PART A: SOURCES
Chapter 1: Introduction
- Common-law origins
- Shortcomings of the common law
- Statutory modification of the common law
- The effect of the Constitution
- The main labour statutes
- Statutory bodies
- Sources of labour law
- Which law applies
PART B: THE INDIVIDUAL EMPLOYMENT RELATIONSHIP
Chapter 2: The parties to the employment relationship
- Identifying the parties
- The common-law contract
- Statutory definitions
- Judicial tests
- Statutory employees and employers
Chapter 3: The individual contract of employment
- Formation
- Essentials
- The agreement
- Formalities
- Commencement
- Contents
- Tacit and implied terms
- Incorporated terms and conditions
- The parties
- Variation
- Duration
- The employer’s power of command
- Legality
- Breach.
- Termination
Chapter 4: Basic conditions of employment
- Application
- Remuneration
- Working hours
- Annual leave
- Sick leave
- Parental leave
- Family responsibility leave
- Sundays and public holidays
- Notice of termination of employment
- Payments on termination
- Certificate of service
- Enforcement
PART C: UNFAIR LABOUR PRACTICES AND EMPLOYMENT EQUITY
Chapter 5: Unfair labour practice
- The definition of ‘unfair labour practice’
- Unfair conduct
- Promotion
- Demotion
- Training
- Benefits
- Disciplinary action short of dismissal and suspension
- Whistleblowers
- Failure to re-employ in terms of an agreement
- Other forms of possible unfair labour practice
- Failure to appoint
- Pension rights
- Transfer of employees
- Equal treatment claims
Chapter 6: Unfair discrimination
- Introduction
- The anti-discrimination provision
- What is discrimination?
- Direct and indirect discrimination
- Applicants for employment
- The prohibited grounds
- Specific grounds of discrimination
- Defences against discrimination claims
- Recruitment and selection
- Remuneration and benefits
- Harassment
- Medical testing
- Dispute resolution
- Remedies
Chapter 7: Affirmative action
- The equity plan
- Preparing the plan
- The report
- Income differentials
- Enforcement
- Penalties
PART D: DISCIPLINE AND DISMISSAL
Chapter 8: Workplace discipline
- Management’s disciplinary authority
- The role of discipline
- Disciplinary rules and standards
- Sanctions
- Disciplinary procedures
Chapter 9: Forms of dismissal
- Introduction
- What is ‘dismissal’?
- Termination with or without notice
- Non-renewal of fixed-term contracts
- Termination on the grounds of pregnancy or maternity leave
- Selective non-re-employment
- Constructive dismissal
- Section 197 dismissals
- Terminations that do not constitute dismissals
- Where the employment relationship survives termination of the contract
Chapter 10: Dismissal under the LRA
- Fair reason
- Fair procedure
- Onus
- Codes of good practice
- Date of dismissal
Chapter 11: Automatically unfair dismissals
- Section 187
- Dismissals contrary to s 5
- Strike dismissals and additional work during strikes
- Dismissals in support of an employer’s demand
- Pregnancy
- Family responsibility
- Discriminatory dismissals
- Transfers of businesses
- Whistleblowers
Chapter 12: Dismissal for misconduct: Fair reason
- Substantive fairness
- Particular disciplinary offences
Chapter 13: Dismissal for misconduct: Fair procedure
- Investigation
- Requirements of a fair hearing
- Collective hearings
- ‘Double jeopardy’
- ‘Review’ by management
- Appeal
- When disciplinary hearings may be dispensed with
- Estoppel or waiver
- Consequences of procedural unfairness
Chapter 14: Dismissal for poor work performance, incompatibility and incapacity
- Poor work performance
- Unsuitability and incompatibility
- Ill health, injury or other incapacitating conditions
Chapter 15: Dismissal for operational requirements
- ‘Operational requirements’
- Pre-termination consultation
- Disclosure of information
- Who takes the final decision – and when?
- Fair selection criteria
- Severance pay
- Offers of re-employment.
- Retrenchments under s 189A
- Retrenchments of single employees and by small employers
Chapter 16: Remedies
- Remedies for unfair dismissals
- Remedies for unfair labour practices
- Claims against insolvent companies
Chapter 17: Closures, mergers and sales of businesses
- Section 197
- ‘Transfer of business as a going concern’
- Date of transfer
- Effects of transfer
- Conditions of employment of transferred employees
- Collective agreements and awards
- The duties of the transferring employer
- Obligations on the employers after the transfer
- Transfers in circumstances of insolvency
PART E: COLLECTIVE LABOUR LAW
Chapter 18: Collective labour law: An introduction
- Individual and collective labour law
- Historical background
- Interpretation
- Principal aims of the LRA
- Promotion of collective bargaining
Chapter 19: Bargaining agents
- Trade unions
- Employers’ organisations
Chapter 20: Bargaining forums
- Workplace forums
- Bargaining councils
- Statutory councils
- Dispute resolution by councils
- Domestic bargaining forums
Chapter 21: The bargaining process
- What is collective bargaining?
- Background
- Recognition
- A duty to bargain?
- Bargaining thresholds
- Bargaining subjects
- Bargaining units
- Bargaining levels
- Bargaining conduct
- The duration of the duty to bargain
Chapter 22: Collective agreements
- Definition
- Force and effect
- Transfers of collective agreements
- Collective agreements and contracts of service
- Collective agreements and statutory rights
- Recognition agreements
- Bargaining council agreements
- Interpretation of collective agreements
- Rectification of collective agreements
- Termination of collective agreements
PART F: INDUSTRIAL ACTION
Chapter 23: Strikes and protest action
- Definition of strike
- Protest action
- Protected (legal) and unprotected (illegal) strikes and protest action
- The requirements for protection
- The extent of protection
- Employers’ options during protected strikes
- Employers’ remedies against unprotected strikes
Chapter 24: Dismissal of unprotected strikers
- Non-compliance with the LRA
- Unjustified conduct by the employer
- Contact with the union
- Fair ultimatum
- The duration of the strike
- The harm caused by the strike
- The legitimacy of the strike
- The timing of the strike
- Whether the strikers were given hearings
- The parties’ conduct before and during the strike
- Selective dismissal
- The parties’ conduct after the strike
Chapter 25: Lock-outs
- A right to lock out?
- What is a ‘lock-out’?
- Requirements for a legal lock-out
- Effects of a legal lock-out
- Effects of an unlawful lock-out
- Lock-out dismissals
PART G: FORUMS AND PROCEDURES
Chapter 26: Dispute resolution
- The Commission for Conciliation, Mediation and Arbitration
- Bargaining councils
- The Labour Court
- The Labour Appeal Court
- Labour inspectors
- Private dispute resolution
- The Equality Court
- The High Court
- The Supreme Court of Appeal
- The Constitutional Court
Table of cases
Subject index