LLW2601 EXAM PACK QUESTION AND SOLUTIONS PAPER .

LLW2601 EXAM PACK QUESTION AND SOLUTIONS PAPER . INDIVIDUA LABOUR May/June 2011 QUESTION 1A 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 (e.g. theft or fraud). • The reason for the dismissal must not be classified as unfair, or automatically unfair (e.g. 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. QUESTION 1B 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. Page 33 email: Tel : 9 Cell : 3 GR TUTORIALS • 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. QUESTION 1C 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 favourable to an employee; the contract of employment provides a more favourable 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. Page 34 email: Tel : 9 Cell : 3 GR TUTORIALS QUESTION 1D Explain the meaning of “consultation” in the context of dismissal on the basis of operational requirements. (4) • Consultation in terms of Section 189(2) of the Labour Relations Act means “to attempt to reach consensus”. • Consultation must take place when the employer contemplates dismissal; in other words, at the stage when the employer has not reached a final decision to dismiss, but has merely foreseen the possibility. • In National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1993) 14 ILJ 642 (LAC) the Labour Appeal Court interpreted this to mean “at the earliest opportunity”. • The employer must first consult with the person or group indicated in a collective agreement. In the absence of a collective agreement, a workplace forum must be consulted (if there is such forum). • Alternatively, the employer must consult with any registered trade union whose members are likely to be affected by the proposed dismissals. If there is no such union, the employer must consult the employees (or their nominated representatives) likely to be affected by the proposed dismissals QUESTION 1E Discuss the procedural requirements for a dismissal based on poor work performance of an employee who is on probation. (10) • For the purposes of poor work performance, the Labour Relations Act distinguishes between employees on probation and employees who have completed their probationary period. • Since one of the purposes of probation is to determine whether an employee can perform the job to which he/she has been appointed, the LRA still requires the employer to act fairly Page 35 email: Tel : 9 Cell : 3 GR TUTORIALS towards a probationary employee. • In order to do this, The Code: Dismissal, however, compels an employer to give the employee on probation the following assistance before he/she can be dismissed for poor work performance: - Evaluation, instruction, training, guidance or counselling needed to perform his/her duties during this period. - The employer must make clear to the employee what the performance standard is, and where he/she falls short. - The employer must give the employee assistance and an opportunity to improve. - The employer should measure the progress of the employee and give feedback. • The required assistance and the period of probation will be determined by the nature of the job. • If an employee is dismissed during the probationary period, the employee should have an opportunity to respond to the allegations, and he/she may also be assisted by a union representative or fellow-employee.