Service Managers Understanding Labour Law & its Application TANTO

Transcription

1 Service Managers Understanding Labour Law & its Application TANTO

2 This module will give you a high level overview into this very complex Act with the view of understanding and applying it in your workplace. The Labour Relations Act The Labour Relations Act

3 Introduction to the Module on Labour Law Introduction It s important working in South Africa to know your labour legislation as well as the application of the labour law in the workplace. This module will assist you to understand why the Act was introduced, to whom it applies as well as the complexities and the important labour requirements in the Act.

4 Introduction to the Module on Labour Law In this module, the following topics will be covered with the view of ensuring you understand the requirements of the labour law: The Labour Relations Act. The Grievance Procedure. Disciplinary Procedures. Dismissal. Employment Contracts. Introduction

5 Session One The Labour Relations Act. The Grievance Procedure. Disciplinary Procedures. Dismissal. Employment Contracts. The Labour Relations Act

6 Session One The Labour Relations Act The Labour Relations Act In session one on the Labour Relations Act (LRA), we discuss: The building blocks of the Labour Relations Act No 66 of 1995, and The importance of the Act, its objectives and interpretation.

7 The Labour Relations Act Introduction The Labour Relations Act The Labour Relations Act (LRA), Act 66 of 1995 aims to promote economic development, social justice, labour peace and democracy in the workplace.

8 The Labour Relations Act Application of the Act The Labour Relations Act The Labour Relations Act applies to all employers, workers, trade unions and employers organisation s, but does not apply to members of the: National Defense Force. National Intelligence Agency, or South African Secret Service.

9 The Labour Relations Act The Purpose of the LRA a) To give effect to and regulate the fundamental rights conferred by section 27 of the Constitution, which entrenches the following rights: The Labour Relations Act Every person shall have the right to fair labour practice. Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers organisations.

10 The Labour Relations Act The Purpose of the LRA Continued The Labour Relations Act Workers and employers shall have the right to organise and bargain collectively. Workers shall have the right to strike for the purpose of collective bargaining. Employer s recourse to the lockout for the purpose of collective bargaining shall not be impaired.

11 The Labour Relations Act The Purpose of the LRA The Labour Relations Act b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. c) To provide a framework within which employees and their trade unions, employers and employers organisations can: Collectively bargain to determine wages, terms and conditions of employment, and other matters of mutual interest. Formulate industrial policy.

12 The Labour Relations Act What does the LRA mean for Employees? The Labour Relations Act The Act benefits employees by giving them the right to: Join trade unions and participate in their activities. Strike for the purpose of collective bargaining. Picket in support of a protected strike or against any lockout. Be consulted by employers on various proposals if there is a workplace forum, for example job grading, plant closures and new technology. Joint decision making on various proposals if there is a workplace forum (such as disciplinary codes). Information on matters that affect employees at work. Fair dismissals. Protection against victimisation for exercising any rights in terms of the Act.

13 The Labour Relations Act What does the LRA mean for Employers? Employers benefit by the following: The Labour Relations Act The right to join employers organisations and to participate in their activities. The right to lockout employees. Less production time lost (through a decrease in labour unrest). The possibility of successful restructuring of the workplace through information sharing and consultation. The joint solution of problems, training and development. Quick, inexpensive and non legalistic procedures for the adjudication of dismissal cases.

14 The Labour Relations Act The Building Blocks The Labour Relations Act Finnemore and Van Rensburg (2002) have designed a model indicating the various building blocks of the Act. The important building blocks pertaining to the areas that impact you, will be discussed in the next pages.

15 The Labour Relations Act Rights and Obligations of Employees, Unions, Employers and their Organisations Freedom of Association The Act recognises every employee s right to participate in the formation, joining or to be elected as a representative of a trade union. In the same way the employers right to participate in formation, join or to be elected as a representative of an employers organisation is recognised. The Labour Relations Act Please note: The protection of freedom of association has been extended to cover persons who are not yet employees. This implies that an employer cannot refuse a person seeking employment on the grounds of their union membership.

16 The Labour Relations Act Rights and Obligations of Employees, Unions, Employers and their Organisations The Labour Relations Act Organisational Rights These rights apply to registered trade unions only and include access to the workplace, deduction of trade union subscriptions, rights to elect representatives, rights to exercise their duties and rights to disclosure of information.

17 The Labour Relations Act Rights and Obligations of Employees, Unions, Employers and their Organisation s The Labour Relations Act Unfair Dismissal The following dismissal categories are included in the Act: Automatic unfair dismissal. Dismissal based on the employee s behaviour. Dismissal based on operational requirements. Dismissal based on the suitability or capability of the employee.

18 The Labour Relations Act Rights and Obligations of Employees, Unions, Employers and their Organisation s The Labour Relations Act Unfair Labour Practice An unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving: The unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee. The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee. The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.

19 The Labour Relations Act Rights and Obligations of Employees, Unions, Employers and their Organisation s The Labour Relations Act Strikes and Lockouts The Act differentiates between: Protected strikes Unprotected strikes Illegal strikes. A strike or lockout is protected if the action is not absolutely prohibited and the prescribed requirements (procedural) are met.

20 The Labour Relations Act The Promotion of Collective Bargaining and Worker Participation The Labour Relations Act Collective Agreements A collective agreement means a written agreement concerning terms, conditions of employment or any other matter of mutual interest concluded by one or more registered trade union and one or more employer and/or employer organisations.

21 The Labour Relations Act The Promotion of Collective Bargaining and Worker Participation The Labour Relations Act Bargaining Councils Councils can consist of parties drawn from the private and public sectors. Councils will be responsible for settling most disputes in their industry. One or more registered trade unions and one or more registered employer organisations may establish a bargaining council for a sector or area by adopting a Constitution for a council.

22 The Labour Relations Act The Promotion of Collective Bargaining and Worker Participation The Labour Relations Act Statutory Councils In areas where bargaining councils don t exist, the Act makes provision for statutory councils. The council is established at a meeting chaired by the CCMA. The powers and functions of the statutory council are: To perform dispute resolution functions. To promote and establish training and education schemes. To establish and administer, among other things, pension, provident, medical aid and unemployment funds. To conclude collective agreements on the above.

23 The Labour Relations Act The Promotion of Collective Bargaining and Worker Participation The Labour Relations Act Workplace Forums The aim of these forums is the promotion of the interests of all workers as well as efficiency in the workplace. For these forums to be successful, employees and employers should jointly aim to change their attitudes. There are two ways in which workplace forums can provide this shift: Consultation. Joint decision-making.

24 The Labour Relations Act Dispute Resolution and Labour Peace The Labour Relations Act Commission for Conciliation, Mediation and Arbitration (CCMA) The main functions of the CCMA, which can be seen as the most important dispute resolution body, are: To attempt to resolve workplace disputes by conciliation and arbitration. To assist in the establishment of workplace forums and statutory councils. To publish information and statistics about its activities. The CCMA may give advice and assistance to partners in a dispute. The CCMA may conduct elections and ballots.

25 The Labour Relations Act Dispute Settling Mechanisms of the CCMA Conciliation 1. On receiving a dispute, the commissioner must attempt to resolve the dispute via conciliation within 30 days. 2. The commissioner determines the process. 3. In conciliation, a party to the dispute may appear in person or be represented by a director, employee or member of that trade union. 4. When conciliation has failed, or at the end of the 30 day period: The Labour Relations Act a) The commissioner must issue a certificate stating whether the dispute has been resolved. b) A copy of that certificate must be served on each party to the dispute. c) Original certificate must be filed with the commission.

26 The Labour Relations Act Dispute settling mechanisms of the CCMA The Labour Relations Act Arbitration 1. If the conciliation process does not succeed, arbitration follows and is led by the same commissioner. 2. The relevant commissioner determines the arbitration process with emphasis on the speedy and fair settlement of the dispute. 3. A party may appear in person or be represented only by a legal practitioner, co-worker or member or office bearer of the trade union. 4. Within 14 days of the conclusion of the proceedings, an arbitration award, with brief reasons, should be issued by the commissioner. 5. The arbitration award is final and binding and no appeal is possible unless gross irregularities have taken place.

27 The Labour Relations Act Labour Court The labour court consists of a Judge President, a Deputy Judge President and as many judges as the President may consider necessary. The judges are appointed on the advice of NEDLAC and the Judicial Service President of the labour court. The powers of the labour court include, amongst others: The Grievance Procedure Making of orders (granting urgent interim relief, granting interdicts, granting orders directing the performance of any particular Act which, when implemented, will remedy a wrong and give effect to the primary objectives of the Act, and declaratory orders). Determining disputes between a member of a trade union and the trade union about alleged non compliance with the constitution of that trade union.

28 The Labour Relations Act We have touched on the sections that will impact you in the workplace, however more information on the LRA is available at various bookstores. Conclusion

29 Session Two The Labour Relations Act. The Grievance Procedure rocedure. Disciplinary Procedures. Dismissal. Employment Contracts. The Grievance Procedure

30 The Grievance Procedure During Session Two, we will discuss: The grievance procedure and the steps to follow.

31 Session Two The Grievance Procedure The Grievance Procedure Introduction Regardless of how clearly and objectively a contract is written, disputes will generally arise during their enforcement. Rarely does any agreement run its term completely devoid of any dispute. For this reason, most contracts contain a process to solve conflicts. This is known as the grievance procedure.

32 The Grievance Procedure Definition of a Grievance The Grievance Procedure A grievance is a formal complaint by an employee concerning a possible violation of the labour contract. A grievance is not a gripe, which is generally defined as a complaint by an employee concerning an action by management that does not violate the contract.

33 The Grievance Procedure Procedural Steps The Grievance Procedure It is very important that you follow the correct procedures when handling a grievance. The success of the outcome will depend on your ability to be procedural correct. The procedure for handling grievances varies from agreement to agreement, but most involve four steps.

34 The Grievance Procedure Step One In the initial step, the employee discusses the grievance with the shop steward. The shop steward screens complaints and often persuades employees to drop those that are insignificant, but encourages an employee to pursue a legitimate grievance. The shop steward investigates the grievance to provide documented facts on the case. The pertinent facts are written on a grievance form. The grievance is delivered to the supervisor, and a meeting of the three parties is held. All the parties make an attempt to settle the matter at that point. If the grievance cannot be resolved there, the employee and union may appeal the decision to step two of the process. The Grievance Procedure

35 The Grievance Procedure Step Two The Grievance Procedure The format for this step is basically the same as for step one; the difference is that more senior union and company officials are involved in this step. The union representative may be the shop steward or business agent, and the management representative is often the superintendent or supervisor s manager. If the employee is not satisfied with management s decision, they may appeal to the next step.

36 The Grievance Procedure Step Three At this step the employee is often represented by a union grievance committee. The manager and labour relations director often represents management. Management hears the employee s case and arguments, and then issues its ruling on the matter. If the employee is still unsatisfied with the results, they may appeal to a fourth and final step: arbitration. The Grievance Procedure

37 The Grievance Procedure Step Four The negotiated procedure in which the parties agree to submit an unresolved dispute to a neutral third party for binding settlement is arbitration. During the arbitration process, the arbitrator studies the evidence, listens to the arguments, on both sides, and renders a decision. The arbitrator s decision, an award to one of the sides, is binding in that it must be accepted by both sides and cannot be appealed further. Each arbitration case is unique, and arbitrators can and do vary in their approach to cases. The Grievance Procedure

38 The Grievance Procedure Disciplining and Dismissing Staff In the event of an employee not performing effectively or behaving inappropriately, the manager may need to either discipline or dismiss the individual. Many managers believe that this task is impossible and that once you have employed staff, it is impossible to discipline or fire them. Although the Labour Relations Act certainly makes it more difficult to dismiss an individual, if you follow the correct process and ensure the dismissal/disciplinary is for valid reasons, it can be done. The Grievance Procedure

39 Session Three The Labour Relations Act. The Grievance Procedure. Disciplinary Procedures. Dismissal. Employment Contracts. Disciplinary Procedures

40 Disciplinary Procedures Disciplinary Procedures Understand how to legally discipline employees and the reasons and grounds on which this can be legally and fairly done.

41 Disciplinary Procedures Introduction The code specifically provides that formal procedures do not have to be invoked every time a rule is broken or a standard is not met, and advises that informal advice and correction are the best and most effective ways for an employer to deal with minor violations of workplace discipline. The circumstances of the offence should be properly investigated before a warning is issued, and that the employee should, at the very least, be given an adequate opportunity to make representations either on the facts or in mitigation. Disciplinary Procedures

42 Disciplinary Procedures Introduction Disciplinary Procedures Discipline is one of the least enjoyable, but one of the most critical aspects of labour relations. It is essential for effective service delivery to have a disciplined workforce. Equally important for service delivery is the ability to effectively deal with incapacity and ill-health problems in the work situation.

43 Disciplinary Procedures Disciplinary Code and Procedure Disciplinary Procedures It is important in the workplace to determine a set of rules which will regulate the relationship between the employees and the employer in the form of a disciplinary procedure. The disciplinary code is regarded as a guideline and its interpretation must be adequately flexible in order to adjust to various circumstances.

44 Disciplinary Procedures Disciplinary Code and Procedure Continued Disciplinary Procedures The objectives of a disciplinary code are: To regulate discipline in the workplace with the key principle that the employer and the employees should treat each other with mutual respect. Employment justice and the efficient operation of the business. The employer is entitled to satisfactory conduct and work performance from its employees, even when protected from arbitrary action.

45 Disciplinary Procedures Disciplinary Code and Procedure Continued Disciplinary Procedures The principles of the disciplinary code are: The company has the right and a responsibility to manage its business and direct its employees in doing so. The company reserves the right to implement rules or to establish standards of performance and behaviour and the measurement thereof. Disciplinary action taken by the company will at all times conform to the code of good practice of the Labour Relations Act.

46 Disciplinary Procedures Disciplinary Code and Procedure Continued Disciplinary Procedures The principles of the disciplinary code are: An employee has the right to be represented by a shop steward/fellow employee at any stage of a disciplinary procedure. In the first instance the purpose of disciplinary action is to correct behaviour rather than to terminate services. No incident or offence can be considered in isolation and the total impact of the offence in a disciplinary action shall be considered.

47 Disciplinary Procedures Key Points in Disciplining Disciplinary Procedures In applying discipline you must always keep the following rules in mind: The principles of the code of good practice (noted on previous page). Discipline should be applied immediately once you become aware of the infraction. Never discipline in anger. Do not dismiss an employee before a disciplinary enquiry has been held and unless all options have been explored. Ensure you have gathered all the facts before deciding to institute disciplinary action. Follow the correct procedure and make sure that a proper reason exists for taking the disciplinary action.

48 Disciplinary Procedures What Disciplinary Action to take for Transgressions Disciplinary Procedures Before instituting disciplinary action, you must be convinced that a transgression took place. You will become aware of a transgression in one of the following ways: 1) By yourself (seeing, hearing, etc). 2) Through an allegation of misconduct by somebody else.

49 Disciplinary Procedures Options for Dealing with Transgressions Disciplinary Procedures In terms of the code, the following options are available to deal with the alleged transgression: Counselling the employee. Utilising a system of warnings. Holding a disciplinary enquiry.

50 Disciplinary Procedures Deciding on an Option Disciplinary Procedures In deciding which option to use, you are advised to: 1) Investigate the allegations of misconduct. 2) Assess the seriousness of the alleged misconduct by considering: The actual or potential impact of the alleged misconduct on the work of the public service, the employee s component and colleagues, and the public. The nature of the employee s work and responsibilities. The circumstances in which the alleged misconduct took place.

51 Disciplinary Procedures Progressive Disciplinary Action Disciplinary Procedures Progressive discipline is a formal process which includes several steps or levels of discipline, each of which provides the employee with an opportunity to correct their performance. The actions you can follow after careful consideration of the facts are: Corrective counselling. Verbal warning. Written warning. Final written warning. Disciplinary hearing. We give a short overview of each of the actions as a guideline.

52 Disciplinary Procedures Corrective Counselling Disciplinary Procedures If you decide to counsel an employee you can take the following steps: Invite the employee to your office and inform them what the meeting is about. Ensure absolute privacy. Draw the employee s attention to the alleged misconduct. Ask the employee to explain his or her conduct. Ask the employee to suggest ways for correcting the behaviour. Offer your suggestions and reach consensus on how to deal with the inappropriate conduct. Agree on each party s role and a return date for the assessment of progress.

53 Disciplinary Procedures Corrective Counselling Disciplinary Procedures If you decide to counsel an employee you can take the following steps: Invite the employee to your office and inform them what the meeting is about. Keep notes from the meeting and especially the agreement reached on addressing the employee s conduct. On the return date, check on the progress made and whether or not the employee co-operated. If the employee did not cooperate as agreed, then you should consider further disciplinary steps like warnings.

54 Disciplinary Procedures Warnings Disciplinary Procedures You should consider utilising warnings if you are of the opinion that the transgression: Requires more serious action than mere counselling. BUT Is less serious than a transgression for which you want to set up a disciplinary enquiry.

55 Disciplinary Procedures Warnings Disciplinary Procedures Should you decide to issue a warning, the steps with regard a counselling session applies. The difference is your decision to issue a warning. The validity of warnings: Verbal warning : three months Written warning : six months Final written warning : six months Warning should be placed in the employees file and removed after the expiry period.

56 Disciplinary Procedures Disciplinary Enquiry Disciplinary Procedures To determine when to opt for a disciplinary enquiry, the following questions should be asked. Is the transgression of such a serious nature that counselling or the issuing of a warning will not suffice? Does the transgression constitute a material breach of the employment relationship? Has the employee repeated a transgression or committed a related transgression during the validity of a warning, especially a final written warning? Could dismissal be an appropriate sanction?

57 Disciplinary Procedures Disciplinary Enquiry Disciplinary Procedures Once a decision has been made that a disciplinary enquiry is to be held, the following steps must be taken: Appoint a representative of the employer who should, as far as possible, be the manager of the employee. Conduct a thorough investigation into the allegation. Ensure that there is enough evidence to sustain the allegation before giving notice to the employee of the disciplinary hearing. Appoint a chairperson to conduct the hearing (to be an employee of a higher level than the representative of the employer). Inform the employee of the disciplinary hearing at least five working days before it is to take place Hold the hearing within ten working days of having notified the employee of the pending disciplinary procedure.

58 Disciplinary Procedures Decision and Sanction Disciplinary Procedures At the conclusion of the hearing, the chairperson will make a finding of guilty or not guilty. If the employee is found guilty, the chairperson may pronounce any of the following sanctions: Counselling. A written warning. A final written warning. Suspension without pay, for no longer than three months. Demotion. A combination of the above. Dismissal.

59 Disciplinary Procedures Appeal Disciplinary Procedures Employees must appeal within five working days of receiving notice of the final outcome of the hearing from the chairperson. The appeal will normally be considered on documents only, although there could be a re-hearing if there was gross procedural irregularity. The appeal authority may decide to: o Uphold the appeal. o Reduce the sanction. o Confirm the outcome of the disciplinary proceeding. The decision of the appeal authority shall be implemented. The employee still has a right to declare a dispute if he/she is not satisfied with the outcome of the appeal process disputes are to be dealt with through the dispute resolution mechanisms of the relevant sectorial bargaining council or CCMA.

60 Session Four The Labour Relations Act. The Grievance Procedure. Disciplinary Procedures. Dismissal. Employment Contracts. Dismissal

61 Dismissals Dismissal We will discuss how to legally dismiss employees and the reasons and grounds on which this can be fairly done.

62 Dismissal Introduction Dismissal These days, with an increasing number of cases being reported to the CCMA, dismissing staff has become a nerve wracking activity. In order to make sure that there are no repercussions when firing a staff member, it is critical that each time you dismiss a staff member it is deemed fair. In order to ensure fairness, you need to follow the correct systems and procedures every time.

63 Dismissal Code of Good Practise Key Principle Dismissal The key principle of the Code of Good Practice in dismissals is that the employer and the employee should treat each other with mutual respect. A premium is placed on both employment justice and the efficient operation of business.

64 Dismissal Reasons Why you can Dismiss Dismissal Section 188 (1) LRA 66 stipulates that a dismissal is unfair if you fail to prove two things. 1) You dismissed for a fair reason which is based on: The employee s conduct, capacity or performance OR The employer s operational requirements. 2) You dismissed according to a fair procedure. Thus for a dismissal to be fair, it must, besides being legal, also be substantively and procedurally fair.

65 Dismissal Unfair Dismissal According to the Act, a dismissal is automatically unfair if the reason is: That the employee participated in a protected strike. That the employee refused to do any work normally done by an employee who at the time was taking part in a protected strike. That the employee took action, or indicated an intention to take action against the employer by exercising any right conferred by the Act. The employee s pregnancy or any reason related to her pregnancy. That the employer unfairly discriminated against an employee. Dismissal

66 Dismissal Automatically Fair Dismissal Despite the reasons named above, the LRA specifically provides that a dismissal is automatically fair when: Dismissal The reason for dismissal is based on an inherent requirement of a particular job. The employee has reached the normal or agreed retirement age for people required in that capacity.

67 Dismissal Reasons why you can Dismiss You can dismiss for the following reasons: Dismissal Misconduct. Employee capability. Operational requirements..

68 Dismissal Reasons why you can Dismiss Misconduct Examples: Dismissal Gross dishonesty. Wilful damage to the property of the employer. Wilfully endangering the safety of others. Physical assault on the employer, a fellow employee, client or customer. Gross insubordination.

69 Dismissal Reasons why you can Dismiss Capability Examples: Dismissal Skills or aptitude (poor performance). Health or other physical or mental ability (ill health or injury).

70 Dismissal Reasons why you can Dismiss Dismissal Operational Requirements: Where the employee is unable to consistently perform at the expected level. When a trend of poor performance has developed (not as the result of a once-off poor performance). NOTE: The code should first and foremost be utilised to improve the poor performance of an employee, not to rid the department of the employee.

71 Session Five The Labour Relations Act. The Grievance Procedure. Disciplinary Procedures. Dismissal. Employment Contracts. Dismissal

72 Understand how to set up and apply the contract of employment. Employment Contracts

73 Employment Contracts Fixed Term Employment Contracts Definition Employment Contracts A contract that has been entered into for a specific period or for the duration of a particular project. In normal circumstances, when a contract automatically lapses, there will be no repercussions as this is a natural termination of an employment contract.

74 Employment Contracts Fixed Term Employment Contracts Employment Contracts The Labour Relations Act has included a clause (Sec 186(1) (b) of the LRA) to ensure that fixed term contracts are not used to abuse the employment relationship. It therefore stipulates that if the employee reasonably expects you to renew the contract, but you do not, this will be categorised as dismissal. It is therefore critical that you manage the employee s expectations carefully during the period of the contract, especially when this contract has previously been renewed.

75 Employment Contracts Dismissing in the Probation Period Employment Contracts During the probationary period it is critical that the individual be given reasonable evaluation, instruction, training, guidance or counselling to allow the individual to perform effectively. If a decision is made that the employee s performance is not up to the standard required, you need to ensure that you advise the employee of the areas in which they are failing to meet the standards you require them of them.

76 Employment Contracts Dismissing in the Probation Period Employment Contracts You can only decide to dismiss an employee or extend the probationary period after you have given the employee an opportunity to make a representation about why you should not dismiss them or extend the probationary period. Do not believe that an employee on probation has fewer rights than any other employee. You cannot dismiss the probationary employee without following the disciplinary discussed earlier.

77 Employment Contracts The Individual Contract of Employment Employment Contracts The parties to the employment contract are free to regulate their respective rights and duties in the contract in any manner they please, subject to the requirements of the law and good morals. Some contracts are very detailed and others are extremely skimpy. The contracts also vary dependant on the company or group you represent. The contract should cover the basic details outlined on the next page.

78 Employment Contracts The Contract should Cater for the Following: Employment Contracts The specific job. Remuneration. Duration. Fringe benefits. Leave. Standard conditions. Employer protection. Adjudication.

79 The Module on Labour Law Conclusion In this module, we have covered the following topics. Conclusion The labour relations Act. The grievance procedure. Disciplinary procedures. Dismissal. Employment contracts. The LRA plays a major part in the day to day running of your business. A study of the LRA is thus an important part of managing your business!

80 End Thank you for your participation in Understanding the Labour Law