# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Labour Law 101: Your internal labour law/HR function

## Citizen X

*Hi Guys,*
*The single most important objective I have here is to simplify the Labour relations Act 66 of 1995(as amended).The idea of this topic is to develop your internal disciplinary process so that you can manage this process. Many of you will already have these processes in places, corporate companies definitely have these processes in place but many small businesses and start up businesses don’t have this place and will therefore find this post and its attachments beneficial.
*
*The Labour relations Act 66 of 1995 is a lengthy document but for the purposes of discipline, dismissal and unfair dismissal, a very small portion of this lengthy Act is applicable to you: Section 186 up to and including section 193 of the Act and Schedule 8 of the Act( section 1 up to and including section 11). If printed these mentioned sections do not prove to be a lengthy document and is it also does not contain exhaustive content. When put in perspective, the rationales cannot be clearly seen. Should you down load the pdf version, you’ll find that when you print the sections I mention it amounts to no more than 30 pages. I challenge you to familiarize yourself with these pages. It will prove to be invaluable and will save you money in terms of getting legal advice where you yourself are now in a position where you empowered. The further idea here is to save you legal costs for legal advice. All this will take is a little empowering of you! I’m by no means disparaging the legal profession which dates back centuries, I merely saying that you don’t always have to pay huge consultation fees for advice. Empower yourself!*
*1.* *Download the act. Since the Act has been amended a few times, might I suggest that you google “labour relations act 66 of 1995 with all amendments;*
*2.* *In practice when one purchase a law library for your office , all these acts are included in what seems to be a small files with many papers that are include by means of punch holes. The reason for this is that when there is an amendment, you simply open the file and remove the page or pages that are repealed or amended and then insert the amended pages into the file. By downloading a version with all amendments in pdf form, you don’t have to contend with this;
*
*3.* *The Act recognises 3 grounds that you may discipline/dismissal an employee for:* 
*3.1* *Misconduct*
*3.2* *Incapacity*
*3.3* *Operational requirements*


*This will be dealt with at a later stage, the reason it’s mentioned now is for clearer perspective.* 



*The goal with this post to meet Section(1); (4) of Schedule 8 of the Labour Relations Act 66 of 1995 in terms of compliance. You’ll require an audit trail of documents and forms to do this*
*Section 1 of Schedule 8 of the Act provides:*
*“Disciplinary procedures prior to dismissal* 
*(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business.* 
*In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.* 

*4. Fair procedure* 
*(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.*
*5. Disciplinary records: Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.”*


*4.* *The best way to do this is to have the following documents in place: Code of conduct; counselling letter, warning form, Notification of disciplinary hearing; suspension letter, Disciplinary hearing record, Disciplinary hearing checklist for chairperson, confirmation of training register, Disciplinary code(not necessary in small businesses(corporate companies usually have this in place){all these documents have been attached in Word 2003, you may amend them, add your business name, logo to them and then simply convert to pdf for proper printing of the forms as they are}.*
*5.* *Section 1 of schedule 8 protects small businesses from an exhaustive disciplinary code, this section reads, “All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business.”*
*6.* *All discipline in the workplace and especially dismissals must be conducted in accordance with a justified reason and a fair procedure. The Act refers to this as substantive and procedural fairness. It should be apparent by now why all the aforementioned processes should be in place. You don’t want a situation where the CCMA or the Labour Court rules that the dismissal you gave as a sanction or penalty or punishment was substantively fair but not procedurally fair. Get your procedures in place!!*


*7.* *Section 2(1) of schedule 8 provides, “ Fair reasons for dismissal ,A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.”* :Cool:

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cagenuts (23-Mar-12), Dave A (24-Jan-12), Petrichor (25-Jan-12)

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## Dave A

A great start Vanash  :Thumbup: 

Did you get my message on how to deal with the attachment limit issue?

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## Citizen X

Hi Dave, 

I did indeed and have resolved to attach those additional documents in another post, that i'll call "your internal labour law/hr function 2(additional attacments). The brainchild here is that over time I want to build a complete picture.

Many thans for your very kind comments!

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## Citizen X

Hi Guys,

1. Attached are 2 additional documents that will lend more meaning to the first post of the same name!
2. Things are hectic on my side for these next 2 weeks, so in the evnt of their been questions that I don't immediately respond to, it's that rat race that's keeping me away! :Cool:

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## Petrichor

Vanash - this is great, Thanks You - you do not realise how much time and value you are adding to my life  :Smile:

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## Citizen X

You to kind!! I too have obtained a vast wealth of knowledge and information from the forum sa!

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## nkawit

So I have an employee that is having a baby. Both her and her husband work for me. They spend alot of time on the phone to clients.

She has indicated she does NOT want to go onto UIF as she cannot survive with such a low payout. She has roughly her full leave that she can take (1 month).

I told her she is not going to work additional hours to make up another month so she can have another month of paid leave due to certain reasons.

What other options does she have?

What if she wants to come back to work sooner than 1 month? can I allow it?

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## Dave A

> She has indicated she does NOT want to go onto UIF as she cannot survive with such a low payout. She has roughly her full leave that she can take (1 month).


You could always top up the shortfall - although you might want to bear in mind you might be seen as setting a precedent for the company to follow in future.




> What if she wants to come back to work sooner than 1 month? can I allow it?


That would be her prerogative, I guess. By my understanding, the only obligation you have is to keep the post open for when she returns (up to 3 or 6 months?)

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## Citizen X

Hi Nkawit,

Terribly sorry for the late reply, but things have just been so hectic for me!!

1. dismissal for intended pregnancy or actual preganancy is classified by the labour relations act as an "automatically unfair dismissal!"
2. All the automatic unfair dismissals(which I will come to at a later stage, I'm building a picture with these posts) are a very slippery slope!
3. You can also tell her that as her employer you duty bound to register her for uif;
4. The law currently swings in the favour of women coming back from maternity leave
What you can however do, is come to an amicable arrangement with her, even if it means paying her 2 extra months salary for a quick solution, which is what I think you want, I think you want closure and finality. have a meeting with her and husband as they both do work for you, and tell them you making an offer. Should she accept the offer, put it in writting , get her to sign and a witness, that you giving her a full and final settlement which came about with concensus(mutual agreement), both parties agree and want that.

I hope that this helps!!

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## IMHO

Vanash, I think you are missing the point. She does not want to claim UIF while on maternity leave. She would rather take paid leave. From my point of view, this would not be in the interest of either party. I would say claim UIF and cover the shortfall with paid leave. Same procedure, meeting, discuss, come to agreement, sign.

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## Citizen X

*Labour Law: Getting the basics right

*

I’m acutely aware that most, if not all of the reputable businesses on TFSA, are familiar with what is to follow. This is therefore intended for the small business person who has little or no foundation in labour law. The format it takes is one of question and answer. I will build on it with the ensuing passing of time.
Naturally, anyone is free to add to it or build on it as it were.



Treat this as a *basic* workshop

*1. After completing this basic workshop you should have an ability to:*

1.Demonstrate a basic understanding of the Labour Relations Act
2.Explain the meaning of dismissal and unfair dismissal              
3.Explain the dates related to dismissals and dismissal disputes. 
4.Explain the burden of onus, remedies and limits on compensation for unfair dismissal disputes. 
5. Describe relevant flow diagrams relating to unfair dismissals. 
6. Explain the guidelines in the Code of Good Practice in terms of Labour Relations Legislation.
7. Explain the differences between substantive and procedural fairness.[1] 

The learner must be able to extract the necessary information from a situation and give comment on its legal status.[2]
*2. Learning assumed to be in place*
*2.1 It is assumed that delegates attending this workshop are able to:*
 Explain and apply labour relations to the disciplinary process 
 Handle meetings 
 Apply writing, listening and talking skills
 Communicate effectively  
 Apply principles of policy and procedure implementation 
 Demonstrate an understanding of an organisation and its functions  
 Apply consultation skills

1.1Learning: “learning” means the acquisition of knowledge, understanding, values, skill, competence or experience;[3]
1.2 Standard: The registered statements of desired education and training outcomes and their associated assessment criteria;[4]
1.3 Learning outcome: Contextually demonstrated end product of the learning process;[5]
1.4 Unit Standard(US):Registered statement of desired education and training outcomes and its associated assessment criteria together with administrative and other information as specified in the regulations[6];
1.5 Specific outcome: Knowledge, skills and values (demonstrated in context) which support one or more critical outcomes[7];
1.6 Formative assessment: Refers to assessment that takes place during the process of learning and teaching;
1.7 Summative assessment: Is assessment for making a judgement about achievement. This is carried out when a learner is ready to be assessed at the end of a program of learning.

*2. Abbreviations* 
1. NQF: “NQF” means the national qualifications framework contemplated in Chapter 2;[8]
2. SAQA: “SAQA” means the South African Qualifications Authority contemplated in Chapter 4;[9]
*3. Frequently asked questions*
1. Do I need to be accredited to conduct workshops?
No, you do not need to be accredited to conduct workshops, unless, the workshop is intended to lead to obtaining a part qualification, qualification or official recognition of a learner having achieved a unit standard;
2. Why refer to SAQA unit standards?
These unit standards are public property and provide clear guidelines into what a specific learning program should entail. When any material from a unit standard is reproduced or quoted, the only requirement is that SAQA should be acknowledged as the source
3. What unit standards relate to labour law alternatively the disciplinary process?
There are various SAQA unit standards applicable(the following are just a few):
3.1 Unit Standard Title: Conduct a disciplinary Hearing: SAQA Unit Standard ID: 10985
3.2 Unit Standard Title: Institute Disciplinary Action:  SAQA Unit Standard ID: 11286
3.3 Unit Standard Title: Demonstrate and apply and understanding of the Labour Relations Act 66 of 1995: SAQA Unit Standard ID: 114278
3.4 Unit Standard Title: Demonstrate basic understanding of the Primary Labour Legislation that impacts on a business unit: SAQA Unit Standard ID:13952
3.5 Unit Standard Title: Interpret and apply labour legislation relating to strikes, lock-out and picketing: SAQA Unit Standard ID: 337081
3.6 Unit Standard Title: Interpret unfair dismissal in terms of labour relations legislation: SAQA Unit Standard ID: 376119
Kindly note that the aforementioned unit standards can be accessed using any search engine. These unit standards provide no course material whatsoever! You need to develop and compile your own course material. It is, however, beneficial to access these unit standards so that you know to following a proper guideline.


 [1] SAQA: SAQA Unit Standard ID 376119: Interpret unfair Dismissal in terms of labour relations legislation

[2] SAQA: SAQA Unit Standard ID 376119: Interpret unfair Dismissal in terms of labour relations legislation

[3] National Qualifications Framework Act 67 of 2008. Section 1

[4]SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[5] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[6] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[7] SAQA:http://www.saqa.org.za/show.asp?id=2697. Accessed 15 January 2014

[8] National Qualifications Framework Act 67 of 2008. Section 1

[9] National Qualifications Framework Act 67 of 2008. Section 1

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## Citizen X

*1. What reasons may the company lawfully dismiss employees for?*
Rationale: You want to create an interactive learning environment, by getting all delegates to take part. You want to kick-start your workshop by getting straight into a relevant question that will set the pace for the rest of the workshop.
Delegates will most likely provide all the wrong reasons that they think is correct!
They will mention, theft, dishonesty, fraud, bringing the company into disrepute etc. This however is not the reasons you are looking for!

The purpose of this question is to demonstrate that there are only three (3) categories for which an employer may lawfully dismiss an employee.
These three categories are found in section 2(2) of  Schedule 8 of the Labour Relations Act 66 of 1995[1] which states
This Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.

To put this in another way, employees may be dismissed for misconduct, incapacity and operational requirements.

All the reasons that your delegates have mentioned falls under* misconduct*

At this juncture, your delegates will realise that they not familiar with the LRA and don’t know how to refer to a section or find a section in the LRA. The LRA doesn’t work in page numbers but in sections. Schedules are found at the end of the Act itself.

Now is a good time to inform your delegates that there are two copies of the LRA on the table and you want them to find section 186(1)_(e)_ _as a team_

Rationale: They will realise, when looking at the LRA, that labour Law is not as straight forward as it seems and that they do require training from you.



 [1] Hereinafter referred to as LRA

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## Citizen X

An Act such as The Labour Relations Act does not work on the basis of page number or on the basis of alphabetical order, it works on the basis of sections, it starts with section 1. It’s very much the same as alphabets on the basis that if you looking for section 185 and you just open the act and find you on section 170, you know you close!
Section 186(1)(e) of the Labour relations Act 66 of 1995

1. Refers to the number of the relevant section eg 186
2. The sub section follows eg (1)
3. The paragraph follows eg _(e)_
4. In this example there is no sub paragraph

Section 186(1)_(e)_
  186                       1                                       e






Section           Sub section                           Paragraph

Section 186(1)_(e)_ of the labour Relations Act 66 of 1995 provides *Meaning of dismissal and unfair labour practice* "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

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## Citizen X

Exercise 1
Training Task(All delegate are to work as a team on 1.1 one of them is to read it aloud) Allocate 5 minutes for this task
*1.1Find section* Section 186(1)_(e)_ of the Labour relations Act 66 of 1995. Read aloud what section 186(1)_(e)_ states(1.1 is for all delegates, they are to work together as a team on 1.1)
Your delegates now have two bulky documents on the table. Give them ten minutes to find section 186(1)_(e)_ together as a team).
One or more of them should be able to successfully state what section 186(1)(e) states.
Section 186(1)_(e)_ of the labour Relations Act 66 of 1995 provides "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee

 Section




*186 Meaning of dismissal and unfair labour practice* 
 Sub-Section 1




“_Dismissal_” means that -

 Paragraph e




an _employee_ terminated a contract of employment with or without notice because the employer made continued employment intolerable for the _employee_. 


There are now 6 exercises remaining(1.2 up to and including 1.7)!
 You are to allocate one exercise to each delegate, that is, 1.2 to one delegate, 1.3 to a second delegate, 1.4 to a third delegate, 1.5 to a fourth delegate, 1.6 to a sixth delegate and 1.7 to the seventh delegate.
All six delegates are to complete this exercise successfully before you move on with your training.

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## Citizen X

Section 185




1.2 Find section 185(1)_(a)_ of the Labour relations Act 66 of 1995. Read aloud what section 185(a) states                                       185 *Right not to be unfairly dismissed or subjected to unfair labour** practice*

 Sub-Section 1




Every employee has the right not to be –

 Paragraph a




unfairly dismissed; 


 Section 185




1.3 Find section 185(1)_(b)_ of the Labour Relations Act 66 of 1995. Read aloud what section 185(b) states                                      185  Right not to be unfairly dismissed or subjected to unfair labour practice

 Sub-Section 1





 Paragraph b




Every employee has the right not to be – 
_(b)_ subjected to unfair labour practice.

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## Citizen X

Section 187




1.4. Find section 187(1)_(a)_ of the Labour Relations Act 66 of 1995. Read aloud what section 187(1)(a) states                                     187. Automatically unfair dismissals

 Sub-Section 1




(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5  or, if the reason for the dismissal is -

 Paragraph a




_(a)_ that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV; 
1.5 Find section 187(1)_(e)_ of the Labour Relations Act 66 of 1995. Read aloud what section 187(1)(e) states

 Section 187




187. Automatically unfair dismissals

 Sub-Section 1




(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5  or, if the reason for the dismissal is –


 Paragraph e




_(e)_ the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; 
1.6 Find section 188(1)_(a)_(i) of the Labour Relations Act 66 of 1995. Read aloud what section 188(1)(a)(i) states

 Section 188




This example has a section, sub-section, paragraph and sub-paragraph 
Other unfair dismissals


  Sub-Section 1




1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove - 
 Paragraph a




(a) that the reason for dismissal is a fair reason -

 Sub-Paragraph i




(i) related to the employee’s conduct or capacity; or








1.7 Find section 188(1)_(a)_(ii) of the Labour Relations Act 66 of 1995. Read aloud what section 188(1)(a)(ii) states

 Section 188




Other unfair dismissals

  Sub-Section 1




1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove

 Paragraph a




_(a)_ that the reason for dismissal is a fair reason –

 Sub-Paragraph ii




(ii) based on the employer’s operational requirements; and

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## Citizen X

2. What is Legislation?
The simple straight forward answer that you looking for: is that Legislation     is *written* law.



3. Provide other names for legislation?
Statute, Act of Parliament and Enacted text

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## Citizen X

4. Numbering in Legislation ( How to write legislation or refer to legislation in writing)
The following will be used as an example

188(1)_(a)(_ii) of the Labour Relations Act 66 of 1995

Section 188 – Arabic numeral (any of the symbols 0,1,2,3,4, etc) 
Subsection (1)- Arabic number placed in brackets it must be (1 ) and *NOT* [1 ] *or* {1 }
Paragraph _(a)_- This must be in italics and in small letters
Subparagraph (ii) This must be in small letters. Roman numerals

188(1)_(a)_(ii)ü

188[1][a][2] *X*

188{1}{a}{ii}*X*


Legislation is divided into sections. Sections are divided into subsections, subsections into paragraphs and paragraphs into subparagraphs. The Abbreviation for a section is *‘s,’* and the abbreviation for more than one section is *‘ss’.* The abbreviation for a subsection is *‘subsec,’* and for more than one subsection *‘subsecs.’* The abbreviation for paragraph is para and for more than one paragraph paras. The abbreviation for subparagraph is *‘subpara,’* and for more than one subparagraph *‘subparas.’*

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## Citizen X

5. The structure of legislation



All legislation, in particular, legislation introduced after 1994, has a set structure. Being familiar with this structure plays an important role in understanding the legislation itself and becoming more familiar with legislation. As the trainer, familiarise yourself with the structure of the Labour Relations Act on the next page.


5.1 Short Title:  This is the very first title found in legislation. It’s found right at the top of legislation on the very first page as well in the very last section of legislation

*                                LABOUR RELATIONS ACT 66 OF 1995                    * *Short Title*


The last section of legislation is the very last number in numerical order, the last section of legislation will appear before the Schedules to the legislation. The last section of the Labour Relations Act is section 214.

Section 214(1) provides
This Act is called the Labour Relations Act, 1995.
5.2 Assented To: This is the  date on which the President signed the Legislation into law

_[Assented To: 29 November 1995]_ 
5.3 Date of commencement: This is the date on which the legislation takes effect or starts to apply.

_[Commencement Date: 11 November 1996 – unless otherwise indicated]_

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## Citizen X

5.4.Amendments: All amendments that were made to the legislation will appear after the commencement date _and before_ what is referred to as the ‘long title,’ of the legislation.

ACT
To change the law governing labour relations and, for that purpose -
to give effect to section 27 of the Constitution;
to regulate the organisational rights of trade unions;
to promote and facilitate collective bargaining at the workplace and at sectoral level;
to regulate the right to strike and the recourse to lock-out in conformity with the
Constitution;
to promote employee participation in decision-making through the establishment of
workplace forums;
to provide simple procedures for the resolution of labour disputes through statutory
conciliation, mediation and arbitration (for which purpose the Commission for Conciliation,
Mediation and Arbitration is established), and through independent alternative dispute
resolution services accredited for that purpose;
to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive
jurisdiction to decide matters arising from the Act;
to provide for a simplified procedure for the registration of trade unions and employers’
organisations, and to provide for their regulation to ensure democratic practices and proper
financial control;
to give effect to the public international law obligations of the Republic relating to labour
relations;
to amend and repeal certain laws relating to labour relations; and
to provide for incidental matters.

You can identify the long title by the word ‘ACT,’
The long title shows what the underlying purpose of the legislation is. Notwithstanding this, a section entitled, ‘Purpose of Act,’ may still appear
5.5 Definitional clause: Not all legislation has a definitional clause. A definitional clause is the internal dictionary for the legislation. Words used in the definitional clause may have a different meaning from the dictionary meaning. The meaning in the definitional clause is to be used.
*                                LABOUR RELATIONS ACT 66 OF 1995              * *Short Title*(English text signed by the President)_[Assented To: 29 November 1995]__[Commencement Date: 11 November 1996 – unless otherwise indicated]_*as amended by:*Labour Relations Amendment Act 42 of 1996Basic Conditions of Employment Act 75 of 1997Employment Equity Act 55 of 1998Labour Relations Amendment Act 127 of 1998Labour Relations Amendment Act 12 of 2002Intelligence Services Act 65 of 2002Electronic Communications Security (Pty) Ltd Act 68 of 2002General Intelligence Laws Amendment Act 52 of 2003Prevention and Combating of Corrupt Activities Act 12 of 2004Public Service Amendment Act 30 of 2007[with effect from 1 April 2008]General Intelligence Laws Amendment Act 11 of 2013[with effect from 29 July 2013]Superior Courts Act 10 of 2013[with effect from 23 August 2013 - Proc. 36 / GG 36774 / 20130822]

*ACT*

*To change the law governing labour relations and, for that purpose -*
*to give effect to section 27 of the Constitution;*
*to regulate the organisational rights of trade unions;*
*to promote and facilitate collective bargaining at the workplace and at sectoral level;*
*to regulate the right to strike and the recourse to lock-out in conformity with the*
*Constitution;*
*to promote employee participation in decision-making through the establishment of*
*workplace forums;*
*to provide simple procedures for the resolution of labour disputes through statutory*
*conciliation, mediation and arbitration (for which purpose the Commission for Conciliation,         Long*
*Mediation and Arbitration is established), and through independent alternative dispute              Title*
*resolution services accredited for that purpose;*
*to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive*
*jurisdiction to decide matters arising from the Act;*
*to provide for a simplified procedure for the registration of trade unions and employers’*
*organisations, and to provide for their regulation to ensure democratic practices and proper*
*financial control;*
*to give effect to the public international law obligations of the Republic relating to labour*
*relations;*
*to amend and repeal certain laws relating to labour relations; and*
*to provide for incidental matters.*

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## Citizen X

Exercise 2
Study the following and answer the questions that follow:
BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997(English text signed by the President)[Assented To: 26 November 1997][Commencement Date: 1 December 1998 – unless otherwise indicated][Proc. R26 / GG 18731 / 19980313][Proc. 112 / GG 19453 / 19981113]as amended by:Government Notice R195 / GG 20933 / 25-02-2000Basic Conditions of Employment Amendment Act 11 of 2002Intelligence Services Act 65 of 2002Electronic Communications Security (Pty) Ltd Act 68 of 2002General Intelligence Laws Amendment Act 52 of 2003Skills Development Amendment Act 37 of 2008[with effect from 6 April 2009 – Proc. R409 / 32105 / 20090406]General Intelligence Laws Amendment Act 11 of 2013[with effect from 29 July 2013]ACTTo give effect to the right to fair labour practices referred to in section 23(1) of theConstitution by establishing and making provision for the regulation of basic conditions ofemployment; and thereby to comply with the obligations of the Republic as a member state ofthe International Labour Organisation; and to provide for matters connected therewith.


1. Definitions
In this Act, unless the context indicates otherwise -
“agreement” includes a collective agreement;
“area” includes any number of areas, whether or not contiguous;
“bargaining council” means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act;
“basic condition of employment” means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment;
“CCMA” means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995;
“child” means a person who is under 18 years of age;
“code of good practice” means a code of good practice issued by the Minister in terms of section 87 of this Act;
“collective agreement” means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand -
(a) one or more employers;
(b) one or more registered employers’ organisations; or
(c) one or more employers and one or more registered employers’ organisation;
“Commission” means the Employment Conditions Commission established by section
59 (1);
“compliance order” means a compliance order issued by a labour inspector in terms of section 69 (1);
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
“council” includes a bargaining council and a statutory council;
“Department” means the Department of Labour;
“Director-General” means the Director-General of Labour;
“dispute” includes an alleged dispute;
“domestic worker” means an employee who performs domestic work in the home of his or her employer and includes -
(a) a gardener;
(b) a person employed by a household as driver of a motor vehicle; and
(c) a person who takes care of children, the aged, the sick, the frail or the disabled, but does not include a farm worker;
“employee” means -
(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of
an employer, and “employed” and “employment” have a corresponding meaning;1
“employers’ organisation” means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;
“employment law” includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts:
(a) The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
(b) the Skills Development Act, 1998 (Act No. 97 of 1998);
(c) the Employment Equity Act, 1998 (Act No. 55 of 1998);
(d) the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(e) the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993);
[Definition of “employment law” substituted by s. 1 of Act 11/2002]
“farm worker” means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work
in a home on a farm;
“Labour Appeal Court” means the Labour Appeal Court established by section 167 of the Labour Relations Act, 1995;
“Labour Court” means the Labour Court established by section 151 of the Labour Relations Act, 1995;
“labour inspector” means a labour inspector appointed under section 63, and includes any person designated by the Minister under that section to perform any function of a labour inspector;
“Labour Relations Act, 1995” means the Labour Relations Act, 1995 (Act No. 66 of 1995);
“medical practitioner” means a person entitled to practise as a medical practitioner in terms
of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);
“midwife” means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978);
“Minister” means the Minister of Labour;
“month” means a calendar month;
“NEDLAC” means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35
of 1994);
“ordinary hours of work” means the hours of work permitted in terms of section 9 or in terms of any agreement in terms of sections 11 or 12;
“overtime” means the time that an employee works during a day or a week in excess of ordinary hours of work;
“prescribe” means to prescribe by regulation and “prescribed” has a corresponding meaning;
“public holiday” means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994);
“public service” means the public service referred to in section 1 (1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational component
contemplated in section 7 (4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding -
(a) the members of the National Defence Force;
(b)..........
[Para. (b) amended by s. 26 of Act 68/2002 and deleted by s. 53 of Act 11/2013]
(c) ..........
[Para. (c) deleted by s. 53 of Act 11/2013]
(d) ..........
[Para. (d) inserted by s. 40 of Act 65/2002 and deleted by s. 53 of Act 11/2013]
(e) ..........
[Para. (e) added as para. (d) by s. 26 of Act 68/2002 and again added by s. 25 of Act 52/2003 and deleted by s. 53 of
Act 11/2013]
“registered employers’ organisation” means an employers’ organisation registered under
section 96 of the Labour Relations Act, 1995;
“registered trade union” means a trade union registered under section 96 of the Labour
Relations Act, 1995;
“remuneration” means any payment in money or in kind, or both in money and in kind,
made or owing to any person in return for that person working for any other person, including the State, and “remunerate” has a corresponding meaning;2
“sector” means an industry or a service or a part of an industry or a service;
“sectoral determination” means a sectoral determination made under Chapter Eight;
“senior managerial employee” means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally;
“serve” means to send by registered post, telegram, telex, telefax or deliver by hand;
“statutory council” means a council established under Part E of Chapter III of the Labour Relations Act, 1995;
“temporary employment service” means any person who, for reward, procures for, or provides to, a client, other persons -
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service;
“this Act” includes the Schedules and any regulation made under this Act, but does not include the headings or footnotes;
“trade union” means an association of employees whose principal purpose is to regulate
relations between employees and employers, including any employers’ organisations;
“trade union official” includes an official of a federation of trade unions;
“trade union representative” means a trade union representative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act, 1995;
“wage” means the amount of money paid or payable to an employee in respect of ordinary
hours of work or, if they are shorter, the hours an employee ordinarily works in a day or
week;
“week” in relation to an employee, means the period of seven days within which the working
week of that employee ordinarily falls;
“workplace” means any place where employees work;
“workplace forum” means a workplace forum established under Chapter V of the Labour
Relations Act, 1995.
1. “Employee” is given a specific meaning in section 82(1).
2. “Remuneration” is given a specific meaning in section 35(5).

*96. Short title and commencement*
This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be
fixed by the President by proclamation in the _Gazette_.

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## Citizen X

*Allocate 20 minutes to your delegates to complete this exercise. All the information they require to successfully complete the exercise is found in their delegate’s manual. They are to complete this exercise individually and not as a group.*

*2.1 When did the Basic Conditions of Employment Act   97 of 1998 come into operation?*
*1 December 1998*
This is also referred to as the date of commencement

2.2 What is the short title of this Act? Where did you find this in the Act?
BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997.
Right at the top of the Act.

2.3 What is the long title of this Act?
To give effect to the right to fair labour practices referred to in section 23(1) of the
Constitution by establishing and making provision for the regulation of basic conditions of
employment; and thereby to comply with the obligations of the Republic as a member state of
the International Labour Organisation; and to provide for matters connected therewith.
Found under the word ‘ACT.’

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## Citizen X

2.4 What is the purpose of section 1 of this Act?
It is the definitional clause. It serves as an internal dictionary to the Legislation. It defines certain terms and terms as used in the legislation. This may differ from the dictionary meaning.





2.6 Where else in this Act can you find the short title?
In the very last section of an ‘ACT’ before schedules. In this case it’s section 96 of the Basic Conditions of Employment Act 97 of 1998

*96. Short title and commencement*
This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be
fixed by the President by proclamation in the _Gazette_.

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## Citizen X

Prescribed material (specific sections of the Labour Relations Act)

ss 185, 186, 187, 188, 190, 191, 192, 193, 194
Schedule 8(Code of Good Practice)
What is ‘ss,’ is this slang????
No it is not! _Remember_ our previous lesson?

Legislation is divided into sections. Sections are divided into subsections, subsections into paragraphs and paragraphs into subparagraphs. *The Abbreviation for a section is ‘s,’ and the abbreviation for more than one section is ‘ss’.* The abbreviation for a subsection is *‘subsec,’* and for more than one subsection *‘subsecs.’* The abbreviation for paragraph is para and for more than one paragraph paras. The abbreviation for subparagraph is *‘subpara,’* and for more than one subparagraph *‘subparas.’*

*It is not necessary to place* legislation in quotation marks as legislation is not copyright!
So, you needn’t use “..” or ‘..’, you may simply state according to  Section 186(1)_(e)_ of the labour Relations Act 66 of 1995  "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
The reason why Dismissal is in quotation marks is simply because in the legislation itself, quotation marks are used for this word.
You may also state Section 186(1)_(e)_ provides that "Dismissal" means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

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## Citizen X

Exercise 3
3.1 What is the right that an employee has regarding unfair dismissal and unfair labour practice?
Encourage discussion among your delegates. See what answers they provide you with. Some will say that employees must be given a notification of disciplinary enquiry, others may say that employee has a right to be represented by a fellow employee or union member/ official and yet others will state that employees have the right to refer the matter to the CCMA or Bargaining council

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## Citizen X

_These are not the answers you expect!_

In terms of section 185 _(a)_ and 185 _(b)_
 Every employee has the right not to be –
(a) unfairly dismissed; and
(b) subjected to unfair labour practice. 
To put this in another way, an employee has a right not to be unfairly dismissed and a right not to be subjected to unfair labour practices
3.2 What does a dismissal mean?*or* What is a dismissal?

Your delegates will probably state that a dismissal means that an employee was fired.

This is not the answer you are looking for! Managers and initiators must by necessity know what the _various definitions_ of dismissal are that are provided in the Labour Relations Act.


Definitions of Dismissal in terms of the Labour Relations Act

3.2.1 The employer terminated the employee’s contract of employment with or without notice.


Case study
Mr A is a shelf packer. The branch manager witnesses Andrew stealing airtime vouchers. Andrew does so by firstly taking these vouchers and then putting it his pocket. He then steps out of the business. CCTV footage confirms this. A notification of disciplinary enquiry is issued, a hearing held, Andrew is found Guilty, Mitigating circumstances are considered. A sanction of dismissal is granted.
Mr A is dismissed without notice. This is called ‘summary dismissal’












This is an act of misconduct. The vast majority of your dismissals will be based on misconduct and will be summary dismissals without notice

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## Citizen X

This is an act of misconduct. The vast majority of your dismissals will be based on misconduct and will be summary dismissals without notice

Section 186(1)_(a)_provides that ‘Dismissal,’ means an employer has terminated a contract of employment with or without notice;

3.2.2 The employer refused to renew an employee’s fixed term contract on the same or similar grounds or did not renew it at all


Case study
Mr B has been appointed as a duty manger. There is a two year contract. The employer did renew this contract twice. Mark reasonable expected that this contract would be renewed again on the same remuneration and benefit. This does not take place. There are two things that would cause this to be classified as a dismissal. The employer either refuses to renew the contract at all or does offer to renew it but on a lower salary and less benefits. 













Section 186(1)_(b)_provides that ‘Dismissal,’ means

an _employee_ reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

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## Citizen X

3.2.3. The employer refused to allow the employee to come back to work after maternity leave

Case study
Miss C is in the final stages of her pregnancy. She applies for maternity and is given maternity leave. After having had her child, she returns to work but is told that her position has been filled and further that her employment contract is terminated.








Section 186(1)_(c)_(i)  that ‘Dismissal,’ means an employer refused to allow an _employee_ to resume work after she -
(i) took maternity leave in terms of any law, _collective agreement_ or her contract of
employment; or
Notice that this example includes a section ,subsection, paragraph and sub paragraph.


3.2.4 The employer dismissed several employees for the same reason, the employer then did offer to re-employ some of them but not all of them.

Case study
Employer D has 30 employees. The employer dismissed 16 employees for theft alternatively for operational requirements. The employer then offered to re-employ of five of these dismissed employees.










Section 186(1)_(d)_ provides that dismissal,’ means  that an employer who dismissed a number of _employee_s for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another



3.2.5 Constructive dismissal


Case study
Employer D has 30 employees. Employer D has a grudge against employee and victimizes employee F *or* unintentionally engages in activity, such as, withholding lunch breaks indefinitely which make Employee’s continued employment intolerable










Section 186(1)_(e)_ provides that dismissal,’ means  that an _employee_ terminated a contract of employment with or without notice because the employer made continued employment intolerable for the _employee_

_3.2.6. Employer sells business and employees are then given a lower remuneration or benefits than before the business was sold_

Case study
Employer D has 30 employees. Employer D decides to sell his business to entrepreneur X. Upon the sale of the business, the employees are no longer paid R6000 per month, they are now paid R3000 per month by the new employer












Section 186(1)_(f)_ provides that dismissal,’ *means * *an employee*terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the _employee_ with conditions or circumstances at work that are substantially less favourable to the _employee_ than those provided by the old employer.
Section 186(1)_(d)_ provides that dismissal,’ means  that an employer who dismissed a number of _employee_s for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another
 
_3.2.6. Employer sells business and employees are then given a lower remuneration or benefits than before the business was sold_

Case study
Employer D has 30 employees. Employer D decides to sell his business to entrepreneur X. Upon the sale of the business, the employees are no longer paid R6000 per month, they are now paid R3000 per month by the new employer












Section 186(1)_(f)_ provides that dismissal,’ *means * *an employee*terminated a contract of employment with or without notice because thenew employer, after a transfer in terms of section 197 or section 197A, provided the_employee_ with conditions or circumstances at work that are substantially less favourableto the _employee_ than those provided by the old employer.

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## Citizen X

4.1 What is at the core of an ‘automatically unfair dismissal?
Freedom of association


1. There are 8 types of automatically unfair dismissals. At its core is section 4. Section 187 expands on section 4. An award for such a dismissal is 24 months salary and not 12 months salary
2. Delegates must be able to firstly state that at the core of an automatically unfair dismissal is ‘freedom of association,’ as contained in section 4, even though, section 187 mentions other forms of automatically unfair dismissals.
3. Actual sections will be included in delegate’s manual and not trainer’s manual

4.2 List 8 types of automatically unfair dismissals?
Dismissal took place because: 
1. The employee took part in or supported a lawful/protected strike or lawful protest action
2. The employee refused to carry out the duties of an employee or employees who were taking part in a protected strike
3.The employer forced the employee to accept a demand regarding a matter of mutual interest between the employer and employee
4. The employee was dismissed because he/she exercised any right given by the LRA or participated in any type of proceedings endorsed by the LRA
5. Pregnancy or matter incidental to pregnancy
6. The employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
7. Transfer of a going concern where terms and conditions are less favourable than they were
8. The employee made a protected disclosure
 
*All automatic unfair dismissals differ completely* from typical dismissals such as theft. For dismissals such as theft the employer must prove that the dismissal was both procedurally and substantively fair.
(Fair reason and fair procedure).
_What is Substantive fairness and procedural fairness?_ Don’t worry about this at this stage, we will cover it when dealing with Schedule 8!
With any automatically unfair dismissal the employer cannot justify the dismissal by showing that this dismissal was both substantively fair and procedurally fair!
*Example:* Thandi is 7 months pregnant. Her employer doesn’t want to contend with the loss of productivity during her maternity leave, so the employer summarily dismisses her. Thandi need only show that she was dismissed on a certain date due to her pregnancy. The employer must now show that this particular dismissal was not automatically unfair! The employer may argue that Thandi was dismissed because she was pregnant and a fair procedure was followed. This will not change the fact that this was an automatically unfair dismissal!


*Section 187 of the LRA provides as follows:*

(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is -
(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;
(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the
employer by -
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her
pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
(g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A;
or
 (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.

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## Citizen X

4.3 Date of Dismissal

4.3.1 What do you understand by ‘date of dismissal?
The date of dismissal is the earliest date between two eventualities:
1.the date on which the contract of employment terminated
2.the date on which the employee left the service of the employer
Date of dismissal is important as the dismissed employee has a certain amount of days within which to refer the matter to the CCMA or Bargaining Council

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## Citizen X

*Exceptions to the general rule*

(a) if an employer has offered to renew on less favourable terms, or has failed to renew a fixed-term contract of employment, the date of _dismissal_ is the date on which the employer offered the less favourable terms or the date the employer notified the _employee_ of the intention not to renew the contract;
(b) if the employer refused to allow an _employee_ to resume work, the date of _dismissal_ is the date on which the employer first refused to allow the _employee_ to resume work;
(c) if an employer refused to reinstate or re-employ the _employee_, the date of _dismissal_ is the date on which the employer first refused to reinstate or re-employ that _employee_.


4.3.2 Who bears the onus in dismissal disputes?

1. The employee must prove that a dismissal took place
2. The employer must prove that the dismissal is fair

4.3.3 Referral periods dismissal and unfair labour practice

Dismissal
Unfair Labour Practice

30 days of the date of a _dismissal_ or, if it is a *later date*, within 30 days of the employer making a final decision to dismiss or uphold the _dismissal_
Later date applies to appeals
90 days of the date of the act or omission which allegedly constitutes the
unfair labour practice or, if it is a *later date*, within 90 days of the date on
which the _employee_ became aware of the act or occurrence.

Section 191(1)_(b)_(i)

Section 191(1)_(b)_(i)

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## Citizen X

Schedule 8: Code of Good Practice
How to refer to items in a schedule

_Unlike_ legislation where we use, sections, subsections, paragraphs and subparagraphs, we don’t follow this structure when referring to an item in a schedule. _To illustrate_

*The following is incorrect!*

Section(7)(1)_(b)_(i) provides that:* X*
Any person who is determining whether a dismissal for misconduct is unfair should consider –
 if a rule or standard was contravened, whether or not –    
 the rule was a valid or reasonable rule or standard;      

We start by referring to the Schedule itself i.e. Schedule 8  *ü*

Schedule 8 Item 7(1)_(a)_(i) of the Labour Relations Act 66 of 1995 provides that:*ü*


  Any person who is determining whether a dismissal for misconduct is unfair should consider –
 if a rule or standard was contravened, whether or not –    
 the rule was a valid or reasonable rule or standard;      *ü*

Schedules are found at the end of legislation. The reason for this is to prevent the principal legislation from becoming more bulky than is necessary.

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## Citizen X

*Case study*

*1.* Mr Bongani Masongo was employed in the capacity of supervisor at MotorFit Petrol Station (PTY) LTD in Ermelo for a period of 8 years. MotorFit Petrol Station (PTY) LTD  has four branches in Ermelo. Each branch includes 8 filling bays and a 24 hour convenience store. Upon employment he was explained all the company rules and regulations, given a copy of the disciplinary code and procedure and signed a copy of the disciplinary code and procedure which was placed in his personnel file  On the Afternoon of 24th December 2013 at approximately 13h30pm the Site – MotorFit Petrol Station and the company Trimbo (pty) Ltd were defrauded by the nominated owner of a fleet-card . This was the result of the direct misconduct of Mr Bongani Masongo, who abused his position of supervisor and the authority that such a position gave him. He abused his power by giving an instruction to Mr Andrew Smith, a petrol attendant, which is contrary to the rules, regulations, policy and procedure of the company.

 Evidence by the way of CCTV footage shows the following

1. A Black BMW Drives on to the forecourt 
2. Mr Bongani Masongo  gets into the BMW and thereafter comes out and directs the BMW to the Fill Bay
3. A few minutes Later a White VW Golf (owner of the Card) drives on to the forecourt and drives straight to the bay where the BMW was parked .The golf parks behind the BMW . 
4. Mr Smith is instructed by Mr Masongo to Fuel the 2 vehicles and create the impression that only one transaction took place, that is create the impression that only one vehicle namely the White VW Golf was filled with petrol whereas two vehicles were filled in one transaction.
5. The amount of R761.36 is settled by a fleetcard that belongs to the Company Trimbo (pty) Ltd for a Vehicle VW Citi Chico 1.4 registration no: DSG782FS


 He has been placed in a Position of Supervisor and he instructed Mr Smith to commit the conduct that has brought about a disciplinary hearing.
According to Mr Marais , a witness gave a statement detailing the way the transaction occurred.
He also mentioned that the driver of the BMW Approached him previously with the similar transaction but he declined to commit this for the fear of his job. He also mentioned the owner of the BMW looked for Mr Masongo  before the proposal and was upset when he heard Mr Masongo has left  work already on that day. This is a clear indication of untoward behavior alternatively untoward intentions. The owner of the BMW could have approached any staff member on duty for the purpose of filling fuel into his vehicle. 

The initiator/manager/complainant Mr Khan charged mr Masongo with two charges namely:

1.(Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship;
2. (Misconduct)Gross Dishonesty: In that on the 24 December 2013 you engaged in a transaction contrary to the company rules and failed to act in good faith by bringing this customer’s dishonest intentions to management’s attention by collaborating with a customertransaction by fuelling two motor vehicles with one fleet card.

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## Citizen X

*Motor Fit Petrol Station has the following disciplinary code and procedure
DISCIPLINARY CODE AND PROCEDURE

OFFENCE
FIRST OFFENCE
SECOND OFFENCE
THIRD OFFENCE
FOURTH OFFENCE

1 Intentional violation of safety rules
Written warning
Written warning
Written warning
Notification of disciplinary hearing

 2 Alcohol/drugs- use of or possession on company premises
Written warning
Written warning
Written warning
Notification of disciplinary hearing

3 Theft, fraud, unauthorised possession of company property, unauthorised manipulation of company processes and systems, gross dishonesty
Notification of disciplinary hearing




4 Sabotage/deliberate misuse of company
Notification of disciplinary hearing




5 Assault threatened, attempted or actual
Notification of disciplinary hearing




6 Intimidation
Notification of disciplinary hearing




7 refusal to obey reasonable and lawful instruction
Written warning
Written warning
Written warning
Notification of disciplinary hearing

8 Unauthorised possession of dangerous weapons
Written warning
Written warning
Written warning
Notification of disciplinary hearing

9 Desertion(after company has exhausted all procedures for contacting the employee
Notification of disciplinary hearing




10 refusal to work or carry out duties
Written warning
Written warning
Written warning
Notification of disciplinary hearing

11 dereliction of duty
Notification of disciplinary hearing




12 Absenteeism without authorisation
Written warning
Written warning
Written warning
Notification of disciplinary hearing

13 Late coming, early departure, extended lunch/tea breaks
Written warning
Written warning
Written warning
Notification of disciplinary hearing

14 Leaving the workplace without permission
Written warning
Written warning
Written warning
Notification of disciplinary hearing

15 Leaving workstation unattended without permission
Written warning
Written warning
Written warning
Notification of disciplinary hearing



16 Sleeping on duty
Written warning
Written warning
Written warning
Notification of disciplinary hearing


17 Horseplay
Written warning
Written warning
Written warning
Notification of disciplinary hearing

18 Sexual harassment
Notification of disciplinary hearing




19 Poor work performance
Written warning
Written warning
Written warning
Notification of disciplinary hearing


20 Insubordination
Written warning
Written warning
Written warning
Notification of disciplinary hearing


21 Disrupting other employees work/duties
Written warning
Written warning
Written warning
Notification of disciplinary hearing


22 Negligence
Written warning
Written warning
Written warning
Notification of disciplinary hearing


23 Disrespect towards clients/customers
Written warning
Written warning
Written warning
Notification of disciplinary hearing


Employee  Signature   
Date: 18 June 2005




*

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## Citizen X

*Disciplinary Procedure* 

*MotorFit Petrol Station (PTY) LIMITED* 
   1.            INTRODUCTION

   1.1         The purpose of the disciplinary   procedure is to create acceptable    standards and norms for a harmonious work environment which gives   cognisance to the rights of all employees and the employer and which fosters   an environment of productivity and operational efficiency.

   1.2         The objective of the disciplinary   procedure is to:

   1.2.1      create a fair and equitable structure   for dealing with disciplinary transgressions relating to a breach of the   company's rules or regulations or otherwise in law;

   1.2.2      encourage timely education and   corrective action in the event that an employee's behaviour or performance   proves to be unsatisfactory or unacceptable. Punitive action should only be   taken when educative or corrective steps have proved ineffectual, or where   the transgression is so material that it becomes intolerable to continue with   the employment relationship.


   2.            DEFINITIONS

   For   the purpose of these regulations, the following definitions apply :

   2.1         "EMPLOYER" or   "COMPANY" shall mean MotorFit Petrol Station (PTY) 

   2.2         "EMPLOYEE" shall mean any   person in the employment of the Company, who is works for the company and is   defined as an employee by the Labour Relations Act no. 66 of 1995.

   2.3         "MANAGEMENT" refers to   manager or supervisor unless expressly stated otherwise.

   2.4         "DISCIPLINARY   DISCUSSION"   shall    mean  an  informal    disciplinary  hearing  conducted    by  the employee's supervisor or   manager and is in no way meant to either imply or mean a formal constituted   disciplinary  hearing.

   2.5         "DISCIPLINARY HEARING"   shall mean a formally constituted meeting where serious or dismissable   conduct is investigated and is conducted by a Director of the company.

   2.6         "EMPLOYEE RESPRESENTATIVE"   shall be a co-worker or colleague from within the company who is chosen by the   employee to represent him at his disciplinary interview. In such cases, the   it is the sole responsibility of the employee to arrange the same.

   2.7         "LABOUR RELATIONS ACT"   shall be the Labour Relations Act no. 66 of 1995 (as amended).

   2.8         Unless inconsistent with the context,   all words implying the masculine gender shall include the feminine.



  Continues next page

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## Citizen X

3.            RESPONSIBILITY  FOR DISCIPLINARY ACTION


   3.1         The responsibility for taking   disciplinary action rests with the supervisory staff and members of management.

   3.2         When initiating disciplinary action,   supervisors and managers will adhere to the disciplinary code and procedures   and will endeavour to act consistently and fairly at all times.

   3.3         Verbal warnings, written warnings and   final written warnings may be issued by the employee's immediate-supervisor.   Hearings pending possible dismissal are the responsibility of a Director of   the company or any management nominee.

   4.            DISCIPLINARY  ACTION

   4.1         Counselling

   As   discipline is aimed at education, correction, prevention and rehabilitation   rather than punishment, all disciplinary action taken, other than dismissal,   shall be followed by counselling from the relevant manager or   supervisor.  Note should be taken of   employees who improve their conduct.

   4.2         Verbal Warnings


   4.2.1      These are issued by the supervisor   concerned for minor transgressions and of which no formal record shall be   kept on the persona file.

   4.2.2      A verbal warning issued in terms of this   procedure shall remain in effect for a period of three (3) months from date   of issue.

   4.3         Written Warning


   4.3.1      A written warning will be given either   when a verbal warning has failed to correct the unacceptable performance or   conduct or where the transgression is more serious and as such a verbal warning
   would   not be adequate.

   4.3.2      When issuing a written warning, the   manager or supervisor concerned shall:

   4.3.2.1  Inform the employee and his representative   that formal disciplinary action is going to be taken against him in the form   of a written warning.

   4.3.2.2  Explain to the employee the contents of the   warning, the reason therefore, and the effect of the warning on the   employee's work record.

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## Citizen X

4.3.2.3  Request the employee to sign the written   warning form, Appendix C1, indicating that he has received the warning. An   employee is not compelled to sign the warning form. Should an employee refuse   to sign a written warning, management shall record this fact on the warning   as well as the name of the employee's representative. Refusal to sign the written   warning shall not affect the validity of the warning.

   4.3.2.4  All written warnings issued in terms of this   procedure shall remain in effect for a period of six (6) months from date of   issue or such extended period, to a maximum of twelve (12) months, which may   be necessary and justified in a particular circumstance.


   4.4         Final written warning

   4.4.1      A final written warning shall be issued   by management in the same manner as a written warning as set out in 4.3   above.  A final written warning will be   issued in cases where a written warning has not achieved the desired result   or where the transgression is so serious that a written warning would be   inadequate.

   4.4.2      A final written warning shall remain in   effect for a period of six (6) months from date of issue or such extended   period, to a maximum of twelve (12) months, which may be necessary and   justified in a particular circumstance.

   4.5         Suspension without pay

   Suspension   shall be off the company's premises without pay and shall be considered as an   alternative to dismissal. In all such cases, the employee's agreement to the   acceptance of the suspension without pay as an alternative to dismissal shall   be obtained in writing.

   4.6         Demotion

   Demotion   shall be to a lower graded job and will only be considered as an alternative   to dismissal. Demotion may or may not include a change in remuneration and   benefits and in all cases the acceptance in writing of the action shall be   obtained from the employee concerned.

   4.7         Suspension with pay

   In   the cases where very serious misconduct is alleged and/or if the   circumstances are such that the employment relationship or relationship   between employees may be harmed by the presence of the employee on the   premises, the company may suspend the employee from the company's premises on   full pay pending the outcome of the disciplinary hearing; or alternatively,   the employee may be suspended from normal duties but remain on the company's   premises. Such suspension with pay is not a disciplinary action and shall not   prejudice the employee in any way. The employee must be advised, preferably   in writing, of the reason/s for his/her suspension.

   4.8         Disciplinary record keeping

   The   company shall maintain a disciplinary record for each employee in their   personal files in which any disciplinary steps taken in terms of this   procedure shall be recorded.

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## Citizen X

5.            THE DISCIPLINARY PROCESS

   5.1         Verbal warnings, written warnings and   final written warnings

   5.1.1      Verbal warnings, written warnings and   final written warnings  shall be issued   by the employee's immediate superior by way of a disciplinary discussion.

   5.1.2      Once the alleged transgression has been   brought to the attention of the supervisor or manager he shall hold an   informal disciplinary discussion into the matter as soon as is feasible after   the incident. No prior written notice of the disciplinary discussion shall be   necessary.


   5.1.3      The disciplinary discussion shall be   attended by:

   5.1.3.1  the supervisor/manager;

   5.1.3.2  the employee concerned;

   5.1.3.3  the employee's representative, if requested   by the employee.

   5.1.4      The supervisor/manager shall inform the   employee concerned, during the discussion, ofthe reason for the discussion   and of the alleged transgression/s.

   5.1.5      The employee and/or his representative   shall be given an opportunity to answer to the alleged transgression and once   the supervisor/manager has established the facts relating to the incident he   may, depending on the nature of the incident and taking cognisance of the   company's disciplinary code, issue the employee with one of the following   findings:

   5.1.5.1  taken no action;

   5.1.5.2  recorded counselling;

   5.1.5.3  verbal warning (valid for 3 months);

   5.1.5.4  written warning (valid for 6 months or   extended period up to maximum of 12 months);

   5.1.5.5  final written warning (valid for 6 months or   extended period up to maximum of 12 months);

   5.1.5.6  notice of a formal hearing.

   5.2         Disciplinary hearing

   5.2.1      No employee may be dismissed without   being granted a formal hearing, save for in circumstances such as:

   5.2.1.1  an employee absconds and/or is unwilling to   return to work; or
   5.2.1.2  an employee refuses to attend a disciplinary   hearing after being notified thereof;    or

   5.2.1.3  in exceptional circumstances where the   company cannot reasonably be expected to hold a formal hearing.

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## Citizen X

5.2.2      The manager may decide, depending on the   seriousness of the alleged transgression, to suspend the employee on full pay   until the finalisation of the disciplinary hearing. Such suspension shall be   in terms of clause 4.7 above.

   5.2.3      The employee concerned shall be advised   in writing in the format as per Appendix C2 hereto of the following:

   5.2.3.1  The alleged transgression/s against the   employee;

   5.2.3.2  The time and place of the hearing (not less   than 48 hours prior notice shall be given);


   5.2.3.3  The right to be represented by an employee   representative if requested by an employee;

   5.2.3.4  The right to ask questions, call witnesses   and present evidence;

   5.2.3.5  The right to an interpreter;

   5.2.3.6  The right to cross-question company   witnesses.

   5.2.3.7  the right to be present at the disciplinary   hearing. (In the event that an employee waives this right, the hearing may   then proceed in his absence).

   5.2.4      The disciplinary hearing shall be attended   by:

   5.2.4.1  the employee concerned;

   5.2.4.2  the employee's representative, if requested   by the employee;

   5.2.4.3  the Director of the company or management   nominee, who will act as chairperson;

   5.2.4.4  another manager or nominee who shall act on   behalf of the company.

   5.2.5      At the hearing both parties shall be   given an opportunity to present their evidence to the chairperson.

   5.2.6      When all the facts and surrounding   circumstances have been heard, the chairperson shall make a decision on a   balance of probabilities as to whether or not the employee is guilty of the   alleged transgression/s. The chairperson shall adjourn the hearing to   consider his decision on guilt (where practicable).

   5.2.7      If the chairperson finds the employee   concerned guilty of the alleged transgression/s, he shall then give both   parties an opportunity to lead evidence in mitigation and aggravation. Where   after the chairperson will determine a sanction taking cognisance of the   disciplinary code as a guideline.

   5.2.8      The chairperson may make one of the   following decisions:

   5.2.8.1  no action;

   5.2.8.2  final written warning;

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## Citizen X

5.2.8.3  dismissal with notices;

   5.2.8.4  summary dismissal (dismissal with immediate   effect i.e. without notice);

   5.2.8.5  suspension without pay (subject to 4.5   herein);

   5.2.8.6  demotion (subject to 4.6 herein);

   5.2.8.7  or any other sanction which may achieve a   correction of the unacceptable conduct.

   5.2.91n   the event that a decision to dismiss, demote or suspend (without pay) an   employee is taken, the employee will be advised in writing as to the reasons   for the decision of guilt and the sanction applied and the reasons therefore.



   5.2.10                   In the event that the   decision in respect hereof is a final written warning, the employee will   still be advised in writing as to the reasons for the decision of guilt and   the appropriate warning form (Appendix C1) will be completed.

   5.3         Procedures applicable to poor   performance transgressions which amounts to misconduct

   5.3.1      An employee's employment may not be terminated   for reason of unsatisfactory performance unless the company has given the   employee:

   5.3.1.1  appropriate instructions and guidelines on   the performance of the job;

   5.3.1.2  warnings and performance counselling;

   5.3.1.3  training and coaching, where appropriate;   and

   5.3.1.4  an    action  plan for   improvement  and  a    reasonable  time  period within  which    to  show improvement.

   5.3.2      A disciplinary hearing must be held   prior to the dismissal of an employee for poor performance, save in the   circumstances of a probationary employee or in the case of poor performance   due to incapacity, which shall be dealt with in terms of the incapacity   procedure (Annexure D).

   5.4         Procedures applicable to industrial   action which amounts to misconduct

   5.4.1      Participation in a strike or any   industrial action which does not conform with the requirements of the Labour   Relations Act constitutes an act of misconduct.

   5.4.2      The appropriate sanction in such   circumstances must be determined with reference to the facts of the case,   including:
   5.4.2.1  The seriousness of the breach of the   provisions of the Act;
   5.4.2.2  The attempts made to act in conformity with   the Act;

   Whether  or not the strike or industrial action was   justified in relation to the conduct of the company.

   5.4.3      The procedures applicable in such   instance are as follows:

   5.4.3.1  The company must discuss the breach or bona   fide attempts must be made to discuss the breach with a spokesperson for the   employees at the earliest opportunity;

   5.4.3.2  Prior to considering dismissal, the company   shall issue an ultimatum in clear and unambiguous terms which sets out the   requirements of the employee/s, a time period and the sanction which will be   imposed in the event of a failure to comply with the ultimatum;

   5.4.3.3  Sufficient time should be permitted after   the issuing of the ultimatum to enable the employees to reflect on the   ultimatum and to respond to it.

   5.4.4      The procedures in 5.4.3 above may be   dispensed with in exceptional circumstances where the company cannot   reasonably be expected to apply them.



   5.5         Appeals

   Only   dismissals, suspensions without pay, final written warnings and demotions   shall be subject to appeals.

   5.5.1      Appeals and disputes

   5.5.1.1  An employee who feels that the company had   acted in either an procedural or substantively unfair manner may lodge an   appeal within five (5) working days from date of finding with the company;

   5.5.1.2  Such appeal shall be in writing to the   chairperson of the disciplinary hearing setting out, in detail, the reasons   and grounds for the appeal;

   5.5.1.3  An external consultant or nominee shall   thereafter study the minutes, evidence and outcome of the disciplinary   hearing and convene an appeal hearing with the employee concerned, his   representative and the chairperson of the disciplinary hearing in order to   hear the motivation for the grounds  of   appeal, as well as new evidence and the response of the previous   chairperson/initiator thereto;



   5.5.1.4  The external consultant or nominee may,   after the appeal hearing, elect to uphold the previous decision,  amend the previous decision, impose a   different sanction (which may include a more severe outcome) or remove the   previous sanction in totality if he finds the employee not guilty of the   transgression which gave rise to the disciplinary hearing.  Such decision shall be final and not   subject to further review.





   5.5.2      Disputes

   Should   the employee still dispute the decision to dismiss him, the employee may:

   5.5.2.1                 submit the dispute to the   Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant   body as provided for in terms of the Labour Relations Act for   adjudication;  or

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## Citizen X

.5.2.2

   in   the event that the company recognises a union for purposes of Recognition as   defined in the Labour Relations Act and the employee constitutes part of the   bargaining unit, submit the dispute for resolution in terms of the dispute   procedures agreed between the union and the company.


*Additional expectations*    1. The objectives of work standards as well   as the disciplinary code is to provide all employees with the company’s   expectations

    2. Employees are expected to familiarize   themselves with all rules regulations, policies and procedures


   3.            WORK EXPECTATIONS AND STANDARDS

   The   company has expectations of the conduct of its employees, these expectations   are based on mutual respect and loyalty and are set out herein as a   reasonable guideline to all employees.

   The   norms and expectations are as follows:

   3.1         Conduct

   3.1.1      Employees are expected to comply .with   the various rules, practices and obligations contained in their contracts of   employment; all reasonable and lawful instructions given by a superior must   be complied with.

   3.1.2      Employees should behave in an orderly   and lawful manner with acknowledgement and respect to the rights of other   employees, the facilities of the company and the clients and customers of the   company.



   3.1.3      Employees are expected to treat one   another with dignity and respect and no discrimination or harassment in any   form will be tolerated or condoned.

   3.1.4      Assault, verbal or physical, as well as   abusive, obscene and racist language will not be tolerated; the company   reserves the right to evict from its premises any employee who make himself   guilty of assault.

   3.1.5      The property, equipment of the company   and personal effects of fellow employees should be treated  with the necessary care and respect;   no such property or effects may be removed   from the premises without the proper authorisation.   The company therefore reserves the right,   for the protection of both fellow employees and the company, to search and   inspect work  stations,  lockers    (where applicable), vehicles, bags and packets of employees whilst   they are on the premises of the company; all such searching will be conducted   within the parameters of human dignity and respect; the person of an employee   may also be searched on leaving the premises at any time; and at any   other  point if reasonable suspicion of   misconduct is present.

   3.1.6      There are proper procedures in place   i.e. the grievance procedure, the appeal procedure to deal with matters which   employees feel adversely affect their employment environment. Employees are   thus expected to observe these procedures and to render their services   according to the contract of employment.

   3.1.7      Access to the premises outside normal   working hours or for overtime is subject to obtaining the proper   authorisation and/or permission.

   3.1.8      All tools and equipment (with the   exception of those purchased by the employee) remain the property of the   company and employees are expected to return or leave behind such equipment   on leaving the employ of the company; In addition, employees may not remove   such property of the company without the proper authorisation and/or   permission.


   3.1.9      Employees are expected to further the   interests of the company to this end, no confidential information relating to   the business may be disclosed to anybody not in the employ of the company;   employees are also prohibited from doing any other work without the express   permission of the company.

   3.2         Relating to the work environment

   3.2.1      The working environment should reflect   safe and hygienic practices; all employees should therefore give effect to   proper housekeeping and safety guidelines.

   3.2.2      The company places strong emphasis on   safety in the workplace. To give effect to this commitment, no employee may   without the proper authority bring any liquor or non* prescribed drugs of any   form onto the premises, or report or commence with his duties whilst under   the influence of liquor; an employee should inform his superior of his   condition and will then be sent home and on the employee's return to work the   appropriate disciplinary (or related) action will be taken. Employees will be   subject to a verification procedure if there is a suspicion of being under   the influence of liquor or drugs. Any unauthorised possession of drugs or   alcohol will always be viewed in a most serious light. To this end the   company reserves the right to search employees entering and leaving the   premises, or to refuse access to the premises.

   3.2.3      All accidents or damage to equipment or   property, even those of a minor nature, should be immediately reported to the   employees' superior; all safety rules and practices should at all times be   obeyed.

   3.2.4      A safe working environment also dictates   that no employee shall enter the premises of the company or that of a client   whilst in the possession of firearms or offensive weapons unless permission   in writing has been given by a Director of the company.






   3.3         Relating to attendance and standards   of work




3.3.1      Every employee plays a particular role in the company; your absence from work therefore creates problems both operationally and to your fellow employees. Employees are therefore expected to be at work in accordance with their contract of employment, or to report for overtime unless there is a valid reason for such absence, under which circumstances the employee will inform his superior of the reason for and the duration of such absence as soon as possible, but no later than 

   the   end of the working day on the first day of absence. In addition, employees   are expected to observe the company's sick leave policy in regard to the   submission of medical certificates.


   3.3.2      Any other absence from work should be   preceded by the proper permission being granted.

   3.3.3      Sick leave is only to be utilized for   genuine illness of the employee; the company reserves the right to expect the   employee to submit himself for medical evaluation by a company appointed   doctor if excessive sick leave is taken.

   3.3.4      The company expects all employees to   achieve reasonably achievable work standards when executing their duties; the   company will embark on corrective counselling action in the event of an   employee failing to achieve such standards; continued failure could result in   the termination of services.


   4.            DISCIPLINARY CODE

   Any   conduct which may adversely affect the relationship between the employer and   the employee, the relationship between employees, the relationship between   employees and customers, suppliers or clients, may be investigated in terms   of the company's Disciplinary Procedure. The Procedures are also applicable   where such conduct has occurred after hours and off the company premises.

   The   aforementioned transgressions and possible sanctions serve as a guideline to   all employees to illustrate the effect and the seriousness of such on the   employment relationship. Please note that the possible sanctions serve only   as a guideline as the merits and circumstances of each case must be   considered; and therefore a more or less severe sanction may be imposed than   those indicated in this Disciplinary Code.


*Employee  Signature    * 
*Date:   18 June 2005*

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## Citizen X

*Disciplinary Hearing*

Mr Masongo was suspended and issued with a notification of disciplinary enquiry. The disciplinary Hearing was scheduled for 3 January 2014.

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## Citizen X

*NOTIFICATION OF DISCIPLINARY HEARING
* *Business name:* MotorFit Petrol Station
  *Date:   25 December 2013*



 *INITIATOR’S   NAME:*

*Warren   Peters*
 *1.EMPLOYEES   NAME:*
*Bongani   Masongo*

 *CONTACT   DETAILS*

*0785625376*


 *2.EMPLOYEE’S   ID NO/STAFF NO:*
*356876*

 *DATE OF DISCIPLINARY HEARING:* 
*3   January 2014*
 *VENUE   OF HEARING:*
*Boardroom*
 *TIME   OF HEARING:*
*10:00*


  *CHARGES*

 *IF   MORE THAN ONE CHARGE OR LENGHTY IN DESCRIPTION ANNEX TO A4 PAGES AS ANNEXURE   1*

 *1.* Misconduct):Fraud   alternatively unauthorised intentional making of a misrepresentation which   causes actual prejudice or which is potentially prejudicial to the company in   that on the 24 December 2013 you engaged in a fraudulent transaction by   fuelling two motor vehicles with one fleet card, alternatively unauthorised   manipulation of company systems and processes. This has caused a breach in   the employer/ employee trust relationship



 *2.* (Misconduct)Gross   Dishonesty: In that on the 24 December 2013 you engaged in a transaction   contrary to the company rules and failed to act in good faith by bringing   this customer’s dishonest intentions to management’s attention by   collaborating with a customer transaction by fuelling two motor vehicles   with one fleet card



 *3.*



 *4.*




  *EMPLOYEE’S RIGHTS*

 *KINDLY   TAKE NOTE THAT:-* 
*1.   You have the right to be represented by an employee of your choice and/or you   the right to be represented by a Union member or official(It’s your duty to   arrange this);* 
*2.   You have the right to call witnesses and cross examine company witnesses* 
*3.   You have a right to an interpreter, you must request this* 
*4.   You have the right to state your case and be heard* 
*5.   You have the right to appeal any decision(s) taken in the outcome of the   disciplinary hearing* 



 
*Initiator name:            Warren Peters                     Signature                                     Date:  25/12/2013*

*Employee Name:            Bongani Masongo             Signature                                     Date:  25/12/2013*

*Witness Name:                Thandi Tsabalala               Signature                                     Date:  25/12/2013*

  *WHERE EMPLOYEE REFUSES TO SIGN*

 *Witness   name:                                      Signature:                                       Date:*

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## Citizen X

*MotorFit Petrol Station (PTY) Ltd* *SUSPENSION LETTER* 

 To

 Bongani   Masongo  


 From


 Warren Peters.   Branch Manager



 Subject


 Suspension



 Date


 25 December 2013



 
Dear Mr Masongo,

You are hereby   informed that you are suspended with immediate effect pending the outcome of   a disciplinary hearing to be held on  3   January 2014 

Kindly take note   that all your benefits are still applicable i.e. salary.

Regards,


Warren Peters

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## Citizen X

The chairperson found him guilty on both charges and summarily dismissed him.

*Exercise*


1. Why is it preferable to have a disciplinary code and procedure?
Schedule 8 Item 3(1) provides that

 All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.

2. When is it appropriate to dismiss an employee for misconduct?

Schedule 8 Item 4 provides that

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. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.

3. What does section 188 of the LRA state?

Section 188 of the LRA states:

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
(a) that the reason for dismissal is a fair reason -
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.
(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.

4. What do you understand by substantive fairness?

Substantive fairness is a dismissal based on a fair reason. The employee who has been dismissed must be aware of the rules, regulations, policy and procedure of the company. This is why it is so important to have a disciplinary code and procedure. Employees need to have some indication of the consequences of his/her actions. There must be a clear reason for the sanction of dismissal. This reason can stem from the law, the employment contract and the disciplinary code and procedure. There must be sufficient proof of misconduct on a balance of probability. 



Schedule 8 Item 3(5) &(6) provide

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. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration

5. What do you understand by procedural fairness?

Procedural fairness is a dismissal based on a fair procedure. The employee must be informed of the charges against him. Vague charges such as ‘dishonesty,’ are not advisable, the charge should state a date, time, offence. The employee must be given sufficient time to prepare for the disciplinary hearing. The employee must be given an opportunity to state his case and allowed representation. The employee’s case must not be prejudged.

Schedule 8 Item 4 provides

 (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

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## Citizen X

Explain the guidelines for dismissal for misconduct based on the two charges, _you may use one charge as an example to save time_

*1.* Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship
*2.* (Misconduct)Gross Dishonesty: In that on the 24 December 2013 you engaged in a transaction contrary to the company rules and failed to act in good faith by bringing this customer’s dishonest intentions to management’s attention by collaborating with a customer transaction by fuelling two motor vehicles with one fleet card

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## Citizen X

*1.* Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship
Schedule 8 item 7 provides that 
Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
(Trainers Comment: Mr Masongo did contravene a rule regulating conduct in the workplace in that he breached item 3 of the disciplinary code and procedure namely “3 Theft, fraud, unauthorised possession of company property, unauthorised manipulation of company processes and systems, gross dishonesty.”
(b) if a rule or standard was contravened, whether or not -
(i) the rule was a valid or reasonable rule or standard;
(Trainers Comment: The rule or standard of fraud and dishonesty is a valid rule and standard)

(ii) the employee was aware, or could reasonably be expected to have been aware, of
the rule or standard;
(Trainers Comment:The employee was aware of the rule or standard in that he was handed a copy of the disciplinary code and procedure and he signed it)
(iii) the rule or standard has been consistently applied by the employer; and
(Trainers Comment: All employees in this company are dismissed for fraud and dishonesty)

(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
(Trainers Comment :Big Grin: ismissal was indeed an appropriate sanction in that the employer/employee trust relationship was breached)

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