Explain the difference between the concepts of “substantive” and “procedural” fairness with
reference to dismissals.
• In order for a dismissal to be fair and lawful, such dismissal must be both substantively and
procedurally fair.
• Substantive fairness deals with the REASONS for the dismissal. In order for a dismissal to be
fair, there must be valid reasons for such conduct by an employer (eg. theft or fraud).
• The reason for the dismissal must not be classified as unfair, or automatically unfair (eg.
dismissal based on pregnancy).
• Procedural fairness, on the other hand, deals with the formal PROCEDURES prescribed by the
law which are to be followed by an employer before dismissing an employee.
• Dismissals should be effected in a procedurally fair manner, for example, following the
disciplinary procedure of a company, allowing the employee to call witnesses, etc.
Lebo works as a web-designer at Incredible Connectors, a company that designs websites for its
clients. Incredible Connectors wants to dismiss Lebo because one of their clients was dissatisfied
with her work on a particular project.
Explain the procedure which Incredible Connectors must follow before dismissing Lebo, whose work
was indeed sub-standard.
(10)
The procedure which Incredible Connectors must follow is as follows:
• The employer must investigate the reasons for the unsatisfactory performance;
• The employer must give the employee appropriate evaluation, instruction, training,
guidance or counselling;
• The employer must give the employee a reasonable period of time to improve;
• If the employee continues to perform unsatisfactorily, he or she can be dismissed for poor
work performance; and
• During this process of dismissal the employee has the right to be heard and to be assisted by
a union representative or a co-employee.
Explain the difference between “employment equity” and “affirmative action”.
• Employment equity relates to the steps that an employer must take to promote equal
opportunity and fair treatment in the workplace, by eliminating unfair discrimination in any
employment policy or practice. The EEA prohibits both direct and indirect unfair
discrimination on any one or more of the specified or unspecified grounds.
• Affirmative action refers to the measures that have to be taken by designated employers to
ensure that suitably qualified people from the designated groups have equal employment
opportunities and are equitably represented in all occupational categories and levels in the
workplace.
, Differentiate between direct and indirect discrimination. (6)
• Direct discrimination is the easiest form of discrimination to determine. It occurs if someone
is clearly treated differently because of a certain characteristic, for example, race or gender.
• Examples of direct discrimination are an employee being paid less simply because she is
female, or an employee not being promoted simply because he is disabled, or of a different
religion than the employer, etc.
• Indirect discrimination occurs when criteria that appears to be neutral, negatively affects a
certain group disproportionately, for example, women or Hindu people. Such discrimination,
in contrast with direct discrimination, is often disguised and hard to detect.
• An example of indirect discrimination would be a requirement that candidates must have a
deep bass voice. In such instance, more women than men will qualify. Unless this criterion can
be justified by the requirements of the job, it will amount to indirect discrimination.
Explain the interaction between a contract of employment, collective agreement and the Basic
conditions of Employment Act, 1997 (6) 1
The contract of employment
• Forms the basis of the relationship between the employer and employee and, consequently,
the principles of the law of contract apply to the relationship.
• The contract of employment outlines the agreement between the employer and employee
and specifies the terms and conditions in respect thereof.
The Basic Conditions of Employment Act, 1997
• Regulates the minimum terms and conditions of employment, which the contract of
employment must comply with.
• These terms and conditions should thus be contained in a contract of employment, except
where any other law provides a term more favorable to an employee; the contract of
employment provides a more favorable term to the employee; or the basic condition has been
replaced, varied or excluded in terms of the Act.
A collective agreement
• Between trade unions and employers may change conditions of work, provided that such
collective agreement is consistent with the purposes of the Act.
• It may replace or exclude a basic condition of employment only to the extent permitted by
the Basic Conditions of Employment Act or a sectorial determination.
reference to dismissals.
• In order for a dismissal to be fair and lawful, such dismissal must be both substantively and
procedurally fair.
• Substantive fairness deals with the REASONS for the dismissal. In order for a dismissal to be
fair, there must be valid reasons for such conduct by an employer (eg. theft or fraud).
• The reason for the dismissal must not be classified as unfair, or automatically unfair (eg.
dismissal based on pregnancy).
• Procedural fairness, on the other hand, deals with the formal PROCEDURES prescribed by the
law which are to be followed by an employer before dismissing an employee.
• Dismissals should be effected in a procedurally fair manner, for example, following the
disciplinary procedure of a company, allowing the employee to call witnesses, etc.
Lebo works as a web-designer at Incredible Connectors, a company that designs websites for its
clients. Incredible Connectors wants to dismiss Lebo because one of their clients was dissatisfied
with her work on a particular project.
Explain the procedure which Incredible Connectors must follow before dismissing Lebo, whose work
was indeed sub-standard.
(10)
The procedure which Incredible Connectors must follow is as follows:
• The employer must investigate the reasons for the unsatisfactory performance;
• The employer must give the employee appropriate evaluation, instruction, training,
guidance or counselling;
• The employer must give the employee a reasonable period of time to improve;
• If the employee continues to perform unsatisfactorily, he or she can be dismissed for poor
work performance; and
• During this process of dismissal the employee has the right to be heard and to be assisted by
a union representative or a co-employee.
Explain the difference between “employment equity” and “affirmative action”.
• Employment equity relates to the steps that an employer must take to promote equal
opportunity and fair treatment in the workplace, by eliminating unfair discrimination in any
employment policy or practice. The EEA prohibits both direct and indirect unfair
discrimination on any one or more of the specified or unspecified grounds.
• Affirmative action refers to the measures that have to be taken by designated employers to
ensure that suitably qualified people from the designated groups have equal employment
opportunities and are equitably represented in all occupational categories and levels in the
workplace.
, Differentiate between direct and indirect discrimination. (6)
• Direct discrimination is the easiest form of discrimination to determine. It occurs if someone
is clearly treated differently because of a certain characteristic, for example, race or gender.
• Examples of direct discrimination are an employee being paid less simply because she is
female, or an employee not being promoted simply because he is disabled, or of a different
religion than the employer, etc.
• Indirect discrimination occurs when criteria that appears to be neutral, negatively affects a
certain group disproportionately, for example, women or Hindu people. Such discrimination,
in contrast with direct discrimination, is often disguised and hard to detect.
• An example of indirect discrimination would be a requirement that candidates must have a
deep bass voice. In such instance, more women than men will qualify. Unless this criterion can
be justified by the requirements of the job, it will amount to indirect discrimination.
Explain the interaction between a contract of employment, collective agreement and the Basic
conditions of Employment Act, 1997 (6) 1
The contract of employment
• Forms the basis of the relationship between the employer and employee and, consequently,
the principles of the law of contract apply to the relationship.
• The contract of employment outlines the agreement between the employer and employee
and specifies the terms and conditions in respect thereof.
The Basic Conditions of Employment Act, 1997
• Regulates the minimum terms and conditions of employment, which the contract of
employment must comply with.
• These terms and conditions should thus be contained in a contract of employment, except
where any other law provides a term more favorable to an employee; the contract of
employment provides a more favorable term to the employee; or the basic condition has been
replaced, varied or excluded in terms of the Act.
A collective agreement
• Between trade unions and employers may change conditions of work, provided that such
collective agreement is consistent with the purposes of the Act.
• It may replace or exclude a basic condition of employment only to the extent permitted by
the Basic Conditions of Employment Act or a sectorial determination.
