| 1. |
Unfair
Dismissals |
|
1.1 |
Every
employee has the right not to be unfairly dismissed. |
|
1.2 |
Dismissal
means an employer has terminated a contract of
employment with or without notice, or |
|
1.3 |
an
employee reasonably expected the employer to renew a
fixed term of contract of employment on the same or
similar terms and the employer offered to renew it on
less favourable terms or did not renew it, or |
|
1.4 |
an
employer refused to allow an employee to resume work
after maternity leave or was absent from work for up to
four weeks before the expected date and up to eight
weeks after the actual date of the birth of the child,
or |
|
1.5 |
an
employer would dismiss a number of employees for the
same or similar reasons and has offered to re-employ one
more of them but has refused to re-employ another, or |
|
1.6 |
an
employee terminated a contract of employment with or
without notice because the employer made continued
employment intolerable for the employee. |
| 2. |
Automatically
Unfair Dismissal |
|
Is
one which is based on arbitrary grounds such as race,
gender, sex, religion, sexual orientation, age, employee‘s
pregnancy, or participation in lawful strikes or protest
action. |
| 3. |
Other
Unfair Dismissals |
|
3.1 |
If
it is not automatically unfair it can still be unfair if
the employer fails to prove :- |
|
|
3.1.1 |
that the
reason for dismissal is fair relating to employee’s
conduct or capacity or based on his operational
requirements ; and |
|
|
3.1.2 |
that the
dismissal was effected in accordance with a fair
procedure. |
|
3.2 |
There
are thus certain rules and procedures to be followed
before anyone can be dismissed fairly. Furthermore, in
any dispute the employer bears the onus of proving that
the dismissal was fair. |
|
3.3 |
Schedule
H of the LRA has a code of good practice (dismissal) and
deals with some of the key aspects of dismissals for
reasons related to conduct and capacity. This code of
good practice is intentionally general, but gives every
person who employs people a very good guideline of what
his rights and obligations in this regard are. |
| 4. |
Transfer
Of Contract Of Employment
(Section 197 LRA) |
|
4.1 |
This is
an important change and is particularly relevant in the
purchase of new businesses, mergers or acquisitions.
This section regulates the transfer of a contract of
employment , without the employee’s consent if the
business is transferred as a going concern. |
|
4.2 |
If the
whole or any part of a business is transferred by the
old employer as a going concern, then "unless
otherwise agreed, all the rights and obligations between
the old employer and each employee at the time of the
transfer continue in force as if they were rights and
obligations between the new employer and each employee,
and anything done before the transfer by or in relation
to the old employer will be considered to have been done
by or in relation to the new employer". |
|
4.3 |
The
wording of the section is unfortunately, ambigiously
drafted. The Courts would have to determine where a
business is transferred as a going concern, whether the
transfer of a contract of employment is automatic (which
is the writer’s opinion). |
| 5. |
Strikes
And Protest Action (Sections 64 – 77) |
|
5.1 |
Every
employee has the right to strike if :- |
|
|
5.1.1 |
the issue in
dispute has been referred to a Council or the CCMA, and |
|
|
5.1.2 |
a
certificate stating that the dispute remains unresolved
has been issued or a period of thirty days has elapsed
since the referral to the Council or to the CCMA, and at
least forty eight hours notice of the commencement of
the strike, in writing, has been given to the employer
unless the issue in dispute relates to a collective
agreement which prohibits a strike or the employees are
bound by an agreement that requires the issue in dispute
to be referred to arbitration, or the issue in dispute
is one that a party to the dispute has the right to
refer to arbitration or the Labour Court in terms of the
LRA, or |
|
|
5.1.3 |
the
employees are not engaged in an essential service or a
maintenance service. |
| 6. |
Secondary
Strikes |
|
Provision
is made for secondary strikes which is a strike or
conduct in contemplation or furtherance of a strike that
is in support of a strike by other employees against the
employer (but does not include a strike in pursuit of a
demand that has been referred to a Council if the
striking employees, employed within the scope of that
Council, have a material interest in that demand). |
| 7. |
Lockouts |
|
7.1 |
Every
employer has the recourse to lock out if : |
|
|
7.1.1 |
the issue in
dispute has been referred to a Council or to the
Commissioner and a certificate stating that the dispute
remains unresolved has been issued, or a period of
thirty days has elapsed since the referral was received
by the Council or the Commissioner, and after that at
least forty eight hours notice of the commencement of
the lockout, in writing, has been given to any Trade
Union that is party to the dispute or if there is no
such Trade Union, to the employees, unless the issue in
dispute relates to a collective agreement to be
concluded in a Council, in which case notice must be be
given to that Council. |
