Labour Law 101: Your internal labour law/HR function

[Citizen X]

Labour Law: Getting the basics right



I’m acutely aware that most, if not all of the reputable businesses on TFSA, are familiar with what is to follow. This is therefore intended for the small business person who has little or no foundation in labour law. The format it takes is one of question and answer. I will build on it with the ensuing passing of time.
Naturally, anyone is free to add to it or build on it as it were.



Treat this as a basic workshop

1. After completing this basic workshop you should have an ability to:

1.Demonstrate a basic understanding of the Labour Relations Act
2.Explain the meaning of dismissal and unfair dismissal
3.Explain the dates related to dismissals and dismissal disputes.
4.Explain the burden of onus, remedies and limits on compensation for unfair dismissal disputes.
5. Describe relevant flow diagrams relating to unfair dismissals.
6. Explain the guidelines in the Code of Good Practice in terms of Labour Relations Legislation.
7. Explain the differences between substantive and procedural fairness.[1]

The learner must be able to extract the necessary information from a situation and give comment on its legal status.[2]
2. Learning assumed to be in place
2.1 It is assumed that delegates attending this workshop are able to:
Explain and apply labour relations to the disciplinary process
Handle meetings
Apply writing, listening and talking skills
Communicate effectively
Apply principles of policy and procedure implementation
Demonstrate an understanding of an organisation and its functions
Apply consultation skills

1.1Learning: “learning” means the acquisition of knowledge, understanding, values, skill, competence or experience;[3]
1.2 Standard: The registered statements of desired education and training outcomes and their associated assessment criteria;[4]
1.3 Learning outcome: Contextually demonstrated end product of the learning process;[5]
1.4 Unit Standard(US):Registered statement of desired education and training outcomes and its associated assessment criteria together with administrative and other information as specified in the regulations[6];
1.5 Specific outcome: Knowledge, skills and values (demonstrated in context) which support one or more critical outcomes[7];
1.6 Formative assessment: Refers to assessment that takes place during the process of learning and teaching;
1.7 Summative assessment: Is assessment for making a judgement about achievement. This is carried out when a learner is ready to be assessed at the end of a program of learning.

2. Abbreviations
1. NQF: “NQF” means the national qualifications framework contemplated in Chapter 2;[8]
2. SAQA: “SAQA” means the South African Qualifications Authority contemplated in Chapter 4;[9]
3. Frequently asked questions
1. Do I need to be accredited to conduct workshops?
No, you do not need to be accredited to conduct workshops, unless, the workshop is intended to lead to obtaining a part qualification, qualification or official recognition of a learner having achieved a unit standard;
2. Why refer to SAQA unit standards?
These unit standards are public property and provide clear guidelines into what a specific learning program should entail. When any material from a unit standard is reproduced or quoted, the only requirement is that SAQA should be acknowledged as the source
3. What unit standards relate to labour law alternatively the disciplinary process?
There are various SAQA unit standards applicable(the following are just a few):
3.1 Unit Standard Title: Conduct a disciplinary Hearing: SAQA Unit Standard ID: 10985
3.2 Unit Standard Title: Institute Disciplinary Action: SAQA Unit Standard ID: 11286
3.3 Unit Standard Title: Demonstrate and apply and understanding of the Labour Relations Act 66 of 1995: SAQA Unit Standard ID: 114278
3.4 Unit Standard Title: Demonstrate basic understanding of the Primary Labour Legislation that impacts on a business unit: SAQA Unit Standard ID:13952
3.5 Unit Standard Title: Interpret and apply labour legislation relating to strikes, lock-out and picketing: SAQA Unit Standard ID: 337081
3.6 Unit Standard Title: Interpret unfair dismissal in terms of labour relations legislation: SAQA Unit Standard ID: 376119
Kindly note that the aforementioned unit standards can be accessed using any search engine. These unit standards provide no course material whatsoever! You need to develop and compile your own course material. It is, however, beneficial to access these unit standards so that you know to following a proper guideline.

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[1] SAQA: SAQA Unit Standard ID 376119: Interpret unfair Dismissal in terms of labour relations legislation

[2] SAQA: SAQA Unit Standard ID 376119: Interpret unfair Dismissal in terms of labour relations legislation

[3] National Qualifications Framework Act 67 of 2008. Section 1

[4]SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[5] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[6] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[7] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[8] National Qualifications Framework Act 67 of 2008. Section 1

[9] National Qualifications Framework Act 67 of 2008. Section 1

[Citizen X]

1. What reasons may the company lawfully dismiss employees for?
Rationale: You want to create an interactive learning environment, by getting all delegates to take part. You want to kick-start your workshop by getting straight into a relevant question that will set the pace for the rest of the workshop.
Delegates will most likely provide all the wrong reasons that they think is correct!
They will mention, theft, dishonesty, fraud, bringing the company into disrepute etc. This however is not the reasons you are looking for!

The purpose of this question is to demonstrate that there are only three (3) categories for which an employer may lawfully dismiss an employee.
These three categories are found in section 2(2) of Schedule 8 of the Labour Relations Act 66 of 1995[1] which states
This Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.

To put this in another way, employees may be dismissed for misconduct, incapacity and operational requirements.

All the reasons that your delegates have mentioned falls under misconduct

At this juncture, your delegates will realise that they not familiar with the LRA and don’t know how to refer to a section or find a section in the LRA. The LRA doesn’t work in page numbers but in sections. Schedules are found at the end of the Act itself.

Now is a good time to inform your delegates that there are two copies of the LRA on the table and you want them to find section 186(1)(e) as a team

Rationale: They will realise, when looking at the LRA, that labour Law is not as straight forward as it seems and that they do require training from you.

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[1] Hereinafter referred to as LRA

[Citizen X]

An Act such as The Labour Relations Act does not work on the basis of page number or on the basis of alphabetical order, it works on the basis of sections, it starts with section 1. It’s very much the same as alphabets on the basis that if you looking for section 185 and you just open the act and find you on section 170, you know you close!
Section 186(1)(e) of the Labour relations Act 66 of 1995

1. Refers to the number of the relevant section eg 186
2. The sub section follows eg (1)
3. The paragraph follows eg (e)
4. In this example there is no sub paragraph

Section 186(1)(e)
186 1 e






Section Sub section Paragraph

Section 186(1)(e) of the labour Relations Act 66 of 1995 provides Meaning of dismissal and unfair labour practice "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 1
Training Task(All delegate are to work as a team on 1.1 one of them is to read it aloud) Allocate 5 minutes for this task
1.1Find section Section 186(1)(e) of the Labour relations Act 66 of 1995. Read aloud what section 186(1)(e) states(1.1 is for all delegates, they are to work together as a team on 1.1)
Your delegates now have two bulky documents on the table. Give them ten minutes to find section 186(1)(e) together as a team).
One or more of them should be able to successfully state what section 186(1)(e) states.
Section 186(1)(e) of the labour Relations Act 66 of 1995 provides "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee

Section

186 Meaning of dismissal and unfair labour practice

Sub-Section 1

“Dismissal” means that -

Paragraph e

an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.


There are now 6 exercises remaining(1.2 up to and including 1.7)!
You are to allocate one exercise to each delegate, that is, 1.2 to one delegate, 1.3 to a second delegate, 1.4 to a third delegate, 1.5 to a fourth delegate, 1.6 to a sixth delegate and 1.7 to the seventh delegate.
All six delegates are to complete this exercise successfully before you move on with your training.

[Citizen X]

Section 185

1.2 Find section 185(1)(a) of the Labour relations Act 66 of 1995. Read aloud what section 185(a) states 185 Right not to be unfairly dismissed or subjected to unfair labour practice

Sub-Section 1

Every employee has the right not to be –

Paragraph a

unfairly dismissed;

Section 185

1.3 Find section 185(1)(b) of the Labour Relations Act 66 of 1995. Read aloud what section 185(b) states 185 Right not to be unfairly dismissed or subjected to unfair labour practice

Sub-Section 1

Paragraph b

Every employee has the right not to be –
(b) subjected to unfair labour practice.

[Citizen X]

Section 187

1.4. Find section 187(1)(a) of the Labour Relations Act 66 of 1995. Read aloud what section 187(1)(a) states 187. Automatically unfair dismissals

Sub-Section 1

(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 -

Paragraph a

(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;
1.5 Find section 187(1)(e) of the Labour Relations Act 66 of 1995. Read aloud what section 187(1)(e) states

Section 187

187. Automatically unfair dismissals

Sub-Section 1

(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 –

Paragraph e

(e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
1.6 Find section 188(1)(a)(i) of the Labour Relations Act 66 of 1995. Read aloud what section 188(1)(a)(i) states

Section 188

This example has a section, sub-section, paragraph and sub-paragraph
Other unfair dismissals

Sub-Section 1

1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove -

Paragraph a

(a) that the reason for dismissal is a fair reason -

Sub-Paragraph i

(i) related to the employee’s conduct or capacity; or








1.7 Find section 188(1)(a)(ii) of the Labour Relations Act 66 of 1995. Read aloud what section 188(1)(a)(ii) states

Section 188

Other unfair dismissals

Sub-Section 1

1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove

Paragraph a

(a) that the reason for dismissal is a fair reason –

Sub-Paragraph ii

(ii) based on the employer’s operational requirements; and

[Citizen X]

2. What is Legislation?
The simple straight forward answer that you looking for: is that Legislation is written law.



3. Provide other names for legislation?
Statute, Act of Parliament and Enacted text

[Citizen X]

4. Numbering in Legislation ( How to write legislation or refer to legislation in writing)
The following will be used as an example

188(1)(a)(ii) of the Labour Relations Act 66 of 1995

Section 188 – Arabic numeral (any of the symbols 0,1,2,3,4, etc)
Subsection (1)- Arabic number placed in brackets it must be (1 ) and NOT [1 ] or {1 }
Paragraph (a)- This must be in italics and in small letters
Subparagraph (ii) This must be in small letters. Roman numerals

188(1)(a)(ii)ü

188[1][a][2] X

188{1}{a}{ii}X


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.’

[Citizen X]

5. The structure of legislation



All legislation, in particular, legislation introduced after 1994, has a set structure. Being familiar with this structure plays an important role in understanding the legislation itself and becoming more familiar with legislation. As the trainer, familiarise yourself with the structure of the Labour Relations Act on the next page.


5.1 Short Title: This is the very first title found in legislation. It’s found right at the top of legislation on the very first page as well in the very last section of legislation

LABOUR RELATIONS ACT 66 OF 1995 Short Title


The last section of legislation is the very last number in numerical order, the last section of legislation will appear before the Schedules to the legislation. The last section of the Labour Relations Act is section 214.

Section 214(1) provides
This Act is called the Labour Relations Act, 1995.
5.2 Assented To: This is the date on which the President signed the Legislation into law

[Assented To: 29 November 1995]

5.3 Date of commencement: This is the date on which the legislation takes effect or starts to apply.

[Commencement Date: 11 November 1996 – unless otherwise indicated]

[Citizen X]

5.4.Amendments: All amendments that were made to the legislation will appear after the commencement date and before what is referred to as the ‘long title,’ of the legislation.

ACT
To change the law governing labour relations and, for that purpose -
to give effect to section 27 of the Constitution;
to regulate the organisational rights of trade unions;
to promote and facilitate collective bargaining at the workplace and at sectoral level;
to regulate the right to strike and the recourse to lock-out in conformity with the
Constitution;
to promote employee participation in decision-making through the establishment of
workplace forums;
to provide simple procedures for the resolution of labour disputes through statutory
conciliation, mediation and arbitration (for which purpose the Commission for Conciliation,
Mediation and Arbitration is established), and through independent alternative dispute
resolution services accredited for that purpose;
to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive
jurisdiction to decide matters arising from the Act;
to provide for a simplified procedure for the registration of trade unions and employers’
organisations, and to provide for their regulation to ensure democratic practices and proper
financial control;
to give effect to the public international law obligations of the Republic relating to labour
relations;
to amend and repeal certain laws relating to labour relations; and
to provide for incidental matters.

You can identify the long title by the word ‘ACT,’
The long title shows what the underlying purpose of the legislation is. Notwithstanding this, a section entitled, ‘Purpose of Act,’ may still appear
5.5 Definitional clause: Not all legislation has a definitional clause. A definitional clause is the internal dictionary for the legislation. Words used in the definitional clause may have a different meaning from the dictionary meaning. The meaning in the definitional clause is to be used.

LABOUR RELATIONS ACT 66 OF 1995 Short Title

(English text signed by the President)

[Assented To: 29 November 1995]

[Commencement Date: 11 November 1996 – unless otherwise indicated]

as amended by:

Labour Relations Amendment Act 42 of 1996

Basic Conditions of Employment Act 75 of 1997

Employment Equity Act 55 of 1998

Labour Relations Amendment Act 127 of 1998

Labour Relations Amendment Act 12 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

Prevention and Combating of Corrupt Activities Act 12 of 2004

Public Service Amendment Act 30 of 2007

[with effect from 1 April 2008]

General Intelligence Laws Amendment Act 11 of 2013

[with effect from 29 July 2013]

Superior Courts Act 10 of 2013

[with effect from 23 August 2013 - Proc. 36 / GG 36774 / 20130822]

ACT

To change the law governing labour relations and, for that purpose -
to give effect to section 27 of the Constitution;
to regulate the organisational rights of trade unions;
to promote and facilitate collective bargaining at the workplace and at sectoral level;
to regulate the right to strike and the recourse to lock-out in conformity with the
Constitution;
to promote employee participation in decision-making through the establishment of
workplace forums;
to provide simple procedures for the resolution of labour disputes through statutory
conciliation, mediation and arbitration (for which purpose the Commission for Conciliation, Long
Mediation and Arbitration is established), and through independent alternative dispute Title
resolution services accredited for that purpose;
to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive
jurisdiction to decide matters arising from the Act;
to provide for a simplified procedure for the registration of trade unions and employers’
organisations, and to provide for their regulation to ensure democratic practices and proper
financial control;
to give effect to the public international law obligations of the Republic relating to labour
relations;
to amend and repeal certain laws relating to labour relations; and
to provide for incidental matters.