Labour relations unfair labour practices leading to dismissals

1. Chapter 6 –Dismissals,
and unfair labour
practices
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ABV 320
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2. DISMISSALS

3.  Section 186 of the Labour Relations Act generally defines a dismissal as ‘the termination of
an employment contract (with or without notice)’ In terms of the Act; the following will also
be regarded as dismissal
a. failure to renew a fixed-term contract where the employee reasonably expected the contract
to be renewed
b. selective re-employment of employees who were dismissed for the same reason
c. coercion or pressure on an employee which leaves him with no alternative but to resign
(constructive dismissal)
d. failure to re-employ an employee who has been on maternity leave or who has been absent
because of her confinement
e. resignation by an employee whose contract has been transferred to a new employer and
whose conditions and circumstances at work are substantially less favourable than those
under the previous employer.
f. failure by the employer to comply with reasonable expectations of a contract employee (see
later in this section).

4. AUTOMATICALLY UNFAIR
a. That the employee engaged or intended to engage in a protected (legal) strike or demonstration
b. That the employee refused or expressed his intention to refuse to perform the work of another employee engaged in a legal
strike unless such work was necessary to protect the life, personal safety or health of individuals
c. That the employee is dismissed because he refused to agree to a demand related to any matter of mutual interest
d. That the employee took steps or intended to take steps to enforce any right or to participate in activities in terms of the act
e. That the employee is pregnant (or for any other reason related to her pregnancy)
f. That the employer is discriminating against an employee on arbitrary grounds, including (but not limited to) race, gender,
sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture,
language, marital status or family responsibilities (such dismissal will not be unfair, however, if the reason is related to the
inherent requirements of the job or if an employee has reached pensionable age)
g. The transfer of a contract from an old employer to a new employer, or any reason concerning a transfer
h. A disclosure made by the employee in terms of the protected disclosures act
i. The refusal by employees to accept a demand by the employer regarding any matter of mutual interest between them
j. An employee’s union membership.

5. Case Study
Turbo Vehicles announced a proposal in which it highlighted their intention to introduce new hi-tech
production machinery in the manufacturing of their cars. This proposal mainly affected production
employees and was set to see the off boarding of 320 employees from the company
Employee representatives at the subject factory, including three union representatives belonging NUMSA,
were not in support of the proposed move by Turbo Vehicles. In expression of their disapproval of the new
machinery and proposed dismissals, the three union representatives began to collect signatures from the
employees in petition against the proposal.
Before the union representatives had a chance to submit their demand to management, all three union
representatives were individually called by management and warned against collecting signatures from
employees. They were also given a choice between denouncing union membership or face dismissal. The
three union representatives refused to denounce their memberships and they were subsequently

6. How to Answer
Automatically unfair dismissal
Give legislation
(LRA – freedom of association & procedure/substantively fair)
Apply
Conclusion

7. SUBSTANTIVE VS PROCEDURAL FAIRNESS
Procedural Fairness – Dismissal is unfair if:
o the employee was unaware of the nature of the offence (the employee must be informed of the charge against him, in language which he understands,
before any disciplinary inquiry or action is instituted)
o the employee was not given sufficient warning, where this is required in terms of the disciplinary code or where it could reasonably be expected
o the employee was not given the opportunity to state his case (The audi alteram partem principle dominates procedural fairness. It is for this reason
that the conduct of a disciplinary hearing is essential in dismissal cases. Yet the Code of Good Practice also concedes that, in certain circumstances
where it cannot reasonably have been expected of an employer to follow these guidelines, certain pre-dismissal procedures may be waived. In cases
where the employee repeatedly refuses to attend, a hearing may be held in absentia, but this would not apply in a case where the employee was
unable, for sound reasons, to attend a hearing.)
o the employee has not been allowed representation (This is related to the employee’s right to state his side of the case. It is taken that an employee may
not always be capable of presenting his own case and might need somebody to speak for him, to ensure that he is not intimidated and that proper
procedures are followed. In the same light, the employee should be allowed the services of an interpreter and to call witnesses, if necessary.)
o the employee was not fully informed of the reason for the decision given (in dismissal cases, the decision, as well as the reason for the decision, should
be given to the employee in writing)
the employee is a union office bearer or official and the union has not been notified of the pending action (in terms of the Code of Good Practice, an
office bearer or official of a union should not be disciplined unless his union has been notified and the opportunity for consultation has been provided

8. SUBSTANTIVE fairness
Misconduct- Dismissal unfair if:
1) the employee was unaware of the rule broken by him/her (an employee cannot be expected to behave correctly if he
or she is not informed of the requirements for correct behaviour: on the other hand, there are certain practices which
the employee should know will not be tolerated)
2) there is no clear reason for the disciplinary action (such reason may be established in terms of the law, the contract,
the disciplinary code and the expectations and circumstances of the organisation)
3) the treatment of the employee is inconsistent with the treatment of other employees who committed the same or
an equal offence (this points to the necessity for a generally applicable and consistently implemented procedure)
4) there was no consideration of the special circumstances (such as mitigating and aggravating factors, length of service
and the previous record of the employee)
5) there was insufficient proof of misconduct (the onus is on the employer to establish, on the balance of probability
and on reasonable grounds, that the offence was, in fact, committed – in previous cases, the Court has condoned the
action of the employer upon receipt of such proof from the employer)
6) the disciplinary action contravenes a law, service contract, wage determination or bargaining council agreement.

9. SUBSTANTIVE fairness
Poor work performance- Employees on probation:
According to the Code of good practice, a new employee may be appointed for a probationary period.
- length of the probation period depends on the nature of the job and the time which the employer needs to
find out whether the employee can perform the job satisfactorily
- Probationary employees should be evaluated at regular intervals.
- They need to be informed of the criteria and standards by which they will be judged and warned beforehand if
their performance is not satisfactory.
- Where necessary, the employer must provide any advice, education, training, counselling or guidance needed
to enable the employee to perform competently.
- If the employer decides to dismiss the employee during the probationary period, the employee should be
afforded the opportunity to be heard and to be represented by a shop steward or another employee, but a
formal hearing need not be held.

10. SUBSTANTIVE fairness
Poor work performance- Non probationary employees:
An employee who is no longer on probation, may not be dismissed for poor work performance unless:
a. clear performance standards have been communicated to the employee
b. the appropriate evaluation has been conducted
c. the employee has been given the necessary education, training, guidance and counselling
d. a reasonable time has passed, and the employee still shows no improvement
e. an investigation has been conducted into the reasons for the employee’s incompetence
f. the employer has looked for alternative solutions before contemplating dismissal
g. the employee has been granted the right to be heard and to be accompanied by a representative.

11. SUBSTANTIVE fairness
Incapacity
 Incapacity resulting from illness
- As a result of the effects of an illness/accident, the employee is no longer able perform satisfactorily, deliver work that
is below standard, or is totally unable to come to work
- Employee’s attendance is erratic and unpredictable
 Courts will consider the following:
1. What is the nature of the illness?
2. What are the prospects of recovery?
3. When will the employee return to work?
4. Will the employee be able to perform his/her job?
5. If not, is there another suitable position available?
6. There is no onus on the employer to provide alternative positions in the work place but employer should be able to
demonstrate that alternatives were considered
7. The Code of Good Practice identifies special consideration to counselling and rehabilitation

12. Case study

13. How to answer:

14. Unfair Labour Practices:

15. Unfair Labour Practices:
 According to Section 186(2) of the Labour Relations Act, any one of the following could
constitute an unfair labour practice:
a. unfair conduct by the employer relating to promotion, demotion, probation or training of
an employee or to the provision of benefits to the employer
b. the unfair suspension of an employee or any disciplinary action short of dismissal
c. the refusal on the part of the employer to reinstate or re-employ a former employee
despite an agreement to that effect
d. any occupational detriment suffered by an employee because he or she made a
disclosure in terms of the Protected Disclosures (Whistle-blowers) Act.

16. Disputes about Unfair Labour Practices
 Unfair labour practice disputes are submitted to the CCMA for conciliation and, if
conciliation fails, they may be submitted to arbitration.
 The employee has 90 days from the date on which the unfair labour practice was
committed, or the date on which he or she became aware of the practice, to refer
the dispute.
 Also, as in the case with dismissals, an action involving a contravention of the
Protected Disclosures Act may be taken straight to the Labour Court.