Professional Documents
Culture Documents
Labour Notes Final 2017
Labour Notes Final 2017
Part (b) of the definition is wider and can include various categories of workers.
However, due to the fact this definition still does not definitively state who an
employee is, we must look to the tests developed by the courts, as discuss
below.
NB: These tests were important to try and help the court establish whether the
person bringing forward an application for unfair dismissal for example, was in
fact an employee and not an independent contractor.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 2
Labour Law Notes – Semester 1 2017
The tests above tests, however, did not clearly solve the problem. The problem
arose due to the fact that a person claiming to be an employee first had to
approach the court in order to determine whether or not they were in fact an
employee and not an independent contractor. This meant the there was a
heavier burden of proof on the employee and therefore protection in terms of
Labour Law was not easy.
The LRA (S200A) and the BCEA (S83(A)) took the heavy burden from the
employee by creating a Rebuttable Presumption. If one of the factors listed
below in terms of the Acts were present, the presumption was that the
applicant was an employee, The employer then bears the onus of proving, on a
balance of probabilities, that it is not an employment relationship. These factors
are:
a) the manner in which the person works is subject to the control or direction of
another person;
b) the persons hours of work are subject to the control or direction of another
person;
c) in the case of a person who works for an organization, the person forms part
off that organization;
d) the person has worked for the employer for an average of at least 40 hours
per month over the last 3 months;
e) the person is economically dependent on the other person for whom he
works/renders a service;
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 3
Labour Law Notes – Semester 1 2017
f) the person is provided with tools of the trade or equipment by the other
person;
g) the person only works for, or renders services to, one person.
The presumption does not apply to those employees who earn in excess of the amount
determined by the Minister, from time to time.
The Code: ‘Who is an employee?’ integrates the three tests developed by the
courts and gives guidance on how to interpret and apply the tests:
The Code also contains the following table in which an employee and
independent contractor are compared:
CATEGORIES OF EMPLOYEES
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 5
Labour Law Notes – Semester 1 2017
3) Part-Time Employees:
STATUTORY EXCLUSIONS
In terms of the the Labour Relations Amendment Act and Basic Conditions of
Amendment Act specifically excludes the following from the definition of
‘employee’:
- Members of the National Defense Force
- Members of the State Security
NB: before the Amendment Act, the Secret Service, National Intelligence
Agency, COMSEC were listed as specific exclusions. Now, only two are
listed specifically.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 7
Labour Law Notes – Semester 1 2017
2) Both parties to the contract must have the necessary capacity to contract.
- Children under the age of 18 years and mentally ill persons do not have
the capacity to conclude a valid employment contract.
4) The agreement must be legally possible and its conclusion must be lawful.
- A contract that contravenes legislation and the employment of illegal
foreigners is unlawful. Under common law, an unlawful contract is void
(or voidable).
- It is not legally possible to employ someone as a hired gun.
There is certain information which the employer must provide to the employee,
in writing, in terms of the BCEA: The name and address of the employer; the
name and occupation of the employee; the place of work; the date on which
employment began; the employee’s ordinary days and hours of work; the
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 8
Labour Law Notes – Semester 1 2017
employee’s wage; the rate of overtime work; any other cash payments to which
the employee is entitled; any payment in kind and the value thereof; the
frequency of remuneration; any deductions to be made from the employee’s
remuneration; the leave to which the employee is entitled; the period of notice
required to terminate employment; any period of employment with a previous
employer that counts towards the employee’s period of employment, and a list
of any other documents that form part of the contract of employment. The
employer must retain this information for three years after the employment
contract has been terminated.
The employer must also display a statement of the employees’ rights in terms of
the BCEA in the official language spoken in the workplace.
In the Discovery Health case, the court had to decide whether or not an
employee who did not have a valid work permit could claim unfair dismissal.
The court considered the Immigration Act, which prohibits employment of
illegal foreigners and which states that any employer who knowingly employs
an illegal foreigner in contravention of the Act commits an offence, and found
that the intention was to deter employers from intentionally hiring persons in
contravention of the Act. An employer should not be permitted to escape its
obligations, through criminal conduct by employing unauthorized persons. An
employer who employs an illegal foreigner may accordingly not refuse to pay a
worker on the basis that he is an illegal foreigner – such illegal foreigner may
still be able to enforce his contractual rights against the employer. The court
held that although an illegal foreigner is not protected by labour legislation,
such workers are protected by the Constitution which guarantees everyone the
right to fair labour practices and to dignity. The LAC accepted that although an
employment contract is needed for a claim of labour rights in terms of the LRA,
S23(1) Constitution provides wider protection than labour legislation and if a
person is in a relationship similar to that of an employment relationship, he
enjoys the protection of the right to fair labour practices.
In conclusion,
- If the employment contract is valid, it will be enforceable and the worker will
be protected by the LRA against unfair dismissal.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 9
Labour Law Notes – Semester 1 2017
- If the contract is not valid, the worker is not protected by the LRA, but is still
protected by the S10 (right to dignity) and S23 (right to fair labour practices)
rights in the Constitution.
The MoL will make regulations which will put a duty on the employers to
make sure that there are no other employees within the Republic which
satisfies the qualifications and skills needed, before recruiting a foreign
national. The employer must also prepare for skills transfer planning in
respect of any position in which a foreign national is employed.
An independent contractor
- is a person who is contracted
- to perform a specific task or to produce a particular result
- who works for his own account
- for example, a doctor with his own practice
An employee
- is a person who is appointed
- to tender his personal services in terms of a particular job description
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 10
Labour Law Notes – Semester 1 2017
- for example, a doctor who works at a medical centre and earns a salary.
THE EMPLOYER
An employer is not defined in any SA labour legislation, but can be described as
- any person or body which employs any person in exchange for remuneration,
(formal employment) and
- any person who permits any person to assist him in conducting his business
(labour brokers or temporary employment services).
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 11
Labour Law Notes – Semester 1 2017
- NB: This is also known as the fiduciary duty of the employee toward the
employer.
2) To provide work
The general rule is that there is no duty on an employer to provide the
employee with work, however, where an employee relies on work being
provided to enable him to earn an income (where the employee’s salary is
commission-based or is dependent on actual work done), or where the
employee’s success is dependent on the performance of certain duties on a
regular basis, for example, an actor, the employer will be required to
provide work. If the employer therefore does not accept and “receive the
employee into service’ the employer will be in breach of contract.
VICARIOUS LIABILITY
The principle common-law doctrine of vicarious liability holds an employer
liable for the unlawful or delictual acts of an employee which are committed
during the course of business, and is based on the principle that the employer
must compensate those who suffer prejudice as a result of the wrongful
conduct of its employees.
Before an employer can be held liable for the acts of its employees, the following
requirements must be met:
3) the employee must have acted in the course and scope of employment
• If the claim is based on S23 of the Constitution and the violation thereof,
the claim must be brought to a court with Constitutional Jurisdiction – a
High Court or Constitutional Court.
RESTRAINT OF TRADE
A restraint clause is included in employment contracts to
- protect the employer’s interests, trade secrets, goodwill and business
connections against unfair competition from employees during and after
employment, and
- prevent an employee from competing with his employer within a specific area
and for a specific time.
In Magna Alloys & Research, the court held that a restraint of trade agreement
is valid and enforceable unless it is contrary to public policy. A contract will be
contrary to public policy and unenforceable if it is unreasonable. (The onus is
on the employee to show that the clause is contrary to public policy).
When deciding whether or not a restraint clause is contrary to public policy, the
courts will consider the circumstances which exist at the time when
enforcement of the clause is sought and not those which existed at the time
that the contract was concluded.
The court may, in considering a restraint, decide that part of the clause is
enforceable and that part of it is not enforceable. In doing so the court will look
at:
• Area the restraint of trade will be enforced
• Period of the restraint of trade
• Intentions of the employer
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 14
Labour Law Notes – Semester 1 2017
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 15
Labour Law Notes – Semester 1 2017
Even though the terms of the employment relationship are contained in the
contract, the parties will also be bound by other statutory provisions and
applicable collective agreements.
The employer does, however, not have to obtain agreement from its employees
to implement or change customs and practices which develop in the workplace.
These could, for example, relate to an agreement whereby an employee is
granted an afternoon off each week or a Christmas function, however the
employer must make sure that the nature of the employee’s job remains the
same.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 16
Labour Law Notes – Semester 1 2017
Generally, the parties may deviate from these minimum terms and conditions
only to improve them for employees and not to decrease them.
- another law or the contract provides a more favourable term to the employee;
or
- the basic condition has been replaced, varied or excluded in terms of the
BCEA.
Generally the parties may not contract out of the BCEA and employers will only
be able to agree to terms and conditions less favourable than those prescribed
by the BCEA in limited circumstances.
The BCEA gives effect to and regulates the constitutional right to fair labour
practices by:
• establishing and enforcing basic conditions of employment, and
• regulating the variation of such conditions by way of various mechanisms
and within a framework of regulated flexibility.
Partial exclusions
Chapter 2 - the provisions which regulate working hours do not apply to:
o senior managerial employees;
o sales staff who travel and regulate their own hours, and
o employees who work for less than 24 hrs a month for one employer
o employees who earn more than R205 433 (was R172 000) per year.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 17
Labour Law Notes – Semester 1 2017
Chapter 3 - the provisions which regulate leave do not apply to employees who
work for less than 24 hrs a month for one employer.
Only employees who have been employed with an employer for longer than 4
months and who work for at least 4 days a week are entitled to family
responsibility leave.
Overtime
• Maximum 10 hrs’ overtime a week.
• Overtime may be increased to 15 hrs a week by agreement.
• An employee may work overtime only by agreement.
• Overtime is paid at one-and-a-half times the employee’s normal pay.
• An agreement to work overtime may not be for more than 12 hours (ordinary
plus overtime) on any particular day.
Sundays
• The employee must be paid double his hourly wage to work on a Sunday if he
does not normally work on a Sunday.
• If the employee does normally work on a Sunday, he must be paid one-and-
a-half times his wage for each hour worked.
Public Holidays
• If the employee does not work, he gets paid his normal hourly wage.
• If he is asked to work, and agrees, he must be paid at least double his hourly
wage.
Night work
• Work done after 18h00 and before 06h00.
• Night work is only allowed if there is an agreement to this effect and the
employee is compensated by
- payment of an allowance or
- a reduction in working hours, and
- the employee must be provided with transport between his place of
residence and the workplace.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 18
Labour Law Notes – Semester 1 2017
Sick leave
• 6 weeks paid sick leave for every 3 year cycle worked.
• If employee has been absent for more than 2 consecutive days or on more
than 2 occasions in an eight-week period, the employer may request a
medical certificate issued by a medical doctor or a person registered with a
professional council.
• A leave cycle is calculated as the number of days that an employee would
normally work during a 6-week cycle.
• If an employee works 5 days a week, he would work 30 days in 6 weeks,
which would entitle him to 30 days’ sick leave in 3 years.
Maternity leave
• 4 consecutive months, which may commence at
- anytime from 4 weeks before the expected date of birth, or
- on a date that a medical practitioner of midwife certifies is necessary for
the employee’s health/her unborn child
• An employee may not work for 6 weeks after the birth of her child.
• If an employee miscarries in the third trimester or has a still born child, she
is entitled to 6 weeks’ leave after the miscarriage or still birth.
• The employee must notify the employer, in writing, of the dates of the leave
she intends to take.
• Does not have to be paid.
• Only for employees who have worked for longer than 4 months and who work
at least 4 days a week.
• Does not include death/illness of, for example, in-laws or members of the
extended family – the interpretation of family responsibility leave is therefore
very narrow.
• NB: Leave for illness is limited to that of a child.
Wages
Neither the BCEA nor any other law prescribes a minimum wage!!!
• Collective agreements concluded in bargaining councils and ministerial and
sectoral determination may set out a minimum wage for certain categories of
employees.
• Employees must be paid in South African currency, weekly, fortnightly or
monthly, in cash, by cheque or direct deposit into the employee’s bank
account.
• The employer must provide the employee with information, in writing,
regarding the period for which the payment is made, the amount of pay, the
amount and reason for any deduction and the calculation of the employee’s
pay in general
Notice periods
A contract of employment for an indefinite period may be terminated by either
party by giving notice of intention to terminate the contract.
• Notice must adhere to the notice periods required in terms of the contract.
• If the contract does not make any provision for a notice period, the BCEA
lays down that notice must be in writing and the minimum notice period
which both parties must comply with are:
§ 1 week, if the employee has worked for 6 months or less.
§ 2 weeks, if the employee has worked for longer than 6 but less than 12
months.
§ 4 weeks, if the employee has worked for more than 1yr, or a domestic or
farm worker who has worked for more than 6 months. (This may be
shortened by a collective agreement to 2 weeks).
Severance pay
When an employee is fairly dismissed by the employer due to operational
requirements, the employer must pay to the employee, a minimum of one weeks
pay for every completed year of continuous service, BUT an employee who
unreasonably refuses to accept an offer of alternative employment with that, or
any other, employer, is not entitled to severance pay.
NB: In terms of the Amendment, it is important to remember that employees
with fixed-term contracts, who have been working for the employer for over 24
months will received a severance package, the same as a permanent employee –
1 week per every full and completed year worked.
Certificate of service
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 20
Labour Law Notes – Semester 1 2017
The BCEA prohibits the employment of children under the age of 15 years and
contravention of this constitutes a criminal offence.
Therefore, no person may permit a child to perform or provide services that:
• Are inappropriate for his/her age
• Place at risk the child’s wellbeing, education or physical/mental state
risk their spiritual/moral/social development
EXPLOITIVE EMPLOYERS
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 21
Labour Law Notes – Semester 1 2017
Courts
The Labour Court
- has concurrent jurisdiction with the civil courts to hear and decide any
matter concerning the BCEA and
- has wide powers to enforce the BCEA, such as making compliance orders
and issuing fines.
INSPECTORS
The BCEA provides for the appointment of labour inspectors to monitor and
enforce compliance with the BCEA. Inspectors may, inter alia, enter
workplaces, require a person to disclose relevant information, question
employers and employees, and inspect documents and records. These
inspectors may obtain a written undertaking from an employer who is in default
that such employer will comply with the provisions of the BCEA and if the
employer refuses/neglects to comply with such undertaking, a compliance
order may be issued. If the employer still does not comply, the Director-General
may apply for an order from the Labour Court, for the written compliance to be
made a court order.
The Labour Court has exclusive jurisdiction in ALL matters relating to the
BCEA. The purpose of the Labour Court was to enforce a coherent legal
framework for disputes of such nature which could help disputes be solved
quicker. The idea behind the Amendments was to allow the Labour Court to
have jurisdiction over the LRA and BCEA and matters relating to both at the
same time. Before, if there was a dispute concerning the LRA it had to be heard
separate to a claim from the BCEA. For example, a claim for unfair dismissal
(LRA) including leave owing to the employee (BCEA). The Labour Court may also
grant civil relief in certain circumstances such as:
• employers force employees/potential employees to purchase
goods/services/products
• employers breach the terms set out in child labour and engage in forced
labour
• breached confidentiality/obstruction/undue influence/fraud
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 22
Labour Law Notes – Semester 1 2017
However if it becomes a criminal matter, the criminal court will also have
jurisdiction to grant civil relief.
Ways the Labour Court can enforce the terms set out in the BCEA:
• Compliance order
• Order payment of outstanding amounts owing to employees
• Requesting payment of fines
The BCEA allows for changing, replacing or excluding other rights by way of:
a collective agreement
- may change conditions of work, provided that it is consistent with the
purposes of the Act.
- may replace or exclude a basic condition of employment only to the extent to
which the Act or a sectoral determination allows.
a ministerial determination
- primarily replaces or excludes basic minimum conditions of employment in
respect of employees or employers, but generally does not set minimum
wages. This exclusion focuses on a specific category of employees or
employers.
- Focuses mainly on special public works programs, small businesses and the
welfare sector – these are typically non unionized.
- may vary maximum ordinary weekly working hours if
o the determination has been agreed to in a collective agreement;
o the operational requirements of the sector necessitate it, or
o the majority of employees are not members of a (registered) trade union.
- may relate to ordinary hours of work, overtime, meal intervals, daily and
weekly rest periods, and annual leave, but must ‘on the whole’ be more
favourable to employees than those conditions set out in the BCEA. These
determinations have not introduced minimum wages.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 23
Labour Law Notes – Semester 1 2017
- may be made only after an investigation has been done (by the Director-
General of the Department of Labour) into a particular sector or area after
consideration of representations by the public, and the preparation of a
report, which has not been covered by any other collective agreement.
- Usually focused on task based work, subcontracting and contract work.
• A sectoral determination may not reduce the protection for night work and
maternity leave and it may vary ordinary hours of work only if
- the determination has been agreed to in a collective agreement;
- the operational requirements of the sector necessitate this, or
- the majority of employees are not members of a (registered) trade union.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 24
Labour Law Notes – Semester 1 2017
DISMISSAL
S185 LRA: every employee has the right not to be unfairly dismissed by the
employer.
If an employee alleges he has been unfairly dismissed, he must prove that he:
- is an employee (only employees are protected by the LRA)
- has been dismissed (ito S186(1))
The employer must then prove that the dismissal was not unfair by proving:
- substantive fairness (that there was a fair reason for the dismissal)
- procedural fairness (that a fair procedure was followed)
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 25
Labour Law Notes – Semester 1 2017
In SA Post Office v Mampeule the employee was removed as director of the Post
Office, and the employer terminated his employment. The articles of association
of the Post Office stated that when a director ceased to hold office, his contract
terminated automatically and simultaneously, and the employee’s contract
contained a similar clause. The employer argued that the employee had not
been dismissed because the termination was compelled by the articles of
association and had been agreed to in the contract. The court rejected the
employer’s argument and held that it was contrary to public policy and not
possible in law. The employee had a right not to be unfairly dismissed and
could not contract out of this right - a contract cannot provide for the automatic
termination of a contract of employment.
NB: The Labour Relations Amendment Act allows for the definition of dismissal
implies “termination of employment” not “termination of employment contract”.
This means that an employee can be dismissed with or without a formal
contract of employment.
NB: The Amendment Act also clarifies the official date of termination. If the
employer gives the employee notice, the date of dismissal is the last date of the
notice period given OR the date on which the employee is paid all outstanding
salaries.
In SABC v CCMA, the court held that although a desertion amounts to breach,
the contract will only terminate once the employer has accepted the employee’s
repudiation. In Dyasi the court held that if the employee cannot be traced, the
employer may have no option but to accept the employee’s breach, in which
case it could be argued that the employee terminated the contract. BUT, if the
employer has a choice, and does choose to terminate the contract, it will
constitute a dismissal.
In Black v John Snow Public Health Group, the court stated that although
previous renewals were relevant to determine whether there was a reasonable
expectation, they were not decisive. In this case, the Court found that although
the employee had a hope of renewal, the employer had not created a reasonable
expectation to this effect.
NB: The Amendment Act ensures heavier protection for fixed-term contracts.
More specifically in instances where the employer gave the employee the
impression, and thus the employee reasonably expected the employment
indefinitely, and the employer instead offered to retain the employee on less
favourable terms, or did not retain the employee at all, the dismissal will be
unfair.
This changes the LRA. It is now not limited to an employee being protected if
they reasonably expected to be employed on another fixed-term contract, now it
applies even if the employee was under the impression that they would be
employed permanently.
The Amendment Act therefore affords more protection over fixed-term
employees and temporary employees.
Selective re-employment
This form of dismissal has a number of implied requirements:
- there must have been a dismissal of a number of employees
- the employees must have been dismissed for the same or similar reasons
- the employer must have offered to re-employ one or more of the previously
dismissed employees and
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 27
Labour Law Notes – Semester 1 2017
- at the same time refuse to re-employ one or more of the other previously
dismissed employees
- the offer to re-employ must have taken place at the same time, or within a
reasonable time.
Constructive dismissal
In the case of a constructive dismissal, it is the employee who terminates the
employment contract, however his resignation is not voluntary, but is caused
by the actions or omissions of the employer and which made it impossible for
the employee to continue working for the employer.
• Gordon and Western Cape Education Department: the employee applied for
temporary incapacity leave due to ill health, however the employer took
unreasonably long to grant the leave and made unjustifiable deductions from
his salary. Court held – contructive dismissal – there dismissal was unfair.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 28
Labour Law Notes – Semester 1 2017
The employer cannot defend the termination by proving that it was for a fair
reason. The only reasons that may justify the infringement of a basic right of
the employee will be:
- if it is an inherent requirement of the job, or
- an employee was dismissed because he had reached the normal or agreed
retirement age.
(d) that the employee took action or indicated an intention to take action,
against the employer by:
(i) exercising any right conferred by this Act, or
(ii) participating in any proceedings in terms of this Act
Replacement labour
A dismissal will be automatically unfair if the reason is that the employee
refused or indicated an intention to refuse to do any work normally done by
another employee who is taking part in a protected strike, unless the work is
necessary to prevent an actual danger to life, personal safety or health. If the
employee, however, refuses to do his own work while the other employees are
on strike, it will amount to insubordination.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 30
Labour Law Notes – Semester 1 2017
In Fry’s Metals, the employer sought to change the shift system but the trade
union refused to agree to the change despite several attempts by the employer
to negotiate with it. As the union would not accept the change, the employer
decided to dismiss the employees for operational reasons and argued that it was
an operational requirement that the workers had to be willing to work on the
new shift system. The purpose of the dismissal was not to force the employees
to accept the new shift system, but rather to get rid of the existing employees
and to find new employees who would be willing to work in terms of the new
system. The court held that the employer’s demand was final and was not just
a threat and held that the dismissal was fair on the basis of the operational
requirements of the employer.
Exercise of rights
Employees may not be victimised by their employers for exercise their rights or
participating in any proceedings in terms of the LRA.
Pregnancy
If an employee alleges that she has been unfairly dismissed because of a reason
relating to her pregnancy, she will have to prove
(1) that she was an employee and
(2) that she had been dismissed and
(3) that the dismissal was related to her pregnancy or intended pregnancy.
In Mashava a candidate attorney did not disclose her pregnancy to the employer
during the interview. When she was appointed and informed the employer that
she was pregnant, the employer dismissed her on the basis that she had been
deceitful by the non-disclosure during the interview. The court held that
although deceit could warrant dismissal, failure to disclose pregnancy does not
amount to deceit.
In the Swart case an employee was harassed and victimised because she had
not disclosed her pregnancy to the employer during the interview. After staring
employment, it came out that she was pregnant and the employer started
reprimanding her for poor work performance and she was dismissed for
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 31
Labour Law Notes – Semester 1 2017
misconduct. The court held that the employee had shown that fact that she
had not disclosed her pregnancy was the main reason for her dismissal and
that this rendered the dismissal automatically unfair. The court confirmed that
there was no obligation on an employee to disclose her pregnancy.
If an employee lies about her pregnancy it does not amount to dishonesty since
she is not obligated to disclose personal information. S6 EEA prohibits
discrimination on the ground of pregnancy.
Unfair discrimination
A dismissal, if based on unfair discrimination against an employee, whether
directly or indirectly, on any arbitrary ground, 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 responsibility, will be automatically unfair.
Some discretion is allowed if the reason for the discrimination is based on:
- the inherent requirements of the particular job, or
- age, if the employee has reached the normal or agreed-to retirement age for
persons employed in that capacity.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 32
Labour Law Notes – Semester 1 2017
In Dept of Correctional Services & another v Police & Prisons Civil Rights Union
and Others the SCA held that the dismissal of employees was held to be
automatically unfair due to discrimination based on religion. Here, 3
Rastafarian men were dismissed for refusing to cut their dreadlocks. The
employer could not prove it was an inherent job requirement, nor that it
interfered with their duties.
In Viney, the court held that there must be a causal link between the transfer
and the dismissal in order to establish an automatically dismissal.
Protected disclosures
The Protected Disclosures Act protects employee’s who blow the whistle on
corrupt activities or criminal offences.
In the Sekgobela case the court found that the main reason for the dismissal of
the employee was that he had made a protected disclosure about the employer’s
failure to adhere to tender procedures (and not misconduct as the employer
alleged), and that the dismissal was automatically unfair. The court noted that
the employer, being an organ of state, entrusted with the public to adhere to
tender policies, exacerbated the matter.
NB: The Employment Equity Amendment Act allows or the referral of a dispute
regarding sexual harassment to the CCMA, instead of to the Labour Court only.
Regarding any other discrimination where the employee earns less that
threshold set in terms of the BCEA, the dispute may be referred to the CCMA
instead of the Labour Court – this therefore includes disputes regarding AUD.
The Amendment Act also makes provision for the appointment of an arbitrator
in a pre-dismissal enquiry relating to protected disclosures – therefore the
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 33
Labour Law Notes – Semester 1 2017
FAIRNESS:
Dismissals must be regulated by legislation and protect the interests of both
parties – an employers must be able to run their businesses effectively, but
an employee must be treated fairly.
The main provisions for dismissals are found in S186 and S188 of the LRA,
and in the CODE: Dismissals.
The LRA only forbids dismissals which are unfair. This is specifically where
the reason for the dismissal infringes upon an employee’s basic rights.
The LRA stipulates that a fair dismissal must comply with substantive
fairness (the reason behind the dismissal must be fair) and it must comply
with fair procedure.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 34
Labour Law Notes – Semester 1 2017
The LRA supports the principle of progressive discipline, which means that
disciplinary action should be used to make employees aware of the standards of
conduct required of them and dismissal should be reserved for cases of serious
misconduct or repeated offences. The employer should consider alternatives to
dismissal, inter alia:
- counseling;
- warnings, and
- informal correction
In NUM & others v Martin & East (Pty)Ltd the shop stewards we dismissed for
participating in an unprotected strike, however other employees were only
suspended. The dismissal of the shop stewards was held to be Automatically
Unfair
The principal requirements for a fair dismissal are regulated by S188 LRA.
There are two requirements for a fair dismissal for misconduct:
- a fair reason (substantive fairness) and
- a fair procedure (procedural fairness).
has been issued in terms of the LRA; namely the Code of Good Practice:
Dismissal.
The Code: Dismissal requires all employers to adopt disciplinary rules to ensure
that their employees know and understand the required standard of conduct.
Some rules, such as the duty to act in good faith, or theft, are so well known,
that they apply without having to be included in the employment contract.
The LRA, does not set out the requirements for a substantively fair dismissal,
but the Code: Dismissal sets the following requirements for substantive
fairness:
It must first be established whether or not the rule which the employee is
alleged to have contravened existed. This is a factual question and one
must look at the circumstances surrounding the matter to determine
whether or not the rule existed. If the facts indicate that the rule did exist,
it must then be determined whether or not the employee contravened this
rule.
The employer can act against the employee if the latter is guilty of
misconduct in the workplace and during working hours. However, item 7(a)
provides that the employer can also act against the employee for
misconduct which took place outside the workplace and/or after working
hours.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 36
Labour Law Notes – Semester 1 2017
• Historical inconsistency occurs where the employer has in the past not
proceeded against employees when they have contravened a certain rule,
but then suddenly decides to proceed against an employee for
contravening that rule. An employer cannot enforce a rule which has
previously been ignored, as the conduct is inconsistent with past
conduct.
Another factor which may indicate that the employee was aware of the
rule is previous warnings which the employee may have in respect of the
rule.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 37
Labour Law Notes – Semester 1 2017
AWOL vs Desertion
- AWOL = the employee does not want to terminate the employment contract,
but stays away from work without leave this would warrant a dismissal if the
period of absence is unreasonably long. If the employee returns after a few
days with a letter to show that he had a reason for the absence, for example
having been hospitalized or imprisoned, a dismissal will not be appropriate
- DESERTION = the employee, without resigning, stays away from work with
the intention of terminating the employment contract it will amount to a
desertion. The employer must terminate the employment contract by holding
a disciplinary hearing in the employee’s absence. If the employee later
returns, the employer must give him an opportunity to be heard.
In SA Commercial Catering & Allied Workers Union obo Sikhundla and Radisson
Blu Hotel Waterfront, an employee who had made false allegations of racism was
found to have been fairly dismissed because false accusations of racial
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 38
Labour Law Notes – Semester 1 2017
Theft (including petty theft & stock losses), team misconduct, dishonesty and
breach of the trust relationship: the employment relationship is based on trust
and confidence and theft by an employee will breach this trust and is a fair
reason for dismissal.
- In SA Commercial Catering & Allied Workers Union obo Bolashe and Pinzon
Traders, an employee who worked at a confectionary ate some bread
returned by a customer. Workplace policy provided that perishable stuff
should not be resold or given to staff, and the bread would have been given
to the pigs. Dismissal as a sanction was found to be too harsh in the
circumstances and the employee was reinstated by the court. The
In cases of petty theft, the court must balance the duty of the employee to act in
good faith with the approach of the LRA (that employers must follow a process
of progressive discipline and use dismissal as a matter of last resort).
In SACCAWU obo Molele & others/Mr Price, the Commissioner held that team
misconduct may be relied on only of the employer has proved that it had an
effective system such as video cameras and processes for curbing theft to
reduce losses in place.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 39
Labour Law Notes – Semester 1 2017
NB: The Amendment Act states that a maximum of 12 month salary can be
awarded as compensation to an employee whose dismissal was found to be
substantively and procedurally unfair.
Incapacity refers to some form of behavior, conduct or inability which is not the
fault of the employee – there is no intent or negligence by the employee and it is
therefore known as a no-fault dismissal.
- Ill-health means that the employee is too ill to do his work. This illness can be
temporary or permanent, for example where a typist has broken her arm it
will be temporary ill-health. If her arm is amputated it will amount to
permanent disability.
Misconduct or Incapacity
In Boss Logistics v Phopi & others, the employee misrepresented in his interview,
to be an expert sales person, but this later proved incorrect. The employer
chose not to provide the employee with counseling, training or assistance,
because the employee’s deception had seriously breached the trust relationship.
The court found that where a senior employee misrepresents his experience and
qualifications, there is no duty on the employer to provide the employee with
counseling or training.
Substantive Fairness:
The Code of Good Practice confirms that a newly hired employee may be placed
on probation for a reasonable period of time. Although one of the purposes of
probation is to ascertain whether or not the employee can do the work, the
employer must still treat a probationary employee fairly: an employer must give
the probationary employee the following assistance before a dismissed for poor
work performance:
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 41
Labour Law Notes – Semester 1 2017
2. The employer must make it clear to the employee what the performance
standard is, and where he is not meeting it.
3. The employer must give the employee assistance and an opportunity to
improve.
4. The employer should measure the progress and give feedback.
The required assistance and the period of probation will be determined by the
nature of the job.
Item 8(2)-(4) contain the procedures which an employer must follow for a fair
dismissal for poor work performance after probation.
Although the LRA does allows for dismissal of ill or injured employees, it aims
to provide job security by requiring an employer to
- consider alternatives before dismissal, and
- get input from the employee on alternatives before the employee is dismissed.
Substantive fairness
1. The employer must make an informed decision;
2. the employer must determine whether or not the employee is capable of
performing the work; and
3. if the employee is not capable the employer must
- determine the extent to which the employee is able to perform the work;
- the extent to which the employee’s work circumstances might be adapted
to accommodate the disability, or
- where this is not possible, the extent to which the employee’s duties might
be adapted.
Procedural fairness
1. The employee must be given an opportunity to respond and make
suggestions (the employee may be assisted by a union representative or co-
employee),
2. the employer must consult with the employee,
3. the employer must consider the available medical information, and
4. the employer must attempt to accommodate the employee where reasonably
possible.
In Bhengu & another and Transnet Freight Rail the commissioner found the
dismissals of two employees fair, when they continuously claimed illness but
provided no proof and refused to cooperate with the employer’s accommodation
efforts.
In Williams and Diesel-Electric Cape (Pty) Ltd the arbitrator found the dismissal
unfair when an employer dismissed an employee for continuously being late,
having knowledge of a medical condition which forced him to use unreliable
transport.
In Rosh Pinah Zinc Corporation (Pty) Ltd The court found the dismissal fair to an
employee who was injured outside the employment duties. His employer
however tried to find him a permanent position since he could not carry out his
normal duties. The new position however paid less. The employee refused the
job and the employer dismissed him.
DISABILITY
Disabled people = “people with disabilities” = people who have a long-term or
recurring physical or mental impairment which substantially limits their
prospects of entry into, or advancement in, employment.
2. Employee has 30 days, from date of dismissal, within which to refer the
dispute to a BC / the CCMA for conciliation.
3. If conciliation is successful, the matter is resolved,
4. IF NOT SUCCESSFUL the matter is set down for arbitration, within 90 days,
at a BC / the CCMA
5. Commissioner makes award
6. Review by LC possible in limited circumstances
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 45
Labour Law Notes – Semester 1 2017
A dismissal based on operational reasons does not result from the actions or
faults of the employee but rather, the needs of the employer and it is
accordingly a no-fault dismissal.
“Similar needs” is a broad concept and one must look at the facts of each case
to determine whether or not a similar need exists (to justify the dismissal of
employees). For example, incompatibility/the breakdown of the trust
relationship.
In Elliot Bros, the special operational needs of the business were given as the
reason for the dismissal of employees. The Company worked a seven-day week,
where three persons were employed to handle and look after incoming livestock
at the abattoir. They were dismissed after they refused to work overtime on
weekends (there was no express term in their employment contracts that they
had to work overtime). The Court held that it was irrelevant whether or not
such a term existed. It held that the employer had fairly dismissed the
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 46
Labour Law Notes – Semester 1 2017
employees because the operational requirements of the business were such that
it needed employees who were willing and able to work over-time on weekends.
Here one must distinguish between two scenarios: In the first scenario the
particular employee's actions create disharmony, whereas in the second
scenario, the employee's mere presence causes dissatisfaction.
In Joslin, the court held that incompatibility must be clearly distinguished from
eccentricity. In this case, Joslin, a marketing manager of the Company
occasionally carried a camera around his neck at work or would walk around
with up to 36 pens in his shirt pockets or wore a Springbok cricket cap. He
was retrenched on the grounds that his actions created a negative impression
amongst co-workers which was seen to be prejudicing rather than promoting
the interests of the company. The court found the dismissal to be unfair and
stated that Joslin’s actions constituted a mild or harmless form of eccentricity,
and that these actions did not give rise to a ground for dismissal on the basis of
operational reasons. Only eccentric behaviour which is of such a serious
nature that it causes disquiet and disruption at the workplace would justify
dismissal for operational reasons
In ERPM Ltd v UPUSA & Others the court stated that “while an employer might
dismiss employees because it could not guarantee their safety in the light of the
reprehensible ethnic hostility of other employees, this could only happen when
the employer truly had no alternative.”
An employee must act in good faith towards the employer – he must be honest
with regard to the employer's affairs. If the employee steals from the employer
or commits fraud against the employer, the employee will breach the duty to act
in good faith and the employer may hold a disciplinary enquiry and, if the
misconduct can be proved, the employee can be dismissed for the misconduct.
- the enterprise's business requirements are such that changes must be made
to the employee's terms and conditions of employment.
Changes to the terms and conditions of the employee are not always
necessitated by changes in the enterprise. Changes may also become necessary
as a result of a change in the employee's circumstances or attitude towards the
employer which may have serious economic repercussions for the enterprise.
In Fry’s Metals, the employer wanted to change the shift system in the company
for more effective operation. He trade union refused despite several attempts at
resolving the matter. The employer then decided to dismiss the employees who
refused to work on the new shift system and replace them with employees
willing to do so.
Substantive Fairness
Previously, the courts were averse to interfere in the business decisions of an
employer. In Kotze v Rebel Discount Liquor Group it was stated that the court
should not ‘second-guess’ the employer’s commercial reasons for taking a
specific decision to retrench employees, however, more recently, the courts have
adopted a narrower approach and have held that an employer’s version will not
be accepted on face value, and that the court should determine whether
retrenchment had a reasonable basis and commercial rationale. It has also
been held that retrenchment should remain a matter of last resort.
In Welch v Kulu Kenilworth (Pty) Ltd & others the retrenchment of a number of
employees was held to be fair since the company was genuinely operating at a
loss and therefore almost insolvent. The court held that it could not, and would
not interfere with the company’s decision.
Substantive fairness relates to the reason for dismissal. In the case of dismissal
for operational reasons, the employer must prove a number of things to
substantiate its substantive fairness. S189A, sets the following requirements
for a dismissal for operational reasons to be substantively fair:
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 48
Labour Law Notes – Semester 1 2017
1. The reason for the dismissal must fall within the definition of `operational
reasons' defined in S213 LRA (economic, technical, structural or similar
needs).
2. The reason for the dismissal must be the real reason and not a mere cover-
up for another reason.
7. The employer must be able to show that the dismissal was a measure of last
resort.
In Maritz, the court held that employees are entitled to a ‘high degree’ of fairness
when they are retrenched. The court found that the retrenchment had been
unfair because the employer had not approached the process bona fide and
with an open mind in respect of alternatives or measures to avoid
retrenchments.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 49
Labour Law Notes – Semester 1 2017
In Super Group Supply Chain Partners v Dlamini & others the court held that the
dismissal was unfair due to the fact the employer did not consult with the
employees but invited them to consult with him.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 50
Labour Law Notes – Semester 1 2017
S189A distinguishes between the size of employers and the size of dismissals
when regulating substantive and procedural fairness of dismissal for
operational reasons.
- the parties may request the assistance of a facilitator to help out with the
resolution of retrenchment issues;
- the parties are forced to comply with the prescribed time frames (60 days
moratorium), and
- the parties can choose to refer the matter to the Labour Court for
adjudication, or to go on strike.
Either the employer or a representative of the majority of the employees who are
facing dismissal may request a facilitator, within 15 days of the employer’s
notice of the proposed retrenchments. If neither party requests a facilitator
within the 15 days, they may still agree to request a facilitator during the
consultation process.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 52
Labour Law Notes – Semester 1 2017
If a facilitator is appointed, the employer may not dismiss the employees until
60 days have lapsed from the date on which the appointment of a facilitator was
requested. The employer must also still give proper notice of the retrenchments
in accordance with S37(1) of the BCEA.
NB: The Amendment Act proposes that the jurisdiction of the CCMA should be
broadened to allow employees of an employer, which employs less than 10
employees, to refer a dispute about unfair retrenchment to the CCMA. This is
irrespective of the number of employees dismissed or whether the dispute deals
with substantive or procedural fairness.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 53
Labour Law Notes – Semester 1 2017
The LRA aims to create a fast, efficient and simple dispute-resolution system.
Some aspects aimed at simplifying this process are:
Conciliation
If, after the internal processes have been followed and completed, the employee
wants to challenge the fairness of a dismissal, the reason for the dismissal will
determine the dispute resolution route.
- In most cases of alleged unfair dismissal, the LRA requires that the matter
must first be referred for conciliation
- If conciliation is unsuccessful,
• a dispute about a dismissal based on misconduct, incapacity or
operational requirements will go for arbitration. However, if a dispute
based on operational requirements is not conciliated successfully, it may
then be referred to the labour court for adjudication. This is subject to the
exceptions regarding small and large scale dismissals.
• a dispute about an automatically unfair dismissal must go for
adjudication to the Labour Court.
Arbitration
Arbitration by the CCMA is not a stop-over on the way to the Labour Court.
The CCMA is a separate dispute-resolution body with jurisdiction to conduct
arbitration. The LRA specifically determines when a dispute must go for
arbitration and when for adjudication. The following must be referred to
arbitration:
• unfair dismissal based on misconduct/incapacity
• constructive dismissal as a result of a transfer of a business as a going
concern
• where the employee does not know the reason for dismissal
Arbitration can take place at a bargaining council (if there is one registered for
the area and sector in which the employee works) or to the CCMA (if there is no
council).
The award by the arbitrator is final, which means that it can only be taken on
review.
In Sidumo the test for review was formulated as follows: “is the decision reached
by the commissioner, one that a reasonable decision-maker would not reach?” –
thus, if a reasonable decision maker would have come to a different decision
than the arbitrator, then the matter may be reviewed. This view was confirmed
in Herholdt v Nedbank Ltd.
Remedies
The primary remedy for unfair dismissal is reinstatement, which must be
ordered except in the following circumstances, in which case compensation will
be awarded:
- The employee does not wish to be reinstated or re-employed;
- The circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
- It is not reasonably practicable for the employer to reinstate or re-employ the
employee, or
- The dismissal is unfair only because the employer did not follow a fair
procedure.
The LRA limits the amount of compensation that can be awarded for an unfair
dismissal, namely the equivalent 12 months’ where a dismissal is found to be
substantively and/or procedurally unfair. (It is calculated at the employee’s rate
of remuneration on the date of dismissal.)
Pre-Dismissal Inquiries:
The employer in this instance, asks the consent of an employee to hold a pre-
dismissal enquiry. This saves time and money by holding both and internal
disciplinary and then arbitration.
JURISDICTION OF COURTS
Specifically focusing on Labour Disputes in the three courts:
1) CCMA
2) Labour Court (same jurisdiction as some divisions of the high court –
however this conflict was not addressed in the Amendment Act, so
uncertainty still exists as to which court has jurisdiction, for example,
appeals dismissals based on AUD, Result of Strike/Lockout, operational
reasons)
3) Labour Appeal Court
NB: The Labour appeal court is not the highest court of appeal, more
specifically in terms of constitutional issues. This position was changed by the
Amendment Constitution in 2002. This held that the Constitutional Court is the
highest court in all matter, not just Constitutional Issues, therefore the SCA is
no longer the highest appeal. Due to this, the Labour Appeal Court is the
highest court in all Labour issues.
The employer has a choice to allow the employee to work his notice period, or to
terminate the contract and pay the employee his remuneration for the notice
period.
Termination on death
The death of an employee during the term of the contract will terminate the
contract because of the objective impossibility of performance.
An employer’s death will not necessarily terminate the employment contract, as
the estate of the employer will still be liable to pay the employee, unless the
services of the employee are of a personal nature.
In the case of insolvency of the employee, he may continue working only with
permission from the trustee.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 58
Labour Law Notes – Semester 1 2017
Employers are required to treat their employees fairly during the employment
relationship and S186(2), relating to the unfair labour practice provides
employees with certain remedies when the employer conduct towards them is
unfair.
(b) the unfair suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
The case of Gebhardt is a good example of ULP – In this case, Gebhardt was a
white female with a hearing impairment. She applied for a promotion in the
company and was recommended for the post, however was turned down. The
employer instead hired a coloured woman, claiming that he had to follow EEP.
The court in this case held that Gebhardt’s hearing impairment was a disability
which meant that she would’ve complied with the regulations in the EEP, and
thus not promoting her amounted to an ULP.
WHO IS PROTECTED?
• Unfair labour practices operate in one direction: They are the actions of an
employer against an employee; an employee cannot commit an unfair labour
practice against his employer.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 59
Labour Law Notes – Semester 1 2017
DISPUTE OF RIGHT
In addition to the list being closed, the dispute regarding an unfair labour
practice must amount to a ‘dispute of right’.
Disputes of interest are disputes about the creation of new rights and are
resolved through collective bargaining and industrial action (strikes).
Employees may not strike about matters that may be referred to arbitration or
adjudication (this includes unfair labour practices).
The protection against unfair labour practices in the Constitution has been
given effect in terms of the LRA, however the LRA limited to the list of actions
included in the definition and it only protects employees.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 60
Labour Law Notes – Semester 1 2017
This has lead to the question whether employees may rely directly on the
Constitution (where the right to fair labour practices is not limited) rather than
the LRA (where the right to fair labour practices is limited). The Constitutional
Court has held that one may not rely directly on the Constitution (S23) where
there is legislation (S186(2) LRA) giving effect to a constitutional right. This is
known as the principle of constitutional avoidance.
PROMOTION
The courts will only interfere in disputes about promotion where the employer
acts mala fide and when claiming of an unfair labour practice in respect of
promotion, the employee must shown that:
- the employer exercised its decision arbitrarily,
- the reasons provided cannot be substantiated,
- the decision was taken on a wrong principle, or
- the decision was taken in a biased manner.
DEMOTION
Demotion means that an employee
- is transferred to a lower level,
- receives less remuneration,
- loses benefits, or
- experiences a loss in status.
reasons, provided a fair procedure has been followed. The employer must
consider the best feasible alternative to avoid dismissing employees; and
demotion could be such option.
In the Nxele and Salukazana cases, it was found that the transfer of the
employees had resulted in a loss in status and responsibilities/employment
terms, and actually constituted demotion. The demotions were found to unfair
and constituted unfair labour practice.
PROBATION
Probation must be used in accordance with proper standards and regulations,
in order to prepare the employee for his future employment relationship. If the
employer misuses probation for any reason, for example – a reason not to give
employees a permanent employment status, this then would amount to unfair
labour practice.
The purpose of probation is to give the employer the chance to see whether an
employee is capable of doing the required work. The Code prescribes the
following requirements for a fair probationary period:
• the period should be determined in advance, and
• the period should be of a reasonable duration, determined with reference to
the nature of the job, and the time it would take to determine the employee’s
suitability for continued employment.
The Code allows the employer the following options at the end of the
probationary period:
• to extend the probationary period to enable the employee to improve his
performance (only if such extension is justified),
• to dismiss the employee, or
• to confirm the appointment of the employee.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 62
Labour Law Notes – Semester 1 2017
In Mediterranean Woollen Mills, it was held that an employer who does not want
to confirm a probationary employee’s appointment must show that the
procedure prior to dismissal included:
• giving the employee an opportunity to improve,
• making the employee aware that the work performance was unacceptable,
• counseling the employee if he was not able to handle the work, and
• treating the employee sympathetically and with patience.
If the employee is still unable to perform to the required standard after these
requirements have been complied with, the contract may be extended or
terminated.
TRAINING
This type of unfair conduct may occur where:
- an employee is denied training and training is a prerequisite for advancement
in the workplace, or
- where a legitimate expectation to training has been created, or
- where the employer acts inconsistently, arbitrarily or irrationally in denying
training.
Where training is necessary for the advancement of the employee: In Mdluli &
SA Police Service, the employee was removed from a training course which
would have made it possible for him to be promoted. The reason for his
removal was because of an allegation of misconduct relating to misuse of an
official vehicle, which was later withdrawn. The arbitrator ordered the employer
to re-nominate the employee for the next training course.
PROVISION OF BENEFITS
The LRA does not define ‘benefits’ and a debate has accordingly arisen as to its
correct interpretation. In some cases, transport allowances and provident funds
have been accepted as being benefits, and in other cases, not.
There has been some confusion based on the Amendment Act on whether a
dispute regarding benefits amounts to a dispute based on rights or interests.
A dispute regarding Unfair Labour Practice can only be based on a dispute of a
right however, a benefit is part of an employee’s remuneration, and a dispute
regarding remuneration is seen as an interest, which must be resolved by
industrial action (strikes).
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 63
Labour Law Notes – Semester 1 2017
industrial action, not by court process. The problem here is that one person
cannot strike, therefore Schoeman had no remedy.
In Apollo Tyres South Africa (pty)ltd v Commission for Concilliation, Mediation and
Arbitration and others the SCA held that an early retirement scheme did not
constitute a benefit. The court held that a benefit in the context of ULP should
be interpreted to include any benefit to which the employee is entitled
regardless of the fact that that the benefit results from the contract of
employment, or is judicially created, or is granted in terms of a policy or
practice subject to the employer’s discretion.
This means that employees who wish to claim that the employer committed an ULP
by denying them benefits, do not need to prove a right if they challenge the
fairness of the employer’s conduct. In this case, the employer failed to provide a
valid reason for the exclusion of the employee from the early retirement scheme
and therefore his conduct amounted to an ULP.
The debate between remuneration and benefit has been decided in more cases
and the results are as follows:
- Free transport to and from the workplace has been held to be a benefit.
- Payment for unpaid commission was held to be remuneration and not a
benefit.
- Payment for accumulated leave constitutes remuneration and not a benefit.
- Payment for overtime constitutes remuneration and not a benefit.
- A motor vehicle benefit scheme which is granted at the discretion of
management is remuneration and not a benefit.
SUSPENSION
Precautionary suspension (suspension pending an inquiry) may be used to give
the employer an opportunity to investigate allegations of misconduct by an
employee, so as to decide whether or not to take disciplinary action against the
employee. An employee should, however, not be suspended unless:
- there is a prima facie reason to believe that the employee has committed
serious misconduct, and
- there is some objectively justifiable reason for excluding the employee from
the workplace, and
- the employees has been offered an opportunity to be heard before being
suspended.
In Sappi Forests (pty)ltd v CCMA and others, the employee was criminally
charged for accepting money from a contractor without the consent/knowledge
of the employer. He was then suspended pending a disciplinary hearing with
full pay. The hearing was postponed pending the criminal charges to which the
employer consented but refuse to continue paying the employee during this
extension period. The Court however held that the employer must continue to
pay the employee during this time.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 65
Labour Law Notes – Semester 1 2017
This type of unfair labour practice usually arises in the case of re-hiring
agreements which are entered into as part of a retrenchment exercise (ie where
the employer undertakes to rehire ex-employees from the pool of retrenched
employees should vacancies arise after the retrenchment and, it was agreed (for
example, in a collective agreement or a settlement agreement) to recall and
consider the ex-employees, for such position).
In Theron the disclosure by a prison doctor relating to the poor health care of
prisoners to the Inspecting Justice of Prisons and the relevant Parliamentary
Committee, was found to be a protected disclosure.
In Young the court stated that an employee has a choice of approaching the
Labour or the High Court regarding matters relating to the PDA.
In Engineering Council of South Africa v City of Tshwane, a managing engineer,
employed by the Municipality, informed the employer, and cc’d the Engineering
Council and the Department of Labour, that the employer wanted to appoint
unskilled and inexperienced people who were unable to perform the duties in
the electrical control section. The court found that the copying of the letter to
the Engineering Council and the Department of Labour complied with a
protected disclosure. The municipality was therefore not allowed to discipline
him or to impose any sanction on him for having made the disclosure.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 67
Labour Law Notes – Semester 1 2017
Although the LRA does not place the onus of proof on either party, the employee
who alleges an unfair labour practice must prove all the allegations, where after
the onus will be placed on the employer to show that the conduct was not
unfair.
EMPLOYMENT EQUITY AND AFFRIMATIVE ACTION
S9 of the Constitution provides for employment equality and indicates that the
promotion of equality relies on two bases:
The purpose & structure of the EEA is “to achieve equality in the workplace by –
(a) promoting equal opportunity and fair treatment in employment through the
elimination of unfair discrimination; and
(b) implementing affirmative action measures…”
Section 5 of the EEA gives content to the Constitution and states as follows:
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 68
Labour Law Notes – Semester 1 2017
“every employer must take steps to promote equal opportunity in the workplace by
eliminating unfair discrimination in any employment policy or practice.
Prohibition of unfair discrimination:
1) 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, sec, pregnancy marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
HIV status, conscience, belief, political opinion, culture, language, birth or
any other arbitrary ground;
2) It is not unfair discrimination to –
a) Take affirmative action measures consistent with the purpose of this
Act;
b) Distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job
3) Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or a combination of grounds of unfair discrimination
listed in subsection (1).
DIFFERENTIATION VS DISCRIMINATION
In Harksen v Lane, the CC distinguished between differentiation and
discrimination. Differentiation (treating people differently) does not necessarily
constitute discrimination and will be acceptable where it is based on a valid
ground and serves a legitimate purpose.
It is, however, possible for other grounds of discrimination, which are not
contained in the list, to exist (ie unspecified grounds). If an employee or job
applicant alleges that he has been discriminated against on the basis of an
unspecified ground, the court will consider whether the differentiation is based
on attributes or characteristics which impair a person’s dignity as a gauge to
establish whether the claimed unspecified ground could form the basis for
discrimination.
S6(1) of the Amendment Act has specifically included “Any other arbitrary
ground” on which one can discriminate. There is however debate on the
addition to this section the specific definition of arbitrary. On one hand,
arbitrary would be included in the definition of specified or unspecified
grounds. On the other hand, it could be argued, as from Harksen v Lane, that
arbitrary grounds would specifically exclude the impairment of dignity. In a
case such as this, if an employee or applicant for employment alleges, for
example, discrimination on an unlisted or arbitrary ground, the court will
investigate whether the dignity of the person has been affected.
In the case of Kadiaka, the court referred to the tests for determining indirect
discrimination suggested by C Bourne and J Whitmore in Race and Sex
Discrimination, namely:
1. Has a requirement or condition been applied equally to both sexes and all
racial groups?
2. Is that requirement or condition one with which a considerably small
number of women (or men) or persons of the racial group in question can
comply than those of the opposite sex or persons not of that racial group?
3. Is the requirement or condition justifiable irrespective of the sex, colour,
race, nationality, ethnic or national origins of the person in question?
4. Has the imposition of the requirement or condition operated to the
detriment of a person who could not comply with it?
EXCLUSIONS - EEA
- members of the National Defence Force
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 70
Labour Law Notes – Semester 1 2017
Onus:
BEFORE: S11 of the EEA stated that once the claimant has established a prima
facie case of discrimination on a specified or unspecified or unlisted ground,
there is a presumption of unfairness. The employer then had to justify the
discrimination.
NOW: The Amendment Act aligns the burden of proof for unfair discrimination
claims with the equivalent provisions of the PEPUDA. It distinguishes between
unfair discrimination alleged on listed or arbitrary grounds. In the case of listed
grounds, the onus is more onerous on the employer, and in the case of
arbitrary grounds, the onus is more onerous on the complainant/employee.
S11
1) If unfair discrimination is alleged on a ground listed in Section 6(1), the
employer against whom the allegation is made must prove, on a balance
of probabilities that such a discrimination –
(a) Did not take place as alleged;
(b) Is ration and not unfair, or is otherwise justifiable
2) If unfair discrimination is alleged on an arbitrary ground, the
complainant must prove, on a balance of probabilities that –
(a) The conduct complained of is not rational;
(b) The conduct complained of amounts to discrimination; and
(c) The discrimination is unfair
Listed Ground:
STAGE 1 (the basis of the claim):
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 71
Labour Law Notes – Semester 1 2017
STAGE 2:
• Onus shifts to the employer to prove (on a balance of probabilities)
o The discrimination did not take place (in other words, that the link
does not exist)
o Rational reason
o Justified
(the problem is that there exists no definition of rational and justifiable other
than inherent job requirement/retirement age).
Unlisted/Arbitrary Ground:
STAGE 1:
• Complainant proves that his/her dignity impaired and compares the
unlisted/arbitrary grounds to the listed/specified grounds.
• Factual foundation showed by proving the link between the ground and
the differentiation
• If prima facie differentiation is proven, the differentiation becomes
discrimination.
STAGE 2:
• Complainant must prove on a balance of probabilities (note that this is a
heavier burden on the complainant than that of prima facie proof) that:
o The conduct was irrational
o The conduct amounts to discrimination (the reason for
differentiation is the ground proven)
o The conduct was unfair
• The onus is then on the employer to prove that the conduct is therefore
fair.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 72
Labour Law Notes – Semester 1 2017
JUSTIFYING DISCRIMINATION
S6(2) EEA: there are two grounds of justification for alleged unfair
discrimination, namely
It is an inherent requirement of the job that a male actor is required for a male
role in a soap opera. The exclusion of females for this job will not amount to
unfair discrimination.
The EEA does not define inherent requirements of the job and the courts have
given this concept a narrow meaning: only requirements which cannot be
removed from the job description (without changing the nature of the job), are
regarded as inherent requirements.
In the Hoffmann case the Constitutional Court found that HIV-negative status
was not an inherent requirement for the job of cabin attendant.
AFFIRMATIVE ACTION
The EEA gives effect to S9(2) of the Constitution (substantive equality).
The Code: Sexual Harassment provides guidelines on how to deal with sexual
harassment and how to curb such conduct in the workplace. Conduct
constituting sexual harassment includes
- physical conduct,
- verbal conduct, and
- non-verbal conduct
In UASA obo Zulu and Transnet Pipelines, the court stated that sexual
harassment has no place in a civilized society. In this case a male employee had
repeatedly sexually harassed a co-worker by verbally abused her (calling her his
wife) and making repeated demands on her to have sex with him. She made it
clear to him that his conduct was unwanted and unwelcome. After an assault
during which he lifted her dress and attempted to have sex with her (which was
witnessed by another co-worker) the female employee reported him. The
employee was dismissed after a disciplinary enquiry in which he did not deny
sexual harassment and showed no remorse, but claimed that such conduct was
part of his culture. The arbitrator stated that some forms of misconduct are so
serious that rules relating to them did not have to be spelt out to employees. In
addition, the arbitrator held that it was not part of that employee’s culture for a
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 74
Labour Law Notes – Semester 1 2017
man to demand sexual favours from a colleague, and that even if it were found
to be part of that culture, such conduct had no place in a civilized society. The
dismissal was upheld.
Grobler: A claim for sexual harassment can be based on three possible legal
bases, namely:
- vicarious liability;
- the EEA, and
- the LRA
In Ntsabo, the employee’s supervisor sexually harassed her. She brought to the
intention of her manager, who failed to deal with it. The employee resigned as
the situation became intolerable. The LC, after a finding of sexual harassment,
awarded the employee compensation for an unfair dismissal in terms of the LRA
and damages in terms of the EEA. The award was made on the basis that the
employee’s supervisor had contravened the provisions of the EEA and that the
failure by the employer to deal with the allegations of sexual harassment
constituted unfair discrimination under the Act. The employer had failed to do
all that was reasonably practicable in order to ensure that the supervisor would
not contravene the Act and was therefore liable.
The EEA requires every employer to take steps to attempt to eliminate unfair
discrimination in any employment policy or practice. The employer must do
what is necessary to eliminate existing unfair discrimination in an effort to
promote equal opportunities in the workplace. To further prevent harassment
in the workplace, the Code: Sexual Harassment makes it compulsory for
employers to develop sexual harassment policies which should stipulate the
following
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 75
Labour Law Notes – Semester 1 2017
TESTING
Testing may be used to evaluate applicants for employment to determine
whether they are suitable for the job, and to evaluate existing employees. The
EEA regulates medical testing in general, HIV/AIDS testing, psychological and
other similar assessments. Such testing does not in itself constitute
discrimination, but the manner in which it is carried out may be
discriminatory.
In Irvin & Johnson v Trawler & Line Fishing Union, the court stated that the
employer did not need to approach the Labour Court for authorisation to test if
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 76
Labour Law Notes – Semester 1 2017
In Mangena & others v Fila SA, a black male employee claimed that he was paid
less that a white female co-employee for doing the same work and that this
amounted to discrimination based on race. The court found no factual
foundation was laid in relation to the similarities of the work done by the two
employees. The male employee’s allegations were found to be speculative: he
was an administrative clerk providing price stickers, an elementary mechanical
job, while the female employee did a sale-on-consignment job involving large
clients. Her job required judging and taking decisions. The male employee had
failed to establish a prima facie case. An attempt at an alternative claim based
on work of equal value was held to be misplaced.
When applying S6(4), the following factors are taken into consideration:
• using methodology, the work must indeed be of equal value
• are the terms and conditions indeed the same
• to establish whether the differentiations amounts to unfair
discrimination, the onus provision must be applied (as above)
• the employers attempt at eliminating the differences in the terms and
conditions of employment
Unfortunately, the above explanation still does not give a definitely of same
work and work of equal value. The same is therefore explained as follows:
Same Work:
• one employee does the same work as another for the same employer
• identical/interchangeable
• sufficiently similar (they should be able to do the same job as each other)
• substantially the same
All of the above, if satisfied, will be regarded as the “same” work
Equal Value
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 77
Labour Law Notes – Semester 1 2017
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 78
Labour Law Notes – Semester 1 2017
The Labour Court has wide discretion to determine the dispute. It may, for
example, grant compensation or issue an interdict to prohibit the employer
from continuing with its discriminating actions.
AFFIRMATIVE ACTION
The second purpose of the EEA is to redress past disadvantage and to achieve
employment equality in the workplace through the implementation of
affirmative action measures. Examples of these measures are:
• Identifying and eliminating barriers in the workplace adversely affecting
members and groups
• Reasonably accommodating members of designated groups
• Promoting diversity
• Developing, training, evaluating, retention of members of designated
groups
• Preferential treatment and numerical goals to ensure equitable
representation.
The Constitutional Court used the “rationality” test when using the measures
above:
1. The measures must target previously disadvantaged people
2. The measures must have been designed to protect/advantage people
3. Promote the achievement of equality
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 79
Labour Law Notes – Semester 1 2017
The Labour Court has confirmed that affirmative action measures must be
applied fairly and rationally, which indicates that when designated employers
reach this goal, appointments and promotions based on affirmative action will
constitute unfair discrimination. Affirmative action is an instrument which
must be used temporarily to achieve ‘equitable representation’ in the workplace.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 80
Labour Law Notes – Semester 1 2017
In the Van Heerden case, the CC held that affirmative action measures that
‘properly fall’ within the requirements of the Constitution are presumed not to
be unfair. The court said that for affirmative action measures to be rational, it
must:
- target people or categories of people who had been disadvantaged by unfair
discrimination;
- be designed to protect or advance such people or categories of people, and
- promote the achievement of equality.
In the case of George, the Court held that affirmative action could be justified
even though another employee may suffer discrimination because of the
affirmative appointment. It was further held that an employer who applies
affirmative action by preferring a candidate who has personally been unfairly
discriminated against in contrast to a person who has not suffered such
deprivation does not commit an unfair labour practice.
In Auf der Heyde, the Labour Court indicated that it was necessary for
beneficiaries of affirmative action to be members of groups that have been
disadvantaged by general societal discrimination, whether direct or indirect.
Actual past discrimination, as a requirement to qualify for affirmative action in
terms of the EEA, cannot be inferred from the provisions of the EEA.
In Van Heerden it was held that personal past disadvantage was not a
requirement for a person to be a beneficiary of affirmative action. The reason
for this was that apartheid categorised people into groups, and consequences
resulted from group membership, without any reference to the circumstances of
individuals. The system meted out disadvantages and afforded advantages
according to a person’s membership of a group.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 81
Labour Law Notes – Semester 1 2017
Designated Employers
Only designated employers are required to apply affirmative action measures.
• An employer that does not fall within any one of these categories may
voluntarily indicate that it intends to comply with the Act.
• An employer who deliberately takes steps to avoid becoming a designated
employer is guilty of an offence.
• Collect information on, and analyse all its policies and procedures, in order
to identify employment barriers that adversely affect people from designated
groups. A profile of the workforce in each occupational category and level
must reflect the degree of under-representation.
• The employer must display a summary of the EEA in the workplace, provide
a copy of its Employment Equity Plan (EEP) to employees, and submit a
statement to the ECC on its employees’ income, in each category of the
workforce, with a view o reduce disproportionate income differentials.
Failure to comply with these duties may lead to fines for employers and
state contracts being refused or cancelled.
“Where disproportionate income levels and unfair discrimination with
regards to other conditions had been shown, submitting an income
differential statement on such pay differentiation at each level of occupation
and the reasons for it.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 83
Labour Law Notes – Semester 1 2017
NOW: The Amendment Act doesn’t define Black people (this was
either an oversight, or implies there are no longer ranks between
the groups.
In Fourie the Labour Court found that there were different degrees of
disadvantage between black people and white women in the workplace. In this
case, the applicant (a highly qualified and experienced white woman)
complained that she was unfairly discriminated against by being refused
promotion. While the court accepted that the white woman had been
discriminated against under apartheid, it held that the degree of discrimination
was lower than that suffered by African people, who bore the brunt of
apartheid. The court held that in deciding on degrees of disadvantage, the
following should be taken into account:
• South African history;
• the imbalances of the past;
• the fact that the apartheid system was designed to protect white people;
• the fact that black, particularly African, employees suffered the brunt of
discrimination, and
• the purposes and objectives of the EEA.
The fact that the applicant was not promoted was found to be rational and fair
in the circumstances. As there were no black officers at the police station in
question, and as the numbers for white women had already been exceeded, it
was fair that a black person was promoted instead of the complainant.
It has been argued that the racial basis for the redress strategy of affirmative
action be re-evaluated, since South Africa has been left with a class structure
that is largely racially defined. The following has been suggested as a better
basis for affirmative action measures: ‘ … a redress strategy with class
objectives at its core would in substance have the effect of mediating historical
racial disparities … without reinforcing racial identities and aggravating
racism…’
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 84
Labour Law Notes – Semester 1 2017
Informal measures: S34 of the EEA provides that any employee or trade union
representative may bring an alleged contravention of the EEA to the attention of
any of the following persons:
- another employee;
- an employer;
- a trade union;
- a workplace forum;
- a labour inspector; or
- the Director-General of the Department of Labour or
- the Commission for Employment Equity.
Labour Court has wide powers, which include orders requiring the employer to
comply with a compliance order issued by an inspector; ordering compliance
with any provision of the Act, and imposing fines for a contravention of certain
provisions of the Act.
When measuring the compliance of employers with the provisions of the EEA,
the following factors must be considered:-
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 85
Labour Law Notes – Semester 1 2017
In the above circumstances, the MoL can consult with NEDLAC which will take
into account the demographic of the employer of either national EAP or the
regional EAP to determine the employer’s compliance.
S49 of the EEA: the Labour Court has exclusive jurisdiction to determine any
dispute about the interpretation or application of the EEA. If the Labour Court
finds unfair discrimination, it may make any appropriate order that is just and
equitable in the circumstances, including
- compensation,
- damages,
- an order directing the employer to take preventive steps, etc.
- orders requiring the employer to comply with a compliance order issued by
an inspector;
- ordering compliance with any provision of the Act, and
- imposing fines for a contravention of certain provisions of the Act.
S10(7) EEA: parties may also agree to resolve their disputes through by drawing
up a private agreement.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 86
Labour Law Notes – Semester 1 2017
S18 Constitution:
protects freedom of association in general.
S23 Constitution:
(1) protects freedom of association of workers, employers, trade unions and
employer’s organisations.
(2) every employee can join, participate in activities of the trade union, strike (3)
every employer can join and form an employer’s organization
(4) trade unions and employers organisations have a right to determine their
own administrative programs and activities, and to form and join a trade union
and to organize and form a federation.
(5) every employer, trade union and employers organization has the right to
engage in collective bargaining.
The LRA
- grants employees and employers the right to freedom of association,
- protects employees and job applicants (an employer may not require an
applicant for a job to give up membership to a particular union) and
- limits freedom of association it in at least the following three important ways:
§ by making union membership subject to the constitution of the trade
union
§ by allowing closed shop agreements
§ by allowing agency shop agreements
Specific Protection:
The LRA protects trade unions, employers and employers organisations as
follows:
• Everyone has the right to form or join a trade union, however the
activities of such membership is subject to the Constitution of the trade
union
• Every member of the trade union may also stand for election and be
appointed as union representative or officer
• Employer cannot discriminate against an employee due to his
membership, and if he is an applicant for a job, the employer may not
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 87
Labour Law Notes – Semester 1 2017
NB: Any employee which is dismissed due to his association with a trade union
can claim for Automatically Unfair Dismissal.
EMPLOYERS ORGANISATIONS:
The same rules which apply to trade unions and their members, apply to
employers organisations. Rights of members organisations:
• Determine its constitution and rules
• Hold elections
• Organize activities
• Join federations
• Associate with International Organisations.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 88
Labour Law Notes – Semester 1 2017
ILO CONVENTION:
The two most important ILO (International Labour Organisations) South Africa
signed in:
• Convention 87²² in 1996 - guarantees all employers and workers,
including supervisors, the right to freely establish and join organisations
of their own choice, subject only to the rules of the organization.
• Convention 98²² in 1996 deals with the right to organize and bargain
collectively. This Convention protects workers against acts of
discrimination and victimization by their employers on account of their
trade union membership/activities. The Convention also protects unions
and employers organisations against any acts of interference by each
other or each other’s agents.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 89
Labour Law Notes – Semester 1 2017
ORGANISATIONAL RIGHTS
The LRA grants organisational rights to registered trade unions for the purpose
of making it possible for trade unions to function more effectively and to build
support at the workplace by establishing a sound collective bargaining
relationship with an employer or employers’ organisation.
Only a registered trade union may exercise organisational rights in terms of the
LRA.
The purpose of this right is to allow the union to access to the employer’s
premises to
- recruit new members, to communicate with existing members and to serve
the interests of members;
- hold meetings with employees at the workplace (outside working hours); and
- let members vote at the employer’s premises in union elections or ballots.
S13 LRA: The right to have trade union membership fees deducted by way
of a stop order
S14 LRA: The right to elect trade union representatives (shop stewards)
- The number of shop stewards to be elected depends upon the size of the
workforce: the number of shop stewards increases on a sliding scale in
accordance with the number of union members who are employed in the
particular workplace.
- Shop stewards have the right to assist and represent employees, and monitor
the employer’s compliance with the law.
- Shop stewards are entitled to reasonable time off with pay during working
hours to perform union functions.
• Officials = employees of the trade union who perform various duties for the
union as employees;
• Representatives = employees of the employer; but also represent the union in
the workplace in which they (the representatives) are employed.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 90
Labour Law Notes – Semester 1 2017
S15 LRA: The right of shop stewards (office bearers) to get time off for
trade union activities
Shop stewards are entitled to paid leave to perform their functions on behalf of
the union. (Details are normally arranged between the employer and the union).
Only relevant information must be disclosed – ie, information that will allow
shop stewards to perform union functions effectively and engage in collective
bargaining. The employer is not required to disclose the following information
LEVELS OF REPRESENTATIVITY
Whether or not a trade union is entitled to organisational rights depends on the
level of representativity of the trade union in the workplace.
2. The employer and trade union must meet, within 30 days of the notice, and
must attempt to conclude a collective agreement.
3. If the parties fail to conclude a collective agreement, either party may refer
the matter, in writing, to the CCMA for conciliation.
4. If conciliation fails
a) The union may give notice of its intention to strike or the employer may
give notice of its intention to embark on a lock-out. (If either party gives
such notice, that party may not refer the dispute to arbitration for a
period of 12 months from the notice).
OR
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 92
Labour Law Notes – Semester 1 2017
b) Either party may request that the dispute be arbitrated. The arbitration
award will be binding on the parties. According the Amendment Act, an
arbitrator’s award is binding on employers, clients of TES, and any
person other than the employer who controls access to the workplace if
the person has been given an opportunity to participate in such
arbitration proceedings.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 93
Labour Law Notes – Semester 1 2017
NB: The employer must make available, all facilities to the commissioner
reasonably necessary to obtain organizational rights.
If the trade union is no longer a representative trade union, the employer may
approach the CCMA to withdraw the rights previously granted.
NB: If an employee is appointed by a TES and part of a trade union, that union
may exercise the rights of the employee at the workplace of that employee.
In FAWU V Ngcobo and another the SCA (confirmed by the Constitutional Court)
held that the purpose of a trade union is to protect its members. The trade
union was liable for damages when it failed to perform this duty.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 94
Labour Law Notes – Semester 1 2017
COLLECTIVE BARGAINING
Collective bargaining is not defined in the Constitution or the LRA, but it can be
described as a process through which employers or employers’ organisations
and trade unions negotiate and bargain about terms and conditions of
employment and matters of mutual interest.
DUTY TO BARGAIN
The Constitution and the LRA do not place a duty on the parties to bargain with
each other. They also do not regulate what employers and trade unions may or
may not do during the bargaining process (ie the tactics that they use).
REFUSAL TO BARGAIN
If an employer refuses to bargain with a trade union, the LRA allows for the
employees to embark on strike action to persuade the employer to bargain: A
refusal to bargain includes:
4. Award made, which provides guidance only, and is not binding on the
parties.
REGISTRATION
The LRA does not compel trade unions and employers organisations to register,
but encourages registration by granting most of the rights set out in the LRA
only to registered unions:
Once registered the trade union becomes juristic person with a separate legal
personality.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 96
Labour Law Notes – Semester 1 2017
BARGAINING COUNCILS:
Registered trade unions and employers organisations can establish bargaining
councils for a specific sector or area. They will have to create a constitution and
register the council, giving the council jurisdiction in the area.
The state may only be a party to a council if it is an employer within that area
or sector.
The Registrar will publish a notice in the Government Gazette and send the
notice to NEDLAC, giving the public 30 days to object.
Thereafter the applicant has 14 days to respond and send the response to the
Registrar, who sends same to NEDLAC.
Powers:
COLLECTIVE AGREEMENTS
The purpose of collective bargaining between an employer/employers’
organisation and a trade union is to reach agreement on terms and conditions
of employment and matters of mutual interest and to formalise their
relationship in a collective agreement. (A collective agreement regulates the
rights and duties of the parties, as well as the terms of conditions of
employment of employees).
In Chamber of Mines v AMCU, AMCU argued that the extension of the collective
agreement to employees who are not members of the trade union is
unconstitutional, they argued that this violates the right to engage in collective
bargaining. However the labour court held that it was not unconstitutional
since it is a justifiable limitation to engage in collective bargaining and to strike.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 98
Labour Law Notes – Semester 1 2017
An agency-shop agreement is
• a collective agreement
- the employer may only deduct the agency fees from wages of employees
who are non-union members and who are eligible for membership;
- the fee payable by non-members may not be more than the subscription
fee payable by the members of the union;
- the agency fees must be paid over to a separate account and may be used
only for the benefit of all employees at the workplace;
- the agency fees may not be used for any purpose other than advancing or
protecting the socio-economic interests of employees;
- the employer may deduct the agency fees from the wages of employees
without authorisation, and
Here, the employer agrees, in the collective agreement to deduct the agency fees
from the wages of certain employees who are not members of the trade union
that entered into the agency shop agreement, but they are eligible for
membership of this union.
A closed-shop agreement is
• a collective agreement
- the union subscription fees may not be used for political purposes;
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 99
Labour Law Notes – Semester 1 2017
- the union subscriptions may not be used for any purpose other than
advancing or protecting the socio-economic interests of employees;
Both agency shop and closed shop agreements are subject to agreement
between employers and trade unions, and an employer is not obliged to consent
to such agreement. A dispute about an employer's refusal to agree to an agency
or a closed shop agreement will amount to a dispute of interest which, once it
has been referred to conciliation and failed, may become the reason for a strike
and lockout.
NB: Disputes regarding ASA/CSA and the interpretation of the Agreements, can
be referred to the CCMA for conciliation, failure thereof can lead to Arbitration.
A bargaining council does not have jurisdiction over these matters.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 100
Labour Law Notes – Semester 1 2017
2. each party to the agreement and the members of every other party to the
agreement insofar as the provisions are applicable to them
4. employees who are not members of the registered trade union(s) party to the
agreement, if –
- the employees are identified in the agreement,
- the agreement expressly binds the employees, and
- the trade union(s) represent the majority of all the employees employed
in the workplace.
- Parties to the bargaining council who are also parties to the collective
agreement: this collective agreement is binding on a union and
employer’s organization who are also parties to the bargaining council
who were involved in drafting the collective agreement and their
members.
- Parties to the council who are not parties to the agreement: parties who
are not parties to the agreement may be bound due to the provision
provided for in the constitution of the council.
- Parties who are not members of the council and not parties to the
agreement: if the parties fall within the sector and area jurisdiction of
such council may be bound by the council’s collective agreement.
employers and employees to whom it’s extended even though they are not
members. However, to make this extension valid, the following procedures must
be followed:
1. The parties must adopt a constitution (which presupposes that the parties
agree to establish a council and agree on the content of the constitution).
2. An application must be made for registration (if the application is successful,
the council is registered).
- enterprise level where the operations of one employer are spread across
different workplaces and bargaining takes place with reference to all the
different workplaces that constitute the enterprise;
- industry (sector) level where one or more trade unions bargain with one or
more employer/employers’ organisations about terms and conditions for a
whole industry (an industry is a number of different employers, companies or
firms which are active in the same economic sphere). Most of this industry
bargaining takes place within bargaining councils, or
- a combination of the above (collective bargaining can take place at more than
one of the above levels simultaneously.)
Collective bargaining is not the only function of bargaining and councils. One of
the most important of the other functions of these institutions is dispute
resolution.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 103
Labour Law Notes – Semester 1 2017
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 104
Labour Law Notes – Semester 1 2017
WORKPLACE FORUMS
A trade union is a juristic body which deals with wage related issues and which
may embark on industrial action.
A workplace forum is not a juristic person. It deals non wage related issues
and may not embark on industrial action.
All employees, other than senior managerial employees, and including non-
union members, may be members of a workplace forum. Employee in this
instance is defined as “any person who is employed in a workplace, except a
senior managerial employees whose contract of employment or status confers
the authority to do any of the following in the workplace:
• represent the employer in dealing in the workplace forum
• determine policy and take decision on behalf of the employer that may be
in conflict with the representation of employees of the workplace.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 105
Labour Law Notes – Semester 1 2017
The LRA provides for a structure that is neither compulsory nor entirely
voluntary, by emphasising the primacy of a collective agreement to establish a
workplace forum. A statutory model may be imposed by the CCMA only if the
parties are not able to reach consensus on the establishment of a workplace
forum.
A forum must meet regularly and its functions are to consult on certain matters
and to have joint decision-making on other matters.
What is consultation?
Consultation in terms of S85 LRA involves more than simply affording the
workplace forum an opportunity to take part in a discussion about a proposal,
but to reach consensus with the employer. When an employer wants to
introduce a proposal concerning a matter which the forum is entitled to be
consulted about in terms of the LRA, consultation must take place before the
employer implements any proposal.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 106
Labour Law Notes – Semester 1 2017
If the employer and the forum do not reach consensus, the employer must use
any agreed procedure to resolve differences, before implementing the employers
proposal.
Forum Functions:
- promote interests of employees
- enhance efficiency
- consult on matters
- jointly making decisions on certain matters
JOINT DECISION-MAKING
A representative union and the employer may enter into a collective agreement
which will grant the forum joint decision-making in respect of further matters,
or removing matters.
An employer is required to disclose all relevant information that will allow the
forum to participate in effective consultation and joint decision-making,
however, the employer is not obliged to disclose information which is irrelevant,
privileged, confidential, the employer may not disclose in terms of a law or court
order, or private personal information of an employee.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 108
Labour Law Notes – Semester 1 2017
INDUSTRIAL ACTION
No right is absolute and the LRA which accepts that the right to strike and the
right to recourse to a lockout may be limited in the interest of employers and
employees and in the public interest.
1. The action undertaken must comply with the definition of a strike or lock-
out.
DEFINITION OF A STRIKE
Section 213 of the LRA defines a strike as ‘the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are
or have been employed by the same employer or by different employers, for the
purposes of remedying a grievance or resolving a dispute in respect of any
matter of mutual interest between employer and employee, and every reference
to ‘work’ in this definition includes overtime work, whether it is voluntary or
compulsory.’
The refusal to work does not necessarily require a complete stop of work or
activities - a partial work stoppage is sufficient. The refusal may be
- partial (where employees only perform some of their duties/ only work during
certain hours)
- complete (where employees do not perform any of their duties)
- a retardation (where employees work, but at a reduced pace – go-slow; or
where the employees perform their duties strictly in accordance wit their
contracts – work-to-rule), or
- an obstruction (where employees disturb production through their actions).
Overtime
A refusal to work overtime will also constitute a strike, whether the overtime is
voluntary or compulsory, but not overtime work which amounts to a
contravention of the BCEA.
In SA Breweries Ltd v Food & Allied Workers Union & Others: the SA
negotiations between the employer and union reached deadlock and the union's
members embarked in an overtime ban. The performance of overtime was a
voluntary matter, and the employees had previously worked overtime when
requested to do so. The overtime resulted in substantial financial loss to the
employer. The union did not deny that it had instigated the ban and that the
employees had engaged in it with the intention of compelling the employer to
comply with its bargaining demands. The court had to decide whether or not a
non-contractual (voluntary) overtime ban fell within the first element of a strike
and came to the conclusion that it did not constitute a strike in terms of the
previous LRA, 1956. Had this case been brought after the promulgation of the
LRA, 1995 the union's actions would have constituted strike action in terms of
the first element of a strike, since overtime bans, whether compulsory or
voluntary are now specifically included in the definition of a strike in the LRA.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 110
Labour Law Notes – Semester 1 2017
Although the right to strike is extended to the individual worker by S23 of the
Constitution, this right cannot be exercised individually. For an action to
qualify as a strike, more than one person must combine their efforts - a single
employee cannot strike.
The collective action must be for a common purpose which binds the strikers
together. If a number of employees go on strike but each of them has a different
reason for striking, it will not amount to collective action.
- be concerted
- by persons, and
- constitute collective action
The concerted action or omission and the nature thereof must be for a common
purpose (remedying a grievance or resolving a dispute in respect of any matter
of mutual interest between the employer and the employees).
If the collective action by the employees has no purpose, the action will not
constitute a strike and the employees may be dismissed for misconduct
because they are in breach of their employment contracts.
Where there was a purpose for the strike, which has fallen away, ie, the parties
settle the dispute or the employer agrees to the employees’ demand, the strike
terminates and so does its protection.
The concept ‘matters of mutual interest’ includes matters concerning the terms
and conditions of employment, as well as matters of direct relevance to the
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 111
Labour Law Notes – Semester 1 2017
workplace and the job security of employees, such as disputes about health and
safety issues, the dismissal of workers, and the negotiation of disciplinary,
grievance and retrenchment procedures, and wage increases.
Matters of mutual interest must be matters between the employer and the
employee – political issues (refusal to work in protest over the State’s decision
to increase VAT, a demand to reform the Judiciary or the Reserve Bank, or the
contents of proposed legislation) is not a matter of mutual interest between the
employer and the employee. (The demand is against the State).
Only one form of action – the exclusion of employees from the workplace –
amounts to a lock-out. This usually occurs by the employer simply closing the
workplace entrance and not permitting its employees to access the premises.
The purpose for which the exclusion must take place is to compel employees to
accept a demand in respect of any matter of mutual interest between employer
and employee only.
The right to strike is not unlimited. S65 states that a strike or lock-out will be
unprotected, in certain circumstances, even where the procedures in S64 have
been followed.
The collective agreement must be an agreement defined as such in the LRA and
it binds the parties only for the duration of the collective agreement.
If either party has a right to refer a dispute to arbitration or to the Labour Court
for adjudication in terms of the LRA, that party may not resort to a strike or
lock-out to resolve the dispute.
TWO EXCEPTIONS
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 113
Labour Law Notes – Semester 1 2017
The following are examples of services which have been designated as essential
services by the Essential Service Committee:
- the regulation and control of air traffic
- the Weather Bureau
- municipal traffic services and policing
- municipal health
- municipal security
- the supply and distribution of water
- the generation, transmission and distribution of power
- fire fighting
- the services required for the functioning of the courts
- correctional services.
The LRA does provide for an exception, where employees engaged in essential
services may strike: the employer and the trade union may conclude a collective
agreement which provides for maintenance of minimum services.
S72 LRA: employers and trade unions can conclude a collective agreement
which provides for the maintenance of certain minimum services in a service
designated as an essential service and the employees in an essential service,
but who do not provide minimum services, may strike or be locked out. The
employees who provide the minimum services will not be able to strike. Once
part of the business has been designated as a maintenance service, the
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 114
Labour Law Notes – Semester 1 2017
employer may not make use of replacement labour during a strike in that part
of the business.
In terms of the new Amendment Act however, a service designation will not
apply if the majority of employees voted against it.
If a collective agreement already regulates the issue in dispute, the parties are
bound by that agreement
A person may not take part in a strike or lock-out if that person is bound by a
determination made by the Department of Labour.
PROCEDURAL REQUIREMENTS
The LRA defines an issue in dispute as ‘the demand, grievance, or the dispute
that forms the subject matter of the strike or lock-out.
The issue must fall within the definition of a strike or lock-out – it must be a
matter of mutual interest
Once the issue in dispute has been referred to a council or the CCMA, the
council or CCMA must attempt to resolve the dispute through conciliation
within 30 days.
Conciliation fails if the issue has not been settled within 30 days from referral
to the council or CCMA, or if a certificate is issued by the council or CCMA
stating that the dispute has not been settled.
Prior notice
Once conciliation has failed, or 30 days have lapsed, at least 48 hours’ written
notice must be given before the commencement of the strike or lock-out.
Where the State is the employer, at least 7 days’ notice must be given.
This notice allows the employees/employer to prepare for the impending strike
or lock-out.
In the case of a proposed strike, notice must be given to the employer unless
the dispute relates to a collective agreement to be concluded in a bargaining or
statutory council, in which case notice must be given to that council. If the
employer is a member of an organisation that is a party to the dispute, notice
must be given to the employers’ organisation.
In the case of a proposed lock-out, notice must be given to any trade union that
is a party to the dispute, or, if there is no such union, to the employees
concerned.
The LRA does not stipulate what information must be contained in the notice, it
only requires that the notice be in writing and must be issued 48 hours before
the intended action.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 116
Labour Law Notes – Semester 1 2017
1) The procedures need not be followed if the parties to the dispute are
members of a council and the dispute has been dealt with by that council in
accordance with its constitution;
2) The parties need not comply with the LRA’s procedural requirements if they
are covered by a collective agreement which contains its own procedural
requirements for strikes and lock-outs.
4) The procedures need not be followed if the strike takes place after the
employer has unilaterally changed the terms and condition of employment,
and the employed does not rectify this despite prior warning, and
SECONDARY STRIKES
2) The secondary employer must be given 7 days, prior written notice of the
secondary strike.
This period of notice will give the employer the opportunity to exert pressure
on the primary employer to accede to the demands of its strikers.
If the secondary strike forms part of strike action about dismissal for
operational requirements, 14 days’ notice must be given.
3) The nature and extent of the secondary strike must be reasonable in relation
to the possible direct or indirect effect it may have on the business of the
primary employer = proportionality
This requirement ensures that the secondary employer does not suffer
significant harm without the secondary strike having any effect on the primary
employer. The purpose of a secondary strike is to put additional pressure on the
primary employer and the secondary strike is thus based on the assumption
that it will, in some way, be able to affect the outcome of the primary strike.
The Labour Court may consider the ‘proportionality’ of the secondary strike by
weighing up the potential effect of the secondary strike on the primary employer
against the potential effect on the secondary employer. The Labour Court has
held that there must be some nexus or link between the primary and the
secondary employer for the secondary strike to have a possible effect on the
business of the primary employer in such a way as to make the secondary
strike reasonable
Should a secondary employer feel that the requirements for a secondary strike
have not been met, he may approach the Labour Court for an interdict to
prevent or limit the secondary strike.
3. No interdict
4. No compensation
5. No discrimination
6. No remuneration
The rationale for protecting strikers against dismissal was explained in Black
Allied Workers Union v Prestige Hotels, where the Labour Appeal Court held that
if an employer facing a strike could merely dismiss the strikers from
employment by terminating their employment contracts then the strike would
have little or no purpose. The strike would cease to be functional to collective
bargaining and instead it would be an opportunity for the employer to take
punitive action against the employees concerned.
S67(5) limits the rights of the strikers not to be dismissed by providing that
even where employees are participating in or supporting a protected strike, the
employees may still be dismissed for misconduct or on the basis of the
employer’s operational requirements.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 119
Labour Law Notes – Semester 1 2017
Payment of remuneration
The common law rule of ‘no work, no pay’ applies to strikes and lock-outs. The
LRA states that an employer is not required to remunerate employees for
services that have not been rendered (during a strike/lock-out).
1. Interdict
3. Dismissal
Interdict
The LC may grant an interdict or order restraining the action
Compensation
The LC may order payment of ‘just and equitable compensation’ for any loss
suffered as a result of the action. It must be proven that there was a loss and
that the loss was caused by the strike/lock-out.
Substantive fairness
Attempts made to comply with the LRA are also take into account and where
employees genuinely believe that the strike is protected, this may mitigate
against dismissal or where the dispute has been formulated incorrectly. The
onus of justifying the non-compliance rests on the striking employees.
Procedural fairness
1) The employer must make contact with the trade union to discuss the
course of action that it proposes to take.
The purpose of this is to enable the union to persuade the employer not to
dismissal the employees, and for the employees o return to work.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 121
Labour Law Notes – Semester 1 2017
If the strikers comply with the ultimatum, the employer cannot take
disciplinary action against them.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 122
Labour Law Notes – Semester 1 2017
PICKETING
What is a picket?
Therefore, for a picket to be peaceful it must comply with the definition set
out in terms of the LRA.
3) It must be
- in support of any protected strike or
- in opposition to any lock-out
The picketers may carry placards, chant slogans, sing and dance. The
picketers may not physically prevent members of the public, including
customers, other employees and service providers from gaining access to or
leaving the employers premises and they may not take any action which is
unlawful.
S69(2): a picket may take place in any place where the public has access but
outside the employer’s premises, or, if the employer consents thereto, on the
employer’s premises. The employer may not unreasonably withhold such
consent.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 123
Labour Law Notes – Semester 1 2017
NB: The Amendment Act adds that the CCMA may grant that the picket may be
held someplace other than that of the employer if that person had an
opportunity to make representations at the Commission before the rules were
established.
The Code sets out certain factors which should be considered when determining
the reasonableness of an employer’s refusal to allow the picket to take place on
the employer’s premises:-
- the nature of the workplace and its situation,
- the number of employees proposed to take part in the picket on the
employer’s premises, and
- the undertaking by the union to exercise control over the picket.
If the CCMA authorises a picket on the employer’s premises, and the employer
refuses the picketers access, the trade union may refer a dispute to the CCMA
for conciliation and if this fails, to the LC for adjudication.
S69 LRA does not regulate rules of conduct in respect of picketing, this must be
agreed upon by the employer and the trade union. If the parties cannot agree,
either party may refer the matter to the CCMA and who will secure an
agreement on the rules for the picket.
• The registered trade union must appoint a convenor, who must be a member
or official of the trade union, to oversee the picket.
• The convener must always have a copy of S69 LRA, the guidelines, any
collective agreement or rules regulating pickets, the resolution, and formal
authorisation of the picket by the trade union.
• The convener must notify the employer, the responsible person appointed in
terms of the Regulation of Gatherings Act, the police and public officials of
the intended picket;
• This notice should contain confirmation that the picket complies with S69 of
the LRA; as well as the name, address and telephone number of the trade
union and the convener; details of the picket, including details of the
employer; the date of commencement of the picket and the location of the
picket.
• On receipt of the notification, the employer must provide the convenor with
the name, address and telephone number of the person appointed by the
employer to represent it in any dealings arising from the picket.
• The registered trade union that has authorised the picket should appoint
marshals to monitor the picket. These marshals should have the telephone
number of the convenor, the trade union officer and any persons appointed
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 124
Labour Law Notes – Semester 1 2017
to oversee the picket in the absence of the convener and they should wear
armbands to identify themselves as marshals.
• The police should not become actively involved in the picket, except to
uphold the law, preserve peace and enforce the law.
If either party breaches the picketing rules, the dispute may be referred for
conciliation, and should this fail, for adjudication by the LC.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 125
Labour Law Notes – Semester 1 2017
PROTEST ACTION
Trade unions play an important role in wider society – they take part in, and
influence, debates and policy decisions that impact on society in general.
One of the aims of the LRA is ‘to advance economic development, social justice,
labour peace and the democratisation of the workplace.
S77 of the LRA regulates protest action, and grants employees the right to
participate in protest action where it is instituted to promote or defend the
socio-economic interests of workers, provided that certain requirements are
met. If the requirements are met, the protest action will be protected and
employees participating in such action will be protected in the same way as
employees engaged in protected strike action.
S213 LRA, protest action is ‘the partial or complete concerted refusal to work,
or the retardation or obstruction of work, for the purpose of promoting or
defending the socio-economic interests of workers, but not for a purpose
referred to in the definition of a strike’.
The types of action which would constitute protest action are the same as in the
case of a strike, however, the significant difference relates to the purpose of the
action.
Protest action is the successor of “stay-aways” which were used when people
wanted to bring about political change.
(b) the registered trade union has served a notice on NEDLAC stating-
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 126
Labour Law Notes – Semester 1 2017
(c) the matter giving rise to the intended protest action has been
considered by NEDLAC or any other appropriate forum in which the
parties concerned are able to participate in order to resolve the matter;
and
(d) at least 14 days before the commencement of the protest action, the
registered trade union has served a notice on NEDLAC of its intention to
proceed with the protest action.”
If the procedural requirements are not complied with, the protest action will not
be protected and the action may be prohibited by interdict, damages may be
claimed from the participating employees and they may be dismissed.
The consequences can apply to employees who participate in the protest action
OR contemplate such action and are therefore in breach of a court order.
Employees may not act n breach or contempt of a court order by the LC.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 127
Labour Law Notes – Semester 1 2017
Disputes of interest
Disputes of rights
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 128
Labour Law Notes – Semester 1 2017
Although much uncertainty exists in the law about this issue, after the
Constitutional Court decision in Chirwa, the following general principles
may identified:
- The SCA has held that employees and employers retain the choice to
rely on contractual rights rather than the rights contained in
legislation, in which case the High Court retains jurisdiction to hear
contractual disputes. In Murray v Minister of Defence the SCA held that
employers now have a general duty of fair dealing with employees.
S77(3) BCEA gives the High Court and the Labour Court concurrent
jurisdiction in all matters arising from a contract of employment – that
this choice (between contract and legislation) remains intact.
With regard the choice between labour legislation and administrative law
– which only applies in case of public servants – there are different views.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 129
Labour Law Notes – Semester 1 2017
17th Century:
During the colonization of the tip of Africa, there was no such thing as
unionism.
1919 saw the first black workers union, Industrial and Commercial
Workers Union. The same year, the ILO was established.
1920 saw vast labour unrest with massive strikes, mostly due to
difference in wages between black and white workers. This lead to the
introduction of the Industrial Conciliation Act which legally recognized
Unions and therefore strikes, lockouts, bargaining councils but STILL
excluded black workers. The Wage Act was also introduced which did
make provision that all wage determinations, regardless of race, be
equal.
In 1926 the South African Trade and Labour Council was formed which
allowed for trade unions for black workers separate from white workers.
This allowed for the replacement of the ICA by Consolidated Industrial
Conciliation Act but still separated the races.
1946 led to Government amending the Act to prevent black workers from
striking due to a major strike that broke out.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.
Critical Law Studies CC © 130
Labour Law Notes – Semester 1 2017
In 19454, the formation of the South African Trade Union Council was
formed, which later became the Trade Union Council of South Africa
(TUCSA) where members came together with the Council of Non-
European Trade Unions in mid-1950 to form a new body called South
African Congress of Trade Unions (SACTU) which were linked to the ANC.
A new ICA came into effect which saw the first legislative freedom of
association, however it still excluded black workers specifically from the
definition of employee.
1960 saw the Sharpeville massacre and many SACTU leaders were
exiled.
1961 The Republic of South Africa was born and a new Constitution
established. It still however, kept black and white people separate in law.
1973 Bantu Labour Relations Act was passed and specifically prevented
the growth of trade unionism. People working in the mining (coal and
gold) industry and government services were specifically excluded from
the Act,
1980 outdoor trade union meetings were only allowed with special
permission from the Minister of Law and Order
1990 Nelson Mandela’s release, along with other prisoners, saw the
lifting of the ban on political organisations. Meetings between the State,
business and labour resulted in the Laboria Minutes, which were
translated into law by the Labour Relations Amendment Act.
1994 the Labour Relations Act was passed after the MoL formed a task
team to review the labour laws. All employees were now governed, for the
first time in history, by one labour system which integrated the
Constitutional rights to join and form trade unions, organizational rights
and the right to strike.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner
or form is strictly prohibited and constitutes a breach of copyright.