Unit 2: Law Impacting On Human Resources Management

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UNIT 2

Law impacting on Human Resources


Management (HRM)
LEARNING OUTCOMES

 To explain the constitutional principles that inform labour relations in S.A


 To explain the common law duties and responsibilities of employers and employees
 To discuss the main provisions of the Employment Equity Act
 To explain best practice in dealing with sexual harassment at the workplace
 To discuss the main provisions of the BCEA
 To explain the purpose, scope and application of the LRA
 To describe best practice guidelines for the management of employee performance
 To explain how employees may be dismissed or retrenched under conditions of
fairness
Be voluntary between two legal
characters

The parties must have contractual


possibility
EMPLOYMENT
CONTRACT
The contract must not be against public
moral values
REQUIREMENTS

Must comply with prescribed formalities

The parties must have contraction


capacity
EMPLOYMENT CONTRACT: EMPLOYER
OBLIGATION
The employer must:

 Give the employer written particulars of employment


 Keep these for 4 years after end of contract
 Give information on remuneration, deductions, time worked
 Keep a record of time worked and their remuneration
 Display a statement of employee's rights
 Provide a certificate of service on termination of service,
except in cases of abscondment
CONTENT OF EMPLOYMENT CONTRACT

 Job description: Why, What, How


 Remuneration
 Hours of work
 Leave
 Benefits: Pension, provident fund, medical aid, housing
 Protection of company’s interests: Confidentiality, restraint of trade
 Period of contract: Length, retirement age, notice period required
 Safety rules
 Disciplinary rules
 Agreements between parties: Agency shop vs Closed shop
REMUNERATION AND DEDUCTION

 Employer to pay as per agreement


 Daily, weekly, monthly

 Deduction only allowed if:


 As per law
 Agreement by employee
 According to collective agreement
 Court order
 Arbitration award
 Loss or damage
TERMINATION OF EMPLOYMENT

Notice must be given in writing / language understood


Farm / Domestic worker * > 6 months = 1 week
* < 6 months = 4 weeks
 If an employee occupies accommodation on the employer’s premises – must be
allowed to stay for notice period
 Termination due to operational requirements or Insolvency: worker must be paid at
least 1 week per completed year of service
 Employee has right to challenge the fairness or lawfulness of dismissal (LRA)

 On termination of employment, employee must be paid:


• All monies owed for services rendered
• Any leave not yet taken
• For time off not taken (eg Pub Hol worked for dayoff)
DISMISSAL – Section 186 of LRA

1. An employer has terminated a contract


2. An employee reasonable expected the employer to renew contract
3. An employer dismisses a number of employees, then offers re-
employment only a few
4. Employer made continued employment intolerable
5. Contract of employment is terminated with or without notice after
transfer of business
AUTOMATIC UNFAIR DISMISSAL

1. Employee participated in legal strike to compel employer to accept


a demand regarding a matter of mutual interest
2. Took action against employee which is allowed according to Act
3. Return from pregnancy and dismissed
4. Unfair discrimination
5. A transfer in terms of section 197 or 197A
6. Contravention of the Protected Disclosures Act (26 of 2000)
UNFAIR DISMISSAL continues…

Dismissal is unfair (not automatically) if employer fails to prove:

1. The reasons for dismissal is fair reason related to:


i. The employee’s conduct or capacity
ii. The employers operational requirements

2. The dismissal was effected in accordance with fair procedure.

3. NB – All cases referred to Commission for Conciliation, mediation


and Arbitration (CCMA)
SEXUAL HARASSMENT

1. Moral duty to prohibit and eliminate


2. Legal duty to prohibit and eliminate
3. Prompt action is required when reported:
3.1 At the workplace or an event
3.2 Must be fully investigated immediately
4. Failure to act makes the employer as guilty as the perpetrator
5. Organisations must consult:
5.1 Develop and communicate policies
5.2 Ensure workplace free of harassment
SEXUAL HARASSMENT POLICY

 Eliminate sexual harassment


 Provide appropriate procedure and processes
 Create and develop workplaces free of sexual harassment
 Abide by the constitutional principles
 Deal with allegations sensitively, promptly, unbiased & confidentially
 Not blame anyone until proper investigation completed
 Ensure victim is not adversely affected
 No pictures etc demeaning to women (men)
 Ensure all employees are aware of policy
OCCUPATIONAL HEALTH AND SAFETY
(85 of 1993)

Duties of employer
 Ensure compliance with the requirements of the Act
 Ensure machinery, equipment work are reasonable safe and
without health risks
 Initiate steps to eliminate health and safety hazards
 Ensure work is performed under supervision
 Appoint safety representatives and keep them informed
 Provide training in safety
 Ensure safety committee performs its duties
OCCUPATIONAL HEALTH AND SAFETY
(85 of 1993)

Duties of employee
 Take reasonable care for health and safety
 Co-operate and comply with safety requirements
 Carry-out lawful orders and to obey health and safety rules
SKILLS DEVELOPMENT ACT
(97 OF 1998)
 Payment of levy

 SETA’s
- Sector education and training authority

 SAQA
- South African quality authority
OTHER ACTS

 The Compensation for Occupational Injuries and Diseases Act (Act


130 of 1993)

 The Unemployment Insurance Act (Act 63 of 2001)

 Broad-Based Black Economic Empowerment Act (Act 53 of 2003)

 Protected Disclosures Act (Act 26 of 2000)


MODERN DAY DUTIES OF MANAGEMENT

 Establish sound relationships with employees (regular


meetings)
 Discuss matters of importance
 Positively share information eg HR statistics, HR turnover,
absenteeism, safety arrangements, production targets and
achievements.
 Promote quality of work life (housing, education)
 Consult with stakeholders
REQUIREMENTS FOR FAIR PROCEDURES

 The manager must conduct a thorough investigation to determine what occurred.


 The manager must notify the employee of all the allegations using a form and
language that the employee can reasonably understand.
 The employee should be allowed the opportunity to state his/her case in
response to the allegation.
 The employee should be entitled to a reasonable time to prepare the response
and to the assistance of a union representative or fellow employee.
 After the enquiry the employer should communicate the decision taken and the
reason for the decision, preferable in writing.
 Rights to appeal should be clearly stipulated and explained
 Any action against an union representative may not be undertaken prior to first
informing and consulting with the union.
 Disciplinary records must be kept by the manager.
REQUIREMENTS FOR SOUND DISCIPLINARY ACTION

 The rule must be required under reasonable circumstances for the efficient, orderly and
safe conduct of the business.
 In terms of the employment contract, the manager must have the authority to make such a
rule.
 The rule must comply with applicable statutes of regulations.
 The employee should be aware of the rule or should have reasonably been expected to
have known the rule.
 The rule (and penalty) must be applied consistently.
 The concept of corrective or progressive discipline should be applied where appropriate;
the objective should be to correct the employee’s behaviour.
 When deciding on a penalty/sanction, the following must be taken into consideration:
- The gravity of the misconduct
- The employee’s personal circumstances
- The nature of the job
- The circumstances of the infringement

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