Exam (elaborations)
LRM3702 EXAM PACK 2022
- Institution
- University Of South Africa (Unisa)
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LRM3702EXAM PACK
+27 81 278 3372
,1.1.1
The LRA permits an employer to dismiss his/her employee for one of the following
reasons:
• misconduct by the employee, for example, if the employee is guilty of theft,
being absent without authorisation, refusing to obey the employer’s
instructions and so on;
• incapacity of the employee, for example, when an employee fails to meet the
employer’s performance standard or when an employee fails to perform the
work s/he was employed to do because of his/her ill health; or
• operational requirements of the employer, for example, if the employer had a
drop in sales and cannot afford the employee any longer. Please see the
Quicklaw on Retrenchments for more information.
Section 187 of the Labour Relations Act 66 of 1995 requires the employee to provide
evidence that an automatically unfair dismissal took place. The employer must then
show that it was not an automatically unfair dismissal. The employer alleged that the
,reason for her dismissal was not her religion but rather her refusal to work on a
Saturday. The employer argued that the employee could have obtained an exception
from her church to permit work on a Saturday.
An employer who dismisses an employee for refusing to work on normal work
mandated days due to religious beliefs must proceed with caution.In this case, the
employee was a member of the Seventh Day Adventist faith (Adventist). “In terms of
her religious beliefs, Saturdays are the holy Sabbath.,“During such period she was
prohibited from performing any work in accordance with the tenets of her religious
beliefs.
“Her employer allocated Saturdays for stock taking as normal business operations
and did not allow for it to be done during the week or on Sundays. All managers were
required to participate in stock taking and it formed part of their training.”
Due to the commitment to her faith, the employee was unable and unwilling to attend
stock takes. When her employer confronted her about her absence, she
acknowledged the importance of stock taking but explained that she was unwilling to
compromise on her religious convictions.,Instead, she proposed alternative working
arrangements to attend to the stock takes but her employer did not meaningfully
engage with her in this regard.
Her employer subsequently dismissed her for incapacity.
Additional Info on the case:
The LAC had to consider the underlying reason for why the employee refused
to work on a Saturday and it held that her religion was the dominant and
proximate reason for her dismissal because but for her religion she would
have worked on a Saturday and would not have been dismissed. The LAC
pointed out that when determining the fairness of an inherent requirement of a
job the following should be considered –
o the position of the victim of the discrimination in society;
o the purpose sought to be achieved by the discrimination;
o the extent to which rights or interests of the victim have been affected;
o whether discrimination has impaired human dignity; and
o whether there is a less restrictive means to achieve the purpose.
1.1.2
Substantive fairness
The substantive fairness of a dismissal for operational reasons is determined by the
reason for the retrenchment or redundancy. The employer must have a valid
economic reason for terminating the services of employees
✓ Economic considerations due to a decrease in production or the demand for
goods or services accompanied by increases in labour costs
, ✓ A specific industry may consider terminating or changing some of its activities
due to factors such as competition or economic recession
✓ An employer may decide to relocate the enterprise
✓ Technological development may require restructuring an organization’s
activities
✓ Takeover and mergers may require restructuring and also a reduction in
labour
1.1.3
Procedural Fairness
The following steps that should be undertaken to ensure the procedural fairness of
the dismissals
Consultation: Consultation with role players with the view of reaching consensus
on:
✓ Appropriate measures to avoid retrenchment,
✓ Minimizing the number of retrenchments,
✓ Changing the timing of the retrenchments and
✓ Mitigating the adverse effect of the retrenchments;
✓ The method for selecting the employees to be retrenched; and
✓ The severance pay that is to be paid to retrenched employees.
Disclosure of information: Disclosure of relevant information such as:
✓ The reasons for the proposed dismissals,
✓ The alternatives that the employer considered before proposing the
dismissals,
✓ The reason for rejecting each of those alternatives,
✓ The number of employees likely to be affected
✓ The job categories in which they are employed, etc.
Representations: The employer is required to allow the other consulting party an
opportunity to make representations, consider and respond to the representations
and, if it does not agree with them, to state its reasons for disagreement. If
representations are made in writing, the employer is obliged to respond to those
representations in writing.
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