Due to the vagaries of our labour laws employers and employees are often confused about the meaning of numerous legal terms found in the Labour Relations Act (LRA) Employment Equity Act (EEA), other statutes and in case law.
One of the key requirements for employers to be able to retain their management prerogative is to be able understand labour law and therefore how to comply with it while running a productive workplace.
The legal terms and concepts that appear to confuse employers and employees include, amongst many others, the following:
Victimisation, reasonable, sufficient, con-arb, unfair dismissal, evidence, going concern, racial abuse, sexual discrimination, accumulated leave, consultation, automatically unfair, desertion and reinstatement.
Over the next few months I will discuss these elusive terms so as to bring light into the labour law gloom.
VICTIMISATION
The statutes deal with the issue of victimisation in an indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. And chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:
- Preventing employees or job applicants from joining trade unions or carrying out lawful trade union activities; Bribing employees or prejudicing them so as to avoid or halt their lawful trade union activity or to disadvantage employees/applicants due to past trade union involvement;
- Prejudice an employee or job applicant due to his/her legitimate disclosure of information;
- Prejudice and employee or job applicant who has previously or who may exercise any right conferred by the LRA;
- Bribe any job applicant not to exercise any right conferred by the LRA;
- Unfair promotion, demotion, suspension, discipline, training or provision of benefits
- Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act of 2000.
- Unfair discrimination and harassment.
In the case of Tibbett & Britten SA (Pty) Ltd vs Marks and others (2005, 7 BLLR 717) The employee had been dismissed and claimed victimisation. The Court found in the employee’s favour because the employer was unable to satisfy its legal duty to prove its case.
Management prerogative has suffered very severe setbacks at the hands of our socialistic labour dispensation. A key ingredient of the revival of management prerogative is mastering the understanding our legislation and this being able to manage it.
To book for our 9 March 2017 seminar in Johannesburg on REGAINING MANAGEMENT PREROGATIVE please contact Ronni via ronni@labourlawadvice.co.za or 0845217492.