Unit 5.4

Question 1

Define unfair labour practice according to section 186(2) of LRA

Answer 1

• Unfair conduct by the employer relating to promotion, demotion, probation or training of an employee or to the provision of benefits to the employer
• Unfair suspension of an employee or any disciplinary action short of dismissal
• The refusal on the part of the employer to reinstate or re-employ a former employee despite an agreement to that effect
• Any occupational detriment suffered by an employee because he or she made a disclosure in terms of the Protected disclosure (Whistleblowers) Act

Question 2

Discuss substantive fairness

Answer 2

Any person determining whether a dismissal for poor work performance is fair should consider:
- Whether or not the employee failed to meet a performance standard
- If not, whether or not employee was aware or could reasonably be aware of the performance standard
- The employee was given a fair opportunity to meet the required performance standard, and
- Dismissal was an appropriate sanction for not meeting the required performance standard

Question 3

State the procedural fairness dismissal for poor work performance

Answer 3

A fair procedure encompasses:
- Establishing that the problem is poor performance and not misconduct.
- Identifying the causes of the poor performance
- Meeting with the employee and his line manager to establish the causes of the poor performance
- In particular, obtain the employee’s reasons for the poor performance
- Evaluate the employee’s reasons for the poor performance
- Obtain commitment from the employee regarding what action he will take to rectify the problem
- Inform the employee of what action the employer will take to assist in that process
- Agree on a reasonable time period for improvement.
Follow up and monitor the progress

Question 4

Discuss probationary employees

Answer 4

Item 8 of the Code of Good Practice:
1. Probation should not be used to deprive employees permanent appointment
2. Probation should be for a reasonable time and be determined in time
3. During probation, employee’s performance should be assessed and employee to give employee reasonable evaluation and training to assist employee to provide satisfactory performance
4. If employee does not meet the performance standard, employer should inform employee
5. Employer should allow employee to make representation prior to dismissing or extending the probation period and also advise employee of his rights to refer the matter to a council or commission.
6. After probation employee should not be dismissed for poor performance unless employer has
7. Given employee appropriate evaluation, training and
8. If employee continues to perform unsatisfactorily after being given time to improve

Question 5

Discuss dismissal for ill health or injury

Answer 5

• Item 10 of the Code of Good Practice
• Incapacity may either be temporary or permanent
• Investigation regarding the extent of the incapacity or injury by the employer and alternatives short of dismissal.
• Factors such as the nature of the job should be considered
• Employee should be allowed an opportunity to state a case
• Guidelines
• Whether or not the employee is capable of performing the work
• If not, the extent to which the employee can perform the work and extent to which the employees circumstances can be adapted to accommodate the disability
• The availability of any suitable alternative work

Question 6

Discuss dismissal for operational requirements

Answer 6

• S189 and 189A of the LRA
• Small scale v large-scale retrenchments
• Operational requirements-requirements based on economic, technological, structural or similar needs of the employer
• Economic needs e.g company that operating at a loss or company that wants to maximize profits
• Technological needs- introduction on new machinery in the workplace
• Structural needs- -restructuring in the company which results on jobs becoming redundant
• Similar needs- sabotage by unidentified perpetrators
• Substantive fairness - Employer should prove that the reasons for the retrenchment are based on any of the requirements

Question 7

What is procedural fairness?

Answer 7

• Employer should arrange consultation
• In terms of a collective agreement, if no collective agreement
• Consult a workplace forum if majority of employees to be dismissed have a workplace forum
• If no workplace forum, employer to consult any registered trade union that represents employees who are likely to be affected by the dismissals
• If no trade union, employer to consult employees themselves or their representatives

Question 8

What is the purpose of the consultation?

Answer 8

• For parties to reach an agreement on the following measures
• To avoid dismissals
• Minimise the number of dismissals
• Change the timing of dismissals
• Mitigate adverse effects of dismissals
• Methods for selecting employees to be dismissed
• Severance pay for dismissed employees