QUESTION 1
1.1. Fully discuss the basis on which the employer could potentially dismiss
Gabi under these circumstances? (6)
Incapacity
If an employee has an alcohol problem, this usually affects his work performance, his
ability to do his work and his work relationships. An alcohol problem is classified as a
‘sickness’ in South Africa because it affects behaviour and performance. So, an instance
where an employee is drunk because he is an alcoholic has to be treated as a case of
incapacity.
Incapacity can manifest as poor work performance ,the employee does not have the
ability to do the job, or be due to ill health or injury. A dismissal based on incapacity is a
“no fault” dismissal because it involves some form of behaviour or conduct, or inability,
which is neither intentional nor negligent.
Therefore, Gabi’s dismissal can be on the grounds of incapacity.This is evidenced by the
phrase which reads “When the employer enquires from Gabi why she drank on duty, she
told them that she is an alcoholic and her therapist also confirms this”
.
1.2. Would it have made a difference to your answer in 1.1 above if Gabi
responded that the reason for coming drunk to work was because she was
feeling in a festive mood? Provide a reason for your answer . (2)
Yes, that will be misconduct. Being drunk at work constitutes misconduct and an
employee can be dismissed. However, a company alcohol policy must be in place and
communicated to all employees. It must regulate the consumption of alcohol on and off
the company premises. In the case of dismissal for misconduct the employee is at fault,
by breaking a workplace rule. Rules are usually contained in disciplinary codes that are
included in the contract of employment. These rules inform employees of the standard of
conduct required from them.
,1.3. Explain the dispute resolution process should Gabi wish to challenge this
type of dismissal. (6)
Gabi must, within 30 days from date of dismissal, refer the dispute for conciliation to
bargaining council/CCMA. Then CCMA will inform both parties as to the date, time and
venue of the first hearing.
Usually the first meeting is called conciliation. Only the parties, trade union or employers'
organisation representatives (if a party to the dispute is a member) and the CCMA
commissioner will attend. The purpose of the hearing is to reach an agreement
acceptable to both parties. Legal representation is not allowed. If it is successful and the
matter is resolved. Then all will be fine and it will end there.
If no agreement is reached, the commissioner will issue a certificate to that effect.
Depending on the nature of the dispute, the case may be referred to the CCMA for
arbitration or the Labour Court as the next step. Arbitration should be applied for within
three months from the date on which the commissioner issued the certificate.
The commissioner will make a final and binding decision, called an arbitration award,
within 14 days.
In addition, it can be noted that the review by Labour Court is possible in certain
circumstances.
1.4. Discuss Gabi’s chances of success should she challenge the fairness of the
dismissal. (6)
If an employee is an alcoholic and his employer dismisses him, the employee could take
the employer to the CCMA and the employer could end up paying a hefty compensation.
In South Africa, alcoholism is classified as a disease, and nobody can be dismissed
because of an illness. That implies that an employer cannot fire an employee if he is an
alcoholic or an addict. The employer has to handle addicts like sick and disabled people,
and treatment should be part of the employer’s strategy. When in actual fact Gabi was
dismissed for illness.
,Also, an employer is legally obliged to take four steps when dealing with an employee
that is drunk at work, which are missing in the case study.
Having made the above discussion, it can be inferred that Gabi’s chances of wining are
high because she/he was dismissed on ill health without taking the necessary steps
2.1. Name the basis on which the employer could potentially dismiss the five
employees under these circumstances.
Operational grounds
2.2. List the four broad categories of an employer’s needs relating to the basis for
dismissal in 2.1 above. (4)
Economic needs;
Technological needs;
Structural needs; or
Similar needs
2.3. Fully evaluate the employees’ chance of success with a claim for unfair
dismissal under these circumstances. (13)
The following essay will base its argument on the fact that, employees will succeed with
the claim for unfair dismissal because the procedural fairness prescribed by section 189
of the LRA was not really followed by the employer.
First, there has to be prior consultation. Consultation must take place when the employer
contemplates dismissal; in other words, at the stage when the employer has not yet
reached a final decision to dismiss, but has merely foreseen the possibility. In terms of
section 189(2) consultation means to “attempt to reach consensus”. However, in the case
study, prior consultations were not done rather the employer just bought machines and
instantly decided to dismiss.
Also, there must also be an attempt to reach consensus There are six matters on which
the parties must try to reach agreement / consensus namely: appropriate measures to
, avoid dismissals; appropriate measures to minimize the number of dismissals;
appropriate measures to change the timing of the dismissals; appropriate measures to
mitigate the adverse effects of the dismissals; the selection criteria; and severance pay.
However, in the case study, the employer made it clear that he already had a inal decision.
Furthermore, the employer did not grant opportunity to respond as his decision was
already final. Should the employer not allow the union or employee representative or
workplace forum or any other relevant party to make representations during consultation,
the dismissal will be procedurally unfair.
Furthermore, consideration was also not sought. The employer must respond to the
representations and give reasons if and why they are not acceptable. In this case study
,this is not evident.
Last but not least, The payment of severance pay is regulated by section 41 of the BCEA.
The employer must pay the employee a minimum of one week’s salary for each
completed year of continuous service. However, the employer’s duty to pay severance
pay is not absolute. If an employee unreasonably refuses to accept the employer’s offer
of alternative employment with that employer or another employer, the employee forfeits
his or her entitlement to severance pay. But in the case study, the employer chose to pay
a minimum of one week’s salary for every two years of continuous service which is in
contrast with the BCEA
Therefore, employee’s chances of winning are high.
2.4. Describe the time limit within which the dismissed employees must challenge
the unfairness of this type of dismissal.
Employees may also challenge the procedural fairness of the dismissal. Such a claim
must be brought within 30 days after the employer gave notice of its intention to terminate
the employment contracts
QUESTION 3
3.1. List the categories of workers that are excluded from protection in terms of the
LRA. (2)
1.1. Fully discuss the basis on which the employer could potentially dismiss
Gabi under these circumstances? (6)
Incapacity
If an employee has an alcohol problem, this usually affects his work performance, his
ability to do his work and his work relationships. An alcohol problem is classified as a
‘sickness’ in South Africa because it affects behaviour and performance. So, an instance
where an employee is drunk because he is an alcoholic has to be treated as a case of
incapacity.
Incapacity can manifest as poor work performance ,the employee does not have the
ability to do the job, or be due to ill health or injury. A dismissal based on incapacity is a
“no fault” dismissal because it involves some form of behaviour or conduct, or inability,
which is neither intentional nor negligent.
Therefore, Gabi’s dismissal can be on the grounds of incapacity.This is evidenced by the
phrase which reads “When the employer enquires from Gabi why she drank on duty, she
told them that she is an alcoholic and her therapist also confirms this”
.
1.2. Would it have made a difference to your answer in 1.1 above if Gabi
responded that the reason for coming drunk to work was because she was
feeling in a festive mood? Provide a reason for your answer . (2)
Yes, that will be misconduct. Being drunk at work constitutes misconduct and an
employee can be dismissed. However, a company alcohol policy must be in place and
communicated to all employees. It must regulate the consumption of alcohol on and off
the company premises. In the case of dismissal for misconduct the employee is at fault,
by breaking a workplace rule. Rules are usually contained in disciplinary codes that are
included in the contract of employment. These rules inform employees of the standard of
conduct required from them.
,1.3. Explain the dispute resolution process should Gabi wish to challenge this
type of dismissal. (6)
Gabi must, within 30 days from date of dismissal, refer the dispute for conciliation to
bargaining council/CCMA. Then CCMA will inform both parties as to the date, time and
venue of the first hearing.
Usually the first meeting is called conciliation. Only the parties, trade union or employers'
organisation representatives (if a party to the dispute is a member) and the CCMA
commissioner will attend. The purpose of the hearing is to reach an agreement
acceptable to both parties. Legal representation is not allowed. If it is successful and the
matter is resolved. Then all will be fine and it will end there.
If no agreement is reached, the commissioner will issue a certificate to that effect.
Depending on the nature of the dispute, the case may be referred to the CCMA for
arbitration or the Labour Court as the next step. Arbitration should be applied for within
three months from the date on which the commissioner issued the certificate.
The commissioner will make a final and binding decision, called an arbitration award,
within 14 days.
In addition, it can be noted that the review by Labour Court is possible in certain
circumstances.
1.4. Discuss Gabi’s chances of success should she challenge the fairness of the
dismissal. (6)
If an employee is an alcoholic and his employer dismisses him, the employee could take
the employer to the CCMA and the employer could end up paying a hefty compensation.
In South Africa, alcoholism is classified as a disease, and nobody can be dismissed
because of an illness. That implies that an employer cannot fire an employee if he is an
alcoholic or an addict. The employer has to handle addicts like sick and disabled people,
and treatment should be part of the employer’s strategy. When in actual fact Gabi was
dismissed for illness.
,Also, an employer is legally obliged to take four steps when dealing with an employee
that is drunk at work, which are missing in the case study.
Having made the above discussion, it can be inferred that Gabi’s chances of wining are
high because she/he was dismissed on ill health without taking the necessary steps
2.1. Name the basis on which the employer could potentially dismiss the five
employees under these circumstances.
Operational grounds
2.2. List the four broad categories of an employer’s needs relating to the basis for
dismissal in 2.1 above. (4)
Economic needs;
Technological needs;
Structural needs; or
Similar needs
2.3. Fully evaluate the employees’ chance of success with a claim for unfair
dismissal under these circumstances. (13)
The following essay will base its argument on the fact that, employees will succeed with
the claim for unfair dismissal because the procedural fairness prescribed by section 189
of the LRA was not really followed by the employer.
First, there has to be prior consultation. Consultation must take place when the employer
contemplates dismissal; in other words, at the stage when the employer has not yet
reached a final decision to dismiss, but has merely foreseen the possibility. In terms of
section 189(2) consultation means to “attempt to reach consensus”. However, in the case
study, prior consultations were not done rather the employer just bought machines and
instantly decided to dismiss.
Also, there must also be an attempt to reach consensus There are six matters on which
the parties must try to reach agreement / consensus namely: appropriate measures to
, avoid dismissals; appropriate measures to minimize the number of dismissals;
appropriate measures to change the timing of the dismissals; appropriate measures to
mitigate the adverse effects of the dismissals; the selection criteria; and severance pay.
However, in the case study, the employer made it clear that he already had a inal decision.
Furthermore, the employer did not grant opportunity to respond as his decision was
already final. Should the employer not allow the union or employee representative or
workplace forum or any other relevant party to make representations during consultation,
the dismissal will be procedurally unfair.
Furthermore, consideration was also not sought. The employer must respond to the
representations and give reasons if and why they are not acceptable. In this case study
,this is not evident.
Last but not least, The payment of severance pay is regulated by section 41 of the BCEA.
The employer must pay the employee a minimum of one week’s salary for each
completed year of continuous service. However, the employer’s duty to pay severance
pay is not absolute. If an employee unreasonably refuses to accept the employer’s offer
of alternative employment with that employer or another employer, the employee forfeits
his or her entitlement to severance pay. But in the case study, the employer chose to pay
a minimum of one week’s salary for every two years of continuous service which is in
contrast with the BCEA
Therefore, employee’s chances of winning are high.
2.4. Describe the time limit within which the dismissed employees must challenge
the unfairness of this type of dismissal.
Employees may also challenge the procedural fairness of the dismissal. Such a claim
must be brought within 30 days after the employer gave notice of its intention to terminate
the employment contracts
QUESTION 3
3.1. List the categories of workers that are excluded from protection in terms of the
LRA. (2)
