Labour Law 101: Your internal labour law/HR function

[Citizen X]

Exercise 2
Study the following and answer the questions that follow:

BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

(English text signed by the President)

[Assented To: 26 November 1997]

[Commencement Date: 1 December 1998 – unless otherwise indicated]

[Proc. R26 / GG 18731 / 19980313]

[Proc. 112 / GG 19453 / 19981113]

as amended by:

Government Notice R195 / GG 20933 / 25-02-2000

Basic Conditions of Employment Amendment Act 11 of 2002

Intelligence Services Act 65 of 2002

Electronic Communications Security (Pty) Ltd Act 68 of 2002

General Intelligence Laws Amendment Act 52 of 2003

Skills Development Amendment Act 37 of 2008

[with effect from 6 April 2009 – Proc. R409 / 32105 / 20090406]

General Intelligence Laws Amendment Act 11 of 2013

[with effect from 29 July 2013]

ACT

To give effect to the right to fair labour practices referred to in section 23(1) of the

Constitution by establishing and making provision for the regulation of basic conditions of

employment; and thereby to comply with the obligations of the Republic as a member state of

the International Labour Organisation; and to provide for matters connected therewith.

1. Definitions
In this Act, unless the context indicates otherwise -
“agreement” includes a collective agreement;
“area” includes any number of areas, whether or not contiguous;
“bargaining council” means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act;
“basic condition of employment” means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment;
“CCMA” means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995;
“child” means a person who is under 18 years of age;
“code of good practice” means a code of good practice issued by the Minister in terms of section 87 of this Act;
“collective agreement” means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand -
(a) one or more employers;
(b) one or more registered employers’ organisations; or
(c) one or more employers and one or more registered employers’ organisation;
“Commission” means the Employment Conditions Commission established by section
59 (1);
“compliance order” means a compliance order issued by a labour inspector in terms of section 69 (1);
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
“council” includes a bargaining council and a statutory council;
“Department” means the Department of Labour;
“Director-General” means the Director-General of Labour;
“dispute” includes an alleged dispute;
“domestic worker” means an employee who performs domestic work in the home of his or her employer and includes -
(a) a gardener;
(b) a person employed by a household as driver of a motor vehicle; and
(c) a person who takes care of children, the aged, the sick, the frail or the disabled, but does not include a farm worker;
“employee” means -
(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of
an employer, and “employed” and “employment” have a corresponding meaning;1
“employers’ organisation” means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;
“employment law” includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts:
(a) The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
(b) the Skills Development Act, 1998 (Act No. 97 of 1998);
(c) the Employment Equity Act, 1998 (Act No. 55 of 1998);
(d) the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(e) the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993);
[Definition of “employment law” substituted by s. 1 of Act 11/2002]
“farm worker” means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work
in a home on a farm;
“Labour Appeal Court” means the Labour Appeal Court established by section 167 of the Labour Relations Act, 1995;
“Labour Court” means the Labour Court established by section 151 of the Labour Relations Act, 1995;
“labour inspector” means a labour inspector appointed under section 63, and includes any person designated by the Minister under that section to perform any function of a labour inspector;
“Labour Relations Act, 1995” means the Labour Relations Act, 1995 (Act No. 66 of 1995);
“medical practitioner” means a person entitled to practise as a medical practitioner in terms
of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);
“midwife” means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978);
“Minister” means the Minister of Labour;
“month” means a calendar month;
“NEDLAC” means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35
of 1994);
“ordinary hours of work” means the hours of work permitted in terms of section 9 or in terms of any agreement in terms of sections 11 or 12;
“overtime” means the time that an employee works during a day or a week in excess of ordinary hours of work;
“prescribe” means to prescribe by regulation and “prescribed” has a corresponding meaning;
“public holiday” means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994);
“public service” means the public service referred to in section 1 (1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational component
contemplated in section 7 (4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding -
(a) the members of the National Defence Force;
(b)..........
[Para. (b) amended by s. 26 of Act 68/2002 and deleted by s. 53 of Act 11/2013]
(c) ..........
[Para. (c) deleted by s. 53 of Act 11/2013]
(d) ..........
[Para. (d) inserted by s. 40 of Act 65/2002 and deleted by s. 53 of Act 11/2013]
(e) ..........
[Para. (e) added as para. (d) by s. 26 of Act 68/2002 and again added by s. 25 of Act 52/2003 and deleted by s. 53 of
Act 11/2013]
“registered employers’ organisation” means an employers’ organisation registered under
section 96 of the Labour Relations Act, 1995;
“registered trade union” means a trade union registered under section 96 of the Labour
Relations Act, 1995;
“remuneration” means any payment in money or in kind, or both in money and in kind,
made or owing to any person in return for that person working for any other person, including the State, and “remunerate” has a corresponding meaning;2
“sector” means an industry or a service or a part of an industry or a service;
“sectoral determination” means a sectoral determination made under Chapter Eight;
“senior managerial employee” means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally;
“serve” means to send by registered post, telegram, telex, telefax or deliver by hand;
“statutory council” means a council established under Part E of Chapter III of the Labour Relations Act, 1995;
“temporary employment service” means any person who, for reward, procures for, or provides to, a client, other persons -
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service;
“this Act” includes the Schedules and any regulation made under this Act, but does not include the headings or footnotes;
“trade union” means an association of employees whose principal purpose is to regulate
relations between employees and employers, including any employers’ organisations;
“trade union official” includes an official of a federation of trade unions;
“trade union representative” means a trade union representative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act, 1995;
“wage” means the amount of money paid or payable to an employee in respect of ordinary
hours of work or, if they are shorter, the hours an employee ordinarily works in a day or
week;
“week” in relation to an employee, means the period of seven days within which the working
week of that employee ordinarily falls;
“workplace” means any place where employees work;
“workplace forum” means a workplace forum established under Chapter V of the Labour
Relations Act, 1995.
1. “Employee” is given a specific meaning in section 82(1).
2. “Remuneration” is given a specific meaning in section 35(5).

96. Short title and commencement
This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be
fixed by the President by proclamation in the Gazette.

[Citizen X]

Allocate 20 minutes to your delegates to complete this exercise. All the information they require to successfully complete the exercise is found in their delegate’s manual. They are to complete this exercise individually and not as a group.

2.1 When did the Basic Conditions of Employment Act 97 of 1998 come into operation?
1 December 1998
This is also referred to as the date of commencement

2.2 What is the short title of this Act? Where did you find this in the Act?
BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997.
Right at the top of the Act.

2.3 What is the long title of this Act?
To give effect to the right to fair labour practices referred to in section 23(1) of the
Constitution by establishing and making provision for the regulation of basic conditions of
employment; and thereby to comply with the obligations of the Republic as a member state of
the International Labour Organisation; and to provide for matters connected therewith.
Found under the word ‘ACT.’

[Citizen X]

2.4 What is the purpose of section 1 of this Act?
It is the definitional clause. It serves as an internal dictionary to the Legislation. It defines certain terms and terms as used in the legislation. This may differ from the dictionary meaning.





2.6 Where else in this Act can you find the short title?
In the very last section of an ‘ACT’ before schedules. In this case it’s section 96 of the Basic Conditions of Employment Act 97 of 1998

96. Short title and commencement
This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be
fixed by the President by proclamation in the Gazette.

[Citizen X]

Prescribed material (specific sections of the Labour Relations Act)

ss 185, 186, 187, 188, 190, 191, 192, 193, 194
Schedule 8(Code of Good Practice)
What is ‘ss,’ is this slang????
No it is not! Remember our previous lesson?

Legislation is divided into sections. Sections are divided into subsections, subsections into paragraphs and paragraphs into subparagraphs. The Abbreviation for a section is ‘s,’ and the abbreviation for more than one section is ‘ss’. The abbreviation for a subsection is ‘subsec,’ and for more than one subsection ‘subsecs.’ The abbreviation for paragraph is para and for more than one paragraph paras. The abbreviation for subparagraph is ‘subpara,’ and for more than one subparagraph ‘subparas.’

It is not necessary to place legislation in quotation marks as legislation is not copyright!
So, you needn’t use “..” or ‘..’, you may simply state according to Section 186(1)(e) of the labour Relations Act 66 of 1995 "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
The reason why Dismissal is in quotation marks is simply because in the legislation itself, quotation marks are used for this word.
You may also state Section 186(1)(e) provides that "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

[Citizen X]

Exercise 3
3.1 What is the right that an employee has regarding unfair dismissal and unfair labour practice?
Encourage discussion among your delegates. See what answers they provide you with. Some will say that employees must be given a notification of disciplinary enquiry, others may say that employee has a right to be represented by a fellow employee or union member/ official and yet others will state that employees have the right to refer the matter to the CCMA or Bargaining council

[Citizen X]

These are not the answers you expect!

In terms of section 185 (a) and 185 (b)
Every employee has the right not to be –
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.
To put this in another way, an employee has a right not to be unfairly dismissed and a right not to be subjected to unfair labour practices
3.2 What does a dismissal mean?or What is a dismissal?

Your delegates will probably state that a dismissal means that an employee was fired.

This is not the answer you are looking for! Managers and initiators must by necessity know what the various definitions of dismissal are that are provided in the Labour Relations Act.


Definitions of Dismissal in terms of the Labour Relations Act

3.2.1 The employer terminated the employee’s contract of employment with or without notice.

Case study Mr A is a shelf packer. The branch manager witnesses Andrew stealing airtime vouchers. Andrew does so by firstly taking these vouchers and then putting it his pocket. He then steps out of the business. CCTV footage confirms this. A notification of disciplinary enquiry is issued, a hearing held, Andrew is found Guilty, Mitigating circumstances are considered. A sanction of dismissal is granted. Mr A is dismissed without notice. This is called ‘summary dismissal’

This is an act of misconduct. The vast majority of your dismissals will be based on misconduct and will be summary dismissals without notice

[Citizen X]

This is an act of misconduct. The vast majority of your dismissals will be based on misconduct and will be summary dismissals without notice

Section 186(1)(a)provides that ‘Dismissal,’ means an employer has terminated a contract of employment with or without notice;

3.2.2 The employer refused to renew an employee’s fixed term contract on the same or similar grounds or did not renew it at all

Case study Mr B has been appointed as a duty manger. There is a two year contract. The employer did renew this contract twice. Mark reasonable expected that this contract would be renewed again on the same remuneration and benefit. This does not take place. There are two things that would cause this to be classified as a dismissal. The employer either refuses to renew the contract at all or does offer to renew it but on a lower salary and less benefits.

Section 186(1)(b)provides that ‘Dismissal,’ means

an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

[Citizen X]

3.2.3. The employer refused to allow the employee to come back to work after maternity leave

Case study Miss C is in the final stages of her pregnancy. She applies for maternity and is given maternity leave. After having had her child, she returns to work but is told that her position has been filled and further that her employment contract is terminated.

Section 186(1)(c)(i) that ‘Dismissal,’ means an employer refused to allow an employee to resume work after she -
(i) took maternity leave in terms of any law, collective agreement or her contract of
employment; or
Notice that this example includes a section ,subsection, paragraph and sub paragraph.


3.2.4 The employer dismissed several employees for the same reason, the employer then did offer to re-employ some of them but not all of them.

Case study Employer D has 30 employees. The employer dismissed 16 employees for theft alternatively for operational requirements. The employer then offered to re-employ of five of these dismissed employees.

Section 186(1)(d) provides that dismissal,’ means that an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another



3.2.5 Constructive dismissal

Case study Employer D has 30 employees. Employer D has a grudge against employee and victimizes employee F or unintentionally engages in activity, such as, withholding lunch breaks indefinitely which make Employee’s continued employment intolerable

Section 186(1)(e) provides that dismissal,’ means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee

3.2.6. Employer sells business and employees are then given a lower remuneration or benefits than before the business was sold

Case study Employer D has 30 employees. Employer D decides to sell his business to entrepreneur X. Upon the sale of the business, the employees are no longer paid R6000 per month, they are now paid R3000 per month by the new employer

Section 186(1)(f) provides that dismissal,’ means an employeeterminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.
Section 186(1)(d) provides that dismissal,’ means that an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another

3.2.6. Employer sells business and employees are then given a lower remuneration or benefits than before the business was sold

Case study Employer D has 30 employees. Employer D decides to sell his business to entrepreneur X. Upon the sale of the business, the employees are no longer paid R6000 per month, they are now paid R3000 per month by the new employer

Section 186(1)(f) provides that dismissal,’ means an employeeterminated a contract of employment with or without notice because thenew employer, after a transfer in terms of section 197 or section 197A, provided theemployee with conditions or circumstances at work that are substantially less favourableto the employee than those provided by the old employer.

[Citizen X]

4.1 What is at the core of an ‘automatically unfair dismissal?
Freedom of association


1. There are 8 types of automatically unfair dismissals. At its core is section 4. Section 187 expands on section 4. An award for such a dismissal is 24 months salary and not 12 months salary
2. Delegates must be able to firstly state that at the core of an automatically unfair dismissal is ‘freedom of association,’ as contained in section 4, even though, section 187 mentions other forms of automatically unfair dismissals.
3. Actual sections will be included in delegate’s manual and not trainer’s manual

4.2 List 8 types of automatically unfair dismissals?
Dismissal took place because:
1. The employee took part in or supported a lawful/protected strike or lawful protest action
2. The employee refused to carry out the duties of an employee or employees who were taking part in a protected strike
3.The employer forced the employee to accept a demand regarding a matter of mutual interest between the employer and employee
4. The employee was dismissed because he/she exercised any right given by the LRA or participated in any type of proceedings endorsed by the LRA
5. Pregnancy or matter incidental to pregnancy
6. The employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
7. Transfer of a going concern where terms and conditions are less favourable than they were
8. The employee made a protected disclosure

All automatic unfair dismissals differ completely from typical dismissals such as theft. For dismissals such as theft the employer must prove that the dismissal was both procedurally and substantively fair.
(Fair reason and fair procedure).
What is Substantive fairness and procedural fairness? Don’t worry about this at this stage, we will cover it when dealing with Schedule 8!
With any automatically unfair dismissal the employer cannot justify the dismissal by showing that this dismissal was both substantively fair and procedurally fair!
Example: Thandi is 7 months pregnant. Her employer doesn’t want to contend with the loss of productivity during her maternity leave, so the employer summarily dismisses her. Thandi need only show that she was dismissed on a certain date due to her pregnancy. The employer must now show that this particular dismissal was not automatically unfair! The employer may argue that Thandi was dismissed because she was pregnant and a fair procedure was followed. This will not change the fact that this was an automatically unfair dismissal!


Section 187 of the LRA provides as follows:

(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is -
(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;
(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the
employer by -
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her
pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
(g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A;
or
(h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.

[Citizen X]

4.3 Date of Dismissal

4.3.1 What do you understand by ‘date of dismissal?
The date of dismissal is the earliest date between two eventualities:
1.the date on which the contract of employment terminated
2.the date on which the employee left the service of the employer
Date of dismissal is important as the dismissed employee has a certain amount of days within which to refer the matter to the CCMA or Bargaining Council