Schedule 8 of Labour Relations Act
CODE OF GOOD PRACTICE: DISMISSAL
[Schedule 8 amended by s. 57 of Act No. 42 of 1996 and by s. 56 of Act No. 12 of 2002.]
1. Introduction.—(1) This code of good practice deals with some of the key aspects of dismissal for reasons related to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach.
(2) This Act emphasises the primary of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements or the outcome of joint decision-making by an employer and a work-place forum.
(3) The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of the business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.
2. Fair reasons for dismissal.—(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.
(2) This Act recognises three grounds on which a termination of employment might be legitimate. These are the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.
(3) This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section
187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.
(4) In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
Disciplinary procedures prior to dismissal
3. Disciplinary measures short of dismissal.—(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behavior through a system of graduated disciplinary measures such as counseling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer, and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including the length of service, previous disciplinary record, and personal circumstances), the nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
4. Fair procedure.—(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre- dismissal procedures.
5. Disciplinary records.—Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.
6. Dismissals and industrial action.—(1) Participation in a strike that does not comply with the provisions of chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including—
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act, and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.
7. Guidelines in cases of dismissal for misconduct.—Any person who is determining whether a dismissal for misconduct is unfair should consider—
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; and
(b) if a rule or standard was contravened, whether or not—
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
8. Probation.—(1) (a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees is not consistent with the purpose of probation and constitutes an unfair labor practice.
(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.
(e) During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counseling in order to allow the employee to render a satisfactory service.
( f ) If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.
( j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has—
(a) given the employee appropriate evaluation, instruction, training, guidance or counseling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.
9. Guidelines in cases of dismissal for poor work performance.—Any person determining whether a dismissal for poor work performance is unfair should consider—
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not—
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) the dismissal was an appropriate sanction for not meeting the required performance standard.
10. Incapacity: Ill health and injury.—(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example, alcoholism or drug abuse, counseling and rehabilitation may be appropriate steps for an employer to consider.
(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illnesses. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
11. Guidelines in cases of dismissal arising from ill-health or injury.— Any person determining whether a dismissal arising from ill-health or injury is unfair should consider—
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable—
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee’s work circumstances might be adapted to accommodate a disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
(iii) the availability of any suitable alternative work.
AMENDED CODE OF GOOD PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES IN THE WORKPLACE
Published under General Notice 1357 in GG 27865 of 4 August 2005
1.1 The objective of this code is to eliminate sexual harassment in the workplace.
1.2 This code provides appropriate procedures to deal with sexual harassment and prevent its recurrence.
1.3 This code encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another's integrity and dignity, their privacy, and their right to equity in the workplace.
2 Application of the code
2.1 Although this code applies to the working environment as a guide to employers, employees and applicants for employment, the perpetrators and victims of sexual harassment may include:
2.1.6 job applicants
2.1.10 others having dealings with a business
2.2 Nothing in 2.1 above confers the authority or obligation on employers to take disciplinary action in respect of non-employees.
2.3 A non-employee who is a victim of sexual harassment may lodge a grievance with the employer of the harasser, where the harassment has taken place in the workplace or in the course of the harasser's employment.
2.4 Where the term 'employee' is used in this code, it will be deemed to include applicants for employment.
3 Sexual Harassment as a form of unfair discrimination
Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation.
4 Test for Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
4.2 whether the sexual conduct was unwelcome;
4.3 the nature and extent of the sexual conduct; and
4.4 the impact of sexual conduct on the employee.
5 Factors to establish sexual harassment
5.1 Harassment on a prohibited ground
5.1.1 The grounds of discrimination to establish sexual harassment are sex, gender and sexual orientation.
5.1.2 Same-sex harassment can amount to discrimination on the basis of sex, gender and sexual orientation.
5.2 Unwelcome conduct
5.2.1 There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.
5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.
5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.
5.3 Nature and extent of the conduct
5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct.
220.127.116.11 Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex.
18.104.22.168 Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person's body made in their presence or to them, inappropriate enquiries about a person's sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text.
22.214.171.124 Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.
5.3.2 Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism.
126.96.36.199 Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances.
188.8.131.52 Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances.
5.3.3 A single incident of unwelcome sexual conduct may constitute sexual
5.4 Impact of the conduct
The conduct should constitute an impairment of the employee's dignity, taking into account:
5.4.1 the circumstances of the employee; and
5.4.2 the respective positions of the employee and the perpetrator in the workplace.
6 Guiding principles
Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which complainants of sexual harassment will not feel that their grievances are ignored or trivialized, or fear reprisals. Implementing the following guidelines can assist in achieving these ends:
6.1 Employers/management and employees are required to refrain from committing acts of sexual harassment.
6.2 All employers/management and employees have a role to play in contributing towards creating and maintaining a working environment in which sexual harassment is unacceptable. They should ensure that their standards of conduct do not cause offence and they should discourage unacceptable behaviour on the part of others.
6.3 Employers/management should attempt to ensure that persons such as customers, suppliers, job applicants and others who have dealings with the business are not subjected to sexual harassment by the employer or its employees.
6.4 Employers/management should take appropriate action in accordance with this code where instances of sexual harassment occur in the working environment.
7 Sexual Harassment Policies
7.1 Employers should, subject to any existing collective agreements and applicable statutory provisions in respect of sexual harassment, adopt a sexual harassment policy, which should take cognisance of and be guided by the provisions of this code.
7.2 The contents of sexual harassment policies should be communicated effectively to all employees.
7.3 The adoption of a sexual harassment policy and the communication of the contents of the policy to employees, should, amongst other factors, be taken into consideration in determining whether the employer has discharged its obligations in accordance with the provisions of section 60(2) of the Employment Equity Act (EEA).
7.4 Sexual harassment policies should substantially comply with the provisions of this code and include at least the following statements:
7.4.1 Sexual harassment is a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation which infringes the rights of the complainant and constitutes a barrier to equity in the workplace.
7.4.2 Sexual harassment in the workplace will not be permitted or condoned.
7.4.3 Complainants in sexual harassment matters have the right to follow the procedures in the policy and appropriate action must be taken by the employer.
7.4.4 It will be a disciplinary offence to victimize or retaliate against an employee who in good faith lodges a grievance of sexual harassment.
7.5 The procedures to be followed by a complainant of sexual harassment and by an employer when sexual harassment has occurred, should be outlined in the policy.
Employers should develop clear procedures to deal with sexual harassment. These procedures should enable the resolution of problems in a sensitive, efficient and effective way.
8.1 Reporting sexual harassment
8.1.1 Section 60(1) of the EEA provides that conduct in contravention of the EEA must immediately be brought to the attention of the employer.
8.1.2 In instances of sexual harassment, the word 'immediately' shall mean, as soon as is reasonably possible in the circumstances and without undue delay, taking into account the nature of sexual harassment, including that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace.
8.1.3 Sexual harassment may be brought to the attention of the employer by the complainant or any other person aware of the sexual harassment, for example a friend, colleague or human resources official acting on the request of the complainant, where the complainant has indicated that she/he wishes the employer to be made aware of the conduct. However, where the sexual harassment is of a particularly serious nature, the complainant should be encouraged to inform the employer.
8.2 Obligations of the employer
When sexual harassment has been brought to the attention of the employer, the employer should:
8.2.1 consult all relevant parties;
8.2.2 take the necessary steps to address the complaint in accordance with this code and the employer's policy; and
8.2.3 take the necessary steps to eliminate the sexual harassment.
8.3 The steps to be taken by the employer on receipt of a complaint by a complainant, should include but not be limited to the following:
8.3.1 advising the complainant of the informal and formal procedures available to deal with the sexual harassment, as set out in items 8.5, 8.6 and 8.7 of this code;
8.3.2 where reasonably practicable, offering the complainant advice, assistance and counselling as set out in item 8.4 of this code, including during any disciplinary enquiry that may be instituted; and
8.3.3 following the procedures required by items 8.5, 8.6 and 8.7 of this code, in a manner that is procedurally and substantively fair.
8.4 Advice and assistance
8.4.1 A complainant of sexual harassment may require advice and assistance, including counselling.
8.4.2 As far as is practicable, employers should designate a person outside of line management who complainants may approach for confidential advice and/or counselling. Such person:
184.108.40.206 could be a person employed by the employer to perform such a function, a trade union representative, a co-employee or a professional engaged to perform such activity;
220.127.116.11 should have the appropriate skills and experience, including counselling and labour relations skills; and
18.104.22.168 should be properly trained and given adequate resources.
8.5 Advising the complainant of workplace procedures to deal with sexual harassment
8.5.1 When an incident of sexual harassment is brought to the attention of an employer, such employer should:
22.214.171.124 advise the complainant that there are formal and informal procedures which could be followed to deal with the problem;
126.96.36.199 explain the formal and informal procedures to the complainant;
188.8.131.52 advise the complainant that she/he may choose which procedure should be followed by the employer, except that in certain limited circumstances, as set out in clause 8.7.2, the employer may choose to follow a formal procedure even if the complainant does not wish to do so;
184.108.40.206 re-assure the complainant that she/he will not face job loss or any adverse consequences if she/he chooses to follow either the formal or informal procedure;
220.127.116.11 advise the complainant that the matter will be dealt with confidentially if the complainant so chooses.
8.6 Informal procedures
8.6.1 A complainant of sexual harassment may choose to follow either of the following informal procedures:
18.104.22.168 the complainant or another appropriate person explains to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work; or
22.214.171.124 an appropriate person approaches the perpetrator, without revealing the identity of the complainant, and explains to the perpetrator that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable, and interfere with their work.
8.6.2 An employer should consider any further steps, which can be taken to assist in dealing with the complaint.
8.7 Formal procedure
8.7.1 A complainant may choose to follow a formal procedure, either with or without first following an informal procedure.
8.7.2 In the event that a complainant chooses not to follow a formal procedure, the employer should still assess the risk to other persons in the workplace where formal steps have not been taken against the perpetrator. In assessing such risk the employer must take into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment. If it appears to the employer after a proper investigation that there is a significant risk of harm to other persons in the workplace, the employer may follow a formal procedure, irrespective of the wishes of the complainant, and advise the complainant accordingly.
8.7.3 The employer's sexual harassment policy and/or collective agreement should outline the following in respect of a formal procedure:
126.96.36.199 with whom the employee should lodge a grievance;
188.8.131.52 the internal grievance procedures to be followed, including provision for the complainant's desired outcome of the procedures;
184.108.40.206 time frames which will allow the grievance to be dealt with
220.127.116.11 that should the matter not be satisfactorily resolved by the internal
procedures outlined above, a complainant of sexual harassment may refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). Similarly an alleged perpetrator of sexual harassment may refer a dispute arising from disciplinary action taken by the employer to the CCMA; and
18.104.22.168 that it will be a disciplinary offence to victimize or retaliate against a complainant who in good faith lodges a grievance of sexual harassment.
8.8 Disciplinary sanctions
The employer's sexual harassment policy should specify the range of disciplinary sanctions that may be imposed on a perpetrator. The sanctions must be proportionate to the seriousness of the sexual harassment in question, and should provide that:
8.8.1 warnings may be issued for minor instances of sexual harassment;
8.8.2 dismissal may ensue for continued minor instances of sexual harassment after warnings, as well as for serious instances of sexual harassment;
8.8.3 in appropriate circumstances upon being found guilty of sexual harassment, a perpetrator may be transferred to another position in the workplace.
9.1 Employers and employees must ensure that grievances about sexual harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential.
9.2 In cases of sexual harassment, management, employees and the parties concerned must endeavour to ensure confidentiality in the disciplinary inquiry. Only appropriate members of management as well as the aggrieved person, representatives, alleged perpetrator, witnesses and interpreter if required should be present in the disciplinary inquiry.
9.3 Employers are required to disclose to the complainant, the perpetrator and/or their representatives, such information as may be reasonably necessary to enable the parties to prepare for any proceedings in terms of this code.
10 Additional sick leave
10.1 Where an employee's existing sick leave entitlement has been exhausted, the employer should give due consideration to the granting of additional paid sick leave in cases of serious sexual harassment, where the employee, on medical advice, requires trauma counselling.
10.2 In appropriate circumstances, employers may give consideration to assisting with the cost of the medical advice and trauma counselling, where such amounts are not covered by any applicable medical aid scheme.
11 Information and education
11.1 Where feasible, the Department of Labour should endeavour to ensure that copies of this code are accessible and available in the official languages.
11.2 Employers and, where applicable, employer organizations should include the issue of sexual harassment in their orientation, education and training programs.
11.3 Trade unions should include the issue of sexual harassment in their education and training programs for shop stewards and employees.
11.4 CCMA commissioners should receive specialized training to deal with sexual harassment cases.
(1) This Act defines a dismissal based on the operational requirements of an employer as one that is based on the economic, technological, structural or similar needs of the employer. It is difficult to define all the circumstances that might legitimately form the basis of a dismissal for this reason. As a general rule, economic reasons are those that relate to the financial management of the enterprise. Technological reasons refer to the introduction of new technology which affects work relationships either by making existing jobs redundant or byrequiring employees to adapt to the new technology or a consequential restructuring of the workplace. Structural reasons relate to the redundancy of posts consequent to a restructuring of the employer’s enterprise.
(2) Dismissals for operational requirements have been categorised as "no fault"dismissals. In other words, it is not the employee who is responsible for the termination of employment. Because retrenchment is a "no fault" dismissal and because of its human cost, this Act places particular obligations on an employer, most of which are directed toward ensuring that all possible alternatives todismissal are explored and that the employees to be dismissed are treated fairly.
(3) The obligations placed on an employer are both procedural and substantive. The purpose of consultation is to permit the parties, in the form of a joint problem-solving exercise, to strive for consensus if that is possible. The matters on which consultation is necessary are listed in s189(2). This section requires the parties attempt to reach consensus on, amongst other things, appropriate measures to avoid dismissals. In order for this to be effective, the consultation process must commence as soon as a reduction of the workforce, through retrenchments or redundancies, is contemplated by the employer so that possible alternatives can be explored. The employer should in all good faith keep an open mind throughout and seriously consider proposals put forward.
(4) This Act also provides for the disclosure of information by the employer on matters relevant to the consultation. Although the matters over which information for the purposes of consultation is required are specified in s189(3), the list in that section is not a closed one. If considerations other than those that are listed are relevant to the proposed dismissal or the development of alternative proposals, they should be disclosed to the consulting party. In the event of a disagreement about what information is to be disclosed any party may refer the dispute to the CCMA in terms of section 16(6) of this Act.
(5) The period over which consultation should extend is not defined in this Act. The circumstances surrounding the consultation process are relevant to a determination of a reasonable period. Proper consultation will include:
- the opportunity to meet and report back to employees;
- the opportunity to meet with the employer; and
- the request, receipt and consideration of information.
(6) The more urgent the need by the business to respond to the factors giving rise to any contemplated termination of employment, the more truncated the consultation process might be. Urgency may not, however, be induced by the failure to commence the consultation process as soon as a reduction of the workforce was likely. On the other hand the parties who are entitled to be consulted must meet, as soon, and as frequently as, may be reasonably practicable during the consultation process.
(7) If one or more employees are to be selected for dismissal from a number of employees, this Act requires that the criteria for their selection must be either agreed with the consulting party or if no criteria have been agreed be fair and objective criteria.
(8) Criteria that infringe a fundamental right protected by this Act when they are applied, can never be fair. These include selection on the basis of union membership or activity, pregnancy, or some other unfair discriminatory ground. Criteria that are on the face of it neutral should be carefully examined to ensure that when they are applied, they do not have a discriminatory effect. For example, to select only part-time workers for retrenchment might discriminate against women, since women are predominantly employed in part-time work.
(9) Selection criteria that are generally accepted to be fair include length of service, skills and qualifications. Generally the test for fair and objective criteria will be satisfied by the use of the "last in first out" (LIFO) principle. There may be instances where the LIFO principle or other criteria needs to be adapted. The LIFO principle for example should not operate so as to undermine an agreed affirmative action programme. Exceptions may also include the retention of employees based on criteria mentioned above which are fundamental to the successful operation of the business. These exceptions should however be treated with caution.
(10) Employees dismissed for reasons based on the employer’s operational requirements are entitled to severance pay of at least one week’s remuneration for each completed year of continuous service with the employer unless the employer is exempted from the provisions of section 196. This minimum requirement does not relieve an employer from attempting to reach consensus on severance pay during the period of consultation. The right of the trade union, through collective bargaining, to seek an improvement on the statutory minimum severance pay is not limited or reduced in any way.
(11) If an employee either accepted or unreasonably refused to accept an offer of alternative employment, the employees statutory right to severance pay is forfeited. Reasonableness is determined by a consideration of the reasonableness of the offer of alternative employment and the reasonableness of the employee’s refusal. In the first case, objective factors such as remuneration, status and job security are relevant. In the second case, the employee’s personal circumstances play a greater role.
(12)(1) Employees dismissed for reasons based on the employers’ operational requirements should be given preference if the employer again hires employees with comparable qualifications, subject to -
- the employee, after having been asked by the employer, and having expressed within a reasonable time from the date of dismissal a desire to be re-hired; and
- a time limit on preferential rehiring. The time limit must be reasonable and must be subject of consultation.
(2) If the above conditions are met, the employer must take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment.