Dismissals within the context of collective bargaining
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
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- Date Issued: 2009
The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
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- Date Issued: 2009
The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons
- Authors: James, Ncumisa Portia
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10226 , http://hdl.handle.net/10948/1034 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Description: Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
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- Date Issued: 2009
The remedies for unfair dismissal
- Authors: Cokile, Siyabonga
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10227 , http://hdl.handle.net/10948/1033 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
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- Date Issued: 2009