ABR 311
ee-employee, er-employer
Revision
Basic Conditions of Employment Act (BCEA)- minimum conditions of employment for unorganised & vulnerable
workers. E.g. leave, working hours, notice periods.
Includes: all er, ee; domestic workers; gardeners; farm workers
Excluded if earning above the threshold= R241 110, 59
Collective bargaining- negotiation process between an employer and a group of employees or a labour union that
represents them
Dispute of right- what an ee is entitled to earning
Dispute of interest- what an ee wants (increase in salary)
Commission for Conciliation, Mediation and Arbitration (CCMA)
Conciliation- settling a dispute by friendly means
Mediation- person between 2/more disputing parties
Arbitration – process of resolving disputes outside the courts by using an arbitrator
Employment Equity Act (EEA)- Promote equal opportunities, fair treatment and eliminate unfair discrimination
Equality- everyone is equal before the law
Direct discrimination s9(3)- specific category of persons
Indirect discrimination s9(4)- particular category of persons
1994= new democratic order
Fixed term contracts- if longer than 3 months> worker becomes indefinite worker and entitled to same T’s & C’s
of work as other workers
Workplace forums- 100 or more ee in workplace required. Er consults ee on workplace issues: policy,
restructuring, education + training.
The Labour Court has the same status as a high court. The Labour Court adjudicates matters relating to labour
disputes. Appeals are made to the Labour Appeal Court.
©Megan Meiring
, Dismissals
Ee’s right to not be unfairly dismissed: section 185 LRA of 1994 (before 1995 er can just “fire” ee)
2 legs for fair dismissal: (1 proven to be unfair dismissal)
1. Substantive (good reason)
2. Procedural
Dismissal definition:
Employment terminated with/without notice
Fixed term contract - Ee had reasonable expectation i) renew on same terms or ii) Renew on less
favourable terms (to retain services on indefinite basis, but Er refused to allow Ee to resume work)
Er refused to employ Ee after maternity
Er dismissed employees for the same reason, but selective re-employment of some employees
Constructive dismissal - Er made continuous work intolerable
Er terminated contract after business transferred as going concern
3 valid dismissals: misconduct, poor work performance/ incapacity, ee operational requirements of the er-
retrenchment
Resignation- terminates employment (not dismissal); ee offered to resign, can’t withdraw, needs er’s consent
Hot-heated resignations: difficult to establish if ee resigned or was dismissed. E.g. “You might as well fire me”;
Words in the heat of the moment where courts say er should be slow to accept such resignation and call for a
cooling off
Constructive dismissal (DC)
o Termination by ee, with or without notice, that made continued employment intolerable
o Actions on the part of er which drive ee to leave (resignation or not)
o Er confronts ee with a choice ‘either you resign or I shall summarily dismissal you’ – er made employment
intolerable = onus to prove by ee
o Ee is then forced to accept voluntary retrenchment
o But case law indicates that ee is expected to try & resolve grievances prior to resigning, they must be
patient to await the outcome of er
o Objective test (sappi case)- ee would have continued but for intolerable/ unbearable circumstances
Sappi Kraft v Majake 1998 ILJ 1240 (Labour Court)
1. The test whether the employer has rendered an employee’s work intolerable is an objective one. The
employee has to prove that there was no alternative but to resign.
2. A person’s over sensitivity or misinterpretation of the employer’s action cannot be considered.
3. An allegation of constructive dismissal cannot be used as a means of escaping a disciplinary enquiry.
4. Two–stage approach:
Although the employee resigns or leaves employment, the onus of proving that the employer’s
conduct made employment intolerable rests with the employee;
The onus then shifts to the employer to prove that such dismissal was not unfair.
©Megan Meiring
ee-employee, er-employer
Revision
Basic Conditions of Employment Act (BCEA)- minimum conditions of employment for unorganised & vulnerable
workers. E.g. leave, working hours, notice periods.
Includes: all er, ee; domestic workers; gardeners; farm workers
Excluded if earning above the threshold= R241 110, 59
Collective bargaining- negotiation process between an employer and a group of employees or a labour union that
represents them
Dispute of right- what an ee is entitled to earning
Dispute of interest- what an ee wants (increase in salary)
Commission for Conciliation, Mediation and Arbitration (CCMA)
Conciliation- settling a dispute by friendly means
Mediation- person between 2/more disputing parties
Arbitration – process of resolving disputes outside the courts by using an arbitrator
Employment Equity Act (EEA)- Promote equal opportunities, fair treatment and eliminate unfair discrimination
Equality- everyone is equal before the law
Direct discrimination s9(3)- specific category of persons
Indirect discrimination s9(4)- particular category of persons
1994= new democratic order
Fixed term contracts- if longer than 3 months> worker becomes indefinite worker and entitled to same T’s & C’s
of work as other workers
Workplace forums- 100 or more ee in workplace required. Er consults ee on workplace issues: policy,
restructuring, education + training.
The Labour Court has the same status as a high court. The Labour Court adjudicates matters relating to labour
disputes. Appeals are made to the Labour Appeal Court.
©Megan Meiring
, Dismissals
Ee’s right to not be unfairly dismissed: section 185 LRA of 1994 (before 1995 er can just “fire” ee)
2 legs for fair dismissal: (1 proven to be unfair dismissal)
1. Substantive (good reason)
2. Procedural
Dismissal definition:
Employment terminated with/without notice
Fixed term contract - Ee had reasonable expectation i) renew on same terms or ii) Renew on less
favourable terms (to retain services on indefinite basis, but Er refused to allow Ee to resume work)
Er refused to employ Ee after maternity
Er dismissed employees for the same reason, but selective re-employment of some employees
Constructive dismissal - Er made continuous work intolerable
Er terminated contract after business transferred as going concern
3 valid dismissals: misconduct, poor work performance/ incapacity, ee operational requirements of the er-
retrenchment
Resignation- terminates employment (not dismissal); ee offered to resign, can’t withdraw, needs er’s consent
Hot-heated resignations: difficult to establish if ee resigned or was dismissed. E.g. “You might as well fire me”;
Words in the heat of the moment where courts say er should be slow to accept such resignation and call for a
cooling off
Constructive dismissal (DC)
o Termination by ee, with or without notice, that made continued employment intolerable
o Actions on the part of er which drive ee to leave (resignation or not)
o Er confronts ee with a choice ‘either you resign or I shall summarily dismissal you’ – er made employment
intolerable = onus to prove by ee
o Ee is then forced to accept voluntary retrenchment
o But case law indicates that ee is expected to try & resolve grievances prior to resigning, they must be
patient to await the outcome of er
o Objective test (sappi case)- ee would have continued but for intolerable/ unbearable circumstances
Sappi Kraft v Majake 1998 ILJ 1240 (Labour Court)
1. The test whether the employer has rendered an employee’s work intolerable is an objective one. The
employee has to prove that there was no alternative but to resign.
2. A person’s over sensitivity or misinterpretation of the employer’s action cannot be considered.
3. An allegation of constructive dismissal cannot be used as a means of escaping a disciplinary enquiry.
4. Two–stage approach:
Although the employee resigns or leaves employment, the onus of proving that the employer’s
conduct made employment intolerable rests with the employee;
The onus then shifts to the employer to prove that such dismissal was not unfair.
©Megan Meiring
