Labour & Employment

Due to the prevailing complex mix of economic, social and political forces the Labour Relations Act 66 of 1995 (the LRA) came into existence. This was followed by a series of new statutes being the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA) and finally the Skills Development Act 97 of 1998 (SDA). Organised, labour represented by COSATU, has played a major role in the struggle against apartheid and the electoral success of the African National Congress (ANC). It therefore beheld the ANC to revise the country’s labour laws in terms of its pre-election commitment. The new labour legislation inevitably sided with the demands from Unions. The South African common law of employment is based on Roman law supplemented by the Roman Dutch law of master and servant where an employer may hire and fire at will. This has been changed by the LRA, which stipulates that a dismissal must be for a fair reason and in accordance with a fair procedure. An employee may be fairly dismissed for permissible reasons i.e. misconduct, poor work performance, incapacity and operational requirements. There are various automatically unfair dismissals such as dismissals on grounds of pregnancy, discrimination, race, age and religion. The government obtained parliamentary ratification of International Labour Organisation (ILO) conventions and in compliance with chapter 3 of the Constitution of South Africa, which deals with a Bill of Rights, and in accordance with labour practices it was inevitable that the new LRA would come into existence. The LRA is well drafted and easy to read although it sets ambitious goals. The Commission for Conciliation, Mediation and Arbitration (CCMA) enjoys high levels of legitimacy in the eyes of workers although employers do not view it with any confidence. The quality of arbitrators as well as their independence, difficulty in getting legal representation and the waiting time for arbitration are criticisms often leveled against the CCMA. It has been suggested that new legislation be introduced to replace the law of dismissals. 

The most intrusive of all the new labour statutes is probably the EEA, which seeks to correct demographic imbalances in the workplace. The least contentious of the new statutes is the SDA. 

Despite much criticism of our labour legislation the Department of Labour considers that the fundamentals of its labour market policy are sound and correct in spite of the areas having negative consequences. 

As a result of the apartheid government black people were prevented from taking part in the main stream economy. This resulted in an imbalance. The employment of free-market principles of employment has not redressed the situation. The unemployment rate in South Africa is reported to be about 37%. There has been an urgent call from black people for transformation. Government has restrained from a straightforward redistribution but has nevertheless assisted black people’s participation in the economy through showing a preference when transacting with businesses that contribute to the objectives of Black Economic Empowerment. As a result two important pieces of legislation have emerged. 

The first is the Broad-Based Black Economic Empowerment Act 53 of 2003, which provides that government entities must show preference to entities that contribute to BEE. The Act provides for Codes of Good Practice, which determine a BEE score. The Codes of Good Practice incorporate

2 codes. A set of Codes for general business, known as Generic Codes and a set of Codes for small business, known as QSE codes (qualifying small enterprises). A QSE is any business with an annual turnover of R35 Million or less. An Exempted Micro Enterprise (EME) is a business that has an annual turnover of less than R5 Million. An EME is not obliged to contribute to BEE. 

The second enactment is the Preferential Procurement Policy Framework Act of 2000 (PPPFA), which determines how BEE is to be implemented when buying goods and services from preferred suppliers. The order of preference is measured by the suppliers’ BEE status. The intended consequence of BEE is to see black people being integrated into the economy but an unfortunate consequence of this is the exodus of young bright whites from South Africa and the early retirement of white managers. A further unfortunate consequence is the mushrooming of many who would not deserve on grounds of merit to hold the positions that they now hold. BEE is dealt with in detail in Section 9 “My Business”.



ProductsCategoryPriceAction
2.1 Comment on the Labour Relations Act (LRA) 66 of 1995 (2 pages) (2 credits) Add to cart
2.2 Comment on the Basic Conditions of Employment Act (BCEA) 75 of 1997 (2 pages)
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2.3 Comment on the Employment Equity Act (EEA) 55 of 1998, plus a Guide to the Employment Equity Plan (6 pages)
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 (2 credits) Add to cart
2.4 Comment on the Skills Development Acts, plus a Guide to the Workplace Skills Plan (2 pages)
The Black Economic Empowerment (BEE) Act 53 of 2003 is commented on in Section 9, My Business, Form 9.9 Codes of Good Practice
 (2 credits) Add to cart
2.5 Dismissal, LRA Schedule 8 (3 pages)
Dismissal, LRA Schedule 8
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2.6 Dismissals for Operational Requirements Wall Charts
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2.7 Basic Conditions of Employment Act (BCEA) Summary (4 pages)
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2.8 Employment Equity Act (EEA) Summary (2 pages)
Employment Equity Act (EEA) Summary
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2.9 Occupational Health & Safety Act (OHSA) (16 pages)
Important Contacts
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2.10 Sector Education and Training Authorities (SETA) Offices (2 pages) (2 credits) Add to cart
2.11 Commission for Conciliation, Mediation and Arbitration (CCMA) Offices
Important Employee Documentation
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2.12 Recruitment Advertisement
A careful recruitment and selection process is crucial to the success of any organisation. It ensures the right people are in the right jobs, reducing the time and trouble you spend sorting out poor performers. A job advertisement should be targeted to draw suitably qualified applicants and exclude unsuitable ones by listing the correct requirements and appearing in the right media. This form provides all the standard elements of a recruitment advertisement. Use only what is pertinent, and avoid discriminatory preferences and misleading information about the position being offered. Should an employment equity candidate be sought, this should be mentioned.
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2.13 Application for Position as Advertised
Letter to prospective employer requesting an appointment and enclosing a Curriculum Vitae (personal and employment history).
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2.14 Curriculum Vitae.doc (Personal Employment History) (3 pages)
This is a summary of your life?s experiences relevant to a prospective employer. It should be accurately and neatly presented and highlight your achievements
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2.15 Application for Employment Form (4 pages)
This form is provided by the employer and is completed by the employee prior to the interview.
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2.16 Job Applicant Interview &Rating
This form should be completed by the interviewer at the time of the interview to assist the interviewer in evaluating and comparing job applicants. To assist in this process the job applicant may be given the form to complete a self evaluation.
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2.17 Request for Employment Reference
Contains a written request for a prospective employee?s? reference. By approaching a past employer in this manner, a verbal reference may be avoided. Written references are generally an advantage, as they will tend to be more explicit.
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2.18 Employee Job Reference Form
Used as an alternative to the request above, this form provides the? past employer with a convenient list of items on which to rate the employee?s performance, alternatively it provides a prompt when recording a verbal reference.
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2.19 Non-Employment Advice
Informs a prospective employee that his/her application for employment has?been unsuccessful.
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2.20 Pre-Employment Checklist
Should be used as a means of verification, when an employment application is being processed. Employment Interviews Medical testing is dealt with in section 7 of the Employment Equity Act (EEA). See summary, Form 2.8. It provides as follows: (1) Medical testing of an employee is prohibited, unless: (a) Legislation permits or requires the testing; or (b) It is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. (2) Testing of an employee to determine that employee?s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of Section 50 (4) of this Act. Psychological testing is dealt with in Section 8 of the Act. It provides as follows: (1) Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used: (a) H as been scientifically shown to be valid and reasonable; (b) Can be applied fairly to all employees; and (c) Is not biased against any employee or group.
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2.21 Employee Personal Details
This form is for staff records.
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2.22 Letter of Appointment (2 pages)
The full name and address of the employer must appear on the letterhead. Conditions of Employment Act (BCEA) requires an employer to provide each employee with a written statement of his/her particular conditions of employment at the commencement thereof. This document must be revised if and when the conditions themselves are revised. The Amendment to Agreement of Employment Form 2.32 may be used for this purpose. Form 2.7 is a summary of the BCEA, which Employers are expected to display at the workplace.
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2.23 Agreement of Employment (5 pages)
With the development of socially responsible legislation and collective agreements negotiated between management and trade unions on behalf of the workforce, the content of the individual contract of employment is becoming less important, save in the case of more senior managerial and other professional employees. It is illegal to contract for less than the minimum terms and conditions provided for in statutory instruments such as the BCEA, or a binding bargaining council agreement or wage determinations, or (usually) private collective agreements entered into between employer and trade union. The most important aspect of the employment contract is its existence, for this determines whether the worker concerned is indeed an ?employee? and hence covered by the aforesaid labour legislation, or merely an ?independent contractor? who is not so covered. The determining factor is the degree of control exercised by the employer over the manner in which the employee is required to perform his/her work. The content of the contract becomes important where what is required to be regulated in the relationship concerns matters outside the concern of minimum condition legislation, such as restraint of trade, confidentiality and employee invention agreements, which are typically of application to the more senior type of employee. Suitable restraint of trade documents are Forms 2.27 or 2.28 described below and Forms 7.8 and 7.9 (see Section 7, Immaterial Property) for confidentiality and employee invention agreements respectively. Form 8.1 is a suitable document for E-mail and Internet Usage Policy for Employees. It may be helpful to refer to the Agent?s Commission Agreement, Form 1.10 in the General Agreements Section, and the Commission Claim, Form 9.67 in My Business Section, when formulating terms for commission earners in clause 10 of this agreement. Whether the best tax advantage for the employee is to be gained through having a company car with all expenses paid, or through receiving a travelling allowance depends on a complicated calculation which deals with such matters as the income of the employee and distance travelled by him/her for business purposes. A chartered accountant should be consulted in this regard. It is suggested that a tax expert be consulted in order to derive the best tax advantage should the employer consider granting the employee further fringe benefits such as free accommodation, housing or education assistance. This is a comprehensive agreement and certain of the clauses may be inappropriate and accordingly they should be deleted where necessary and initialled by both parties.
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2.24 Agreement of Fixed Term Employment (4 pages)
With changing patterns of work and the need for temporary workers it may be advantageous for the employer to define the period of employment. This will make the termination of employment fair and certain and avoid the swamp of dismissal or retrenchment procedures. Unless otherwise agreed, a fixed-term contract cannot be terminated during its currency without good reason. The employer must give adequate notice of the termination of a fixed-term contract. If a fixed term contract is habitually renewed this may lead to ?a reasonable expectation of renewal?.Inthisinstanceanemployeeacquiresthesamerightstojobsecuritiesasthose of permanent employees.
 (2 credits) Add to cart
2.25 Agreement of Employment with Domestic Worker ( 3 pages)
Domestic workers are subject to the BCEA, and it is advisable to enter into this type of agreement in the interests of certainty and dispute prevention. It is in any event a requirement of the BCEA to provide all employees with written particulars of their terms and conditions of employment at the commencement thereof. Italsoprovidesformaternityleaveandthreedays?familyresponsibilityleaveduringeachleavecycle.
 (2 credits) Add to cart
2.26 Agreement of Overtime (2 pages)
The BCEA (see summary Form 2.7) stipulates that specific agreement must be reached between the parties with reference to certain times of work. All overtime is voluntary. It requires the prior approval of the employee before it can be enforced. This may be through an individual agreement with the employee or through a collective agreement binding on all employees who are members of that trade union or who fall within that bargaining unit. Employees may be required to work overtime in terms of an agreement but according to Section 6 of the BCEA not all categories of employees have to be paid for their overtime work. These categories include: senior managerial employees, sales staff who regulate their own hours of work and employees who earn more than R12 478 per month (this amount can be changed by the minister from time to time). Despite what the BCEA says, if the employer agrees to pay for overtime worked by such an employee, the employer will be bound by the agreement.
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2.27 General Restraint of Trade Agreement
A safeguard for an employer against competitive activity by an employee during and after termination of the employment period. With regard to the agreements to which this form and 2.28 relate, the restraint imposed should be reasonable in all respects, particularly in relation to the duration and the area to which the restraint applies. If the restraint is found to be unreasonable, the courts will not enforce the agreement. Each agreement will be judged according to its own circumstances and if you are in doubt about the degree of the restriction, an attorney should be consulted.
 (2 credits) Add to cart
2.28 Restraint of Trade Agreement (Specific Customers)
Similar to Form 2.27, but the restraint is limited to customers with whom the employee dealt during the course of his/her employment. The comments to Form 2.27 apply to this form too.
 (2 credits) Add to cart
2.29 Job Description (2 pages)
The purpose of a job description can be twofold, either to identify the role of a current employee and to form the basis of a performance evaluation, or to be used for recruitment of a new employee. It sets out the core responsibilities and functions of the employee and the skill and educational requirements and experience needed to be able to do the job competently. This is a very useful document to ensure that all positions within a company are well-defined and the employees are aware of the scope of their positions.
 (2 credits) Add to cart
2.30 Performance Evaluation (Comprehensive) (7 pages)
Employee evaluations should occur at regular intervals, normally annually. The performance evaluation can influence decisions on salary increases and promotions. It is also effective in gauging the contribution and ability of an employee. Although performance evaluations can be carried out in a number of ways, this form allows for an interactive evaluation. The employee is given the form and evaluates himself / herself, following which the supervisor can provide an evaluation of the employee. The results of the evaluation, problems encountered and new objectives can then be discussed.
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2.31 Performance Evaluation (Shortened) (2 pages)
This is an abridged version of the above form.
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2.32 Amendment to Agreement of Employment (2 pages)
An amended agreement could be construed as a termination of the old agreement. In order to avoid a claim from the employee for undue influence or unlawful dismissal or constructive dismissal, an amended agreement should be entered into with caution.
 (2 credits) Add to cart
2.33 Acknowledgement of Debt by Employee
It is now necessary for employees to consent to deductions being made from their remuneration.
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2.34 Application for Leave
Should be completed by an employee when applying for leave.
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2.35 Resignation
A Letter of Resignation from the employee to the employer. In the absence of an agreement between employee and employer, the provisions of Section 37 of the BCEA (See summary Form 2.7) must be complied with. Section 37 states: ?Notice of termination of employment - Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than - one week, if the employee has been employed for four weeks or less; two weeks, if the employee has been employed for more than six months but not more than one year; four weeks, if the employee - (i) has been employed for one year or more; or (ii) is a farm worker or domestic worker who has been employed for more than four weeks?. Section 38 states: ?Payment instead of notice - (1) Instead of giving an employee notice in terms of Section 37, an employer may pay the employee the remuneration the employee would have received, if the employee had worked during the notice period. (2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise?.
 (2 credits) Add to cart
2.36 Acknowledgement of Resignation
Serves to accept an employee?s resignation.
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2.37 Certificate of Service
In terms of the Basic Conditions of Employment Act, on termination of employment, the employee is entitled to a certificate of service
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2.38 Consent to Release Employment Information
A protective measure for the employer and an indication of the extent to which it can comment on the employee?s performance, if called upon to do so.
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2.39 Notification of Grievance
Gives an employee or group of employees an opportunity to note a grievance and suggest their own solution. An informal investigation takes place with the right to lead evidence and cross-examine. No victimisation of a complainant is tolerated.
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2.40 Grievance Outcome
Gives management an opportunity to respond to an employee?s grievance. Most companies have internal grievance procedures and it is suggested that an employer adopt the procedures as set out below and that the employees resort to the procedure before applying for satisfactory relief. If the grievance is not resolved within two clear working days of the formal grievance being lodged the complainant 2 (vi) may approach the section head to resolve the matter. If it is still not resolved after two clear working days the complainant may approach the department head to resolve the matter. If it is still not resolved after three clear working days the complainant may refer the matter to a meeting to be attended by his/her representative and a senior company official. If it is not resolved after five clear working days either the employer or complainant may pursue any other lawful action. In the event of strike action, it is suggested that the parties approach a labour attorney because of the serious implications of a strike.
 (2 credits) Add to cart
2.41 Counseling Record
The Labour Relations Act (LRA) requires employers to keep records of each employee?s disciplinary history during employment. This form is especially useful for recording occasions when the employer uses ?informal advice and correction?, as encouraged by the LRA, to deal with an employee?s unsatisfactory performance and minor violations of work discipline.
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2.42 Notice to Attend a Disciplinary Meeting / Enquiry
This is a request to an employee to attend a disciplinary meeting. At least 48 hours notice should be given. The notice should inform the accused employee, with sufficient particularity, of the nature of the complaint leveled against him/her, as well as the nature of the employer?s case he/she will be expected to meet at the enquiry. Copies of all documents upon which the employer intends to rely at the enquiry should be supplied to the employee beforehand. Sufficient time should be given to the employee to be able to prepare properly for the hearing with his/ her chosen representative, once in possession of the necessary particulars of the complaint(s) and documents. An employee must be notified of his/her right to be represented at the enquiry by a co-employee or shop steward of his/her choice. Where the employee facing disciplinary action is him/herself a shop steward, the right to representation extends to an official of a trade union of which such employee is a member. The enquiry should be instituted within a reasonable period after the occurrence of the alleged transgression. The enquiry should not be conducted by a person involved in the transgression. An interpreter should be used during the proceedings to allow the employee to use the language of his/her choice. All notices should be interpreted for the employee. During the proceedings the employee or his/her representative should be given an opportunity to state his/her case, cross-examine witnesses called by the employer and call his/her own witnesses. The employee should be informed of the outcome of the proceedings together with the reasons for the decision. He/she should be given the opportunity to say what disciplinary action, if any, should be taken if it is held that he/she acted in a manner that warrants disciplinary action. It is usual to have a neutral Chairman. Since the Labour Relations Act (LRA) (See Form 2.5) places the burden upon the employer of proving the existence of a valid and fair reason for the dismissal as well as the fact that a proper procedure was followed, it is advisable to keep detailed minutes of any disciplinary enquiry.
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2.43 Disciplinary Meeting Finding
This is the record of the finding, which should be signed by the chairman and permanently filed. It forms the substance of the notification that is handed to the employee.
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2.44 Notification of Disciplinary Meeting Finding to Employee (Warning)
This is the formal notification of the outcome of the Disciplinary Meeting, which should be handed to the employee personally and explained to him/her. This is also construed as a formal warning to the employee. Verbal warnings can be issued for less serious offences and can be recorded as a minute of a meeting. A first or subsequent written warning is issued only after an enquiry and is valid for a period of six months. A final written warning is valid for a minimum period of six months and a maximum period of 12 months. The Chairman of the Disciplinary Hearing 2 (vii) determines the period. If after a final written warning is issued, the employee commits a further serious offence, a further disciplinary hearing should be held whereafter the offender can be dismissed without notice or pay in lieu of notice.
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2.45 Appeal against Disciplinary Action Decision
Employers allow an appeal by employees to a higher level of management. The employee must lodge an appeal within three working days after service on him/ her of the notification of the finding. No actual hearing need be conducted and the appeal can take the form of a review of the record of the disciplinary hearing. If the appeal is against dismissal, a hearing must be held if the employee requests it. An objective Chairman must be appointed. The parties can introduce further evidence if it was not lead at the disciplinary hearing. The Chairman of the appeal must give his decision within 15 working days after the completion of the review or hearing. The employee, if still dissatisfied, can then take the matter to the CCMA or Labour Court. The 3 and 15 working days referred to in this paragraph are not prescribed in the legislation. They may be prescribed in an internal collective agreement or disciplinary code. In the absence of such documents the appeal and outcome ought to be held within a ?reasonable? period.
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2.46 Warning of Unsatisfactory Performance
Warnings have become an important part of the procedure whereby an employee?s deficient performance is addressed. In line with the currently prevailing philosophy that such discipline should be corrective rather than punitive, warnings serve to draw the employee?s attention to the area requiring improvement, suggest methods of improvement and to allow for a suitable period of time within which the necessary improvements can be achieved. Warnings also constitute an alternative and lesser? form of punishment. Of these the least severe is the verbal warning and the most drastic the final written warning.
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2.47 Final Warning before Termination
Leaves the employee in no doubt as to the employer?s views on his/her performance and places the employee fairly on terms ?to make the necessary improvement or face dismissal?. In cases of dismissal on grounds of incompatibility, warnings are inappropriate, because an employee would seldom change his/her nature or be able to do so; similarly in the case of ill health. But it is generally accepted that an employee should be warned if there is a possibility of him/her losing his/her job on grounds of misconduct or incompetence. The object of a warning is to give the employee the opportunity to improve his/her performance or to look for another job in the case of retrenchment. It is common practice for disciplinary codes to provide for a progression of warnings from oral to written, culminating in a final written warning. The courts do not give much weight to oral warnings. The court will consider the number of warnings given and the seriousness of the offence on each occasion to determine where appropriate whether an employee has been fairly dismissed.
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2.48 Notice of Suspension from Duty
An employee is entitled to a hearing before being suspended whether the suspension is with or without pay because the suspension has adverse effects on the career prospects and reputation of the employee. A full-scale enquiry is not expected but the employee must be given an opportunity to state his/her case. If the employee can prove there is no merit in the suspension it may be unfair to suspend him/ her. A suspension is considered unfair if it is used to punish the employee or if there is no serious misconduct or it is unduly protracted or if the employee?s pay is wrongfully withheld. Employees are usually suspended to enable the employer to commence a disciplinary action when there is suspicion on the employee and rumours abound.
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2.49 Termination of Employment
The law of unfair dismissal is codified by Schedule 8 of the LRA , Code of Good 2 (viii) Practice: Dismissal (Form 2.5) which is to be followed in cases of dismissal. The LRA uses a wide definition of the term ?dismissal? which expressly recognises devices such as the failure to renew a fixed term contract where the employee has a ?reasonable expectation? of such renewal, as falling within the definition of a dismissal. So too are ?constructive dismissals? ? making the working environment intolerable for an employee causing such employee to leave; and failing to offer a woman her job back after maternity leave. The Act distinguishes between two types of dismissals: automatically unfair dismissals and other dismissals. An automatically unfair dismissal is one where the reason can essentially be categorised as discrimination, victimisation for trade union activity, or some other breach of fundamental employee rights conferred by the LRA. In such cases, the maximum compensation which an employer may be ordered to pay such a dismissed employee by the Labour Court (in those cases where reinstatement is not appropriate) is double the maximum amount which a court can award for other unfair dismissals ? two years? wages, as opposed to one year?s wages for other unfair dismissals. Reinstatement is intended to be the normal rule and compensation the exception under the Act. The Act states in clear terms that it is for the employer to prove both the fairness of the reason for the dismissal as well as the procedure which was followed in reaching such decision. Valid reasons for dismissal are to be found in one of three categories: misconduct, incapacity (illness or poor work performance) and operational reasons (retrenchment). What precisely amounts to misconduct, as well as when its gravity is such to warrant dismissal, depends, in the first instance, on the nature of the job performed by the accused employee. Thus an employer must first be in a position to show that the disciplinary standards set for his employees are clear and easily understood; reasonable in their application to the dictates of the job; clearly communicated to all employees so that they know what is required of them; and consistently applied. The code of good practice (see Form 2.5) states: ?Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination... ?When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee?s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.? In the case of both capacity and operational reasons, dismissal is only appropriate after all reasonable alternatives, short of dismissal, have been jointly investigated between employer and employee and found to be wanting in resolving the particular problem faced by the employer. Hence in the latter two instances, procedural fairness will take the form of joint, bona fide (good faith) consultation between the parties. In the case of alleged misconduct, the aim of the exercise is to investigate and test the facts relevant to the conduct complained of and give the accused employee an opportunity to state his/her case both in regard to the question of guilt and sanction.
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2.50 Retrenchment Notice.doc (2 pages)
The LRA permits dismissals based on the employer?s operational requirements provided they are for a fair reason and in accordance with a fair procedure. Operational requirements are requirements based on the economic, technological or similar needs of an employer. (Refer to Form 2.6 Code of Good Practice: 2 (ix)? ?2019 Edition Dismissals for Operational Requirements.) The employer?s mere words to the employee that he/she is being retrenched due to operational requirements are insufficient to justify the retrenchment. There is a thin line between a dismissal for operational reasons and for other reasons. Basically a retrenchment refers to a dismissal because an employee?s needs have become superfluous for reasons related to the needs of a business. Section 189 of the LRA deals with operational requirements and compels the employer to consult with the employee or his / her representative body in a meaningful joint consensus-seeking process and attempt to reach consensus or appropriate measures inter alia (amongst other things) to avoid dismissals or to mitigate the adverse effects of dismissals and on the severance pay. A written notice must be served on the affected employee inviting him/her to consult with the employer. The notice should disclose all relevant information as set out in section 189 (3) plus any other relevant information. During the consultation the employer must permit the employee to make his/her representations and respond to them and give reasons if the employer disagrees. Consultation must be exhaustive and not merely sporadic, superficial or a sham. The targeted employees must be selected on criteria that are fair and objective. Employees on fixed-term contracts that have not expired may not be retrenched. Section 189 does not apply to employees who are dismissed for reasons other than operational requirements, for example incapacity or poor work performance. A retrenchment could be unfair if the employer failed to prove it could not have placed the employee in an alternative position. The retrenchment must be procedurally and substantively fair. It has been held that a mechanical checklist approach by which an employer is examined as to whether it has complied with each and every one of the procedural steps as set out in Section 189 (2) must be avoided. The court will rather consider whether the totality of the employer?s efforts was aimed at avoiding retrenchment. The retrenchment must be shown to be justifiable and rational. An employer need not prove there will be financial ruin if it does not retrench. Employers are entitled to make a profit and in doing so restructure their business.
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2.51 Employer?s Pre-Conciliation Meeting Checklist
This is an employer?s checklist before proceeding to conciliation.
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2.52 Employers Conciliation.pdf (2 pages)
This is a specimen statement by an employer at the conciliation meeting. This precedes the arbitration at the CCMA.
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2.60 Employment Agreement
Click here to view a sample of this document
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