LLW2601 EXAM PACK (QUESTION PAPER AND SOLUTIONS)

LLW2601 EXAM PACK . A collective agreement Between trade unions and employers may change conditions of work, provided that such collective agreement is consistent with the purposes of the Act. • It may replace or exclude a basic condition of employment only to the extent permitted by the Basic Conditions of Employment Act or a sectorial determination. Page 34 email: Tel : 9 Cell : 3 GR TUTORIALS QUESTION 1D Explain the meaning of “consultation” in the context of dismissal on the basis of operational requirements. (4) • Consultation in terms of Section 189(2) of the Labour Relations Act means “to attempt to reach consensus”. • Consultation must take place when the employer contemplates dismissal; in other words, at the stage when the employer has not reached a final decision to dismiss, but has merely foreseen the possibility. • In National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1993) 14 ILJ 642 (LAC) the Labour Appeal Court interpreted this to mean “at the earliest opportunity”. • The employer must first consult with the person or group indicated in a collective agreement. In the absence of a collective agreement, a workplace forum must be consulted (if there is such forum). • Alternatively, the employer must consult with any registered trade union whose members are likely to be affected by the proposed dismissals. If there is no such union, the employer must consult the employees (or their nominated representatives) likely to be affected by the proposed dismissals QUESTION 1E Discuss the procedural requirements for a dismissal based on poor work performance of an employee who is on probation. (10) • For the purposes of poor work performance, the Labour Relations Act distinguishes between employees on probation and employees who have completed their probationary period. • Since one of the purposes of probation is to determine whether an employee can perform the job to which he/she has been appointed, the LRA still requires the employer to act fairly Page 35 email: Tel : 9 Cell : 3 GR TUTORIALS towards a probationary employee. • In order to do this, The Code: Dismissal, however, compels an employer to give the employee on probation the following assistance before he/she can be dismissed for poor work performance: - Evaluation, instruction, training, guidance or counselling needed to perform his/her duties during this period. - The employer must make clear to the employee what the performance standard is, and where he/she falls short. - The employer must give the employee assistance and an opportunity to improve. - The employer should measure the progress of the employee and give feedback. • The required assistance and the period of probation will be determined by the nature of the job. • If an employee is dismissed during the probationary period, the employee should have an opportunity to respond to the allegations, and he/she may also be assisted by a union representative or fellow-employee. • Some employers believe that a probationary employee can be dismissed with 24 hours’ notice and without regard to procedure. That is a fallacy. • A probationary employee is protected against unfair dismissal and enjoys the protection of the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA). • To address poor work performance in cases of probation is problematic. The purpose of probation is to see if the employee can do the work. If the employee cannot, the question is to what extent the employer must help the employee QUESTION 2 • The involvement of legal representatives (attorneys/advocates) at the CCMA is limited. During Page 36 email: Tel : 9 Cell : 3 GR TUTORIALS the state of conciliation, legal representation is not allowed under any circumstances. • During arbitration, A will only be entitled to having representation by an attorney if the Commissioner and all other parties agree or if the Commissioner decides that it would be unreasonable for A to proceed without such representation QUESTION 2 The employee is to some degree correct in arguing that the employer should have followed a formal court-like procedure in view of the fact that, even in cases of dismissal due to misconduct, both substantial and procedural fairness must be complied with. • Procedural fairness would entail, inter alia, the employer giving the employee an opportunity to be heard and to defend himself against the allegations. The fact that a disciplinary hearing was held, however, appears to comply with such procedural fairness (subject to A having been granted an opportunity to defend himself