basic employment conditions and the labour act, · pdf filebasic employment conditions and...

Copyrights Reserved Pieter J de BeerCopyrights Reserved Pieter J de Beer 11

Basic Employment Conditions Basic Employment Conditions

andand

The Labour Act, 2007The Labour Act, 2007

Seminar presented bySeminar presented by

Pieter J de BeerPieter J de Beer


Ground RulesGround Rules

�� Welcome and IntroductionWelcome and Introduction

�� Please do not use Cell phonesPlease do not use Cell phones

�� Programme for the dayProgramme for the day

�� Questions Questions

�� Slides at Slides at www.namibiawww.namibia--law.comlaw.com from from

29 Nov to 10 December 201029 Nov to 10 December 2010

Introduction p. 5Introduction p. 5

�� Sources of Namibian Labour LawSources of Namibian Labour Law

–– Common lawCommon law

–– LegislationLegislation

–– Case lawCase law


Introduction Introduction

�� Understanding the employment Understanding the employment

relationshiprelationship

–– Terms and conditions of the contractTerms and conditions of the contract

–– Policies and practicesPolicies and practices

–– Individual and collective agreementsIndividual and collective agreements

–– Provisions of the Labour ActProvisions of the Labour Act


IntroductionIntroduction

�� Written employment agreements and Written employment agreements and

verbal employment agreementsverbal employment agreements

�� Difference of opinion / interpretationDifference of opinion / interpretation

�� Review or compare employment Review or compare employment

agreements with provisions of Labour agreements with provisions of Labour

Act and other lawsAct and other laws


IntroductionIntroduction

�� Duty to comply with the Labour Act Duty to comply with the Labour Act

rests on the employer, regardless of rests on the employer, regardless of

what employee agreed to or signedwhat employee agreed to or signed

�� Instances where business operation Instances where business operation

requires different terms or conditions?requires different terms or conditions?

�� Parameters of the lawParameters of the law



Labour Law Legislation p. 6Labour Law Legislation p. 6

�� Act came into operation on 1Act came into operation on 1--1111--2008, 2008, except sec. 128 except sec. 128 -- prohibition of labour prohibition of labour hire serviceshire services

�� Rules and Regulations promulgated Rules and Regulations promulgated and came into operation on 1and came into operation on 1--1111--20082008


Current LegislationCurrent Legislation

�� Labour General Regulations 1Labour General Regulations 1--1111--0808

�� Rules pertaining to Conciliation and Rules pertaining to Conciliation and

Arbitration 1Arbitration 1--1111--0808

�� Labour Court Rules 15Labour Court Rules 15--11--20092009

�� Good practices pertaining to industrial Good practices pertaining to industrial

relations (strikes / picketing) 19relations (strikes / picketing) 19--1010--09 09

Current LegislationCurrent Legislation

�� Health & Safety Regulations remains in Health & Safety Regulations remains in

force force –– 1 August 19971 August 1997


Future DevelopmentsFuture Developments

�� Amendments to the Labour ActAmendments to the Labour Act

–– Labour Hire rulesLabour Hire rules

–– Existence of employment relationshipExistence of employment relationship

�� Employment Service BillEmployment Service Bill

–– Regulate recruitmentRegulate recruitment


Related Legislation p. 7Related Legislation p. 7

�� Social Security Act & RegulationsSocial Security Act & Regulations

�� Affirmative Action ActAffirmative Action Act

�� Social Work & Psychology ActSocial Work & Psychology Act

�� Pension Fund Acts and RegulationsPension Fund Acts and Regulations

�� Employee Compensation ActEmployee Compensation Act

�� Medical Aid Act and RegulationsMedical Aid Act and Regulations

�� Married Persons Equality ActMarried Persons Equality Act

�� Racial discriminationRacial discrimination

�� Immigration Control ActImmigration Control Act



Application of the Act p. 7Application of the Act p. 7

�� The Act is applicable to all employers The Act is applicable to all employers

and employees within Namibiaand employees within Namibia

�� The Act is not applicable to The Act is not applicable to

““independent contractorsindependent contractors””


EmployeeEmployee

�� An individual, excluding an An individual, excluding an

independent contractor who works for independent contractor who works for

another person and who receives, or is another person and who receives, or is

entitled to receive remuneration for entitled to receive remuneration for

that work; orthat work; or

�� In any manner assists in the carrying In any manner assists in the carrying

on or conducting the business of an on or conducting the business of an

employeremployer

Nature of Employment p.8Nature of Employment p.8

�� ID of parties to the agreementID of parties to the agreement

�� Make services availableMake services available

�� Employer utilises servicesEmployer utilises services

�� Employer pay remuneration in returnEmployer pay remuneration in return

�� Common law and legislation are Common law and legislation are

applicableapplicable



Employment AgreementEmployment Agreement

�� No need to be in writingNo need to be in writing

�� Employee to make services availableEmployee to make services available

�� Compensation payable to employeeCompensation payable to employee

�� Parties may agree to more favourable Parties may agree to more favourable

conditions conditions –– Recommendation Always written agreementRecommendation Always written agreement


Employment AgreementEmployment Agreement

�� Basic working conditions applicable to all Basic working conditions applicable to all employeesemployees–– Permanent employeesPermanent employees

–– Temporary employees (fix term)Temporary employees (fix term)

–– Part time employeesPart time employees

�� The 2007 Act removes the concept of The 2007 Act removes the concept of ““casual employeescasual employees”” by amendment to the by amendment to the Social Security Act.Social Security Act.


Independent ContractorsIndependent Contractors

p. 9p. 9

�� The Dominant Impression TestThe Dominant Impression Test

–– Method of paymentMethod of payment

–– Tax, Social SecurityTax, Social Security

–– Supervision and controlSupervision and control

–– Benefits such as annual leaveBenefits such as annual leave

–– Making services available versus Making services available versus

executing a piece of workexecuting a piece of work

Obligations of EmployerObligations of Employer

p. 11p. 11

�� Duty to compensateDuty to compensate

�� Provision of workProvision of work

�� Safe working environmentSafe working environment

�� Minimum employment conditionsMinimum employment conditions



Fundamental RightsFundamental Rights

�� No employment decision may No employment decision may

discriminate against employee discriminate against employee [Sec 5(2)][Sec 5(2)]

�� ““Employment decisionEmployment decision”” is almost every is almost every

possible decision an employer can take possible decision an employer can take

with regard to employment with regard to employment [Sec 5(1)(b)][Sec 5(1)(b)]


Fundamental Rights Fundamental Rights [sec 5 [sec 5

(4)](4)]

�� It is NOT discrimination to select onIt is NOT discrimination to select on

–– AbilityAbility

–– CapacityCapacity

–– ProductivityProductivity

–– ConductConduct

–– Operational requirementsOperational requirements

–– Needs Needs



�� Discrimination on grounds of gender Discrimination on grounds of gender

without justification is unlawful without justification is unlawful [sec 5 [sec 5

(3)](3)]

�� No discrimination allowed based on No discrimination allowed based on

““family responsibilityfamily responsibility””

�� Includes Includes ““dependantsdependants”” which are not which are not

necessarily family necessarily family [ sec 5 (1) (c)][ sec 5 (1) (c)]



�� To avoid allegations of discrimination To avoid allegations of discrimination

questions and information required questions and information required

during the interview, selection and during the interview, selection and

recruitment process must have a recruitment process must have a

““validvalid”” aimaim

�� What do you want to do with the What do you want to do with the

answer provided?answer provided?


Fundamental Rights Fundamental Rights [sec [sec

5(1)(g)5(1)(g)

�� ““Work of equal valueWork of equal value”” refers to gender refers to gender

and not and not race or ethnicrace or ethnic differencesdifferences



�� Onus to prove is on employee / complainant [sec 5 Onus to prove is on employee / complainant [sec 5

(5) (a)](5) (a)]

�� Complainant can also be a prospective employee Complainant can also be a prospective employee

[sec 5(7)(a)][sec 5(7)(a)]

�� Complaints involving discrimination will be referred Complaints involving discrimination will be referred

to Arbitration [sec 7(3)] to Arbitration [sec 7(3)]

�� Complainant may go to the High Court in stead of Complainant may go to the High Court in stead of

Arbitration [sec7(5)]Arbitration [sec7(5)]

Terms and Conditions Terms and Conditions

p. 13p. 13

�� Not the ordinary contractNot the ordinary contract

�� TriTri--party relationshipparty relationship

�� Prerequisites outlined during Prerequisites outlined during

recruitment and selectionrecruitment and selection

�� ““NonNon--negotiablenegotiable”” termsterms

�� Not contravening the lawsNot contravening the laws


Terms & ConditionsTerms & Conditions

�� Of the shelve pro forma agreementsOf the shelve pro forma agreements

�� Company policies and practicesCompany policies and practices

�� Collective (Recognition) agreementsCollective (Recognition) agreements

�� Individual agreementsIndividual agreements


Contract Clauses p. 14Contract Clauses p. 14

�� Recommended clauses regulating the Recommended clauses regulating the

relationship and informing (reminding) relationship and informing (reminding)

employees of the applicable terms and employees of the applicable terms and

conditions of employmentconditions of employment


Statutory Terms and Statutory Terms and

Conditions p. 15Conditions p. 15

�� Concept contract clauses in line with Concept contract clauses in line with

the Basic conditions of employment the Basic conditions of employment

stipulated in Part Three of the Act.stipulated in Part Three of the Act.

�� OverviewOverview



Minimum ConditionsMinimum Conditions

�� Unless an employer received Unless an employer received

exemption, the basic conditions of exemption, the basic conditions of

employment must be adhered to by employment must be adhered to by

EmployersEmployers

Categories of Employees Categories of Employees

p. 16p. 16

�� Permanent employeesPermanent employees

�� Temporary (FixTemporary (Fix--term) employeesterm) employees

�� Part TimePart Time

�� SeasonalSeasonal

�� ““casual employeescasual employees””

�� Use of correct terminologyUse of correct terminology



Temporary Contract (a)Temporary Contract (a)

�� That is a contract of employment that That is a contract of employment that

expires on a certain dateexpires on a certain date

–– Begin date and end date specifiedBegin date and end date specified

–– No notice of termination necessaryNo notice of termination necessary

–– Minimum conditions applicableMinimum conditions applicable

–– No severance allowances payable on No severance allowances payable on

terminationtermination


Temporary Contract (b)Temporary Contract (b)

�� That is a contract of employment that That is a contract of employment that

expires on completion of a certain jobexpires on completion of a certain job

–– Begin date specified but end date Begin date specified but end date

depends on completion of job, normally depends on completion of job, normally

one weekone week’’s notices notice

–– Minimum conditions applicableMinimum conditions applicable

–– No severance allowances payable on No severance allowances payable on

terminationtermination


Part time workersPart time workers

�� They are employees who works less that the They are employees who works less that the

ordinary working hours per day, e.g. 5 ordinary working hours per day, e.g. 5

hours per day /overtime will start after 5 hours per day /overtime will start after 5

hours/hours/

�� Only difference is that the working days is Only difference is that the working days is

less hours per dayless hours per day

�� Can be permanent or temporary employeesCan be permanent or temporary employees

�� Minimum conditions apply Minimum conditions apply pro ratapro rata


Seasonal EmployeesSeasonal Employees

�� Permanent employees but works not Permanent employees but works not full yearfull year

�� Employment continuous every year for Employment continuous every year for the season / specific periodthe season / specific period

�� Severance accrues over the years usedSeverance accrues over the years used

�� Leave accrues Leave accrues –– usually paid out at usually paid out at end of seasonend of season

�� Sick leave entitlement Sick leave entitlement -- continuous continuous

Minimum Employment Minimum Employment

Conditions p. 17Conditions p. 17

�� Part Three of Act is applicable to all Part Three of Act is applicable to all

employeesemployees

�� More favourable conditions More favourable conditions –– there there

should be no doubt how t is should be no doubt how t is

determined, evaluated determined, evaluated –– written formwritten form

�� ExemptionExemption


Section 9 (2) of ActSection 9 (2) of Act

�� When would it be more favourable?When would it be more favourable?

�� Retirement age regulated by company Retirement age regulated by company

policy? policy? –– consequences consequences –– e.g. e.g.

Severance paySeverance pay


NonNon--adherence to the adherence to the

Basic Conditions p. 18Basic Conditions p. 18

�� Requirements for exemption in terms Requirements for exemption in terms

of section 139of section 139

�� If it is more favourable If it is more favourable –– avoid conflict avoid conflict

and contractually agree on why and and contractually agree on why and

how the favourable condition(s) is how the favourable condition(s) is

measured / determinedmeasured / determined


Company Policies p. 18Company Policies p. 18

�� Policies are guidelinesPolicies are guidelines

�� Not cast in concreteNot cast in concrete

�� Should not be part of agreed termsShould not be part of agreed terms

�� Company prerogativeCompany prerogative

�� Not elevated to terms of contract but Not elevated to terms of contract but

employer should follow own imposed employer should follow own imposed

standards, and justify nonstandards, and justify non--adherence when adherence when

it occurs.it occurs.


Remuneration & Basic Remuneration & Basic

Wage p. 19Wage p. 19

�� Contractual terminology should Contractual terminology should

conform to definitions contained in the conform to definitions contained in the

Labour Act Labour Act –– to avoid to avoid

misunderstanding and conflictmisunderstanding and conflict



Remuneration Remuneration [sec 1][sec 1]

�� Total value of all Total value of all payment in moneypayment in money

and and in kindin kind made or owing made or owing toto the the

employeeemployee

–– Pension benefits excludedPension benefits excluded

–– Housing (and all other) allowances Housing (and all other) allowances

includedincluded


Remuneration is usedRemuneration is used

�� To CalculateTo Calculate

–– Payment in lieu of noticePayment in lieu of notice

–– Work done until date of termination of Work done until date of termination of

services services

–– Leave accrual paymentsLeave accrual payments

–– Severance allowance calculationsSeverance allowance calculations

Remuneration Remuneration

�� Paid within 1 hour after closure on Paid within 1 hour after closure on

paydaypayday

�� Pay statement must be providedPay statement must be provided



Basic wage Basic wage [sec 8(1)(b)][sec 8(1)(b)]

�� Payment in money and kind Payment in money and kind ExcludingExcluding

–– AllowancesAllowances

–– OvertimeOvertime

–– Sunday & Public Holiday paySunday & Public Holiday pay

–– Night work payNight work pay

–– Pension and medical benefits or insurancePension and medical benefits or insurance


Basic Wage are used Basic Wage are used

�� To calculateTo calculate

–– Overtime workedOvertime worked

–– Night work allowance Night work allowance

–– Work done on SundaysWork done on Sundays

–– Work done on Public HolidaysWork done on Public Holidays

Compensation StructureCompensation Structure

�� Why separate compensation into Why separate compensation into

salary, benefits, salary, benefits, et ceteraet cetera? ?

�� Cost of Employment structuresCost of Employment structures

�� Discrimination risk with allowing Discrimination risk with allowing

freedom to structure compensation freedom to structure compensation ––

agree on formula to determine basic agree on formula to determine basic

wage and remuneration wage and remuneration



Overtime p. 20 Overtime p. 20 [sec. 17][sec. 17]

�� Employee must agree to work Employee must agree to work

overtimeovertime

�� Time of this agreement is at the Time of this agreement is at the

commencement of the employment commencement of the employment

agreement or thereafteragreement or thereafter

�� The agreement is not per overtime The agreement is not per overtime

incident, it is a working conditionsincident, it is a working conditions


Overtime Payment Overtime Payment [sec. 17(2)][sec. 17(2)]

�� 11½½ times basic wage rate Mon times basic wage rate Mon –– SatSat

�� If overtime is on Public Holidays or If overtime is on Public Holidays or

Sunday which is ordinary working day, Sunday which is ordinary working day,

it must be double the basic wage rateit must be double the basic wage rate

�� Overtime will become more expensive Overtime will become more expensive

if if ““inin--kindkind”” payments (rations & leave payments (rations & leave

providedprovided


Overtime Limit ExtensionOvertime Limit Extension

�� To increase overtime limitationsTo increase overtime limitations

–– No exemption requiredNo exemption required

–– Employer & Employees must agreeEmployer & Employees must agree

–– Parties apply to the Permanent Secretary Parties apply to the Permanent Secretary

statingstating

�� Class of employee applicable toClass of employee applicable to

�� New limitsNew limits

�� Conditions pertaining to new limitsConditions pertaining to new limits

�� Period of applicationPeriod of application


Deductions p. 21 Deductions p. 21 [sec 12][sec 12]

�� Allowed ifAllowed if–– By law, court order; (no limit) orBy law, court order; (no limit) or

–– A maximum total of 1/3 A maximum total of 1/3 �� Per collective agreement or arbitration award Per collective agreement or arbitration award oror

�� Agreed in writing forAgreed in writing for–– Rent provided by employerRent provided by employer

–– Goods sold by employerGoods sold by employer

–– Loan granted by employerLoan granted by employer

–– Employee benefit funds contributionsEmployee benefit funds contributions

–– Union levies or subscriptionsUnion levies or subscriptions


DeductionsDeductions

�� Employee absent from work without Employee absent from work without

permission before or after public permission before or after public

holiday is not entitled to pay for public holiday is not entitled to pay for public

holiday on normal working day holiday on normal working day [sec. [sec.

22(6)]22(6)]

Calculation of Pay Rate p. Calculation of Pay Rate p.

2222

�� Table in At not sufficiently clearTable in At not sufficiently clear

�� Compensation based on hourly rateCompensation based on hourly rate



Reduction Reduction [sec. 12(6)][sec. 12(6)]

�� By notice employer may reduce By notice employer may reduce

–– Ordinary working hours for up to three Ordinary working hours for up to three

monthsmonths

–– Accordingly reduce remuneration with a Accordingly reduce remuneration with a

maximum of 50%maximum of 50%

–– For operational reasons or other For operational reasons or other

recognised by lawrecognised by law

�� Reduction period may be extended Reduction period may be extended

with three months by agreementwith three months by agreement

Payments on Termination Payments on Termination

p. 23p. 23

�� Withholding pay?Withholding pay?

�� SetSet--off principle?off principle?

�� Damages caused?Damages caused?


Ordinary Working HoursOrdinary Working Hours

p. 23 p. 23 [sec 16][sec 16]

�� 9 hours / day9 hours / day

�� 45 hours per week45 hours per week

�� Compulsory weekCompulsory week--end breaksend breaks

�� Meal break of 60 min after 5 hoursMeal break of 60 min after 5 hours

�� Security Officers and emergency Security Officers and emergency

health care staff working continuously health care staff working continuously

(12 hours/10 hours)(12 hours/10 hours)



Sunday work p. 24 Sunday work p. 24 [Sec. 21][Sec. 21]

�� Only allowed for certain purposes Only allowed for certain purposes

[Sec. 21(2)] or allowed by PS on [Sec. 21(2)] or allowed by PS on

applicationapplication

�� It is not overtimeIt is not overtime

�� Must be paid double basic rate for Must be paid double basic rate for

hours worked [Sec 21(7)]hours worked [Sec 21(7)]


Public Holiday Work Public Holiday Work [Sec 22][Sec 22]

�� Only allowed for certain purposes [Sec. Only allowed for certain purposes [Sec.

22(2)] or allowed by PS on application22(2)] or allowed by PS on application

�� It is not overtimeIt is not overtime

�� Employee must get normal remuneration of Employee must get normal remuneration of

Public Holiday on ordinary working dayPublic Holiday on ordinary working day

�� If employee works on PH, must get basic If employee works on PH, must get basic

wage per hour workedwage per hour worked


Urgent Work p. 25 Urgent Work p. 25 [sec. 8(1)(k)][sec. 8(1)(k)]

�� Emergency work which if not done Emergency work which if not done

could cause harm to or endanger the could cause harm to or endanger the

life, personal safety or health of any life, personal safety or health of any

person or could cause serious damage person or could cause serious damage

or destruction to propertyor destruction to property


Urgent WorkUrgent Work

�� Overtime limits not applicable Overtime limits not applicable [sec.17(5)][sec.17(5)]

�� May work longer than 12 hours/day May work longer than 12 hours/day [sec.20(1)][sec.20(1)]

�� Not entitled to weekly interval Not entitled to weekly interval [sec.20(2)][sec.20(2)]


Essential Services p. 25Essential Services p. 25

�� If it is interrupted it would endanger If it is interrupted it would endanger

life, personal safety or health of the life, personal safety or health of the

whole or any part of the population on whole or any part of the population on

Namibia Namibia [sec. 1][sec. 1]

�� Essential service will be determined by Essential service will be determined by

committee on recommendation of committee on recommendation of

Labour Commissioner Labour Commissioner [sec. 77][sec. 77]


Severance Allowances p. Severance Allowances p.

25 25 [sec. 35][sec. 35]

�� No setNo set--off between severance and pension off between severance and pension

fund paymentsfund payments

�� Employee entitled to one weekEmployee entitled to one week’’s s

remuneration for every completed year if remuneration for every completed year if

retrenched, dies or retires at 65 or is retrenched, dies or retires at 65 or is

dismissed due to incapacitydismissed due to incapacity

�� If retire at younger age per employment If retire at younger age per employment

provision, severance will be payable provision, severance will be payable [sec. 9(1)(a) & (b)][sec. 9(1)(a) & (b)]


Night Work p. 26 Night Work p. 26 [sec. 19][sec. 19]

�� Ordinary work between 20:00 Ordinary work between 20:00 –– 07:0007:00

�� 6% of basic wage for night hours6% of basic wage for night hours

�� No night time work for employees on No night time work for employees on

maternity leave maternity leave [sec. 19(2)][sec. 19(2)]


Annual Leave p. 26 Annual Leave p. 26 [sec. 23][sec. 23]

�� Paid annual leave will increase to 4 weeksPaid annual leave will increase to 4 weeks’’

leave after completion of 12 months leave after completion of 12 months

employment; i.e.employment; i.e.

–– 6 day work week = 24 paid work days leave6 day work week = 24 paid work days leave

–– 5 5 = 20= 20

–– 44 = 16= 16

–– 3 3 = 12= 12

–– 22 = 8= 8

–– 11 = 4= 4


Annual leave Annual leave [sec. 23][sec. 23]

–– If quantity of working days differsIf quantity of working days differs�� Take average working days over 12 months Take average working days over 12 months andand

�� Multiply it with 4 to get annual leave daysMultiply it with 4 to get annual leave days

–– Employee entitled to leave after 12 Employee entitled to leave after 12 monthsmonths

–– Time of leave in employerTime of leave in employer’’s discretion s discretion provided with 4 months after leave cycleprovided with 4 months after leave cycle

–– Leave must be taken, Leave must be taken, ““not cashed innot cashed in””


Sick Leave p. 27 Sick Leave p. 27 [sec. 24][sec. 24]

�� 6 day working week6 day working week 36 w/d in 36 36 w/d in 36

�� 55 3030

�� 44 2424

�� 33 1818

�� 22 1212

�� 11 66


Sick LeaveSick Leave

�� During first year 1 paid sick leave for During first year 1 paid sick leave for every 26 days worked every 26 days worked [sec. 24(1)(c)][sec. 24(1)(c)]

�� If employee does not work fixed If employee does not work fixed number of days per week, average number of days per week, average over 12 months must be usedover 12 months must be used

�� Medical certificate if absent more than Medical certificate if absent more than 2 days2 days

�� Medical practitioner /registered nurse Medical practitioner /registered nurse to sign medical certificateto sign medical certificate


Sick Leave Sick Leave [sec 24 (4)][sec 24 (4)]

�� Paid sick leave not applicable if:Paid sick leave not applicable if:

–– No medical certificate is produced for sick No medical certificate is produced for sick

more than two daysmore than two days

–– If incapable due to accident or scheduled If incapable due to accident or scheduled

decease covered by Employeedecease covered by Employee’’s s

Compensation ActCompensation Act

–– If employer contributed to a fund If employer contributed to a fund

/insurance which covers sick leave /insurance which covers sick leave


Compassionate LeaveCompassionate Leave

p. 27 p. 27 [sec. 25][sec. 25]

�� Compassionate leave is on full remunerationCompassionate leave is on full remuneration

�� For sickness and death in familyFor sickness and death in family

�� 5 working days per annum per employee5 working days per annum per employee

�� Does not accrue from year to yearDoes not accrue from year to year

�� To be regulated by MinisterTo be regulated by Minister

�� Family includes spouse, child, parent, Family includes spouse, child, parent, grandparent, brother or sister of employee grandparent, brother or sister of employee and inand in--lawslaws [sec. 25(5)][sec. 25(5)]


Maternity Leave Maternity Leave [sec. 26][sec. 26]

�� Employee entitled to Maternity leave Employee entitled to Maternity leave

after 6 monthsafter 6 months’’ employmentemployment

–– Employer responsible to continue to pay Employer responsible to continue to pay

all allowances during maternity leave;all allowances during maternity leave;

–– Employee claims basic salary from SSCEmployee claims basic salary from SSC

–– Minimum 12 weeks maternity leave Minimum 12 weeks maternity leave

�� 4 weeks before expected date of confinement 4 weeks before expected date of confinement

as certified by medical practitioneras certified by medical practitioner

�� 8 weeks after actual date of birth8 weeks after actual date of birth


Maternity LeaveMaternity Leave

�� During maternity leave the employer may During maternity leave the employer may

not:not:

�� Retrench the employeeRetrench the employee

�� Dismiss her on account of pregnancy, family Dismiss her on account of pregnancy, family

status or responsibilitystatus or responsibility

�� Employer may offer employee comparable Employer may offer employee comparable

alternative employment and if she alternative employment and if she

unreasonable refuses, take stepsunreasonable refuses, take steps


Extended Maternity Leave Extended Maternity Leave [Sec 27][Sec 27]

�� Due to complications and necessary Due to complications and necessary

for health it may be extended for one for health it may be extended for one

month or accrued sick leave (greater)month or accrued sick leave (greater)

�� A A Medical practitioner must issue a Medical practitioner must issue a

certificatecertificate


Termination p. 28 Termination p. 28 [sec. 30][sec. 30]

�� Notice periodsNotice periods

–– One dayOne day’’s notice if less than 4 weeks in s notice if less than 4 weeks in

employmentemployment

–– One weekOne week’’s notice is less than 12 monthss notice is less than 12 months’’ in in

employment, notice on or before last day of employment, notice on or before last day of

weekweek

–– One monthOne month’’s notice if employment longer than s notice if employment longer than

12 months, running from 1512 months, running from 15thth or 1or 1stst of monthof month

�� Payment in lieu of notice allowedPayment in lieu of notice allowed

Drug, Alcohol & PolygraphDrug, Alcohol & Polygraph

p. 29p. 29

�� If condition is not prohibited or does If condition is not prohibited or does

not constitute contravention of right not constitute contravention of right

(discrimination) it is permitted.(discrimination) it is permitted.

�� Fundamental rights Fundamental rights –– sec 5(4)sec 5(4)

�� Person conducting test must eb Person conducting test must eb

certified / trainedcertified / trained


Medical Evaluations p. 29Medical Evaluations p. 29

�� Only by registered occupatinal health Only by registered occupatinal health

officerofficer

�� Respect right to privacyRespect right to privacy

�� Testing instrument must be Testing instrument must be

scientifically controlled scientifically controlled

�� Are Urine / blood tests medical Are Urine / blood tests medical

evaluations?evaluations?


Safe Working Environment Safe Working Environment

�� Employers duty Employers duty –– sec 39 sec 39 –– 4242

�� Duty to test people which may cause Duty to test people which may cause

risk risk –– breathalyser alcohol testingbreathalyser alcohol testing

�� Occupational Health evaluations to be Occupational Health evaluations to be

done by such practitionersdone by such practitioners


Strike & Lockouts p. 30Strike & Lockouts p. 30

�� Ultimate toolUltimate tool

�� Right to withhold work is a Right to withhold work is a

Constitutional Right which may be Constitutional Right which may be

exercised by following the exercised by following the

requirements stipulated in Labour Actrequirements stipulated in Labour Act


Strike Strike -- Legal Legal

Requirements p. 31Requirements p. 31

�� Dispute of interestDispute of interest

�� Dispute referred to concilaitionDispute referred to concilaition

�� Conciliation must end in agreement orConciliation must end in agreement or

�� Dispute unresolved for 30 daysDispute unresolved for 30 days

�� Certificate of deadlockCertificate of deadlock

�� 48 Hours notice48 Hours notice

�� Attempt to agree on strike rulesAttempt to agree on strike rulesCopyrights Reserved Pieter J de BeerCopyrights Reserved Pieter J de Beer 7676

Strike ActionStrike Action

�� Industrial Action falling within Industrial Action falling within

definition of strike = strike and if definition of strike = strike and if

requirement were not followed = requirement were not followed =

illegal strikeillegal strike

�� ““unprotected strikeunprotected strike”” = incorrect = incorrect

terminology as it is based on RLA of terminology as it is based on RLA of

SASA


Strike ActionStrike Action

�� No remuneration (not basic wage) No remuneration (not basic wage)

during strike action of lockoutduring strike action of lockout

�� Prohibition against using scab Prohibition against using scab

labourers labourers –– temps during legal strike temps during legal strike

actionaction


Strike Plan Strike Plan –– PrinciplesPrinciples

p. 32p. 32

�� Having a Strike action management Having a Strike action management

plan as company policy plan as company policy ––

confidentialityconfidentiality

�� Principles applicable Principles applicable


Employment Service BillEmployment Service Bill

p. 33p. 33

�� Promulgation may be within near Promulgation may be within near

future, but future, but

�� Implementation will be slow and Implementation will be slow and

unsure when and if (similar to unsure when and if (similar to

Smoking Act)Smoking Act)

�� Board to be created before Act can be Board to be created before Act can be

implementedimplemented


Employment Service BillEmployment Service Bill

�� Applicable to Applicable to ““designated employersdesignated employers””

�� Not defined yetNot defined yet

�� Socialist concept of GRN employment Socialist concept of GRN employment

agency agency –– National Employment ServiceNational Employment Service

�� Board to report to Minister and Board to report to Minister and

Minister must submit report to Natinal Minister must submit report to Natinal

Assembly within 30 daysAssembly within 30 days


NES BureauNES Bureau

�� Register job seekersRegister job seekers

�� Register vacant positionsRegister vacant positions

�� Recommend to designated employer Recommend to designated employer

job seekersjob seekers

�� Regulate psychometric testRegulate psychometric test

�� Evaluation of job seekers may Evaluation of job seekers may

privately be done only by registered privately be done only by registered

psychometric testpsychometric testCopyrights Reserved Pieter J de BeerCopyrights Reserved Pieter J de Beer 8282

NES BureauNES Bureau

�� Impact Impact –– HR Managers will have to be HR Managers will have to be

registered psychometrics registered psychometrics –– not a not a ““soft soft

position in future position in future –– revert back to pastrevert back to past

�� Social Work and Psychology Act must Social Work and Psychology Act must

be followed be followed –– Registered Industrial Registered Industrial

Psychologists will become minimum Psychologists will become minimum

requirement for HR Managersrequirement for HR Managers


NES Designated EmployersNES Designated Employers

p. 34p. 34

�� Employment will be blocked ifEmployment will be blocked if

–– Oustanding labour orderOustanding labour order

–– Social Security not up to dateSocial Security not up to date

–– AA Report not approvedAA Report not approved

–– ““Big BrotherBig Brother”” control, public services control, public services

interfering with private businesses. interfering with private businesses.


NES Employment OfficersNES Employment Officers

p. 34 p. 34

�� Power equal to police and labour Power equal to police and labour

inspector authoritiesinspector authorities

�� May enter and inspect work place May enter and inspect work place

without appointment but subject to without appointment but subject to

““reasonable timereasonable time””



Dismissal p. 35 Dismissal p. 35 [sec. 33][sec. 33]

�� Must be valid and fair reason ANDMust be valid and fair reason AND

�� Must follow fair procedure and comply Must follow fair procedure and comply

with Code of Good practicewith Code of Good practice

�� If disputed arbitration will determine if If disputed arbitration will determine if

procedure followed was fair and if procedure followed was fair and if

substantive reasons for dismissalsubstantive reasons for dismissal

Onus to show fairnessOnus to show fairness

�� In instances of dismissal the onus is In instances of dismissal the onus is

on employer, but if dismissal is not the on employer, but if dismissal is not the

sanction, the onus is on the employeesanction, the onus is on the employee


Justification of Dismissal Justification of Dismissal

p. 35p. 35

�� No other sanction appropriateNo other sanction appropriate

�� Misconduct sufficient serious natureMisconduct sufficient serious nature

�� Employment relationship destroyedEmployment relationship destroyed

�� Repeated nature of misconduct Repeated nature of misconduct

(general, not necessarily the same (general, not necessarily the same

misconduct)misconduct)

�� Company policy recommends soCompany policy recommends so


Retrenchment p. 35Retrenchment p. 35

�� Four weeksFour weeks’’ noticenotice

�� Notices issued, containing certain Notices issued, containing certain

inofrmationinofrmation

�� Duty to negotiateDuty to negotiate

�� Provide relevant inofrmationProvide relevant inofrmation



Retrenchment p. 35 Retrenchment p. 35 [sec. 34][sec. 34]

�� At retrenchments employers compelled At retrenchments employers compelled

to Negotiate on to Negotiate on [sec. 34(1)(c)][sec. 34(1)(c)]

–– AlternativesAlternatives

–– Selection criteriaSelection criteria

–– How to minimise dismissalsHow to minimise dismissals

–– Conditions on which dismissals are to Conditions on which dismissals are to

take placetake place

–– How to avert adverse effectsHow to avert adverse effects


Retrenchment Retrenchment [sec. 34(1)(c)][sec. 34(1)(c)]

�� Retrenchment Retrenchment –– disclosure:disclosure:

�� Employer must disclose all Employer must disclose all relevant relevant

informationinformation necessary for the union to necessary for the union to

engage effectively in the negotiations, engage effectively in the negotiations,

unlessunless

–– Legally privilegedLegally privileged

–– Prohibited by law or court orderProhibited by law or court order

–– Confidential and might cause substantial harm to Confidential and might cause substantial harm to

employer. employer.


Retrenchment Retrenchment [sec. 34 (4)][sec. 34 (4)]

�� If no agreement, Labour Commissioner will appoint If no agreement, Labour Commissioner will appoint

a conciliator to mediatea conciliator to mediate

�� Employer may not terminate employment based on Employer may not terminate employment based on

retrenchment unless retrenchment unless ““it has been settled or it has been settled or

otherwise disposed ofotherwise disposed of”” [sec. 34(60(b)][sec. 34(60(b)]

�� If retrenchment is a disguise employees may If retrenchment is a disguise employees may

approach Labour court [ sec. 34(7) &(9)]approach Labour court [ sec. 34(7) &(9)]


Unfair Labour PracticesUnfair Labour Practices

p. 37p. 37 [Sec. 47][Sec. 47]

�� Unfair dismissal or disciplinary actionUnfair dismissal or disciplinary action

�� Unfair labour practices are defined and Unfair labour practices are defined and

limited limited -- not a wide range of incidentsnot a wide range of incidents


Unfair Labour PracticesUnfair Labour Practices[Sec. 48][Sec. 48]

�� Employee & Trade UnionEmployee & Trade Union

–– Mala fide negotiations by trade unionMala fide negotiations by trade union

–– Refusal to bargain collectivelyRefusal to bargain collectively

–– Engage in conduct that Engage in conduct that

�� subverts orderly collective bargainingsubverts orderly collective bargaining

�� Intimidates any personIntimidates any person

–– Not fairly represents employees in bargaining Not fairly represents employees in bargaining unit.unit.


Unfair Labour PracticesUnfair Labour Practices[Sec. 50][Sec. 50]

Employer or employerEmployer or employer’’s organisations organisation’’ss

–– Refusal to bargain collectivelyRefusal to bargain collectively

–– Bargain in bad faithBargain in bad faith

–– Unilaterally alter term of employmentUnilaterally alter term of employment

–– Refusal to disclose relevant information reasonably Refusal to disclose relevant information reasonably

requiredrequired

�� Reasonable person testReasonable person test

�� Unless confidential or legal privilegedUnless confidential or legal privileged


DisclosureDisclosure

�� Disclosure of information has Disclosure of information has

reference to:reference to:

–– Functions of workplace union Functions of workplace union

representative:representative:

�� Make representations to E/r relating to terms Make representations to E/r relating to terms

and conditions of employment;and conditions of employment;

�� RetrenchmentsRetrenchments

�� Disciplinary hearingsDisciplinary hearings

�� Any other function i.t.o. collective agreementAny other function i.t.o. collective agreement


DisclosureDisclosure

�� Disclosure required withDisclosure required with

–– RetrenchmentRetrenchment

–– Information reasonable required for a Information reasonable required for a

shop steward to do his workshop steward to do his work

�� AA PlanAA Plan

�� Health & SafetyHealth & Safety

�� RepresentationRepresentation

�� NegotiationsNegotiations

Procedural fairness Procedural fairness

review p. 38review p. 38

�� Basic questions to assist in Basic questions to assist in

determination if procedural fairness determination if procedural fairness

was complied with.was complied with.


Internal Appeal p. 39Internal Appeal p. 39

�� RehearingRehearing

�� New Evidence New Evidence

�� Appeal on recordAppeal on record


Employee rights p. 40Employee rights p. 40

�� NotificationNotification

�� Sufficient particulars of allegationsSufficient particulars of allegations

�� RepresentationRepresentation

�� AttendanceAttendance

�� Right state case and questionRight state case and question


Employee ObligationsEmployee Obligations

p. 41p. 41

�� Duty to make service availableDuty to make service available

�� Duty to be obedientDuty to be obedient

�� Duty to maintain good faithDuty to maintain good faith


Conciliation and Conciliation and

Arbitration p. 43Arbitration p. 43



Labour Disputes, Conciliation Labour Disputes, Conciliation

& Arbitration & Arbitration [sec 81 [sec 81 --]]

�� District Labour Court will be repealedDistrict Labour Court will be repealed

�� The role of the Conciliators and The role of the Conciliators and

Arbitrators is Arbitrators is inquisitorialinquisitorial..

–– May lead and participate in questioningMay lead and participate in questioning

–– Not common to that of an independent Not common to that of an independent

chairperson in this part of the worldchairperson in this part of the world


Representation Representation -- ConciliationConciliation

�� No legal practitioners and consultantsNo legal practitioners and consultants

�� ConciliationConciliation

–– By a member, office bearer or official of By a member, office bearer or official of

that partythat party’’s trade union / employers s trade union / employers

organisation organisation [sec. 82(12)][sec. 82(12)]

–– By coBy co--employeeemployee

–– By director, member (cc) or employeeBy director, member (cc) or employee


Representation Representation --

ArbitrationArbitration

�� By office bearer or official of that By office bearer or official of that

partyparty’’s trade union or employerss trade union or employers’’

organisationorganisation

[sec. 86(12)][sec. 86(12)]

�� By coBy co--employeeemployee

�� By an employee of juristic personBy an employee of juristic person


Legal practitioners may represent a Legal practitioners may represent a

party ifparty if

�� By agreement between parties;By agreement between parties;

�� If the matter is complex;If the matter is complex;

�� If it is appropriate that such If it is appropriate that such

representation be allowed representation be allowed –– provided provided

that other party is not prejudiced.that other party is not prejudiced.�� [Sec. 82(13) & 86(13)][Sec. 82(13) & 86(13)]

Legal RepresentationLegal Representation


Legal Representation Legal Representation [sec. [sec.

140]140]

�� Permanent Secretary may provide Permanent Secretary may provide

legal assistance to a party to legal assistance to a party to

arbitration if that person in unable for arbitration if that person in unable for

financial reasons to obtain legal financial reasons to obtain legal

representation if allowed by arbitrator. representation if allowed by arbitrator.


�� The District Labour Court process is The District Labour Court process is replaced by conciliation and Arbitrationreplaced by conciliation and Arbitration

�� Pending disputes (matters with a court case Pending disputes (matters with a court case number on 31 October 2008) will continue number on 31 October 2008) will continue under old Actunder old Act

�� Parties can agree to take pending matters Parties can agree to take pending matters to Arbitration in terms of section 86to Arbitration in terms of section 86

Arbitration and Arbitration and

ConciliationConciliation


What is Arbitration?What is Arbitration?

�� A third party (arbitrator) adjudicates the A third party (arbitrator) adjudicates the

dispute and makes an award, which is final dispute and makes an award, which is final

and binding on the parties.and binding on the parties.

�� The third party actively intervenes in the The third party actively intervenes in the

dispute and takes over the role of the dispute and takes over the role of the

decision maker.decision maker.

�� 33rdrd listens to parties and investigates listens to parties and investigates

demands and counter demandsdemands and counter demands

�� Statutory OR Private ArbitrationStatutory OR Private Arbitration


What is Conciliation?What is Conciliation?

�� A third party act as mediatorA third party act as mediator

�� Conciliation promotes the continuation Conciliation promotes the continuation of negotiations to reach an agreement of negotiations to reach an agreement between the partiesbetween the parties

�� No final decision is made by the No final decision is made by the ConciliatorConciliator


�� A dispute is reported by a party to the Labour A dispute is reported by a party to the Labour

CommissionerCommissioner

�� Must be served / delivered to other partyMust be served / delivered to other party

�� A A pro formapro forma will probably be createdwill probably be created

�� LC willLC will

–– refer it to Conciliator or Arbiterrefer it to Conciliator or Arbiter

–– Set date, time and placeSet date, time and place

Arbitration and Arbitration and

ConciliationConciliation


Conciliation Conciliation [sec. 81 [sec. 81 –– 83]83]

�� Is a mediation processIs a mediation process

�� Employer should Employer should ““negotiatenegotiate”” with the with the

other party and conciliatorother party and conciliator

�� No final decisionNo final decision

�� Dispute of interestsDispute of interests

�� Changed employment conditionsChanged employment conditions


Arbitration Arbitration [sec. 84 [sec. 84 –– 90]90]

�� Breach of agreementsBreach of agreements

�� Dismissals and unfair labour practicesDismissals and unfair labour practices

�� Interpretation, implementation or Interpretation, implementation or

application of the Actapplication of the Act

�� Oath may be administeredOath may be administered

�� Final and binding Final and binding –– becomes court becomes court

orderorder


Arbitration Arbitration –– rescission rescission [sec. 88][sec. 88]

�� By arbitrator within 30 days if:By arbitrator within 30 days if:

–– Erroneously sought or made in absence Erroneously sought or made in absence

of a party, orof a party, or

–– It is ambiguous or contain obvious error It is ambiguous or contain obvious error

or omission, oror omission, or

–– It was made as a result of a mistake It was made as a result of a mistake

common to the parties to the proceedings common to the parties to the proceedings


Arbitration Arbitration –– Appeal & Appeal &

reviewreview

�� Appeal to the Labour Court Appeal to the Labour Court [sec. 89][sec. 89]

–– On question of law alone;On question of law alone;

–– On fact if related to discrimination and On fact if related to discrimination and fundamental rights (sec. 7)fundamental rights (sec. 7)

�� Review if involvesReview if involves–– CorruptionCorruption

–– Arbitrator committed a misconductArbitrator committed a misconduct

–– Arbitrator committed gross irregularityArbitrator committed gross irregularity

–– Arbitrator exceeded powersArbitrator exceeded powers

–– If order was improperly obtainedIf order was improperly obtained


Prepare for Con Prepare for Con -- ArbArb

�� Ensure that all Documents of all Ensure that all Documents of all

hearings are bound togetherhearings are bound together

�� Facts summarised by chairperson in Facts summarised by chairperson in

outcome outcome –– in Englishin English

�� Notices, relevant parts of policies / Notices, relevant parts of policies /

manuals /code manuals /code

�� Appeal only on LawAppeal only on Law


DefinitionsDefinitions

�� Various new definitions are introducedVarious new definitions are introduced

�� Definitions are found in section 1, 5 & Definitions are found in section 1, 5 & 88

�� A definition is used by the legislator A definition is used by the legislator when a word or term has a specific or when a word or term has a specific or technical meaning for the whole or technical meaning for the whole or part of the Act, in such cases the part of the Act, in such cases the ordinary meaning is not relevant ordinary meaning is not relevant


Security Officer Security Officer [sec. 8(1)(g)][sec. 8(1)(g)]

�� Employee who controls, checks and Employee who controls, checks and

reports on movement of individuals, reports on movement of individuals,

vehicle and goods through a vehicle and goods through a

checkpoint or any place at work orcheckpoint or any place at work or

�� Protects persons or propertyProtects persons or property


Meal Intervals Meal Intervals [sec. 18][sec. 18]

�� At least 1 hour after 5 hours workAt least 1 hour after 5 hours work

�� No working hours, unless security No working hours, unless security

officerofficer

�� Reduce to 30 minutes if Reduce to 30 minutes if

–– Employee agrees &Employee agrees &

–– Written notice to PS was givenWritten notice to PS was given

–– No approval requiredNo approval required


Meal IntervalMeal Interval

�� No work allowed during meal intervalNo work allowed during meal interval

�� Driver sitting in vehicle to remain in Driver sitting in vehicle to remain in

charge of vehicle or load is deemed to charge of vehicle or load is deemed to

be not working be not working [sec. 18(4)(b)][sec. 18(4)(b)]

�� Meal interval longer than 90 minutes Meal interval longer than 90 minutes

must be paid for period longermust be paid for period longer


Weekly Rest Period Weekly Rest Period [sec.20][sec.20]

�� The rest period between two weeksThe rest period between two weeks[sec. 8(1)(m)][sec. 8(1)(m)]

�� Weekly interval is 36 continuous hoursWeekly interval is 36 continuous hours

�� All employees must get a weekly rest All employees must get a weekly rest

period period


Accommodation Accommodation [sec. 28][sec. 28]

�� If employee is required to live at place If employee is required to live at place

of employment or reside on premisesof employment or reside on premises

�� Adequate housing incl water & Adequate housing incl water &

sanitary facilitiessanitary facilities


Accommodation Accommodation [sec. 28(3)][sec. 28(3)]

�� On agricultural land for the employee, On agricultural land for the employee,

spouse and dependant childrenspouse and dependant children’’

reasonable needsreasonable needs

–– Permit to keep livestock and to cultivate Permit to keep livestock and to cultivate

land for reasonable needs, ORland for reasonable needs, OR

–– Provide sufficient food for employee and Provide sufficient food for employee and

dependants; ORdependants; OR

–– Pay employee an additional amount to do Pay employee an additional amount to do

soso


Accommodation Accommodation [sec. 28(4)][sec. 28(4)]

�� Employment terminated by employerEmployment terminated by employer

–– Right to remain for three months on Right to remain for three months on

agricultural land, andagricultural land, and

–– One month for other, OROne month for other, OR

�� Until unfair dismissal dispute is Until unfair dismissal dispute is

resolved if dispute was reported to resolved if dispute was reported to

Labour Commissioner within 30 daysLabour Commissioner within 30 days


Health, Safety & WelfareHealth, Safety & Welfare

�� Duties of employer [sec 39]Duties of employer [sec 39]

–– Provide working environment that isProvide working environment that is

�� Safe, without health risk & adequate facilities, Safe, without health risk & adequate facilities,

arrangement for welfare of employeesarrangement for welfare of employees

�� Training, protective clothing, information, Training, protective clothing, information,

instructions instructions et ceteraet cetera

–– Report accidents and prescribe diseasesReport accidents and prescribe diseases


�� Duties of employeesDuties of employees

–– Take reasonable care for own safety and Take reasonable care for own safety and

other who may be affected as a result of other who may be affected as a result of

the work of employeethe work of employee

–– CoCo--operate with employer to comply with operate with employer to comply with

regulationsregulations



�� Health and safety representativeHealth and safety representative [sec. 43][sec. 43]

�� 1 for every 10 1 for every 10 –– 100 employees100 employees

�� For every 100 more, one more For every 100 more, one more

representative, which forms a representative, which forms a

committeescommittees



National Interest National Interest [sec. 80][sec. 80]

�� National InterestsNational Interests

–– If Minister considers it in National If Minister considers it in National

Interest, can either:Interest, can either:

�� request Labour Commissioner to conciliate, orrequest Labour Commissioner to conciliate, or

�� In consultation with Labour Advisory Council In consultation with Labour Advisory Council

appoint a panel to conciliate the dispute.appoint a panel to conciliate the dispute.


Urgent Interdicts Urgent Interdicts [sec. 79(1)(b)][sec. 79(1)(b)]

�� Any urgent Labour Court application Any urgent Labour Court application

must also be served on the Labour must also be served on the Labour

CommissionerCommissioner


Labour Court PowersLabour Court Powers [sec. 117][sec. 117]

�� The powers of the Labour Court are The powers of the Labour Court are

set out in this section.set out in this section.


Powers of Labour Powers of Labour

Commissioner Commissioner [sec. 121][sec. 121]

�� Register disputesRegister disputes

�� Through conciliation prevent disputes and Through conciliation prevent disputes and give advicegive advice

�� Resolve disputes through conciliation and Resolve disputes through conciliation and arbitrationarbitration

�� Give advice pertaining to procedure to be Give advice pertaining to procedure to be followedfollowed

�� Intervene in any action in the Labour CourtIntervene in any action in the Labour Court

�� Apply to labour Court for declaratory orderApply to labour Court for declaratory order


Powers of Labour Powers of Labour

InspectorsInspectors

–– May issue compliance orders May issue compliance orders [sec. 126][sec. 126]

–– May interfere with privacy and search May interfere with privacy and search

premises and persons, as if inspector is a premises and persons, as if inspector is a

police official even if fundamental right to police official even if fundamental right to

privacy is breached privacy is breached [sec. 125(1) & (3)][sec. 125(1) & (3)]

–– Failure or refusal to comply to the best of Failure or refusal to comply to the best of

ability with order is criminal offenceability with order is criminal offence


�� Application of the Rules of Natural Application of the Rules of Natural

Justice.Justice.

�� Protection of employee against Protection of employee against

employeremployer’’s arbitrary and trivial action.s arbitrary and trivial action.

�� Onus to prove on EmployerOnus to prove on Employer

Disciplinary ProceduresDisciplinary Procedures


Fair Procedure?Fair Procedure?

–– Manner in which procedure was Manner in which procedure was

followedfollowed

–– Conduct and capability of employeeConduct and capability of employee

–– Compliance with Company PolicyCompliance with Company Policy

–– Compliance with agreementsCompliance with agreements




� The Rules of Natural Justice dictate the rights of an employee.

� The Rules of Natural Justice dictate the sequence of events and the hearing


Fairness Fairness

� The hearing must precede the decision

� The hearing should be timeous

� Employee must have adequate opportunity to prepare

� Employee should be present

� Employee has the right to use a representative


FairnessFairness

�� Employee has a right to test the evidenceEmployee has a right to test the evidence

�� Employee must have an opportunity to put Employee must have an opportunity to put

his/her side of the casehis/her side of the case

�� The chairperson should be impartialThe chairperson should be impartial

�� Reasons for the decision should be givenReasons for the decision should be given

�� The employee should be allowed to appeal.The employee should be allowed to appeal.


Fairness Fairness -- StepsSteps

�� Inform employee of wrong/ chargeInform employee of wrong/ charge

�� Allow time to prepareAllow time to prepare

�� Preferred give written noticePreferred give written notice

�� Allow colleague to assist/representAllow colleague to assist/represent

�� Allow employee to prepareAllow employee to prepare

�� Put facts and evidence to employeePut facts and evidence to employee


Fairness Fairness –– Steps (2)Steps (2)

�� Allow employee to put questionsAllow employee to put questions

�� Allow employee to put his/her side of Allow employee to put his/her side of

the storythe story

�� Take a decision on guilt or not and Take a decision on guilt or not and

state reasonsstate reasons

�� Make notes of everythingMake notes of everything



�� Consider mitigation and aggravationConsider mitigation and aggravation

�� Take decision on sanctionTake decision on sanction

�� Give reasons for sanctionGive reasons for sanction

�� Keep notes / summary of all what Keep notes / summary of all what

were saidwere said



�� Who should be involved?Who should be involved?

�� Who may be involved?Who may be involved?

�� Representative / Unions et cetera?Representative / Unions et cetera?


Thank youThank you

When in doubt, read the ACTWhen in doubt, read the ACT