show - Module 2

  1. 1. Management Practice 3 Management Practice Level 3 Future Managers
  2. 2. Module 2: The impact of legislation on business operations Management Practice Level 3 Future Managers
  3. 3. Module 2: The impact of legislation on business operations <ul><li>After completing this module, you will be able to: </li></ul><ul><ul><li>Identify the legislation that regulates employment issues </li></ul></ul><ul><ul><li>Demonstrate an understanding of the main aspects of the Labour Relations Act </li></ul></ul><ul><ul><li>Explain the requirements of the LRA in respect of interviews </li></ul></ul><ul><ul><li>Demonstrate an understanding of the main aspects of the Basic Conditions of Employment Act </li></ul></ul>Management Practice Level 3 Future Managers
  4. 4. 1. Identify the legislation that regulates employment issues <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Identify the six main components of labour legislation that regulate employment issues </li></ul></ul><ul><ul><li>Indicate what is covered by the legislation </li></ul></ul><ul><ul><li>Provide an overview of the South African constitution </li></ul></ul><ul><ul><li>Analyse the six Acts and indicate how they interact and support the South African Constitution </li></ul></ul>Management Practice Level 3 Future Managers
  5. 5. 1.1 The six main pieces of legislation <ul><li>Why do they exist? Do you think they are effective? </li></ul><ul><li>The Labour Relations Act </li></ul><ul><li>The Basic Conditions of Employment Act </li></ul><ul><li>The Employment Equity Act </li></ul><ul><li>The Skills Development Act </li></ul><ul><li>The Skills Development Levies Act </li></ul><ul><li>The Protected Disclosures Act </li></ul>Management Practice Level 3 Future Managers
  6. 6. 1.1.1 The Labour Relations Act <ul><li>Applies to: </li></ul><ul><ul><li>All organisations except: </li></ul></ul><ul><ul><ul><li>The National Defence Force </li></ul></ul></ul><ul><ul><ul><li>The National Intelligence Agency </li></ul></ul></ul><ul><ul><ul><li>The South African Secret Service </li></ul></ul></ul><ul><li>The aim of the Act: </li></ul><ul><ul><li>To advance economic development, social justice, labour peace and the democracy of the workplace </li></ul></ul>Management Practice Level 3 Future Managers
  7. 7. 1.1.2 The Basic Conditions of Employment Act <ul><li>Applies to: </li></ul><ul><ul><li>All organisations except: </li></ul></ul><ul><ul><ul><li>The National Defence Force </li></ul></ul></ul><ul><ul><ul><li>The National Intelligence Agency </li></ul></ul></ul><ul><ul><ul><li>The South African Secret Service </li></ul></ul></ul><ul><ul><ul><li>Unpaid Volunteers </li></ul></ul></ul><ul><li>Working hours don’t apply to: </li></ul><ul><ul><li>Workers in senior management </li></ul></ul><ul><ul><li>Sales staff who travel and regulate their own working hours </li></ul></ul><ul><ul><li>Workers who work less than 24 hours per month </li></ul></ul><ul><ul><li>Workers who earn more than R115 572 per year </li></ul></ul>Management Practice Level 3 Future Managers
  8. 8. 1.1.2 The Basic Conditions of Employment Act <ul><li>Annual leave doesn’t apply to: </li></ul><ul><ul><li>Workers who work less than 24 hours per month </li></ul></ul><ul><ul><li>Leave over an above that provided for by the Act </li></ul></ul><ul><li>Purpose of the Act: </li></ul><ul><ul><li>To ensure that working conditions of unorganised and vulnerable workers meet the minimum standards that are socially acceptable in relation to the level of development of the country </li></ul></ul><ul><ul><li>To remove the rigidities and inefficiencies from the regulation of minimum conditions of employment and to promote flexibility </li></ul></ul><ul><ul><li>The working time of employees must be arranged so as not to endanger their health and safety, and with due regard to family responsibilities </li></ul></ul>Management Practice Level 3 Future Managers
  9. 9. 1.1.3 The Employment Equity Act <ul><li>Applies to: </li></ul><ul><ul><li>All organisations except for: </li></ul></ul><ul><ul><ul><li>The National Defence Force </li></ul></ul></ul><ul><ul><ul><li>The National Intelligence Agency </li></ul></ul></ul><ul><ul><ul><li>The South African Secret Service </li></ul></ul></ul><ul><li>The provision for affirmative action apply to: </li></ul><ul><ul><li>employees with 50 or more workers or whose annual income is more than the amount specified in the Act </li></ul></ul><ul><ul><li>Municipalities </li></ul></ul><ul><ul><li>Organs of state </li></ul></ul><ul><ul><li>Employers ordered to comply by a bargaining council agreement </li></ul></ul><ul><ul><li>Any employers who volunteer to comply </li></ul></ul>Management Practice Level 3 Future Managers
  10. 10. 1.1.3 The Employment Equity Act <ul><li>Aims of the Act: </li></ul><ul><ul><li>To promote and achieve equality in the workplace by encouraging equal opportunities amongst all groups. It applies to all employers and workers, protects workers and job seekers from unfair discrimination, and also provides a framework for implementing affirmative action </li></ul></ul>Management Practice Level 3 Future Managers
  11. 11. 1.1.4 The Skills Development Act <ul><li>Aims: </li></ul><ul><ul><li>To improve the skills of the South African workforce </li></ul></ul><ul><ul><li>Increase the levels of investment in education and training in the labour market </li></ul></ul><ul><ul><li>Employers are meant to provide employees with new opportunities to acquire skills </li></ul></ul><ul><ul><li>To assist new entrants to the labour market to gain work experience </li></ul></ul><ul><ul><li>To employee people who find it difficult to be employed </li></ul></ul>Management Practice Level 3 Future Managers
  12. 12. 1.1.5 The Skills Development Levies Act <ul><li>Every employer must pay a skills development levy towards the National Skills fund each month  </li></ul><ul><li>The Skills Development Levies Act applies to all employers except – </li></ul><ul><ul><li>the public service </li></ul></ul><ul><ul><li>religious or charity organizations </li></ul></ul><ul><ul><li>public entities that get more than 80 % of their money from Parliament </li></ul></ul><ul><ul><li>employers whose total pay to all its workers is less than R250 000 per year </li></ul></ul><ul><ul><li>employees who do not have to register according to the Income Tax Act. </li></ul></ul>Management Practice Level 3 Future Managers
  13. 13. 1.1.6 The Protected Disclosures Act <ul><li>The purpose of this act is: </li></ul><ul><ul><li>to make provision for procedures in terms of which employees in both the private and the public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers </li></ul></ul><ul><ul><li>to provide for the protection of employees who make a disclosure which is protected in terms of this Act </li></ul></ul><ul><ul><li>and to provide for matters connected therewith </li></ul></ul>Management Practice Level 3 Future Managers
  14. 14. 1.2 The interaction of legislation and support of the South African Constitution <ul><li>Section 27 of Chapter 3 of the Constitution relates specifically to labour relations and provides that: </li></ul><ul><ul><li>Every person shall have the right to fair labour practices </li></ul></ul><ul><ul><li>Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers’ organizations </li></ul></ul><ul><ul><li>Workers and employers shall have the right to organize and bargain collectively </li></ul></ul><ul><ul><li>Workers shall have the right to strike for the purpose of collective bargaining </li></ul></ul><ul><ul><li>Employers’ recourse to a lockout for the purpose of collective bargaining shall not be impaired. </li></ul></ul>Management Practice Level 3 Future Managers
  15. 15. 1.2 The interaction of legislation and support of the South African Constitution <ul><li>Bill of Human Rights </li></ul><ul><ul><li>‘ No person shall be unfairly discriminated against, directly or indirectly’ </li></ul></ul><ul><ul><li>Clause 10 – entitles every person to ‘…respect for and protection of his or her dignity.’ </li></ul></ul><ul><ul><li>Clause 15 – details the right to freedom of speech and expression. </li></ul></ul>Management Practice Level 3 Future Managers
  16. 16. Activity 1 <ul><li>Choose the most correct description in from Column B to describe the Act in Column A </li></ul>Management Practice Level 3 Future Managers Column A Column B The Labour Relations Act Regulates working hours and annual leave Employment Equity Act Deals with workplace forums, freedom of association, unfair dismissals The Basic Conditions of Employment Act Deals with learnerships The Skills Development Act Deals with monies to be contributed to the National Skills Fund The Skills Development Levies Act Deals with affirmative action
  17. 17. Activity 2 <ul><li>“ No aspect of any labour-related Act may contradict anything in the Constitution </li></ul><ul><li>Discuss this statement by referring to how the Constitution does affect certain aspects of these Acts </li></ul>Management Practice Level 3 Future Managers
  18. 18. Activity 3 <ul><li>Name the six labour-related Acts and state the main purpose of each </li></ul>Management Practice Level 3 Future Managers
  19. 19. 2. Demonstrate an understanding of the main aspects of the Labour Relations Act <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Explain the concept of freedom of association with reference to employers and employees </li></ul></ul><ul><ul><li>Explain organisational rights protected by the LRA with reference, where appropriate, to Trade Unions that are active in the specific sector. </li></ul></ul><ul><ul><li>Explain the concept of unfair labour practice </li></ul></ul>Management Practice Level 3 Future Managers
  20. 20. 2. Demonstrate an understanding of the main aspects of the Labour Relations Act <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Explain the importance of handling internal conflict and grievances to prevent unfair labour practice disputes arising </li></ul></ul><ul><ul><li>Explain the role of a workplace forum and give an indication of who should be represented in such a forum </li></ul></ul><ul><ul><li>Identify, within an organisation, representative of a workplace forum </li></ul></ul><ul><ul><li>Explain the function of the Council for Conciliation, Mediation and Arbitration (CCMA) with reference to its role in dispute resolution </li></ul></ul>Management Practice Level 3 Future Managers
  21. 21. 2. Demonstrate an understanding of the main aspects of the Labour Relations Act <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Explain the steps to be taken to ensure that dismissals are substantively and procedurally correct and fair with reference to the LRA and the Code of Good Practice on Dismissal and human resource policies of an organisation </li></ul></ul><ul><ul><li>Discuss the human resources policies within an organisation with regards to dismissals </li></ul></ul><ul><ul><li>Document evidence that could support a recommendation for dismissal in accordance with human resources policies of a specific organisation </li></ul></ul><ul><ul><li>Describe the steps to be followed to ensure procedural fairness in cases of misconduct with reference to the LRA and the disciplinary process of a specific organization. </li></ul></ul><ul><ul><li>Describe the procedures to be followed at a disciplinary hearing with reference to the LRA and the policy of a specific organisation. </li></ul></ul>Management Practice Level 3 Future Managers
  22. 22. 2. Demonstrate an understanding of the main aspects of the Labour Relations Act <ul><li>Freedom of association </li></ul><ul><li>Organisational rights </li></ul><ul><li>Unfair labour practice </li></ul><ul><li>Internal policies to resolve a dispute </li></ul><ul><li>The handling of conflict to prevent unfair labour practice </li></ul><ul><li>The role of a workplace forum </li></ul><ul><li>The function of the CCMA </li></ul><ul><li>The concept of automatically unfair dismissal </li></ul><ul><li>Steps to be taken to ensure that dismissals are substantively and procedurally correct </li></ul><ul><li>Evidence that could support a recommendation for dismissal </li></ul><ul><li>The steps to be followed to ensure procedural fairness in cases of misconduct </li></ul><ul><li>The procedures to be followed at a disciplinary hearing </li></ul>Management Practice Level 3 Future Managers
  23. 23. 2.1 Freedom of association <ul><li>Every employee has the right: </li></ul><ul><ul><li>To participate in forming a trade union or federation of trade unions </li></ul></ul><ul><ul><li>To join and participate in lawful trade union activities, subject to its constitution </li></ul></ul><ul><li>Every member of a trade union has the right </li></ul><ul><ul><li>To participate in its lawful activities </li></ul></ul><ul><ul><li>To participate in the election of any of its office-bearers, officials or trade union representatives </li></ul></ul><ul><ul><li>To stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office </li></ul></ul>Management Practice Level 3 Future Managers
  24. 24. 2.1 Freedom of association <ul><li>Every employer has the right: </li></ul><ul><ul><li>To participate in forming an employers’ organisation or a federation of employers’ organisations </li></ul></ul><ul><ul><li>To join an employers’ organisation, subject to its constitution </li></ul></ul>Management Practice Level 3 Future Managers
  25. 25. 2.2 Organisational rights <ul><li>A registered trade union has the following rights: </li></ul><ul><ul><li>Organisational rights awarded by the CCMA </li></ul></ul><ul><ul><li>A right to be a member of a bargaining or statutory council </li></ul></ul><ul><ul><li>A right to enter into agency and closed shop agreements </li></ul></ul><ul><ul><li>A right to establish workplace forums </li></ul></ul><ul><ul><li>A right to conclude collective agreements </li></ul></ul><ul><ul><li>A right to enter an employer’s premises (employer’s permission is required to enter a private home) to recruit or meet members </li></ul></ul><ul><ul><li>A right to hold meetings with employees outside their working hours at the employer’s premises </li></ul></ul><ul><ul><li>A right to conduct elections or ballots among its members on union matters </li></ul></ul>Management Practice Level 3 Future Managers
  26. 26. 2.3 Unfair labour practice <ul><li>Unfair labour practices involve the following: </li></ul><ul><ul><li>Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee </li></ul></ul><ul><ul><li>The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee </li></ul></ul><ul><ul><li>A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement </li></ul></ul><ul><ul><li>An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, on account of the employee having made a protected disclosure </li></ul></ul>Management Practice Level 3 Future Managers
  27. 27. 2.4 Internal policies and procedures in an organisation to resolve a dispute <ul><li>See diagram on page 48 of Management Practice 3 </li></ul><ul><li>If no solution is reached according to the grievance procedure then it can be referred to the CCMA through </li></ul><ul><ul><li>Mediation </li></ul></ul><ul><ul><li>Arbitration </li></ul></ul>Management Practice Level 3 Future Managers
  28. 28. 2.5 Importance of handling internal conflict and the consequences of unfair labour practice for the organisation <ul><li>Why is it important to handle conflict internally? </li></ul><ul><ul><li>Open communication takes place and management becomes aware of complaints and can deal with them effectively. </li></ul></ul><ul><ul><li>It creates the opportunity for upward communication from employees </li></ul></ul><ul><ul><li>It prevents disputes from arising </li></ul></ul><ul><ul><li>It indicates management’s concern for the well-being of employees </li></ul></ul><ul><ul><li>It creates awareness of employees’ problems </li></ul></ul><ul><ul><li>It renders the disciplinary procedure more acceptable since employees also have a means of objecting to management performance </li></ul></ul><ul><ul><li>It saves time and ensures that productivity is not influenced by, for example, strikes and court cases </li></ul></ul><ul><ul><li>It ensures a fair procedure if a proper policy is in place </li></ul></ul>Management Practice Level 3 Future Managers
  29. 29. 2.5 Importance of handling internal conflict and the consequences of unfair labour practice for the organisation <ul><li>The grievance procedure in practice </li></ul><ul><ul><li>Every employee must have the right to bring his or her grievance to the attention of top management </li></ul></ul><ul><ul><li>Management, at various levels, should pay attention to the grievance and try to resolve it </li></ul></ul><ul><ul><li>There should be time limits for each stage of the procedure </li></ul></ul><ul><ul><li>The grievance will not be resolved before the employee declares himself or herself satisfied </li></ul></ul><ul><ul><li>The employee has the right, if the grievance remains unresolved, to declare a dispute </li></ul></ul>Management Practice Level 3 Future Managers
  30. 30. 2.5 Importance of handling internal conflict and the consequences of unfair labour practice for the organisation <ul><li>The consequences of unfair labour practice for the organisation </li></ul><ul><ul><li>A bad image of the organisation in the business world </li></ul></ul><ul><ul><li>Huge financial claims against the organisation </li></ul></ul><ul><ul><li>Re-employment of the employee </li></ul></ul><ul><ul><li>It can create a negative feeling amongst the employees in the organisation </li></ul></ul><ul><ul><li>It can lead to a lack of trust in management </li></ul></ul><ul><ul><li>The organisation can be black listed for unfair labour practices </li></ul></ul>Management Practice Level 3 Future Managers
  31. 31. 2.6 The role of a workplace forum <ul><li>The establishment of a workplace forum </li></ul><ul><ul><li>May be formed when there are more than 100 workers </li></ul></ul><ul><ul><li>CCMA will establish a forum on action from: </li></ul></ul><ul><ul><ul><li>A representative forum </li></ul></ul></ul><ul><ul><ul><li>Two minority forums whose combined membership is representative </li></ul></ul></ul><ul><ul><li>Minimum 5 and maximum 20 employees elected </li></ul></ul>Management Practice Level 3 Future Managers
  32. 32. 2.6 The role of a workplace forum <ul><li>The functions of a workplace forum are to: </li></ul><ul><ul><li>Promote the interests of all workers (not only trade union members) </li></ul></ul><ul><ul><li>Enhance workplace efficiency </li></ul></ul><ul><ul><li>Consult with the employer </li></ul></ul><ul><ul><li>Take part in decision-making. </li></ul></ul>Management Practice Level 3 Future Managers
  33. 33. 2.6 The role of a workplace forum <ul><li>A workplace forum has the right to be consulted by the employer on:   </li></ul><ul><ul><li>Restructuring and new work methods </li></ul></ul><ul><ul><li>Partial or total plant closure </li></ul></ul><ul><ul><li>Mergers and ownership transfers </li></ul></ul><ul><ul><li>Retrenching workers </li></ul></ul><ul><ul><li>Job grading </li></ul></ul><ul><ul><li>Criteria for merits and bonuses </li></ul></ul><ul><ul><li>Education and training </li></ul></ul><ul><ul><li>Product development plans </li></ul></ul><ul><ul><li>Export promotions </li></ul></ul><ul><ul><li>Health and safety measures. </li></ul></ul>Management Practice Level 3 Future Managers
  34. 34. 2.6 The role of a workplace forum <ul><li>A workplace forum has the right to be consulted by the employer on:   </li></ul><ul><ul><li>Restructuring and new work methods </li></ul></ul><ul><ul><li>Partial or total plant closure </li></ul></ul><ul><ul><li>Mergers and ownership transfers </li></ul></ul><ul><ul><li>Retrenching workers </li></ul></ul><ul><ul><li>Job grading </li></ul></ul><ul><ul><li>Criteria for merits and bonuses </li></ul></ul><ul><ul><li>Education and training </li></ul></ul><ul><ul><li>Product development plans </li></ul></ul><ul><ul><li>Export promotions </li></ul></ul><ul><ul><li>Health and safety measures. </li></ul></ul>Management Practice Level 3 Future Managers
  35. 35. 2.6 The role of a workplace forum <ul><li>Joint decision-making </li></ul><ul><ul><li>Unless otherwise agreed in a collective agreement, an employer must consult the workplace forum before applying: </li></ul></ul><ul><ul><ul><li>disciplinary codes and procedures </li></ul></ul></ul><ul><ul><ul><li>workplace rules of conduct </li></ul></ul></ul><ul><ul><ul><li>measures to monitor unfair discrimination </li></ul></ul></ul><ul><ul><ul><li>changes to rules of social benefit schemes </li></ul></ul></ul>Management Practice Level 3 Future Managers
  36. 36. 2.7 The functions of the CCMA <ul><li>Try to resolve disputes through conciliation or arbitration </li></ul><ul><li>Help in forming workplace forums </li></ul><ul><li>Publish information on its activities and guidelines for dispute resolutions </li></ul><ul><li>Advise on obtaining legal advice </li></ul><ul><li>Determine dispute resolution fees, if applicable </li></ul><ul><li>Make rules to regulate </li></ul><ul><ul><li>the meeting procedure of its committees </li></ul></ul><ul><ul><li>conciliation and arbitration procedures </li></ul></ul><ul><ul><li>office hours for delivering processes </li></ul></ul><ul><ul><li>forms to be used </li></ul></ul><ul><ul><li>how arbitration costs are calculated </li></ul></ul><ul><li>Publish the abovementioned rules in the Government Gazette . </li></ul>Management Practice Level 3 Future Managers
  37. 37. 2.7 The functions of the CCMA <ul><li>Advice and training </li></ul><ul><ul><li>Forming collective bargaining bodies </li></ul></ul><ul><ul><li>Forming and managing workplace forums </li></ul></ul><ul><ul><li>Preventing and resolving disputes and grievances </li></ul></ul><ul><ul><li>Disciplinary procedures </li></ul></ul><ul><ul><li>Workplace restructuring </li></ul></ul><ul><ul><li>Affirmative action and equal opportunity programmes </li></ul></ul><ul><ul><li>Preventing sexual harassment </li></ul></ul>Management Practice Level 3 Future Managers
  38. 38. 2.7 The functions of the CCMA <ul><li>The CCMA’s role in dispute resolution </li></ul><ul><ul><li>Parties should ensure that internal procedures have been exhausted </li></ul></ul><ul><ul><li>Unfairly dismissed or treated workers may refer disputes in writing to the CCMA within: </li></ul></ul><ul><ul><ul><li>30 days of a dismissal date or an employer’s decision to dismiss </li></ul></ul></ul><ul><ul><ul><li>90 days of the date of an unfair labour act </li></ul></ul></ul><ul><ul><ul><li>90 days of the date when a worker became aware of an unfair act </li></ul></ul></ul>Management Practice Level 3 Future Managers
  39. 39. 2.7 The functions of the CCMA <ul><li>Steps for dispute to the CCMA: </li></ul><ul><ul><li>When a labour problem occurs, steps must be taken immediately. </li></ul></ul><ul><ul><li>If you have decided to lodge a dispute, you need to complete a CCMA case referral form, also known as an LRA Form 7.11. These forms are available from the CCMA offices and the CCMA website </li></ul></ul><ul><ul><li>Once you have completed the form, you need to ensure that a copy is delivered to the other party. You must be able to prove that they received a copy. </li></ul></ul>Management Practice Level 3 Future Managers
  40. 40. 2.7 The functions of the CCMA <ul><li>Steps for dispute to the CCMA: </li></ul><ul><ul><li>You do not need to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form was served on the other party is enclosed </li></ul></ul><ul><ul><li>The CCMA will inform both parties as to the date, time and venue of the first hearing </li></ul></ul><ul><ul><li>Usually the first meeting is called a conciliation hearing. Only the parties, trade union or employer organisation representatives (if a party to the dispute is a member) and the CCMA Commissioner will attend. The purpose of the hearing is to reach an agreement acceptable to both parties. Legal representation is not allowed </li></ul></ul>Management Practice Level 3 Future Managers
  41. 41. 2.7 The functions of the CCMA <ul><li>Steps for dispute to the CCMA: </li></ul><ul><ul><li>If no agreement is reached, the Commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or to the Labour Court as a further step  </li></ul></ul><ul><ul><li>In order to have an arbitration hearing, you have to complete a request for arbitration form, also called an LRA Form 7.13. A copy must be served on the other party (same as in Step 3). Arbitration should be applied for within three months from the date on which the Commissioner issued the certificate. </li></ul></ul>Management Practice Level 3 Future Managers
  42. 42. 2.7 The functions of the CCMA <ul><li>Steps for dispute to the CCMA: </li></ul><ul><li>Arbitration is a more formal process and evidence including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days  </li></ul><ul><li>If a party does not comply with the arbitration award, it may be referred to the Labour Court.  </li></ul><ul><li>If you are an employee in dispute with your employer, or vice versa, over matters such as dismissal, wages and working conditions, workplace changes or discrimination you may ask the CCMA to conciliate or even arbitrate your dispute. A union or employers’ organization may also initiate this action. You do not need the other party’s consent before taking a matter to the CCMA. </li></ul>Management Practice Level 3 Future Managers
  43. 43. 2.8 Automatically unfair dismissals <ul><li>Dismissal means that: </li></ul><ul><ul><li>An employer has terminated a contract of employment with our without notice </li></ul></ul><ul><ul><li>The 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 the contract on less favourable terms or did not renew it </li></ul></ul>Management Practice Level 3 Future Managers
  44. 44. 2.8 Automatically unfair dismissals <ul><li>Dismissal means that: </li></ul><ul><ul><li>An employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment or 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 </li></ul></ul>Management Practice Level 3 Future Managers
  45. 45. 2.8 Automatically unfair dismissals <ul><li>Dismissal means that: </li></ul><ul><ul><li>An employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment or 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 </li></ul></ul>Management Practice Level 3 Future Managers
  46. 46. 2.8 Automatically unfair dismissals <ul><li>Dismissal means that: </li></ul><ul><ul><li>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 reemploy another </li></ul></ul><ul><ul><li>An employee terminate a contract of employment with or without notice because the employer made continued employment intolerable for the employee </li></ul></ul><ul><ul><li>an employee terminated a contract of employment with or without notice because the new employer, after a transfer provided the employee with conditions or circumstances at work that were substantially less favourable than those provided by the old employer </li></ul></ul>Management Practice Level 3 Future Managers
  47. 47. 2.8 Automatically unfair dismissals <ul><li>A dismissal will be regarded as automatically unfair if: </li></ul><ul><ul><li>An employee participated in a legally protected strike </li></ul></ul><ul><ul><li>The reason for dismissal is that the employee refused to do any work normally done by an employee who at the time was taking part in a legally protected strike </li></ul></ul><ul><ul><li>The reason for dismissal is that the employee has exercised freedom of association or that the employee is a member of a workplace forum </li></ul></ul><ul><ul><li>The reason for dismissal is to compel the employee to accept a demand made by the employer </li></ul></ul><ul><ul><li>The reason for dismissal is that the employee took action, or indicated an intention to take action, against the employer </li></ul></ul><ul><ul><li>The employee was pregnant, or any reason related to her pregnancy </li></ul></ul><ul><ul><li>The employer unfairly discriminated against the employee on an arbitrary ground, including sex, gender, race, social or ethnic origin, sexual orientation, colour, age, religion, disability, conscience, belief, political opinion, language, marital status, culture or family responsibility </li></ul></ul>Management Practice Level 3 Future Managers
  48. 48. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Reasons for dismissal: </li></ul><ul><ul><li>Misconduct </li></ul></ul><ul><ul><li>Incapacity </li></ul></ul><ul><ul><li>Operational requirements of the business </li></ul></ul><ul><li>What does fairness mean? </li></ul><ul><ul><li>If there is balance between the parties </li></ul></ul><ul><ul><li>Consistency is exhibited </li></ul></ul><ul><ul><li>There is conformity with universally accepted standards </li></ul></ul>Management Practice Level 3 Future Managers
  49. 49. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Misconduct </li></ul><ul><ul><li>Refers to bad behaviour on the part of the employee </li></ul></ul><ul><li>Substantive fairness </li></ul><ul><ul><li>The employee was aware that he or she broke a rule </li></ul></ul><ul><ul><li>The workplace rule that was breached must be a reasonable rule </li></ul></ul><ul><ul><li>The treatment of the employee must be consistent with the treatment of other employees who committed the same or an equal offence </li></ul></ul><ul><ul><li>There must be a clear reason for the disciplinary action </li></ul></ul><ul><ul><li>Dismissal must be the appropriate punishment for the misconduct </li></ul></ul><ul><ul><li>There must be sufficient proof of misconduct </li></ul></ul><ul><ul><li>The disciplinary action must not constitute victimisation of the employee </li></ul></ul><ul><ul><li>The disciplinary action may not contravene a law, the service contract, wage determination or a bargaining council agreement </li></ul></ul><ul><ul><li>The expectations of the employer may not be unreasonable or unlawful </li></ul></ul><ul><ul><li>The employee’s case may not be prejudged and the chairman or manager must remain impartial </li></ul></ul>Management Practice Level 3 Future Managers
  50. 50. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Procedural fairness </li></ul><ul><ul><li>The employee must be given notice of the charge (nature of the offence) against him </li></ul></ul><ul><ul><li>The employee must have been given sufficient warning in terms of the disciplinary code or reasonable expectations </li></ul></ul><ul><ul><li>The employee must be given reasonable time to prepare his response </li></ul></ul><ul><ul><li>During the hearing the employee must be given the opportunity to state his case </li></ul></ul><ul><ul><li>The employee must be allowed representation. This is to give the employee a chance to state his or her side of the case. Sometimes the employee cannot do so himself and needs to be represented to ensure that proper procedures are followed. No legal presentation, however, is allowed for either side </li></ul></ul><ul><ul><li>After the hearing the employee must be fully informed of the reason for the decision taken </li></ul></ul><ul><ul><li>Where an employee has been dismissed, he must be reminded that he can refer the matter to the CCMA </li></ul></ul>Management Practice Level 3 Future Managers
  51. 51. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Incapacity </li></ul><ul><ul><li>Drug addiction </li></ul></ul><ul><ul><li>A motor-vehicle accident </li></ul></ul><ul><ul><li>Terminal illness that renders the employee unable to perform his task </li></ul></ul><ul><ul><li>A severe medical condition, like asthma </li></ul></ul><ul><ul><li>Incompetence </li></ul></ul>Management Practice Level 3 Future Managers
  52. 52. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Substantive fairness in the case of incapacity </li></ul><ul><ul><li>The employer will have to show that </li></ul></ul><ul><ul><ul><li>The employee is physically or mentally incapacitated </li></ul></ul></ul><ul><ul><ul><li>The employee will probably be incapacitated for a relatively long period of time </li></ul></ul></ul><ul><ul><ul><li>The incapacity is sufficiently serious to justify dismissal </li></ul></ul></ul><ul><ul><ul><li>The employer has tried to accommodate the employee in another position in the workplace </li></ul></ul></ul>Management Practice Level 3 Future Managers
  53. 53. 2.9 Steps to be taken to ensure that dismissals are substantively fair and procedurally correct <ul><li>Procedural fairness in the case of incapacity </li></ul><ul><ul><li>The employer must investigate alternative employment if he or she cannot accommodate the incapacity of the employee. </li></ul></ul><ul><ul><li>The employee must be given the opportunity to state his or her case and to be assisted by a trade union representative or a fellow employee. </li></ul></ul><ul><ul><li>Counseling must be considered in, for example, cases like alcoholism </li></ul></ul><ul><ul><li>Deal with poor work performance through clear instructions, training, guidance, counselling and evaluation </li></ul></ul>Management Practice Level 3 Future Managers
  54. 54. 2.10 Evidence to support a dismissal <ul><li>For a dismissal to be substantively fair, enough proof must be available to support the recommendation for dismissal. This can include </li></ul><ul><ul><li>A signed copy of the disciplinary code of an organisation whereby the employee acknowledges that he or she is aware of transgressions (offences) </li></ul></ul><ul><ul><li>Proof of verbal warnings and counseling </li></ul></ul><ul><ul><li>Proof of written warnings </li></ul></ul><ul><ul><li>A formal letter in the case of a final warning </li></ul></ul><ul><ul><li>Proof of investigations prior to the disciplinary hearing to establish the facts of the case </li></ul></ul><ul><ul><li>Proof of grievance procedures </li></ul></ul>Management Practice Level 3 Future Managers
  55. 55. 2.11 Steps to be followed to ensure procedural fairness in cases of misconduct <ul><li>The following are the steps to ensure procedural fairness, as discussed earlier </li></ul><ul><ul><li>The employee must be given notice of the charge (nature of the offence) against him </li></ul></ul><ul><ul><li>The employee must have been given sufficient warning in terms of the disciplinary code or reasonable expectations </li></ul></ul><ul><ul><li>The employee must be given reasonable time to prepare his response </li></ul></ul><ul><ul><li>During the hearing the employee must be given the opportunity to state his or her case </li></ul></ul><ul><ul><li>The employee must be allowed representation. </li></ul></ul><ul><ul><li>After the hearing the employee must be fully informed of the reason for the decision taken </li></ul></ul><ul><ul><li>Where an employee has been dismissed, he or she must be reminded that he or she can refer the matter to the CCMA </li></ul></ul>Management Practice Level 3 Future Managers
  56. 56. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>Ground rules for designing a disciplinary code and procedure </li></ul><ul><ul><li>Simple language must be used so that all employees can understand the procedure </li></ul></ul><ul><ul><li>A disciplinary code must be comprehensive and complete. </li></ul></ul><ul><ul><li>The procedure must conform to the principles of natural justice. This means, that the incident must be investigated and the punishment should match the offence. It also means that the employee must be informed of the charge against him and must be provided the opportunity to present his side of the story. </li></ul></ul>Management Practice Level 3 Future Managers
  57. 57. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>Where an employee commits a series of transgressions or a single very serious transgression, a disciplinary procedure must be followed to ensure fairness and to safeguard the employee against being accused of unfair dismissal. </li></ul></ul><ul><ul><li>It is essential that all disciplinary actions be recorded on a disciplinary form and on the employee’s disciplinary record. Recording can include: </li></ul></ul><ul><ul><ul><li>Reports: Disciplinary incidents </li></ul></ul></ul><ul><ul><ul><li>Warning: Breach of disciplinary code </li></ul></ul></ul><ul><ul><ul><li>Final written warning </li></ul></ul></ul><ul><ul><ul><li>Disciplinary record card </li></ul></ul></ul><ul><ul><li>Formal verbal warnings and all written warnings must be recorded </li></ul></ul>Management Practice Level 3 Future Managers
  58. 58. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>The employee must sign the record as acknowledgement that he or she has received such a warning and accepts it </li></ul></ul><ul><ul><li>Where an employee refuses to sign a warning, witnesses can be called to testify to the fact </li></ul></ul><ul><ul><li>Where a final warning is given, a formal letter will be issued, warning the employee that he or she is in danger of being dismissed </li></ul></ul><ul><ul><li>All warnings and a hearing should be preceded by thorough investigation to establish the facts of the case </li></ul></ul>Management Practice Level 3 Future Managers
  59. 59. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>Any employee who thinks that the warning issued cannot be justified may lodge a complaint by invoking the relevant steps of the grievance procedure. A grievance form must be completed </li></ul></ul><ul><ul><li>No employee may be dismissed without being granted a hearing </li></ul></ul><ul><ul><li>If an employee receives a final warning the head of department should be informed immediately and investigated properly </li></ul></ul><ul><ul><li>The employee must be given notice in writing (at least 48 hours in advance) of a possible hearing. </li></ul></ul>Management Practice Level 3 Future Managers
  60. 60. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>Any employee who thinks that the warning issued cannot be justified may lodge a complaint by invoking the relevant steps of the grievance procedure. A grievance form must be completed </li></ul></ul><ul><ul><li>No employee may be dismissed without being granted a hearing </li></ul></ul><ul><ul><li>If an employee receives a final warning the head of department should be informed immediately and investigated properly </li></ul></ul><ul><ul><li>The employee must be given notice in writing (at least 48 hours in advance) of a possible hearing. </li></ul></ul>Management Practice Level 3 Future Managers
  61. 61. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>The employee has the right to an interpreter and/or a representative. He or she also has the right to call witnesses </li></ul></ul><ul><ul><li>If it should be decided that the employee should not remain on the premises, he or she may be suspended will full pay pending a disciplinary hearing </li></ul></ul><ul><ul><li>The employee and his or her representative must have reasonable access to any document(s) which may be relevant to the hearing </li></ul></ul><ul><ul><li>Hearings will be conducted by a panel </li></ul></ul>Management Practice Level 3 Future Managers
  62. 62. 2.12 Procedures to be followed at a disciplinary hearing <ul><li>The disciplinary procedure </li></ul><ul><ul><li>The employee and his or her representative must be given enough opportunity to bring the employee’s side of the story </li></ul></ul><ul><ul><li>The panel will consider a final decision </li></ul></ul><ul><ul><li>Thereafter the panel will decide on the sanction to be imposed </li></ul></ul><ul><ul><li>The chairman will inform the employee of the decision taken, the reasons for such decision and the sanction imposed </li></ul></ul><ul><ul><li>An employee has the right to appeal against the decision taken </li></ul></ul>Management Practice Level 3 Future Managers
  63. 63. Activity 4 <ul><li>Albert was an employed as a foreman at Cape Fisheries. He wants to join a registered trade union, but was threatened with either demotion or dismissal should he do so. However, he still joined the trade union as he felt that he had the right to do so. He was demoted as a result of this. </li></ul><ul><li>  Did the employer have the right to demote Albert? Motivate your answer </li></ul><ul><li>Has Albert been victimised? Motivate your answer and define this concept </li></ul><ul><li>Give three functions of a trade union </li></ul><ul><li>Define unfair labour practice. Identify the form(s) of unfair labour practice in the above case study </li></ul><ul><li>Give four other forms of unfair labour practice </li></ul><ul><li>Albert decided to lodge a grievance as he felt that his demotion was unfair. Complete a grievance form to lodge the complaint. (See example of form in notes.) </li></ul><ul><li>Define the concept freedom of association. </li></ul>Management Practice Level 3 Future Managers
  64. 64. Activity 4 <ul><li>No solution could be reached. Albert therefore decided to refer the case to the CCMA. </li></ul><ul><ul><li>What does CCMA stand for? </li></ul></ul><ul><ul><li>What are four functions of the CCMA? </li></ul></ul><ul><ul><li>Briefly describe the steps to be followed by Albert if he refers the case to the CCMA. </li></ul></ul><ul><ul><li>Define conciliation and arbitration </li></ul></ul><ul><li>Define a workplace forum and give three functions of such a forum. </li></ul><ul><li>Who must be represented in a workplace forum? </li></ul><ul><li>  </li></ul>Management Practice Level 3 Future Managers
  65. 65. Activity 4 <ul><li>Assuming that Albert had been dismissed for joining a trade union, would this be regarded as automatically unfair dismissal? Motivate your answer </li></ul><ul><li>Name four other actions that will be regarded as automatically unfair dismissal </li></ul><ul><li>Assume that Albert was dismissed as a result of misconduct? Which steps have to be taken to ensure that such a dismissal is substantively and procedurally correct? </li></ul><ul><li>A checklist to make sure that a dismissal is fair, is included in on page 56 of your textbook. More questions can, however, be asked as subdivision of the given questions. Compile a more detailed checklist. </li></ul><ul><li>  </li></ul>Management Practice Level 3 Future Managers
  66. 66. Activity 4 <ul><li>Complete the necessary documentation to support a recommendation for Albert’s dismissal </li></ul><ul><li>Name four ground rules that should be taken into consideration when designing a disciplinary code and procedure </li></ul><ul><li>Draw a simplified flow chart of a disciplinary procedure to be followed if Albert were found guilty of misconduct. </li></ul>Management Practice Level 3 Future Managers
  67. 67. Activity 5 <ul><li>Compile your own glossary of terms </li></ul>Management Practice Level 3 Future Managers
  68. 68. Activity 6 <ul><li>Visit www.google.co.za or labour.gov.za and try to find relevant court cases </li></ul>Management Practice Level 3 Future Managers
  69. 69. 3. Explain the requirements of the LRA in respect of interviews <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Identify the documents required to ensure that interviews are conducted strictly in accordance with the LRA </li></ul></ul><ul><ul><li>Give an indication of how each document helps to ensure fair labour practice </li></ul></ul><ul><ul><li>Formulate questions that should be asked in an interview with an applicant and give an indication of why such questions should be prepared before the interview </li></ul></ul><ul><ul><li>List the criteria that automatically indicate unfair discrimination </li></ul></ul>Management Practice Level 3 Future Managers
  70. 70. 3. Explain the requirements of the LRA in respect of interviews <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>List the criteria that automatically indicate unfair discrimination </li></ul></ul><ul><ul><li>Discuss how managers can inadvertently discriminate unfairly in an interview </li></ul></ul><ul><ul><li>List the practices defined as unfair in the LRA </li></ul></ul><ul><ul><li>Indicate why identified practices would be considered unfair labour practices </li></ul></ul><ul><ul><li>List the questions that are unacceptable in any interview conducted </li></ul></ul><ul><ul><li>Indicate why such questions could be regarded as discriminatory </li></ul></ul>Management Practice Level 3 Future Managers
  71. 71. 3.1 Documents required to ensure that interview are fair <ul><li>Documents must be kept as evidence in case a dispute arises </li></ul><ul><li>Documentation can include </li></ul><ul><ul><li>The original advertisement </li></ul></ul><ul><ul><li>Job application forms </li></ul></ul><ul><ul><li>Short-listing of job applicants </li></ul></ul><ul><ul><li>The interview questionnaire (to determine whether there were discriminatory questions) </li></ul></ul><ul><ul><li>The applicant’s qualifications </li></ul></ul><ul><ul><li>References </li></ul></ul><ul><ul><li>Proof of recognition of prior learning </li></ul></ul><ul><ul><li>Assessment results (if any assessment has been conducted) </li></ul></ul><ul><ul><li>Feedback document </li></ul></ul>Management Practice Level 3 Future Managers
  72. 72. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Planning and structuring </li></ul><ul><ul><li>Identify the relevant stakeholders and the role that they play in each phase. </li></ul></ul><ul><ul><li>Clarify the purpose and structure and benefits of the </li></ul></ul><ul><ul><ul><li>initial interview </li></ul></ul></ul><ul><ul><ul><li>second interview </li></ul></ul></ul><ul><ul><ul><li>assessments </li></ul></ul></ul><ul><ul><ul><li>third interview. </li></ul></ul></ul><ul><ul><li>Ensure transparency, fairness and objectivity. </li></ul></ul><ul><ul><li>Utilise the format and purpose of the interviewer to set interviewing goals and guarantee that these are met successfully </li></ul></ul>Management Practice Level 3 Future Managers
  73. 73. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Planning and structuring </li></ul><ul><ul><li>Structure your interview according to the </li></ul></ul><ul><ul><ul><li>job specification </li></ul></ul></ul><ul><ul><ul><li>key performance indicators </li></ul></ul></ul><ul><ul><ul><li>key responsibilities of the position </li></ul></ul></ul><ul><ul><ul><li>personality type best suited for the job, the team and the organisation </li></ul></ul></ul><ul><ul><ul><li>particular behaviours and competencies for the position. </li></ul></ul></ul>Management Practice Level 3 Future Managers
  74. 74. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Preparing </li></ul><ul><ul><li>Clarify the duties of the elected chairperson and the role and responsibilities of the other members on the panel in the debriefing phase before the interview. </li></ul></ul><ul><ul><li>Gain insight into each candidate by reviewing the CV in order to detect possible gaps and warning signs and focus your questions. </li></ul></ul><ul><ul><li>Ensure objectivity and fairness by understanding the criteria of the scoring scale for questions. </li></ul></ul><ul><ul><li>Create a positive and professional impression of the organisation. </li></ul></ul><ul><ul><li>Make the candidates aware that they have to compete for the position and do not appear to be desperate to appoint someone. </li></ul></ul>Management Practice Level 3 Future Managers
  75. 75. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Preparing </li></ul><ul><ul><li>Establish the types of interviewing questions and determine their application, benefit and relevance in the interviewing process: </li></ul></ul><ul><ul><ul><li>open-ended and probing questions </li></ul></ul></ul><ul><ul><ul><li>leading and closed-ended questions. </li></ul></ul></ul><ul><ul><li>Distinguish between objective behavioural information gathered and subjective opinions formed. </li></ul></ul>Management Practice Level 3 Future Managers
  76. 76. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Preparing </li></ul><ul><ul><li>Determine the particular behaviours and competencies required by the job, that will be tested in the interview and create specific questions or role play for each one : </li></ul></ul>Management Practice Level 3 Future Managers Communication skills Self motivation Ambition Flexibility Leadership qualities Stability Judgement Initiative Delegation Interpersonal skills Creativity Problem solving and decision making
  77. 77. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Preparing </li></ul><ul><ul><li>Medical and Psychometric testing </li></ul></ul><ul><ul><ul><li>Employers may not force workers or job applicant to undergo medical tests unless </li></ul></ul></ul><ul><ul><ul><ul><li>The law permits or orders it </li></ul></ul></ul></ul><ul><ul><ul><ul><li>It is acceptable because of: </li></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Medical facts </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Employment conditions </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Social Policy </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>The fair distribution of benefits </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Job requirements </li></ul></ul></ul></ul></ul>Management Practice Level 3 Future Managers
  78. 78. 3.2 Questions to be asked in an interview relating to work-specific criteria for a specific position <ul><li>Preparing </li></ul><ul><ul><li>Medical and Psychometric testing </li></ul></ul><ul><ul><ul><li>Employers may not force workers or job applicant to undergo medical tests unless </li></ul></ul></ul><ul><ul><ul><ul><li>Testing of HIV/AIDS is illegal unless the Labour Court orders it </li></ul></ul></ul></ul><ul><ul><ul><ul><li>Psychometric tests of works or job applicants is illegal unless the tests: </li></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Have been proven valid and reliable </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Are fair to all workers </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Do not discriminate against a worker or a group </li></ul></ul></ul></ul></ul>Management Practice Level 3 Future Managers
  79. 79. 3.3 The concept of discrimination <ul><li>The Employment Equity Act prohibits unfair discrimination against employees or job applicants </li></ul><ul><li>Prohibited or arbitrary grounds cannot be taken into account in employment decision-making, except in the case of affirmative action </li></ul><ul><li>Direct unfair discrimination make a direct distinction on the basis of some characteristic </li></ul><ul><li>Indirect unfair discrimination occurs when a policy appears to be neutral but has a discriminatory outcome or effect </li></ul>Management Practice Level 3 Future Managers
  80. 80. 3.4 Criteria indicating automatically unfair discrimination <ul><li>Any of the criteria listed on the next slide are defined as unfair. Can you think of what they are? </li></ul><ul><li>All questions asked should be non-discriminatory and should be related to the job requirements </li></ul>Management Practice Level 3 Future Managers
  81. 81. 3.5 Practices defined as unfair in the LRA Management Practice Level 3 Future Managers Race Sex Marital status Ethnic or social origin Sexual orientation Disability HIV status Belief Culture Birth Gender Pregnancy Family responsibility Colour Age Religion Conscience Political opinion Language
  82. 82. 3.5 Practices defined as unfair in the LRA <ul><li>If questions are asked regarding person’s sex, age or disability – it should be for affirmative action purposes </li></ul><ul><li>Any medical information required should be directly related to the job </li></ul>Management Practice Level 3 Future Managers
  83. 83. 3.6 Unacceptable discriminatory questions during an interview <ul><li>No referral may be made to any of the previous-mentioned criteria, unless the intention is to use them for affirmative action purposes </li></ul>Management Practice Level 3 Future Managers
  84. 84. 3.7 Compose questions to be asked in an interview referring to work specific criteria <ul><li>Does you present position link up with the position you are applying for now ? </li></ul><ul><li>According to you, what does this position entail? </li></ul><ul><li>How can you relate your work experience with the position you are applying for? </li></ul><ul><li>How can the training criteria, as mentioned in the job specification, help you make a success of it? </li></ul><ul><li>If you are appointed to the position, what will you change and why? </li></ul>Management Practice Level 3 Future Managers
  85. 85. 3.8 Discuss why it is necessary to prepare such questions before the interview <ul><li>The interview is the last chance to make a choice between candidates </li></ul><ul><li>Preparation ensures that the relevant information will be gathered from the candidates </li></ul>Management Practice Level 3 Future Managers
  86. 86. Activity 8 <ul><li>Divide into groups of 3: an applicant, an interviewer and a representative of a trade union. Bring an advertisement to class </li></ul><ul><li>The applicant must complete an application form to be handed to the interviewer with his or her CV. The interviewer must draw up questions to be asked during the interview </li></ul><ul><li>Simulate an interview. The trade union representative must take notes during the interview and decide whether he or she regards the interview as fair and non-discriminatory. </li></ul>Management Practice Level 3 Future Managers
  87. 87. 4 . Demonstrate an understanding of the Basic Conditions of Employment Act <ul><li>After completing this outcome, you will be able to: </li></ul><ul><ul><li>Discuss how the requirements of the Basic Conditions of Employment Act are applied within an organisation </li></ul></ul><ul><ul><li>Explain the leave entitlement under the Act </li></ul></ul><ul><ul><li>Discuss how leave is affected in a specific organisation </li></ul></ul>Management Practice Level 3 Future Managers
  88. 88. 4.1 Definition of an employee <ul><li>An employee </li></ul><ul><ul><li>A person who puts his/her service at his/her employer’s disposal. </li></ul></ul><ul><ul><li>In the course of performing his/her task, operates under the control, authority and supervision of the employer and carries out the employer’s orders to do the work precisely as directed </li></ul></ul><ul><ul><li>Is considered to be part of the employer’s business organisation and renders his/her services on a permanent basis </li></ul></ul>Management Practice Level 3 Future Managers
  89. 89. 4.1 Definition of an employee <ul><li>An independent contractor </li></ul><ul><ul><li>Undertakes to perform a certain job </li></ul></ul><ul><ul><li>Does not operate under the control and supervision of the employer </li></ul></ul><ul><ul><li>Uses his/her own discretion regarding the ‘how’ and ‘when’ of doing the job </li></ul></ul><ul><ul><li>Not subject to the orders of his/her employer and is regarded as an independent third party merely rendering his/her services for the performance of a specific piece of work </li></ul></ul>Management Practice Level 3 Future Managers
  90. 90. 4.1 Definition of an employee <ul><li>Delict – A wrong in terms of which one person causes harm to another </li></ul><ul><li>Locatio conduction operarum – South African legal term for employment </li></ul><ul><li>Locatio conduction operas – South African legal term for contractual employment </li></ul>Management Practice Level 3 Future Managers
  91. 91. 4.1 Definition of an employee Management Practice Level 3 Future Managers
  92. 92. 4.1 Definition of an employee <ul><li>How is the status of a worker determined? </li></ul><ul><ul><li>A control test </li></ul></ul><ul><ul><li>An organisational test </li></ul></ul><ul><ul><li>The dominant impression test </li></ul></ul>Management Practice Level 3 Future Managers
  93. 93. 4.1 Definition of an employee <ul><li>The following factors must be taken into consideration </li></ul><ul><ul><li>Is the worker subject to the control and supervision of the employer? </li></ul></ul><ul><ul><li>Does he/she render his services on a permanent basis and is he/she considered to be part of the business? </li></ul></ul><ul><ul><li>Is he subject to disciplinary procedures in the business? </li></ul></ul><ul><ul><li>Does he/she use his/her own tools or are these provided by the employer? </li></ul></ul><ul><ul><li>Is he/she remunerated on a regular basis or only when he/she works? </li></ul></ul><ul><ul><li>Is the employee entitled to employee benefits, like medical aid? </li></ul></ul><ul><ul><li>Can the worker work for other people or businesses when not working for the employer? </li></ul></ul><ul><ul><li>Has the worker worked for the other person for at least 40 hours per month over the previous three months? </li></ul></ul>Management Practice Level 3 Future Managers
  94. 94. 4.2 Regulating of normal working hours <ul><li>Do not apply to: </li></ul><ul><ul><li>Senior managerial employees </li></ul></ul><ul><ul><li>Employees engaged as sales staff </li></ul></ul><ul><ul><li>Employees who work fewer than 24 hours per month </li></ul></ul><ul><li>Determination regarding ordinary hours of work </li></ul><ul><ul><li>45 hours in any week </li></ul></ul><ul><ul><li>Nine hours in any day if an employee works for five days or fewer in a week </li></ul></ul><ul><ul><li>Eight hours in any day if an employee works on more than five days in a week. </li></ul></ul>Management Practice Level 3 Future Managers
  95. 95. 4.2 Regulating of normal working hours <ul><li>Compressed working week </li></ul><ul><ul><li>Workers may agree to work up to 12 hours a day without getting overtime </li></ul></ul><ul><ul><li>However, they may not work more than: </li></ul></ul><ul><ul><ul><li>45 ordinary hours per week </li></ul></ul></ul><ul><ul><ul><li>10 hours overtime a week </li></ul></ul></ul><ul><ul><ul><li>5 days a week </li></ul></ul></ul><ul><li>Night work </li></ul><ul><ul><li>45 hours in any week </li></ul></ul><ul><ul><li>Nine hours in any day if an employee works for five days or fewer in a week </li></ul></ul><ul><ul><li>Eight hours in any day if an employee works on more than five days in a week. </li></ul></ul>Management Practice Level 3 Future Managers
  96. 96. 4.2 Regulating of normal working hours <ul><li>Night work </li></ul><ul><ul><li>Workers working between 1800 and 0600 must: </li></ul></ul><ul><ul><ul><li>Get an allowance or </li></ul></ul></ul><ul><ul><ul><li>Worked reduced hours and </li></ul></ul></ul><ul><ul><ul><li>Have transport available to them </li></ul></ul></ul>Management Practice Level 3 Future Managers
  97. 97. 4.3 Overtime determinations <ul><li>Overtime is regulated by Section 10 of Chapter 2 of the Basic Conditions of Employment Act </li></ul><ul><li>An employer may not require or permit an employee </li></ul><ul><ul><li>to work overtime except by an agreement </li></ul></ul><ul><ul><li>to work more than ten hours’ overtime per week </li></ul></ul><ul><li>An agreement may not require or permit an employee to work more than 12 hours per day, in other words, a worker may not work more than 3 hours overtime per day  </li></ul><ul><li>A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months </li></ul><ul><li>Overtime must be paid at 1,5 times the employee’s normal wage or an employee may agree to receive paid time off </li></ul>Management Practice Level 3 Future Managers
  98. 98. 4.4 Intervals <ul><li>An employee must have a meal interval of 60 minutes after five hours work </li></ul><ul><li>A written agreement may </li></ul><ul><ul><li>reduce the meal interval to 30 minutes </li></ul></ul><ul><ul><li>dispense with the meal interval for employees who work fewer than six hours a day. </li></ul></ul><ul><li>An employee must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours which, unless otherwise agreed, must include Sunday. </li></ul><ul><li>An employee who occasionally works on a Sunday must receive double pay </li></ul><ul><li>An employee who ordinarily works on a Sunday must be paid at 1,5 times the normal wage </li></ul><ul><li>Paid time off in return for working on a Sunday may be agreed upon. </li></ul>Management Practice Level 3 Future Managers
  99. 99. 4.5 Leave <ul><li>Does not apply to: </li></ul><ul><ul><li>an employee who works fewer than 24 hours per month for an employer </li></ul></ul><ul><ul><li>leave granted in excess of the leave entitlement under this chapter </li></ul></ul><ul><li>A distinction can be made between the following: </li></ul><ul><ul><li>annual leave </li></ul></ul><ul><ul><li>sick leave </li></ul></ul><ul><ul><li>maternity leave </li></ul></ul><ul><ul><li>family responsibility leave. </li></ul></ul>Management Practice Level 3 Future Managers
  100. 100. 4.5 Leave <ul><li>Annual leave </li></ul><ul><ul><li>Employees are entitled to 21 consecutive days’ annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked </li></ul></ul><ul><ul><li>Leave must be granted not later than six months after the end of the annual leave cycle </li></ul></ul><ul><ul><li>An employer must not pay an employee instead of granting leave, except on termination of employment </li></ul></ul><ul><li>  Sick leave  </li></ul><ul><ul><li>An employee is entitled to six weeks’ paid sick leave in a period of 36 months </li></ul></ul><ul><ul><li>During the first six months an employee is entitled to one day’s paid sick leave for every 26 days worked </li></ul></ul><ul><ul><li>An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent  </li></ul></ul>Management Practice Level 3 Future Managers
  101. 101. 4.5 Leave <ul><li>Maternity leave </li></ul><ul><ul><li>A pregnant employee is entitled to four consecutive months’ maternity leave </li></ul></ul><ul><ul><li>A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child </li></ul></ul><ul><li>Family responsibility leave </li></ul><ul><ul><li>Full time employees are entitled to three days paid family responsibility leave per year, on request, when the employee’s child is born or ill, or in the event of the death of the employees’ s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling </li></ul></ul><ul><ul><li>Any employer may require reasonable proof </li></ul></ul>Management Practice Level 3 Future Managers
  102. 102. 4.6 Termination of employment <ul><li>Notice period </li></ul><ul><ul><li>6 months or less – 1 week </li></ul></ul><ul><ul><li>Less than 1 year – 2 weeks </li></ul></ul><ul><ul><li>More than 1 year – 4 weeks </li></ul></ul><ul><li>Pay instead of notice </li></ul><ul><ul><li>An employer is allowed to waive the notice period </li></ul></ul><ul><ul><li>Worker must still be paid </li></ul></ul><ul><li>Certificate of service </li></ul><ul><ul><li>Workers are entitled to a certificate of service </li></ul></ul>Management Practice Level 3 Future Managers
  103. 103. Activity 9 <ul><li>Solomon is working at CDE as a representative, selling pool equipment. His remuneration consists of commission amounting to 15% of the selling price of any item sold. He is not obliged to visit the office every day and he arranges appointments to suit him. He only has to submit a monthly report on all sales at the end of each month. His job description gives him a free hand as to the manner in which an item is sold. One Saturday morning Solomon meets a prospective buyer with whom he had an appointment at the shopping centre. He sells some equipment to him. On his way home he causes an accident through his own negligence in which Mr Joubert is seriously injured. </li></ul>Management Practice Level 3 Future Managers
  104. 104. Activity 9 <ul><li>Is Solomon an employee in terms of the definition of a locatio conduction operarum? Motivate your answer </li></ul><ul><li>Would your answer be different if Solomon worked for a basic salary plus commission, five days per week, nine hours per day? Motivate your answer </li></ul><ul><li>Assume that Solomon is an employee. Mr Joubert wishes to sue him for medical expenses and the cost of the repairing his car. What will the position be? </li></ul><ul><li>Assume that Solomon went to the shopping centre for personal reasons (and not on business) and that the accident took place. Can the employer be held liable? Motivate your answer. </li></ul>Management Practice Level 3 Future Managers
  105. 105. Activity 10 <ul><li>Jo is a factory worker who is not a shift worker. He works five days per week. </li></ul><ul><li>Visit www.labour.gov.za to make sure about your answers. </li></ul><ul><li>  Answer the following questions. </li></ul><ul><ul><li>What are the maximum normal working hours per day and per week?  </li></ul></ul><ul><ul><li>What are the maximum hours’ overtime per day and per week and what is the payment for this work </li></ul></ul><ul><ul><li>Give the minimum number of days annual leave.  </li></ul></ul><ul><ul><li>How does payment on a Sunday work?  </li></ul></ul>Management Practice Level 3 Future Managers
  106. 106. Activity 10 <ul><ul><li>Describe the sick leave to which Jo will be entitled  </li></ul></ul><ul><ul><li>Name one other form of leave to which Jo may be entitled and briefly describe how it works.  </li></ul></ul><ul><ul><li>Briefly state the rules relating to breaks during hours of work. Do they differ from business sector to business sector?  </li></ul></ul><ul><ul><li>Draw up a contract of employment for Jo. ( Visit www.labour.gov.za and have a look for guidelines under the Basic Conditions of Employment Act. )  </li></ul></ul><ul><ul><li>Jo wants to terminate his contract. What procedure must be followed? Complete a certificate to be issued to him ( see example of certificate in your notes). </li></ul></ul>Management Practice Level 3 Future Managers
  107. 107. Activity 11 <ul><li>Discuss the following scenarios and questions and reach consensus on your answers for feedback purposes. ( Visit www.fsp.co.za for help. ) </li></ul><ul><li>  I run a small operation and cannot afford to pay employees who take sick leave consistently. When do I not have to pay? </li></ul><ul><li>I have an employee who takes two days’ sick leave every month on various days of the week. She does produce a doctors’ certificate, but we would like to know if there is anything that we can do to break this trend. </li></ul>Management Practice Level 3 Future Managers
  108. 108. Activity 11 <ul><li>Can you force your employees to work overtime? </li></ul><ul><li>Must part-time staff have a contract? </li></ul><ul><li>What annual leave can you grant to part-time employees? </li></ul><ul><li>List the detail that should appear on a medical certificate. (Try to get one from a doctor.) </li></ul><ul><li>Are fathers entitled to paternity leave when their children are born? </li></ul><ul><li>When must an employee on maternity leave return to work? </li></ul><ul><li>Is an employee entitled to maternity leave if she has a miscarriage? </li></ul>Management Practice Level 3 Future Managers
  109. 109. Management Practice Level 3 Future Managers

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