Article 13/2022

What are the stages identified when a restructuring exercise has been undertaken in the scenario where employees compete for new positions in such restructured organisation?

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In Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC), the labour court identified the following stages:

stages 1 and 2

  • during these stages, compliance with minimum criteria (e.g. minimum qualifications, applicable minimum experience, etc) are to be established
  • only those employees who comply with such minimum criteria are to be assessed in the assessment process where behavioural competencies are to be determined
  • those employees who do not comply with the said minimum criteria, do not participate in the subsequent stages and fall out of the process, subject to the employer attempting to find alternative employment

stage 3

  • only those employees who comply with the aforesaid minimum criteria are to proceed to stage 3, which stage entails, in essence, the assessment of behavioural competencies of such employees, in a ranking system (by means of psychometric testing)

stage 4

  • the results of stage 3 will determine whether or not employees are placed
  • should an employee fall out on the basis of such results, the employer will attempt to find alternative employment for the employee
  • however, successful candidates will only be placed if they accept the terms and conditions attached to the new restructured positions – if they do not accept such terms and conditions, they fall out of the process, subject to the employer attempting to find alternative employment

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?