LRA’S Dispute Resolution Processes

One of the most important functions of a bargaining council is the resolution of disputes between an employer and an employee. But what happens if the employer and the employee also agree, in the contract of employment, that any dispute that arises between them will be referred to private arbitration? Would this mean that the bargaining council would no longer have jurisdiction to arbitrate a dispute such as an unfair dismissal dispute? In one case, a bargaining council arbitrator concluded that such a contractual provision effectively excluded the bargaining council’s jurisdiction. Not so, said the Labour Court: that clause would be invalid because the employer and the employee cannot opt out of the collective agreement.

For any further Labour Law related queries, please contact Bernard on:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

REFUSING TO SIGN A WARNING

Employees must sign for all kinds of things they must sign, for instance, that they received a warning or sign that they have received the Notice of a disciplinary enquiry. But what happens if an employee refuses to do so? The solution, in most cases, is simple: simply have a witness sign that the warning was given to the employee, but that the employee refused to sign.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

For the most part, we don’t think of suspension as being problematic especially when the suspension is used in a preventative way before the employee is heard in the disciplinary enquiry. After all, what could the problem be given that the employee is on full pay, yet does not have to work. This paid-for vacation may last for many months or, in some cases, even years. But the Labour Court has again emphasised the fact that there are negative consequences of a suspension: a suspension is like an arrest and it may affect an employee’s reputation, possibilities of advancement, job security and fulfillment. There is another issue, of course, namely whether it is possible for a suspended employee to return to a post after suspension lasting for a couple of months. Would the resumption of the workplace relationships be smooth sailing?

For further information on any labour related matters, you can contact
Bernard Reisner:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

The Disciplinary Enquiry – The Chairperson

The chairperson carries considerable responsibilities in respect of the disciplinary enquiry: in essence, he or she is responsible for seeing that the pre-dismissal procedures are followed and that the employee is given a fair opportunity to respond to the allegations made by the employer. Not only this, but the chairperson must also keep control of the process and importantly, keep his or her cool. Off-the-cuff remarks or comments may well come back to haunt the chairperson and the employer and, in some cases, what the chairperson says may create a reasonable impression of bias and the misconduct dismissal may be procedurally unfair as a result.

For further information on any labour related matters, you can contact
Bernard Reisner:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

What Happens when Shop Steward Becomes a Manager

What happens if a shop steward is promoted to a managerial rank? May the employer demand that the employee give up his or her position as a shop steward? We don’t often think of a manager also being a shop steward it would mean that the employee has divided loyalties and may find himself or herself in a tough conflict of interests.

A recent decision of the Labour Court confirmed, however, that the employee’s right to freedom of association is an “absolute right” the employer may not insist that the employee give up his or her position as a shop steward before being promoted to a manager. But the fact that a manager is also a shop steward will not excuse misconduct or poor work performance if that employee gets stuck in the middle of a conflict of interest between the union and the employer.

For further information on any labour related matters or when the the shop steward becomes a manager, you can contact

Bernard Reisner:

W.Tel no.: 021 423 3959

Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Firstly, it is necessary to understand that there is no statutory requirement to pay bonuses of any sort, and any such payments that are made are not regulated by labour legislation. Generally, if the bonus is guaranteed such as into being a guaranteed payment stipulated in the employment contract then the employer is not left with much choice he must pay. However, where the payment of the bonus is dependent on certain criteria being met such as the employee’s hours of work, or the employee’s performance or to the performance of the company, or the branch, or the department in which the employee is employed, the employer is under no obligation to bonus unless those criteria are complied with.

In other instances, a bonus is paid which bears no relation to the employees hours of work, but is related solely to the overall performance of the company or the branch.
These bonuses are usually referred to as “a 13th cheque,” but it is usually stipulated that this is payable entirely at management discretion, and it specifically stated that it is not guaranteed. Whether or not the bonus is paid is dependent either on the terms and conditions of the individual Contract of Employment, or it may be dependent on Company Policy, or it maybe dependent on certain targets being reached in terms of production or sales, or it may be dependent upon Company performance in terms of gross profits or any other criteria stipulated by the employer.

It may also be a bonus that is paid simply because of established practice or “custom and practice” as it is sometimes termed. Because of the consistent “established practice” or “custom and practice”, the bonus payment becomes a term or condition of employment. Whatever the case, employers should note that where a bonus is contractual condition embodied in the employee’s contract of employment, or a contractual condition embodied in a Company Policy, or where the payment of the bonus has become a condition of employment through established practice, then the bonus must be paid.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

About Incompatibility at Work

Incompatibility is a form of incapacity it lies in the fact that the employee is capable of maintaining harmonious working relationships with his or her colleagues. The fact that incompatibility at work is seen as a form of incapacity means that the substantive and procedural requirements for an incapacity dismissal, as set out in Schedule 8 of the Labour Relations Act (the Code of Good Practice: Dismissal) would apply.

For further information on Incompatibility at Work or any labour related matters, you can contact:

Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

For more articles on Incompatibility at and Other Labour Matters please visit our website at www.capelabour.co.za

About Transfers and Dismissals

The 2002 amendments to the Labour Relations Act introduced a new form of automatically unfair dismissal if the reason for the dismissal is a transfer from one employer to another, or if the reason for the dismissal relates to the transfer. The question arose as to when section 197 of the LRA comes into play. Section 197 is triggered only once the new employer takes control of the business.

For further information on Transfers and Dismissals or any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za