This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.

Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.

The LRA 66 of 1995 was established to give effect to section 23(1) of the Constitution of the Republic of South Africa, which guarantees that everyone has a right to fair labour practices. Amongst others, the purpose of the LRA is to advance economic development, labour peace and the effective resolution of labour disputes. At common law termination of employment was occasioned by the conduct of the employer or employee, in terms of which either party may terminate an employment contract by giving agreed notice or reasonable notice. The LRA broadened the common law concept of “repudiation” of a contract of employment in terms of which section 186 of the LRA now defines the term “dismissal” to mean various possible instances that can be caused by the employer or employee. Furthermore, section 185 of the same Act clearly states that a dismissal can be found to be unfair and makes provision for redress to an employee who would be aggrieved by a dismissal. Compensation is one of the remedies that can be awarded to an employee who is found to have been unfairly dismissed. Unlike the LRA of 1956 which gave the courts an unfettered discretion regarding the compensation that could be awarded, section 194 of the current LRA places a limit on the compensation amount that can be awarded. A decision hereon is determined with reference to whether the dismissal is found to have been procedurally, substantively unfair or both. The Act further requires that the compensation must be just and equitable. A challenge in applying section 194 of the Act in this regard is that there would be vast inconsistencies in terms of the amount of compensation to be awarded and that certain presiding officers could consider different approaches in considering factors to be determined when deciding on compensation. In many other instances compensation for unfair dismissal would be decided around the idea of solely punishing the employer. This research document is mainly concerned with identifying the said challenges through case law by considering the decisions of the commissioners and judges in interpreting the old and current provisions of section 194 of the Act. The old section 194 of the Act created a formula to be followed by presiding officers when making a determination on the compensation awarded. The interpretation of the section and its formula brought with it its own complications. The amended section 194 on the other hand, conferred a discretion on presiding officers to award compensation within the caps of 12 months and 24 months for procedurally and substantively unfair dismissal respectively, for as long as the compensation would be just and equitable in all circumstances. Relevant case law and the opinions of labour law experts have been of great assistance in interpreting the current section 194. The factors do not constitute an exhaustive list. They are a mere guideline to presiding officers so as to eliminate or minimize inconsistencies in awarding compensation.

The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.

It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.

In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / Indirect discrimination is a concept which originated from the United States of America. The concept came about after the failure of anti- discrimination legislation to improve the position of Black Americans, particularly in the employment field. The legislature realized that there are structural practices and policies, in the employment field which affect certain racial groups negatively. These practices of discrimination were not clearly defined hence the meaning and interpretation of the concept was left to the administrative body, the Equal Employment Opportunity Commission (EEOC) and the courts. The concept was imported into the South African jurisprudence after the inception of the government of National unity in 1994. The new government was committed to bring to an end all forms of discrimination which were in the past practiced against the Black community. Section 9(3) of the Constitution of South Africa Act 1996 (Act 108 of 1996) proscribed direct and indirect discrimination. These sections served as the basis for sections 6(1) of the Employment Equity Act 1998 (Act 55 of 1998) which proscribes “unfair direct and indirect discrimination” in any employment policy or practice. Its scope is wide and allows Plaintiffs to prove their claims in jurisdictions where it could have been very difficult for them to do so. While in the United States, statistical evidence is required to prove indirect discrimination, this is not the case in South Africa as seen in the landmark case of v Leonard Dingler Employee Representative Council v Leonard Dingler (PTY) LTD (1998) 19 ILJ 285 (LC). In this case when the Court gave its decision it simply relied on the facts of the case instead of complicated statistical evidence. Seemingly this will apply only in more obvious cases. In more complicated cases, Plaintiffs will still need to submit statistics to prove their claim.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013 / This mini-dissertation outlines the protection of rights of people living with HIV/AIDS in the workplace. It will highlight the fact that people living with HIV/AIDS can perform the work as long as they medically fit. It will show the need to promote anti discriminatory laws in the workplace. People think that HIV/AIDS can be transmitted through casual contact but that will be shown in the study that HIV/AIDS can not be transmitted by casual contact. The mini-dissertation also outlines the need to educate employees about their rights more particularly those living with HIV/AIDS in the workplace. Therefore policies such as affirmative action must be implemented to affirm several advantages to people living with HIV/AIDS. Equality is what people must enjoy in the country in terms of section 9 of the Constitution including people living with HIV/AIDS.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2008