Workplace Procedure & Documentation
An overview of the Labour Relations Act and Basic Conditions of Employment Act as they apply to employment documentation, disciplinary procedures, and fair dismissal requirements.
What This Module Covers
Employment Contract Requirements Under the BCEA
The Basic Conditions of Employment Act 75 of 1997 requires employers to provide employees with a written statement of particulars of employment. This must include the employer's name, the employee's name and occupation, the place of work, the commencement date, working hours, remuneration, leave entitlements, and notice periods. Non-compliance with the BCEA is a common source of labour disputes.
The Disciplinary Code and Procedure
Schedule 8 of the Labour Relations Act provides a Code of Good Practice on Dismissal that sets out the requirements for a fair disciplinary process. Employers must have a disciplinary code that categorises offences and specifies the appropriate sanctions. The disciplinary procedure must provide for notice of the hearing, the right to representation, and the right to respond to allegations. Failure to follow a fair procedure may render a dismissal procedurally unfair.
Substantive and Procedural Fairness
A dismissal must be both substantively and procedurally fair. Substantive fairness requires that there is a valid reason for the dismissal — either misconduct, incapacity, or operational requirements. Procedural fairness requires that the dismissal process was conducted fairly, including proper notice, a fair hearing, and an opportunity to respond. The CCMA and Labour Court assess both elements when adjudicating unfair dismissal disputes.
Incapacity and Performance Management
Dismissal for poor performance (incapacity) requires a different process to misconduct dismissal. The employer must counsel the employee, provide reasonable support and training, set performance targets, and allow a reasonable time for improvement before considering dismissal. A performance improvement plan (PIP) is a structured tool for managing and documenting this process.
Retrenchment and Section 189 Procedure
Retrenchment (dismissal for operational requirements) is governed by Section 189 of the Labour Relations Act. The employer must issue a Section 189 notice, consult with affected employees or their representatives, disclose relevant information, consider alternatives to retrenchment, and apply fair selection criteria. Severance pay of at least one week's remuneration per completed year of service is required under the BCEA.
Grievance Procedure and Dispute Resolution
Employers are required to have a grievance procedure that allows employees to raise workplace concerns. Unresolved grievances may be referred to the CCMA for conciliation and, if unresolved, to arbitration or the Labour Court. Understanding the dispute resolution process under the LRA is essential for employers seeking to manage labour risk effectively.
Key Statutes & Frameworks
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