LABOUR LAW

Labour law is essentially concerned with the rights and obligations that arise
between the parties engaged in the world of work.

INDIVIDUAL LABOUR LAW AND COLLECTIVE LABOUR LAW

Individual Labour Law:
Individual Labour Law focuses on the legal framework governing the relationship
between an individual employee and their employer. It primarily deals with the terms
and conditions of employment for individual workers. Here are some key aspects
and examples of Individual Labour Law:
• Employment Contracts: Individual Labour Law involves the principles and
regulations related to employment contracts. This includes the terms and
conditions agreed upon between the employer and the employee. For
example, an employment contract may specify the work hours, job duties,
salary, benefits, and other terms.
• Rights and Obligations: It outlines the rights and obligations of both the
employer and the employee. For instance, an employee has the right to a safe
working environment, and the employer has the obligation to provide this
safety.
• Wage Regulations: This branch of labor law also covers wage-related
matters, such as minimum wage laws, overtime pay, and other aspects of
compensation. For example, if the minimum wage in a particular jurisdiction is
$10 per hour, an employer must pay their employees at least that amount.
• Statutory Provisions: Individual Labour Law may involve statutory provisions
that protect the rights of employees, such as anti-discrimination laws,
maternity leave rights, and whistleblower protections.
• Examples: If an employer unfairly terminates an employee without following
due process as outlined in their employment contract, the individual labor law
may come into play. In such a case, the employee may have legal grounds to
challenge the termination.
Collective Labour Law:
Collective Labour Law pertains to the legal framework governing collective labor
relationships, primarily involving groups of employees (collectives) and employers. It
focuses on the interaction between these groups rather than individual employment
relationships. Here are some key aspects and examples of Collective Labour Law:
• Collective Bargaining: One of the central components of collective labor law
is collective bargaining, where groups of employees negotiate with employers
over various employment terms, such as wages, working conditions, and
 benefits. For instance, a labor union may negotiate on behalf of its members
to secure better wages and benefits.
• Bargaining Councils and Statutory Councils: In some countries,
bargaining councils or statutory councils are established to facilitate and
regulate collective bargaining. These organizations help resolve disputes and
establish collective agreements. For example, a statutory council for
healthcare workers may help negotiate industry-wide employment standards.
• Strikes: Collective labor law covers the legal aspects of strikes, which are
actions taken by groups of employees to protest against their employer's
practices. When a unionized workforce goes on strike to demand higher
wages, this falls under the purview of collective labor law.
• Unfair Labour Practices: This branch of labor law addresses unfair practices
by employers or unions that interfere with employees' rights or disrupt the
collective bargaining process. For example, if an employer engages in unfair
labor practices, such as intimidating employees who are trying to form a
union, it may violate collective labor law.

SOURCES OF LABOUR LAW

1. The Constitution:
• The South African Constitution of 1996 enshrines the right to fair labor
practices in Section 23(1).
• It also guarantees other labor rights such as the right to freedom of
association, collective bargaining, and the right to strike.
• Example: A worker can rely on the Constitution to protect their right to
fair labor practices, including fair wages and working conditions. They
can also join a trade union to exercise their right to collective
bargaining.
2. The Labour Relations Act (LRA):
• The LRA (Act 66 of 1995) aims to promote economic development,
social justice, labor peace, and workplace democratization.
• It regulates fundamental rights conferred by the Constitution, provides
a framework for collective bargaining, and resolves labor disputes.
• Collective rights are afforded to trade unions, such as the right to strike,
while individual rights include protection against unfair dismissal.
• Example: A trade union can engage in collective bargaining with an
employer to negotiate better wages and working conditions on behalf of
its members.
 3. The Basic Conditions of Employment Act (BCEA):
• The BCEA (Act 75 of 1997) aims to regulate the right to fair labor
practices by establishing and enforcing basic employment conditions
like working hours, overtime, and leave.
• Example: Under the BCEA, an employer must ensure that employees
receive the minimum amount of leave specified by law, such as annual
leave and sick leave.
4. The Employment Equity Act (EEA):
• The EEA (Act 55 of 1998) focuses on achieving workplace equity by
eliminating unfair discrimination and implementing affirmative action
measures.
• Example: An employer must actively take steps to address past
discrimination by promoting diversity and inclusivity in the workplace.
5. Other Legislation:
• Besides the primary statutes, several other pieces of legislation are
relevant to labor law in South Africa, including the National Minimum
Wage Act, Occupational Health and Safety Act, Compensation for
Occupational Injuries and Diseases Act, Unemployment Insurance Act,
and Skills Development Act.
• Example: The National Minimum Wage Act sets a minimum wage that
employers must pay to their employees, ensuring that even the lowest-
paid workers receive a decent income.
TYPES OF EMPLOYEES
Fixed-Term Employees:
A fixed-term contract is a type of employment agreement that terminates under
specific conditions. Some key points about fixed-term employees include:
• Termination Conditions: Fixed-term contracts end based on specific
events, completion of a task or project, or a predetermined date
unrelated to the employee's retirement age.
• Exclusions and Exceptions: Certain employees and employers are
exempt from fixed-term contract regulations, such as those earning
above a threshold, small businesses, or employees covered by
statutory or collective agreements.
• Justifiable Reasons: Employers can hire fixed-term employees for
more than 3 months in cases such as temporary work, project-based
work, seasonal work, training, or to replace temporarily absent
employees.
 • Rights of Fixed-Term Employees: Fixed-term employees employed
for more than 3 months should be treated equally to permanent
employees performing the same work, have equal access to job
opportunities, and receive severance pay if employed for over 24
months on a specific project. Contracts should be in writing if longer
than 3 months and state the reasons for the extension.
Example: A company hires a graphic designer for a 6-month project to create
marketing materials for a new product launch. The contract specifies the project's
duration and the reason for the fixed term.
Part-Time Employees:
Part-time employees are those who are paid based on the hours they work and work
fewer hours than full-time employees. Here are some key points:
• Definition: Part-time employees are those whose remuneration is
based on the time they work, and they work fewer hours than
comparable full-time employees.
• Exclusions and Exceptions: Employees earning above a threshold,
very small businesses, and employees working less than 24 hours per
month for their employer are exempt from part-time employee
regulations.
Example: An employee who works 20 hours per week at a retail store is
considered a part-time employee.

Indefinite/Permanent Contracts:
• Definition: An indefinite or permanent employment contract is open-ended
and does not specify a fixed end date. It continues until either the employer or
employee terminates it.
• Example: A full-time employee hired to work as a software developer with no
specified end date on the contract.
Labour Brokers (Temporary Employment Service Providers):
• Definition: Labour brokers act as intermediaries between employers and
employees, providing temporary workers to businesses. The workers are
employed by the broker but work at the client's site.
• Example: A company hires a labour broker to supply temporary
administrative assistants during a busy season.

DETERMINING EMPLOYEE STATUS:

The law provides criteria to determine if a person is an employee or not.

• Control and Direction: If the employer controls or directs the work and
hours of the person, they are considered an employee.
• Membership in an Organization: If the person works for a member of
an organization, it implies an employment relationship.
• Average Work Hours: If the person works at least 40 hours per month
for the same employer, they are presumed to be an employee.
• Economic Dependence: If the person relies on the employer for their
economic livelihood, it suggests an employment relationship.
• Tools and Equipment: If the employer provides tools or work
equipment, this indicates an employment relationship.
• Single Employer: If the person only works for one employer, it
suggests an employment relationship.
These presumptions apply to employees earning up to a specific income threshold.
Example: A freelancer who works from home, sets their own hours, and has multiple
clients is less likely to be considered an employee compared to someone who works
in an office, under the employer's direction, and relies solely on one employer for
income.
ORGANIZATIONAL TEST:
This test looks at factors indicating that a person is part of an organizational
structure:
• Permanent Employment: A long-term, stable employment relationship
suggests an organizational affiliation.
• Provision of Capital Goods: If the employer provides office space,
equipment, or tools, it implies an employment relationship.
• Prohibition on Similar Work: If the person is prohibited from doing
similar work for their own account, it suggests an employment
relationship.
Example: An individual working from a co-working space using their own equipment
and taking on freelance work for multiple clients is less indicative of an organizational
structure compared to an employee with a dedicated office, company-provided
equipment, and work restrictions.
with employers, contributing to the overall balance of power in
labour relations.

COMMON LAW DUTIES OF THE EMPLOYER AND EMPLOYEE

COMMON LAW DUTIES OF THE EMPLOYER:

1. Remunerate the employee: The employer must provide fair compensation for the
work performed by the employee.
2. Provide safe and healthy working conditions: Employers are obligated to maintain
a safe and healthy workplace to protect the well-being of their employees.
3. Provide work for the employee: Employers must provide tasks or assignments for
the employee to perform as per the employment agreement.
4. Not make the employee perform work junior to their status: Employers should
assign work that is commensurate with the employee's position and responsibilities.
5. Not contract the employee out to another employer without permission:
Employers cannot transfer employees to another employer without the employee's
consent.
6. Treat the employee with respect and dignity: Employers must ensure that
employees are treated fairly and respectfully in the workplace.
COMMON LAW DUTIES OF THE EMPLOYEE:

1. Perform work faithfully and with care: Employees are required to carry out their
job duties diligently and responsibly.
2. Be respectful and obey all reasonable instructions: Employees must show respect
for their superiors and follow reasonable instructions provided by their employer.
3. Render services in good faith: Employees are expected to act in good faith and in
the best interests of their employer while performing their duties.
4. Not compete with the business of the employer in a private capacity: Employees
should not engage in activities that directly compete with their employer's business
while employed.
NULLITY VS. VOIDABLE CONTRACTS

Contracts which are null and void: These are contracts that are illegal or against public
policy, rendering them void from the outset, with no legal effect.
Void contracts: Void contracts are completely unenforceable because they lack essential
elements, and it's as if they never existed.
Voidable contracts: These contracts are initially considered valid but can be rejected by one
party due to defects such as misrepresentation, coercion, or undue influence.

Nullity (Void) Contracts:

 Illegal contracts (illegal terms of a contract): Contracts that involve illegal
activities or violate the law are null and void.
Contrary to public policy/immoral (against the interests of the community):
Contracts that go against public policy or morality can be deemed null and void.
Void Contracts:
Definition: Void contracts are without legal effect from the moment of creation, as if they
never existed, and the parties are not legally bound by their terms. They lack essential
elements for a valid and binding agreement.
Voidable Contracts:
Misrepresentation: When one party makes a false or misleading statement of fact during
negotiations, inducing the other party to enter into a contract. The misled party may typically
rescind the contract.
Coercion: Involves persuading someone to do something through force or threats.
Undue influence: Occurs when a person is induced to act against their free will or without
adequate consideration of the consequences.
NB: Regarding the effect of voidable contracts on the validity of employment contracts, a
voidable contract is initially considered legal and enforceable. However, it can be rejected by
one party if defects are discovered. If the party with the power to reject the contract chooses
not to reject it despite the defects, the contract remains valid and enforceable.
BREACH OF CONTRACT
Breach of contract involves situations where one party fails to fulfil their contractual
obligations.
1. Material and Less Forms of Breach of Contract:
• Material breaches are substantial violations that go to the core of the
contract, such as theft, harassment, fraud, or violence.
• Less serious breaches are relatively minor violations, such as chronic
lateness.
2. Common Law Remedies:
• Cancellation: Terminating the contract due to the breach.
• Damages: Seeking financial compensation for losses caused by the breach.
• Specific Performance: Forcing the breaching party to fulfil their contractual
obligations as originally agreed.
3. STATUTORY REMEDIES LRA
• Reinstatement: Reinstatement refers to the process of restoring an unfairly dismissed
employee to their previous position with all associated rights and benefits, as if the
dismissal had never occurred.
 • Re-employment: Re-employment involves offering an unfairly dismissed employee a
new position that is substantially similar to their previous one, often when
reinstatement is not feasible or appropriate due to strained working relationships.
• Compensation: Compensation is intended to provide financial redress to an unfairly
dismissed employee. The amount awarded should be determined based on principles
of fairness and equity, considering the employee's losses and circumstances resulting
from the unfair dismissal.
Examples of breaches:
1. Material breach: An employee embezzles company funds.
• Remedy: Termination of employment and seeking damages for the embezzled
amount.
2. Less serious breach: An employee consistently arrives late for work.
• Remedy: Issuing warnings or implementing progressive disciplinary actions.
3. Material breach: An employer engages in workplace harassment.
• Remedy: Filing a complaint, seeking damages, and pursuing legal action.
4. Less serious breach: An employee occasionally arrives late for work.
• Remedy: Counselling and setting clear expectations for punctuality.
5. Material breach: An employee commits fraud in financial transactions.
• Remedy: Termination, legal action to recover losses, and possible criminal
charges.
6. Less serious breach: An employee misses a deadline for a non-critical task.
• Remedy: Counselling, performance improvement plan, or additional training.
7. Material breach: An employer uses violence against an employee.
• Remedy: Immediate termination, reporting to law enforcement, and seeking
damages.
8. Less serious breach: An employee occasionally leaves work early without
permission.
• Remedy: Discussing the issue, setting expectations, and monitoring
attendance.
9. Material breach: An employer fails to pay wages as agreed.
• Remedy: Pursuing legal action for unpaid wages, possible compensation, and
damages.
10. Less serious breach: An employee uses company resources for personal tasks
occasionally.
• Remedy: Discussing the issue, setting boundaries, and tracking resource use.
 TERMINATION OF CONTRACTS

Termination of contracts within the labour relations field is a crucial aspect that governs the
end of the employment relationship.
1. Reasonable notice by either party (section 37 of the BCEA): This refers to the
legal requirement for either the employer or employee to provide advance notice
before terminating the employment contract, as outlined in Section 37 of the Basic
Conditions of Employment Act (BCEA) in South Africa.
2. Consent of both parties: Termination by mutual agreement, where both the employer
and employee agree to end the employment relationship voluntarily.
3. Death or incapacity of either party: Termination occurs when either the employer or
employee passes away or becomes incapacitated, making it impossible to continue the
employment contract.
4. Insolvency of the employer: Termination due to the employer's financial insolvency
or bankruptcy, leading to an inability to meet employment obligations.
5. Effluxion of time: Termination occurs when the employment contract reaches its
predetermined end date or when a fixed-term contract naturally expires.
6. Operational requirements: Termination due to legitimate operational requirements,
such as downsizing, restructuring, or changes in the business necessitating the
termination of employment positions.
7. Dismissal: Termination initiated by the employer due to factors such as poor
performance, misconduct, or other grounds defined by employment law.
WHO IS AN EMPLOYEE
In the context of labour relations, determining who qualifies as an employee is crucial as it
affects their rights, benefits, and the responsibilities of employers.

1. S213 of the LRA (Labour Relations Act):

• This section defines an employee as any person who works for another person
or for the state and receives, or is entitled to receive, remuneration.
• It also includes any person who assists in carrying on or conducting the
business of an employer.
Example: A person working for a company as a full-time staff member who receives a
monthly salary is considered an employee under this definition.
COMMON LAW TESTS:
Common Law tests these tests are used to determine the employment relationship based on
common law principles.
a. Control Test:
• The degree of control and supervision exercised by the employer over the
worker is a key factor.
• If the employer has the right to supervise and control the work, the
relationship is likely one of employment.
Example: An employer dictates when, where, and how a worker performs their tasks,
indicating an employment relationship.
b. Organisational Test:
• Considers whether the person forms part of the organization or operates
independently.
Example: A person who works on-site, uses company resources, and is integrated into the
company's structure is likely an employee.
c. Dominant Impression Test:
• Weighs various factors against each other to determine the overall impression
of the employment relationship.
• No single factor is decisive, but the totality of circumstances matters.
Example: The nature of the work, level of supervision, and contractual terms are all
considered to make a determination.
Possible Exam Questions:
1. Describe the Control Test used to determine the employment relationship. Provide an
example.
2. How does the Organisational Test help distinguish between employees and
independent contractors? Give a practical scenario.
3. Explain the Dominant Impression Test and discuss its importance in assessing the
employment relationship.

PRESUMPTION OF WHO IS AN EMPLOYEE

This section outlines factors that create a presumption of an employment relationship:

a. Control or Direction of Work: If the person's work is subject to the control or direction of
another person, it suggests an employment relationship.
b. Hours of Work: When a person's hours of work are controlled or directed by another
person, it implies an employment relationship.
c. Part of an Organization: If a person working for an organization is integrated into that
organization, it indicates an employment relationship.
d. Average Hours Worked: If a person has worked an average of at least 40 hours per month
over the last three months, it suggests an employment relationship.
e. Economic Dependence: When a person is economically dependent on the other person or
entity for whom they work, it implies an employment relationship.
f. Tools and Equipment: Providing tools of trade or work equipment to the person suggests
an employment relationship.
g. Exclusive Work: If a person only works for or renders services to one person, it indicates
an employment relationship.
Example: A worker who relies on a single employer for all their income, is provided with
company tools, and follows the employer's work schedule is presumed to be an employee.

Possible Exam Questions:

1. List and explain three factors that create a presumption of an employment
relationship according to S200A of the LRA.
2. What is the significance of the 40-hour average work requirement in the
presumption of an employment relationship?
3. Discuss how economic dependence on an employer can be an indicator of an
employment relationship.
4. Provide an example of a situation where tools of trade or work equipment are
provided, implying an employment relationship.
5. Explain the circumstances under which the factors listed in S200A are
applicable to individuals earning above the threshold.

KEY DIFFERENCES BETWEEN AN EMPLOYEE AND AN INDEPENDENT

CONTRACTOR
1. Nature of Work Relationship:
• Employee: An employee has an ongoing and exclusive work relationship with
the employer. They typically work full-time and dedicate their work efforts
solely to the employer during the agreed-upon period.
• Independent Contractor: An independent contractor often works on a part-
time or project-specific basis. They may have multiple clients or customers
simultaneously, and they have the flexibility to choose when and how they
work.
2. Control and Supervision:
• Employee: The employer has a significant degree of control and supervision
over an employee's work. The employer sets the schedule, provides specific
instructions, and dictates how the work should be performed.
 • Independent Contractor: Independent contractors have more autonomy and
control over their work. They are responsible for achieving the agreed-upon
goals or deliverables but have the freedom to decide how to accomplish those
goals.
3. Training and Methodology:
• Employee: Employers typically provide training to employees and specify
how tasks should be performed. Employees are expected to follow company
guidelines and procedures.
• Independent Contractor: Independent contractors are generally experts in
their field and are not subject to extensive training by the hiring party. They
have the flexibility to apply their own methods and expertise to complete the
project.
4. Work Location and Tools:
• Employee: Employees often work on the premises of the employer and use
tools, equipment, and materials provided by the employer.
• Independent Contractor: Independent contractors are responsible for their
own tools, equipment, and materials. They may work from their own location,
home office, or any place of their choosing.
5. Delegation of Work:
• Employee: Employees are usually required to perform the work personally
and are not allowed to delegate their tasks to others.
• Independent Contractor: Independent contractors may have the option to
hire assistants or subcontractors to help them complete the project, as long as
the end result meets the agreed-upon standards.
6. Payment Structure:
• Employee: Employees are typically paid a regular salary, hourly wage, or
monthly salary, regardless of the specific project outcomes.
• Independent Contractor: Independent contractors are often paid on a per-
project basis, by commission, or by invoicing the hiring party for the time
worked or services rendered.
7. Business Status:
• Employee: Employees do not need to hold their own business licenses or
permits. They are part of the employer's organization.
• Independent Contractor: Independent contractors often operate as separate
businesses. They may have their own business licenses, permits, and tax
responsibilities.
 BASIC CONDITIONS OF EMPLOYMENT AND
EMPLOYMENT EQUITY

BASIC CONDITIONS OF EMPLOYMENT ACT

This section outlines the key information that must be included in an employment contract to
ensure transparency and fairness between employers and employees.
Full Name and Address of the Employer:
• Employers must provide their legal name and address in the employment
contract. This helps employees identify their employer for legal purposes.
2. Name and Occupation of the Employee or Work Description:
• The contract should include the employee's full name and job title or a
description of the work they will be performing. This clarifies the role and
responsibilities of the employee.
3. Various Places of Work:
• If the job involves working at different locations, all such places of work
should be specified in the contract. This is important for employees who may
be required to move between locations.
4. Date of Employment:
• The contract must indicate the date when the employment officially starts.
This helps determine the length of service for various entitlements.
5. Ordinary Hours of Work and Days of Work:
• The regular working hours and days should be clearly defined in the contract.
This ensures that employees understand their typical work schedule.
6. Wage or Rate and Method of Calculation:
• The contract should specify the employee's wage or salary, along with how it
is calculated (e.g., hourly rate, monthly salary). This is crucial for determining
remuneration.
7. Rate for Overtime Work:
• If employees are eligible for overtime pay, the contract should outline the rate
at which overtime will be compensated.
8. Any Other Cash Payments:
• Besides the base wage, any additional cash payments, such as bonuses or
commissions, should be detailed in the contract.
9. Payment in Kind and Value Thereof:
 • If employees receive non-monetary benefits or perks (e.g., housing allowance,
company car), the contract should describe them and indicate their value.
10. Frequency of Remuneration:
• The contract should state how often employees will be paid (e.g., weekly, bi-
weekly, monthly).
11. Any Deductions:
• Deductions, such as taxes or contributions to pension funds, should be
specified in the contract.
12. Leave Entitlement:
• The contract should outline the employee's entitlement to various types of
leave, including annual leave, sick leave, and family responsibility leave.
13. Period of Notice or Period of Contract:
• The contract should specify the notice period required for termination by
either party or the duration of fixed-term contracts.
14. Description of Any Council or Sectoral Determination:
• If the employer's business is subject to any industry-specific agreements or
regulations, these should be mentioned in the contract.
15. Period of Employment with a Previous Employer:
• Any prior employment that counts towards the employee's length of service
for benefits or entitlements should be disclosed.
16. List of Other Documents:
• If there are additional documents that are part of the employment contract
(e.g., company policies, collective bargaining agreements), their availability
and location should be indicated.

LEAVE
The types of leave and entitlements for employees:
Annual Leave:
• Employees are entitled to 21 consecutive days of annual leave with full pay
after 12 months of service. This means that they can take a three-week
vacation with full pay after a year of employment.
2. Sick Leave:
• During the first 6 months of employment, employees are entitled to 1 day of
paid sick leave for every 26 days worked. Sick leave taken during this period
is deducted from the full 36 months' entitlement.
 3. Family Responsibility Leave:
• After 4 months of service, employees can take 3 days of family responsibility
leave for specific reasons, including caring for close family members during
illness or death. Employers may request proof.
4. Parental Leave:
• All employees, regardless of gender, are entitled to 10 days of parental leave.
It can be used in various family-related situations, including adopting a child.
5. Maternity Leave:
Maternity leave is 4 months of unpaid leave, starting one month before childbirth. Employees
may not return to work for 6 weeks after childbirth. Those not compensated during maternity
leave can claim from the UIF.
WORKING HOURS AND OVERTIME WORK:

Working hours and overtime regulations are essential components of labour laws that aim to
ensure fair and reasonable working conditions for employees. Let's explore each point and
provide examples:
1. Maximum Working Hours:
• Employees are generally not allowed to work more than 45 hours per week.
This sets a legal limit on the total hours an employee can be required to work
during a standard workweek.
Example: An employee who works from Monday to Friday for 9 hours a day (totalling 45
hours) complies with the maximum weekly working hours.
2. Daily Working Hours:
• Employees working 5 days a week cannot exceed 9 hours a day. However, if
they work more than 5 days a week, the maximum daily limit is 8 hours. This
provides flexibility depending on the workweek structure.
Example: An employee working 6 days a week should not work more than 8 hours in a single
day.
3. Overtime by Agreement:
• Overtime work can only be performed with the mutual agreement of both the
employer and the employee. This ensures that employees are not compelled to
work overtime against their will.
Example: An employee agrees to work extra hours to meet a project deadline, and the
employer approves the arrangement.
4. Limits on Overtime:
 • Overtime is limited to 10 hours per week or 3 hours per day, providing further
safeguards to prevent excessive overtime.
Example: An employee working on a Saturday may not exceed 3 hours of overtime that day.
5. Extension of Overtime:
• The maximum weekly overtime limit can be increased to 15 hours per week
for a period of 2 months by mutual agreement between the employer and the
employee. This flexibility allows for temporary increases in workload.
Example: A retail store may agree with its employees to work extra hours during the holiday
season, extending the weekly overtime limit to 15 hours.
6. Overtime Pay:
• Overtime work must be compensated at a rate of 1.5 times the normal wage
rate. This higher pay rate incentivizes employers to limit excessive overtime
and rewards employees for their additional effort.
Example: If an employee's regular hourly wage is $10, they would be paid $15 per hour for
overtime work.
7. Exclusion of Meal Breaks:
• Meal breaks, during which employees are not actively working, are not
counted as part of the 45 maximum working hours. This ensures that
employees have adequate time for rest and meals.
Example: An employee working 9 hours a day includes an unpaid 1-hour lunch break, which
is not part of the 9 working hours.
SUNDAY WORK AND PUBLIC HOLIDAYS:

Sunday work and public holiday regulations are crucial aspects of labour laws that address
compensation and working conditions on specific days of the week and during public
holidays.
1. Sunday Work Compensation:
• When an employee works on a Sunday, they must be remunerated at double
their normal wage rate for each hour worked, unless they ordinarily work on a
Sunday. In that case, they are entitled to be remunerated at 1.5 times their
normal wage rate for each hour worked.
Example: An employee who normally earns $20 per hour and works on a Sunday would be
paid $40 per hour if it's not their regular working day on Sundays. If they typically work on
Sundays, they would be paid $30 per hour.
2. Public Holiday Work Requirement:
 • Employers are not allowed to require any employee to work on a public
holiday unless there is an agreement between the employer and the employee
to do so. This provision safeguards the rights of employees on public holidays.
Example: An employer cannot compel an employee to work on a national holiday without the
employee's consent.
3. Public Holiday Compensation - Ordinary Working Day:
• If a public holiday falls on a day when an employee would ordinarily work,
and they work on that public holiday, they are entitled to be paid at least
double their normal wage rate for the day.
Example: An employee who typically works on Mondays is asked to work on a public
holiday Monday and is paid double their normal daily wage for that day.
4. Public Holiday Compensation - Non-Working Day:
• If a public holiday falls on a day when the employee would not ordinarily
work, they are entitled to have the day off and be paid their normal wage rate
for the day, even if they do not work.
Example: An employee who usually has Sundays and Mondays off is given Monday off for a
public holiday and is paid their regular daily wage for that day.
Possible Exam Questions:
1. Explain the compensation for Sunday work for an employee who does not ordinarily
work on Sundays and provide an example calculation.
• Answer: An employee must be paid double their normal wage rate for each
hour worked on a Sunday. For example, if their normal wage rate is $15 per
hour, they would be paid $30 per hour for Sunday work.
2. Describe the conditions under which an employer can require an employee to work on
a public holiday.
• Answer: An employer can only require an employee to work on a public
holiday if there is an agreement between the employer and the employee to do
so.
3. If a public holiday falls on a day when an employee would ordinarily work, explain
the minimum compensation they are entitled to when they work on that public holiday
and provide an example.
• Answer: An employee is entitled to be paid at least double their normal wage
rate for the day. For example, if their normal daily wage is $80, they would be
paid $160 for working on a public holiday.
4. What compensation is an employee entitled to on a public holiday if it falls on a day
when they do not ordinarily work, and they choose not to work?
• Answer: If a public holiday falls on a non-working day for the employee, they
are entitled to have the day off with pay at their normal wage rate.
 5. Contrast the compensation for Sunday work for an employee who ordinarily works on
Sundays with that of an employee who does not. Provide an example.
• Answer: An employee who ordinarily works on Sundays is entitled to 1.5
times their normal wage rate for Sunday work, while an employee who does
not ordinarily work on Sundays is entitled to double their normal wage rate.
For example, if their normal wage rate is $20 per hour, the former would be
paid $30 per hour, and the latter would be paid $40 per hour on a Sunday.

NOTICE OF TERMINATION:
Notice of termination is a critical aspect of employment contracts and labour laws that
establishes the conditions under which an employer or employee can end the employment
relationship.
key points regarding notice of termination:
1. Written Notice Requirement:
• According to the Basic Conditions of Employment Act (BCEA), notice of
termination of an employment contract must be given in writing. However,
there is an exception when it is given to or by an illiterate employee. This
ensures clarity and documentation of the termination.
2. Timing of Notice by the Employer:
• The BCEA specifies that notice of termination by the employer must not be
given during any period of leave to which the employee is entitled. It also
should not run concurrently with any period of leave to which the employee is
entitled, except for sick leave.
Example: If an employee is entitled to annual leave and is dismissed by the employer, the
employer cannot force the employee to take annual leave during the notice period. Instead,
the employer is required to pay the employee for the unused annual leave.
3. Use of Sick Leave During Notice:
• If an employee requires sick leave during a period of notice and has available
sick leave days, the employee is entitled to take paid sick leave during the
notice period.
Example: An employee is given two weeks' notice of termination. During the notice period,
the employee falls ill and has five days of sick leave remaining. The employee can use those
five days as paid sick leave during the notice period.
4. Termination Notice Periods (S37 of BCEA):
• The BCEA prescribes notice periods that must be adhered to when terminating
an employment contract based on the employee's length of service:
• One week's notice if the employee has been employed for six months
or less.
 • Two weeks' notice if the employee has been employed for more than
six months but less than one year.
• Four weeks' notice if the employee has been employed for one year or
more. This also applies to farm workers and domestic workers who
have been employed for four weeks or more.
MINIMUM WAGE ACT:
1. Minimum Wage Requirement: The Minimum Wage Act sets a minimum hourly
wage rate that workers must be paid, which is currently R20 per hour. For a standard
40-hour workweek, this amounts to R3,500 per month, and for a 45-hour workweek,
it's R3,900 per month.
2. Excluded Workers: Some categories of workers are excluded from the Minimum
Wage Act, and they are not subject to the minimum wage requirements. These
include:
• Workers in the farm or forestry industry.
• Domestic workers.
• Participants in the Extended Public Works Programme (EPWP).
• Learnership participants.
Example: Domestic workers, such as housekeepers or caregivers, may not be eligible for the
minimum wage as they fall under the excluded category.
The Minimum Wage Act is aimed at ensuring that all workers receive fair compensation for
their labor, but it exempts certain groups of workers based on the nature of their employment
or training status.
RESTRAINT OF TRADE:
1. Definition of Restraint of Trade: A restraint of trade is a provision in a contract of
employment that restricts an employee's ability to engage in certain types of work or
competition with their former employer after the termination of their employment.
This restriction typically includes a specified period of time and a specific
geographical area.
Example: An employer might include a clause in an employment contract preventing the
employee from starting a similar business or working for a competing business within a 50-
mile radius for one year after leaving the company.
2. Reasons for Restraint of Trade: Employers may include restraint of trade clauses in
employment contracts to protect their legitimate interests. This can include
safeguarding trade secrets, customer relationships, and other confidential information
that the employee gained during their employment.
Example: An employee working in a software development company could have access to
proprietary source code and client lists. A restraint of trade clause would prevent them from
using this information to compete with their former employer.
 3. Two Conflicting Principles: There are two conflicting principles at play when
determining the validity of a restraint of trade agreement: freedom of trade and
freedom of contract.
• Freedom of Trade: This principle emphasizes the importance of allowing
individuals to engage in their chosen professions and trades without undue
restrictions.
• Freedom of Contract: This principle recognizes the right of parties to freely
enter into agreements, including restraint of trade clauses.
4. Historical Evolution: Prior to 1984, restraint of trade clauses in employment
contracts were generally considered unlawful. However, the Magna Alloys case in
1984 established that such clauses are enforceable unless they are unreasonable and
contrary to the public interest.
5. Validity of Restraints: To be enforceable, a restraint of trade must meet certain
criteria:
• Reasonable: The restraint must be reasonable in its scope, duration, and
geographical area.
• Burden of Proof: The party seeking to avoid the restraint must prove that it is
contrary to the public interest.
• Modifiability: Courts can modify or reduce the scope of a restraint if it is
deemed excessive.
6. Basson vs. Chilwan Test: In South Africa, the Basson vs. Chilwan case established a
test to determine the reasonableness of a restraint of trade. It asks the following
questions:
• Is there an interest of a party worth protecting?
• Is this interest threatened by the conduct of another?
• Does this interest outweigh the other party's right to be economically active?
Are there any broader public policy considerations that should lead to the rejection of the
restraint?

DISMISSALS
DISMISSAL MEANS THAT:
1. Termination with/without notice:
• Example: An employer decides to terminate an employee's contract
due to poor performance or misconduct. This may happen with or
without providing notice, depending on the employment contract and
applicable labor laws.
 2. Non-renewal of fixed-term contracts:
• Example: An employee is on a fixed-term contract for one year and
reasonably expects it to be renewed for another year. However, the
employer offers to renew it on less favorable terms, such as reduced
pay or benefits, and the employee refuses to accept the new terms.
3. Failure to return after maternity leave:
• Example: An employee takes maternity leave as legally entitled but
decides not to return to work after the leave period. The employer may
consider this a form of resignation or abandonment of the job.
4. Constructive dismissal:
• Example: An employer deliberately creates an unbearable work
environment, making it impossible for the employee to continue
working. This could include harassment, constant changes in job
responsibilities, or other actions that render the workplace intolerable.
5. Selective re-employment after a group dismissal:
• Example: An employer lays off several employees for similar reasons,
such as downsizing. The employer later decides to rehire some of them
but refuses to re-employ others based on certain criteria, which may
lead to claims of unfair dismissal.
6. Dismissal after a transfer of employment (Section 197/197A):
• Example: If a company undergoes a transfer of business or assets, and
an employee's employment is transferred to a new employer, and the
new conditions are substantially less favourable (e.g., reduced pay,
benefits, or job security), the employee may have grounds for
dismissal, as per Section 197 or 197A, depending on the jurisdiction.
AUTOMATICALLY UNFAIR DISMISSSALS (SECTION 187 OF THE LABOUR
RELATIONS ACT)
• Engaging in Protected Strike or Demonstration: If an employee participates in
a legally protected strike or demonstration, their dismissal for this reason is
automatically unfair. This provision ensures that employees can exercise their
labor rights without fear of losing their job.
Example: An employee participates in a union-organized strike to demand better wages and
working conditions, and the employer terminates their employment as a result.
• Refusing to Perform Work of Striking Employee: An employee's dismissal is
considered automatically unfair if they refuse to perform the work of another
employee engaged in a legal strike unless such work is essential for protecting
life, personal safety, or health. This protects employees from being forced to
undermine strike actions.
Example: During a legal strike, an employee refuses to take over the duties of a striking
coworker, but those duties are not critical to ensuring the safety or health of others. The
employer dismisses them for this refusal.
• Refusing to Agree to a Demand of Mutual Interest: If an employee is
terminated for refusing to agree to a demand related to any matter of mutual
interest between the employer and employee, their dismissal is automatically
unfair.
Example: An employer insists that employees work overtime without proper compensation,
and an employee refuses to agree to this demand. The employee is subsequently dismissed
for not complying.
• Enforcing Rights or Participating in Activities Under the Labor Law:
Dismissing an employee for taking steps or intending to enforce their labor rights
or participating in activities protected by labor laws is automatically unfair.
Example: An employee joins a labor union and is subsequently dismissed for their
involvement in organizing union activities and advocating for employee rights.
• Pregnancy-Related Dismissal: Termination of an employee due to pregnancy or
any reason related to their pregnancy is automatically unfair. This protects the
rights of pregnant employees to continue their employment.
Example: An employer dismisses a female employee because she becomes pregnant,
believing it will disrupt the work environment.
• Discrimination on Arbitrary Grounds: If an employee is dismissed on arbitrary
grounds such as race, gender, age, disability, or other similar factors, it is
automatically unfair, except when the dismissal is related to the inherent
requirements of the job or retirement due to reaching pensionable age.
Example: An employer dismisses an employee solely because of their religious beliefs,
without any valid job-related reasons.
Transfer of Contract or Disclosures: Dismissing an employee due to a contract transfer,
disclosure made under the Protected Disclosures Act, or refusing to accept an employer's
demand on a matter of mutual interest is considered automatically unfair.
Example: An employee is fired because they revealed evidence of the company's unethical
practices, which is protected under the Protected Disclosures Act.
Union Membership: Dismissing an employee for their membership in a labor union is
automatically unfair. This protection ensures that employees can exercise their right to
join and participate in unions without fear of job loss.
Example: An employee is terminated for becoming a member of a union and actively
participating in union activities.
WHEN IS DISMISSAL REGARDED UNFAIR?
1. Lack of Valid Reason:
• Dismissing an employee without a valid reason is typically considered unfair.
The reason for dismissal should be related to misconduct, incapacity, or
operational requirements, as you mentioned.
• Example: Firing an employee simply because the employer doesn't like them
or based on personal animosity would be an unfair dismissal.
2. Procedural Unfairness:
• Even if there is a valid reason for dismissal, if the employer doesn't follow a
fair and legally required procedure, the dismissal can be deemed unfair. This
includes failing to provide proper notice, not allowing the employee to present
their case, or not following disciplinary procedures.
• Example: Terminating an employee without any prior warnings,
investigations, or without providing an opportunity for the employee to defend
themselves.
3. Discrimination:
• Dismissing an employee based on discriminatory grounds such as race,
gender, religion, disability, or age is unfair and illegal.
• Example: Firing an employee solely because they are pregnant or belong to a
certain ethnicity would be an unfair dismissal.
4. Retaliation:
• Terminating an employee in retaliation for asserting their legal rights or
whistleblowing is often considered unfair.
• Example: Firing an employee who reported safety violations within the
company to regulatory authorities would be seen as unfair.
5. Breach of Contract:
• If the employer breaches the terms of the employment contract, it can lead to
an unfair dismissal.
• Example: Dismissing an employee without adhering to the notice period
specified in their employment contract.
6. Arbitrary or Unreasonable Decision:
• Dismissing an employee for a reason that is arbitrary, unreasonable, or
disproportionate to the alleged misconduct is generally considered unfair.
• Example: Terminating an employee for a minor infraction, such as arriving a
few minutes late, without considering any mitigating factors or a history of
good performance.
 7. Failure to Accommodate Disabilities:
• Firing an employee with a disability without attempting to make reasonable
accommodations can be deemed unfair.
• Example: Terminating an employee with a physical disability without making
adjustments to their workspace or work schedule to accommodate their needs.
8. Failure to Prove Misconduct, Incapacity, or Operational Requirements:
• If the employer cannot substantiate the reason for dismissal with evidence of
misconduct, incapacity, or operational requirements, it can be considered
unfair.
• Example: Dismissing an employee for alleged poor performance without
providing evidence or documentation to support this claim.

FOR A DISMISSAL TO BE FAIR THE EMPLOYER NEEDS TO PROVE THE

FOLLOWING:

SUBSTANTIVE FAIRNESS (WHICH PERTAINS TO MISCONDUCT)

the employer needs to prove the following key areas:

1. Employee Broke a Rule of Conduct: The employer must establish that the employee
has indeed breached a specific rule of conduct or engaged in misconduct. This
misconduct can include a wide range of behaviors such as theft, insubordination,
harassment, absenteeism, or any other violation of company policies or employment
contracts.
Example: If an employee is caught stealing office supplies, it would constitute a breach of
conduct.
2. Validity and Reasonableness of the Rule: The rule or policy that the employee
violated must be valid and reasonable. This means that the rule should be lawful,
clear, and serve a legitimate purpose in the workplace. It should not be arbitrary or
discriminatory.
Example: Requiring employees to maintain confidentiality about sensitive company
information is a valid and reasonable rule.
3. Employee's Knowledge of the Rule: The employer should demonstrate that the
employee was aware of the existence of the rule. This typically involves proving that
the employee received proper training or had access to the company's policies and
procedures.
Example: Providing evidence that the employee signed an acknowledgment of the company's
policies during onboarding.
 4. Consistent Application of the Rule: The employer should show that it consistently
applied the rule to all employees in similar situations. Inconsistent enforcement of
rules can undermine the fairness of a dismissal.
Example: If an employer has overlooked previous theft incidents by other employees without
consequences, it could weaken their case for dismissing an employee for theft.
5. Appropriateness of Dismissal as a Disciplinary Action: Dismissal should be the
appropriate response in light of the misconduct. The employer must demonstrate that
other, less severe disciplinary actions were considered, and that dismissal is a
proportionate response to the severity of the employee's actions.
Example: If an employee engaged in a minor infraction like arriving late a few times,
dismissal might not be a fair response, and a written warning or suspension may be more
appropriate.

PROCEDURAL FAIRNESS (PERTAINS TO THE STEPS THAT NEED TO BE

TAKEN FOR A FAIR DISMISSAL AFTER A MISCONDUCT)
1. Informing the Employee of the Charges:
• Example: If an employee is accused of theft, the employer must provide a
clear and detailed explanation of the alleged theft, including when and where
it occurred and the evidence against the employee.
2. Providing Sufficient Time to Prepare:
• Example: Giving the accused employee adequate time to gather evidence,
consult with legal representation, and prepare a defense before the disciplinary
hearing.
3. Consulting the Union (if applicable):
• Example: If the accused employee is a shop steward or office bearer of the
union, the employer should engage with the union representatives to ensure a
fair and transparent inquiry.
4. Opportunity for the Employee to State their Case:
• Example: Allowing the accused employee to present their side of the story
during the disciplinary hearing and respond to the allegations made against
them.
5. Right to be Assisted:
• Example: Permitting the employee to have a shop steward or a fellow
employee as their representative or support during the disciplinary hearing to
ensure a fair process.
6. Notification of Decision with Clear Reasons:
 • Example: After the inquiry, the employer must provide a written decision to
the employee explaining the outcome and the reasons for the decision. For
instance, if the employee is dismissed, the employer should clearly state the
grounds for the dismissal.
7. Right to Appeal:
• Example: If the employee is dissatisfied with the outcome, the employer
should inform them of their right to appeal. This includes explaining the
appeals process and the time frame for lodging an appeal. For example, the
employee should be informed that they have 30 days to appeal the decision to
a relevant council or the Commission for Conciliation, Mediation, and
Arbitration (CCMA).

UNFAIR LABOUR PRACTICES

Unfair labour practices refer to various actions or omissions by employers or
employees that are considered unjust, discriminatory, or in violation of labor laws and
regulations. Unfair labor practices can disrupt the employment relationship and
potentially harm the rights and interests of one party.

Section 186 of the LRA defines what constitutes unfair labor practices, specifying
various categories of actions and omissions that can be deemed unfair.
1. Promotion, Demotion, Probation, Training, or Employee Benefits:
• Example: An employer consistently promotes employees of one
gender over those of the other gender, even if the latter are equally or
more qualified.
• Example: Denying a deserving employee a promised bonus or benefits
for discriminatory reasons.
2. Unfair Suspension or Unfair Disciplinary Action Short of Dismissal:
• Example: Suspending an employee without reasonable cause, such as
initiating a suspension based on personal grudges rather than job-
related issues.
• Example: Imposing a harsh disciplinary penalty on an employee for a
minor infraction that does not warrant such severe action.
3. Failure to Reinstate or Re-Employ an Employee in Terms of Any
Agreement:
• Example: An employer refuses to rehire an employee after the
expiration of a fixed-term contract, even if there was a prior agreement
to do so.
 • Example: An employer fails to reinstate an employee after they were
wrongfully dismissed, despite a legal ruling ordering their
reinstatement.
4. Occupational Detriment in Contravention of the PDA (Protection of
Disclosures Act):
• Example: An employee faces adverse consequences, such as
demotion or harassment, after reporting illegal activities within the
company, which is protected under the PDA.
• Example: An employer retaliates against an employee for disclosing
unethical behavior or discrimination within the workplace.

DISMISSAL FOR POOR WORK PERFORMANCE

Dismissal for poor work performance is a common issue in labor relations, and it's
crucial for both employers and employees to understand the principles of substantive
fairness when assessing the fairness of such dismissals. Substantive fairness, in this
context, refers to whether the grounds for dismissal are justifiable based on the
employee's actual performance.
1. Meeting Performance Standards: The first and most critical consideration in
evaluating the fairness of a dismissal for poor work performance is whether
the employee failed to meet a performance standard. This standard should be
clearly defined, objective, and measurable. Examples of performance
standards might include meeting sales targets, completing a certain number
of tasks within a specified timeframe, or maintaining a certain level of quality
in their work.
Example: In a sales role, if the performance standard is set at achieving monthly
sales of $50,000, and an employee consistently falls short of this target, this would
be a clear instance of not meeting the performance standard.
2. Employee Awareness of Standards: It's essential to determine whether the
employee was aware of the performance standard or could reasonably be
expected to be aware of it. In many cases, employers should communicate
these standards clearly and provide adequate training and resources for
employees to meet them.
Example: If an employer introduces a new policy but fails to adequately inform the
employees and provide the necessary training, it may not be fair to dismiss an
employee for failing to meet the standard associated with the new policy.
3. Fair Opportunity to Improve: Employees should be given a fair opportunity
to meet the required performance standard. This typically involves providing
constructive feedback, support, and reasonable time for improvement.
Employers should follow a progressive discipline process, which might include
verbal and written warnings, coaching, and additional training, depending on
the circumstances.
Example: If an employee's performance is subpar, the employer should provide
feedback, offer guidance, and allow a reasonable period for the employee to show
improvement before considering dismissal.
4. Appropriateness of Dismissal: Finally, it should be determined whether
dismissal was an appropriate sanction for the employee's failure to meet the
performance standard. Dismissal should be a last resort and should be
proportionate to the severity of the performance issues.
Example: If an employee consistently fails to meet a minor performance standard,
such as punctuality, it might not be appropriate to terminate their employment
immediately. A more appropriate response could be counseling or a written warning.

PROCEDURAL FAIRNESS DISMISSAL FOR POOR WORK PERFOMANCE

Procedural fairness in the context of dismissing an employee for poor work
performance is a fundamental aspect of labour relations and employment law. It
ensures that employees are treated fairly and that employers make informed and just
decisions.
1. Establishing Poor Performance vs. Misconduct:
• Example: An employee, John, has been consistently failing to meet his
sales targets. This is a clear case of poor performance rather than
misconduct.
2. Identifying the Causes of Poor Performance:
• Example: The employer realizes that John's poor performance may be
due to a lack of proper training and inadequate resources.
3. Meeting with the Employee and Their Line Manager:
• Example: The employer arranges a meeting involving John, his line
manager, and HR to discuss his performance issues.
4. Obtaining the Employee's Reasons for Poor Performance:
• Example: During the meeting, John explains that he feels overwhelmed
by his workload and hasn't received any additional training to improve
his sales techniques.
5. Evaluating the Employee's Reasons:
• Example: The employer reviews John's claims and finds that there is
merit to his concerns about workload and lack of training.
6. Obtaining Commitment from the Employee:
• Example: The employer discusses potential solutions with John, who
commits to seeking additional training and making necessary changes
to improve his performance.
 7. Informing the Employee of Employer Actions:
• Example: The employer assures John that they will provide additional
training and redistribute his workload more equitably.
8. Agreeing on a Reasonable Time Period for Improvement:
• Example: John and the employer agree that he will have three months
to show significant improvement in his sales performance.
9. Follow-up and Monitoring:
• Example: The employer conducts regular performance reviews with
John during the three-month period to assess his progress and provide
ongoing feedback.

PROBATIONARY EMPLOYEES
probationary employees are individuals who have been newly hired or promoted
within an organization and are subject to a trial or evaluation period, known as the
probationary period.
Item 8 of the Code of Good Practice provides guidelines and principles that
employers should follow when dealing with probationary employees:
1. Probation Should Not Be Used to Deprive Employees of Permanent
Appointment:
• This principle emphasizes that probation should not be a means to
indefinitely keep employees in a state of uncertainty or insecurity.
Example: A company hires a new software developer on a probationary basis. The
employer should not use this probationary period to exploit the developer's
temporary status and delay granting permanent employment if the developer meets
the required standards.
2. Probation Should Be for a Reasonable Time and Be Determined in Time:
• Employers should specify a reasonable duration for the probationary
period and communicate this to the employee.
Example: A manufacturing company hires a quality control inspector on a six-month
probation. The employee is aware of the duration and conditions of the probationary
period.
3. Performance Assessment and Training During Probation:
• Employers should assess the probationary employee's performance
and provide them with reasonable evaluation and training to help them
achieve satisfactory performance.
Example: A marketing firm hires a new sales representative on probation. The
employee is given regular feedback on their performance and is offered training
sessions to enhance their sales skills.
4. Informing Employees of Performance Issues:
• If a probationary employee fails to meet performance standards, the
employer should communicate this issue to the employee.
Example: An accounting firm hires a junior accountant on probation. After the first
month, it becomes apparent that the accountant is making frequent errors. The
employer discusses these issues with the employee.
5. Employee Representation Prior to Dismissal or Extension:
• Before dismissing or extending a probationary period, employers
should allow employees to make representations, providing them with
an opportunity to explain their performance or raise concerns.
Example: A restaurant hires a new chef on probation. The chef is informed that their
probation may be extended due to inconsistent performance. The chef is given a
chance to explain their difficulties and request additional training.
6. Advising Employees of Their Rights:
• Employers should inform probationary employees of their rights to refer
the matter to a labor council or commission if they believe they are
being treated unfairly during the probationary period.
Example: A retail store informs a probationary cashier that, if they feel they are being
unfairly treated or dismissed without proper evaluation and training, they can seek
assistance from a labor commission.
7. Post-Probation Performance and Dismissal:
• After the probationary period, employees should not be dismissed for
poor performance unless the employer has provided appropriate
evaluation, training, and sufficient time for the employee to improve.
Example: A software company promotes a developer to a permanent position after a
successful probationary period. If the developer's performance deteriorates after the
probation, the employer provides further training and guidance before considering
dismissal.
DISMISSAL FOR ILL HEALTH OR INJURY
The dismissal for ill health or injury in labour relations is a complex issue that
involves considerations of fairness, compassion, and legal compliance. In many
jurisdictions, including South Africa, labour laws and codes of good practice provide
guidelines for employers when dealing with employees who are unable to perform
their job due to illness or injury.
The Code of Good Practice outlines important principles that should be followed
when dealing with such situations:
1. Incapacity may either be temporary or permanent: This means that an
employee may suffer from an illness or injury that prevents them from working
for a limited time or on a long-term basis. For example, an employee who
breaks their leg may have a temporary incapacity, while an employee with a
chronic illness may have a permanent one.
2. Investigation regarding the extent of the incapacity or injury by the
employer and alternatives short of dismissal: Employers should
investigate the employee's condition and explore possible alternatives before
considering dismissal. For example, if an employee develops a repetitive
strain injury that makes their current role difficult, the employer should assess
whether modified duties, ergonomic changes, or additional equipment could
help the employee continue working effectively.
3. Factors such as the nature of the job should be considered: The nature
of the job and the specific requirements for performing it should be taken into
account. For example, if an employee's job involves heavy lifting, and they
have a back injury, it may be more challenging to find a reasonable
accommodation compared to an office job.
4. Employee should be allowed an opportunity to state a case: The affected
employee should have the opportunity to provide input and relevant medical
information. For example, an employee with a serious illness should be
allowed to present medical records and recommendations from their
healthcare provider to the employer.
Guidelines for employers in these situations include:
1. Assessing the employee's capability: Employers need to determine
whether the employee is still capable of performing their current job or if
modifications are needed. For example, if an employee has a visual
impairment, the employer could provide assistive technology to help them
perform their tasks.
2. Evaluating the extent to which the employee can perform the work:
Employers should assess the limitations of the employee's condition and
whether they can still complete essential job functions. For example, if an
employee has a wrist injury, the employer may need to adjust their workload
temporarily to accommodate their physical limitations.
3. Adapting circumstances to accommodate the disability: If it's possible,
employers should make reasonable accommodations to help employees with
disabilities continue to work. This could involve adjusting work hours,
providing specialized equipment, or modifying job duties.
4. Availability of suitable alternative work: If the employee is unable to
perform their current job due to their health condition, the employer should
consider whether there are other suitable roles within the organization that the
 employee can perform. For example, if an employee cannot perform their
physical duties due to a disability, the employer may reassign them to a desk
job.

DISMISSAL FOR OPERATIONAL REQUIREMENTS

Dismissal for operational requirements in labour relations refers to the termination
of employment contracts by an employer due to legitimate business needs. This is
governed by Section 189 and 189A of the Labour Relations Act (LRA) in South
Africa.
Reasons for dismissal for operational requirements:
1. Operational Requirements:
• Operational requirements are those based on economic, technological,
structural, or similar needs of the employer.
• These requirements are often the grounds for retrenchment, which is
the termination of employees' contracts due to factors beyond their
control.
2. Economic Needs:
• Economic needs refer to financial challenges faced by the employer,
such as operating at a loss or the need to maximize profits.
• Example: A manufacturing company facing a consistent decline in
sales and revenue may need to downsize its workforce to cut costs and
avoid bankruptcy.
3. Technological Needs:
• Technological needs involve the introduction of new machinery,
systems, or processes in the workplace, making certain job roles
obsolete.
• Example: An automobile assembly plant replacing manual labor with
automated robots and machines, leading to the retrenchment of some
workers.
4. Structural Needs:
• Structural needs result from the restructuring of the company, which
can make some job positions redundant.
• Example: A large corporation decides to merge two departments,
leading to duplication of roles and the need to retrench employees from
one of the merged departments.
 5. Similar Needs:
• Similar needs might include situations like sabotage by unidentified
perpetrators, where a company needs to reorganize and potentially
reduce its workforce in response to unforeseen events.
• Example: A company's critical infrastructure is damaged by a
cyberattack, leading to a temporary shutdown and the subsequent
need to retrench workers.
6. Substantive Fairness:
• Substantive fairness is a crucial aspect of the process. It requires the
employer to prove that the reasons for retrenchment are valid and
genuinely based on one or more of the operational requirements.
• This involves consultation with affected employees or their
representatives, exploring alternatives to retrenchment, and ensuring
that the selection criteria for retrenchment are fair and not
discriminatory.
Small Scale vs. Large-Scale Retrenchments:
• Small-scale retrenchments typically involve fewer employees and have less
bureaucratic requirements. For instance, a small retail store may need to
retrench a few employees due to a temporary decrease in business.
• Large-scale retrenchments, on the other hand, involve a substantial number
of employees and require a more formal process as per Section 189A of the
LRA. Large-scale retrenchments often require negotiations with trade unions,
and the process may include providing severance packages, retraining
opportunities, or relocation assistance.
PROCEDURAL FAIRNESS
Procedural fairness in labour relations is a crucial concept that ensures that the
rights of both employees and employers are protected during various employment-
related processes, such as dismissals, collective bargaining, or other important
decisions. It focuses on the fair and transparent procedures followed by employers,
and it is essential for maintaining positive employer-employee relationships and
upholding the principles of justice and equity in the workplace.
DISMISSIBLE TRANSGRESSIONS

1. Failure or refusal to work: This involves an employee intentionally not

performing their duties. For example, if an employee consistently refuses to
complete their assigned tasks despite warnings and guidance.
2. Deliberate and continued absenteeism: Consistently missing work without
a valid reason or without notifying the employer. For instance, an employee
who frequently calls in sick without medical documentation or permission.
3. Gross negligence: This refers to reckless or willful disregard for job
responsibilities, potentially leading to harm or damage. For example, a
manufacturing worker who repeatedly ignores safety procedures, putting
coworkers at risk.
4. Serious incompetence: When an employee consistently fails to perform their
job to a satisfactory standard despite training and guidance. For instance, a
software developer who repeatedly produces subpar code.
5. Refusal to carry out orders: An employee refuses to follow legitimate and
reasonable instructions from a supervisor. For example, a cashier refusing to
process a return as per company policy.
6. Repeated late coming: Consistently arriving late for work without a valid
reason. For instance, an employee who is consistently 30 minutes late every
morning.
7. Incapacity of the employee: When an employee is unable to perform their
job due to a medical condition or disability that cannot be reasonably
accommodated. This is more about the employee's inability rather than
misconduct.
8. Dishonesty in the sphere of work: This includes actions like falsifying
records, stealing company property, or lying about job-related matters. For
example, an employee who fabricates expense reports.
9. Disloyalty to the employer: Acting against the interests of the employer,
such as sharing confidential company information with a competitor or
engaging in activities that could harm the company's reputation.
10. Drunkenness: Coming to work under the influence of alcohol or drugs, which
impairs an employee's ability to perform their job safely and effectively.
11. Assault: Physically harming a coworker, supervisor, or customer. This is a
criminal offense and is typically a clear ground for immediate termination.
12. Gross insubordination: Openly and wilfully defying authority, rules, or
policies in a blatant and severe manner. For instance, an employee shouting
at a manager and refusing to follow instructions.
PRELIMINARIES OF A DISCIPLINARY HEARING
1. Investigation: Before a disciplinary hearing, an employer must conduct a
thorough investigation to gather evidence and establish the basis for the
hearing. This involves interviewing witnesses, reviewing relevant documents,
and collecting all necessary information. For example, if an employee is
accused of theft, the investigation might include reviewing security camera
footage and taking statements from colleagues or supervisors who were
present when the alleged theft occurred.
2. Informing the Employee: It's essential to inform the employee about the
disciplinary hearing and their rights. This includes notifying them of the date,
time, and location of the hearing. Moreover, the employee must be made
aware of their rights, such as the right to request information, the right to an
interpreter if they have language difficulties, and the right to have
representation (e.g., a union representative or legal counsel). For instance, a
written notice to the employee could state, "You are required to attend a
disciplinary hearing on [date] at [location]. You have the right to request
relevant documents and bring a representative with you."
3. Preparing for the Hearing: Both the employer and the employee should
prepare for the hearing by gathering evidence, identifying witnesses, and
reviewing relevant policies and procedures. This ensures that both parties are
adequately prepared to present their cases. For instance, an employee
accused of insubordination should gather evidence that demonstrates their
compliance with company policies and any communications that support their
actions.
4. Suspension Pending a Disciplinary Hearing: In some cases, it may be
necessary to suspend an employee pending the outcome of the hearing. This
is typically done to protect the organization, other employees, or evidence.
For example, if an employee is accused of workplace violence, they may be
suspended during the investigation and disciplinary process to maintain a safe
work environment.
5. Appointing a Neutral Chairperson: To ensure impartiality and fairness, it is
often recommended to appoint a neutral chairperson to conduct the
disciplinary hearing. This individual should not have a vested interest in the
outcome and should act as an unbiased adjudicator. An example would be
selecting an HR manager from another department or an external mediator to
chair the hearing.

DISCIPLINARY PROCEDURE

1. Notification of and Preparation for the Hearing:

 • This step involves notifying the employee about the disciplinary
hearing. The notice should specify the allegations and the date, time,
and location of the hearing.
• Example: An employee is notified in writing that they are facing
disciplinary action for repeated tardiness and absenteeism.
2. Opening the Hearing:
• The hearing is officially initiated by a designated person (e.g., a
manager or HR representative) who outlines the purpose of the
meeting, the rules and procedures to be followed, and introduces the
individuals present.
• Example: The HR manager opens the hearing by explaining that it's a
formal meeting to address concerns related to the employee's conduct.
3. Hearing the Evidence:
• Both the employer and the employee present their evidence and
arguments related to the allegations. Witnesses may be called, and
documents or records may be presented.
• Example: The employer presents time and attendance records as
evidence of the employee's repeated lateness and absenteeism.
4. Deciding if the Employee Is Guilty of the Charges:
• After hearing the evidence, the person conducting the hearing (usually
a manager or HR representative) determines whether the employee is
guilty of the alleged misconduct.
• Example: The manager concludes that the employee is indeed guilty of
repeated tardiness and absenteeism based on the presented evidence.
5. Hearing Mitigating and Aggravating Evidence and Pleas:
• If the employee is found guilty, they may have an opportunity to present
mitigating factors (reasons that may reduce the severity of the
punishment) or aggravating factors (reasons that may increase the
severity of the punishment). This step helps determine an appropriate
sanction.
• Example: The employee explains that their lateness was due to a
recent medical condition, which is a mitigating factor, and pleads for a
more lenient sanction.
6. Informing the Employee of the Sanction:
• Once the guilt or innocence is determined and any mitigating or
aggravating factors are considered, the employer informs the employee
of the disciplinary action or sanctions to be imposed, if applicable.
 • Example: The manager informs the employee that, due to their medical
condition being a valid mitigating factor, they will receive a written
warning rather than a more severe penalty.

DISPUTE RESOLUTION/SETTLEMENT
Labour dispute is a continued disagreement between employers and
employees/ex-employees, or their unions as regards any matter of common interest,
any work-related factor affecting their relationship, or any processes and structures
established to maintain such relationship.

DISPUTES OF RIGHT AND DISPUTES OF INTEREST

Disputes can be categorized into two main types: disputes of right and disputes of
interest. These distinctions are important for understanding the nature of labour
disputes, how they are resolved, and the role of negotiations.
Disputes of Right:
• Definition: Disputes of right involve disagreements over existing rights
that are legally established or defined in employment contracts,
collective agreements, or by law. These rights are typically non-
negotiable, as they are already established and protected by legal
provisions.
• Examples:
• Wage Dispute: An employee believes that their employer is not
paying them in accordance with the wage rates outlined in their
employment contract.
• Working Hours Dispute: An employer argues that an employee
is not adhering to the agreed-upon working hours as per their
contract.
• Benefits Dispute: An employee claims that they are entitled to
certain benefits, such as healthcare or retirement contributions,
according to a collective agreement, but the employer
disagrees.
• Resolution: Disputes of right are typically resolved through legal
processes, arbitration, or by referencing the terms of the existing
contract or agreement. In some cases, conciliation might be attempted
to reach a resolution before legal action is taken.
2. Disputes of Interest:
• Definition: Disputes of interest revolve around issues that are not yet
established as rights but are subject to negotiation between the parties.
 These disputes are often related to potential rights, and they concern
matters that one party wishes to obtain. They are characterized by the
desire to create new rights or modify existing conditions.
• Examples:
• Salary Increase: Employees demand a salary increase in their
upcoming contract negotiation.
• Better Working Conditions: Labor unions push for improved
workplace safety measures and conditions.
• Bonus or 13th Cheque: Employees request additional bonuses
during the holiday season.
• Resolution: Disputes of interest are typically resolved through
negotiation, where both parties work to find common ground and reach
an agreement. If no agreement is reached, employees often have the
option to strike to exert pressure on the employer, and the employer
can respond with a lockout. Mediation or arbitration may also be used
to help facilitate an agreement in some cases.
THE DISPUTES PROCEDURE
The Disputes Procedure in labour relations is a structured process designed to
address conflicts and disagreements that may arise between employers and
employees, typically concerning employment-related issues. This procedure aims to
provide a fair and effective means of resolving disputes within the framework of
labour laws and regulations.
1. Dispute Referral:
• When a dispute arises between an employer and an employee, the
aggrieved party may complete a Dispute Referral Form. This form
details the nature of the dispute and the relief sought.
• Example: An employee is dismissed from their job and believes that the
termination was unfair. They file a dispute referral form with their
reasons for contesting the dismissal.
2. Conciliation Meeting:
• After receiving the dispute referral form, a conciliation meeting is
scheduled. A mediator, often appointed by the relevant labor authority,
facilitates this meeting.
• Example: A conciliation meeting is arranged to bring together the
employer and the dismissed employee to explore options for resolving
the dispute without going to court.
3. Out-of-Court Settlement:
 • If the conciliation process is successful, the parties may agree to a
settlement. This settlement is documented in a contract, which outlines
the terms and conditions for resolving the dispute.
• Example: The employer and the employee reach an agreement,
possibly reinstating the employee with certain conditions, and sign a
settlement contract to formalize the resolution.
4. Arbitration or Labor Court:
• If conciliation fails to resolve the dispute, the matter can be escalated.
The dispute can be referred for arbitration or taken to the labor court,
depending on the nature of the dispute.
• Example: If the parties cannot agree on a resolution during conciliation,
the employee may decide to take the case to arbitration or the labor
court, seeking a decision on the fairness of their dismissal.
5. Arbitration or Court Proceedings:
• During arbitration or in court, an arbitrator or judge hears evidence and
arguments from both the employer and the employee.
• Example: In an arbitration or labor court hearing, the employer
presents evidence to justify the dismissal, while the employee provides
evidence to support their claim of unfair treatment.
6. Arbitrator's Decision:
• The arbitrator or judge will make a decision on whether the dismissal or
other act was fair or not, based on the evidence and legal principles.
• Example: The arbitrator may rule in favor of the employer if they find
that the dismissal was justified, or in favor of the employee if they find it
to be unfair.
7. Review of Decision:
• If either party is dissatisfied with the outcome, they can apply for a
review at the Labor Court. The review is typically based on specific
grounds, such as the arbitrator's bias or procedural irregularities.
• Example: If the employee believes that the arbitrator's decision was
influenced by bias or ignored relevant evidence, they may apply for a
review.
8. Higher Court Appeals:
• Any decision of the Labor Court may be further appealed. The dispute
may be referred to the Labor Appeal Court or even higher courts, like
the Supreme or Constitutional Court.
 • Example: If either the employer or the employee is unhappy with the
Labor Court's decision on the review, they can escalate the matter to a
higher court for a final judgment.

REMEDIES FOR UNFAIR DISMISSAL

Remedies for unfair dismissal in labor relations are essential to protect the rights of
employees and ensure that employers adhere to fair employment practices. In many
labor jurisdictions, remedies for unfair dismissal typically involve reinstatement, re-
employment, or compensation.
1. Reinstatement:
• Reinstatement means that the dismissed employee is restored to their
previous position with all the rights and benefits they had before the
dismissal.
• Example: If an employee is unfairly dismissed from their position as a
customer service representative, reinstatement would involve placing
that employee back into the same customer service role with the same
pay, benefits, and seniority.
2. Re-employment:
• Re-employment involves offering the dismissed employee a similar
position within the company if reinstatement is not feasible or desirable.
This position should be comparable in terms of pay, benefits, and
seniority.
• Example: If the relationship between the employee and the employer
has become strained, or if the previous position is no longer available,
re-employment may involve offering the employee a role with similar
responsibilities and compensation, such as a different role in the same
department or a related position in the organization.
3. Compensation:
• Compensation is a monetary award given to the dismissed employee
as a remedy for unfair dismissal. The amount of compensation may
vary based on the circumstances of the case.
• Example: If an employee is unfairly dismissed and it's determined that
reinstatement or re-employment is not feasible or desirable, the Labor
Court or arbitrator may order the employer to pay compensation to the
employee. The amount of compensation may be based on factors such
as the length of employment, salary, and the circumstances of the
dismissal. For instance, in the case of automatically unfair dismissals,
the compensation awarded may be more substantial.
 COLLECTIVE LABOUR LAW
Collective labour law governs the relationships between employers and employees as a
collective, focusing on the rights and interests of organized workers. This includes various
aspects such as trade unions, bargaining councils, collective bargaining, strikes, lockouts, and
other forms of collective action.
1. Trade Unions:
• Trade Unions are organized associations of workers in a specific trade, group
of trades, or profession. They are formed to protect and advance the rights and
interests of their members.
• Example: A group of factory workers form a trade union to negotiate better
wages and working conditions with their employer.
2. The Basic Function of a Trade Union:
• The primary function of a trade union is to regulate the relationship between
its member employees and their employers.
• They negotiate on behalf of members to secure better working conditions,
benefits, and wages.
• Example: A teacher's union negotiates with the local school district for
improved salaries and benefits for its members.
3. Bargaining Councils:
• Bargaining councils are established when employer and employee bodies in a
specific industrial sector and geographic area agree to engage in collective
bargaining.
• These councils facilitate negotiations and agreements on various labor-related
issues within that sector.
• Example: In the automotive industry, a bargaining council may be established
to negotiate industry-wide wage standards and working conditions.
4. Collective Bargaining:
• Collective bargaining involves negotiations on wages and employment
conditions by an organized body of employees, typically represented by a
trade union.
• It is a fundamental right for trade unions, employers, and employer
organizations.
• Example: A trade union representing nurses negotiates with a hospital
management to increase nurse-to-patient ratios and provide better working
conditions.
5. Strikes and Lockouts:
 • Strikes involve the refusal to work by employees to address grievances or
disputes with their employers.
• Lockouts are when employers exclude employees from the workplace as a
tactic to pressure them to accept certain demands.
• Requirements for protected strikes and lockouts involve dispute resolution
through the CCMA or a bargaining council, along with proper notice.
• Example: A mining union organizes a strike to demand safer working
conditions for miners, following the proper legal procedures.
6. Legal Implications of Protected Strikes and Lockouts:
• Participants in protected strikes or lockouts are not liable for civil claims or
breaches of contract.
• Employers are not obligated to pay employees for services not rendered during
a protected strike.
• Employees cannot be dismissed for participating in a protected strike.
• Example: During a protected strike, employees are not paid their regular
wages but may receive financial support from the trade union.
7. Legal Implications of Unprotected Strikes and Lockouts:
• The Labour Court has jurisdiction to issue interdicts or compensation for
losses resulting from illegal strikes or lockouts.
• Employers can dismiss employees for misconduct during a protected strike or
for participating in an unprotected strike.
• Example: If employees engage in an unprotected strike without proper notice
and disrupt business operations, they may be dismissed.
8. Picketing:
• Picketing is a form of protest where workers stand outside their workplace to
inform, persuade, or prevent others from entering during a strike.
• It is often allowed outside the employer's premises or inside with the
employer's consent.
• Example: Striking employees hold signs and distribute information outside a
factory, urging others not to cross the picket line.
9. Protest Action (Stay-Away):
• Protest action involves the refusal to work or disrupting work to promote or
defend socio-economic interests of workers without meeting the legal criteria
for a strike.
• Specific requirements, including notification to NEDLAC, must be met for
lawful protest action.
• Example: Workers participate in a stay-away to protest against government
policies affecting labor rights and conditions.