The Labour Relations Act 66 of 1995 (‘LRA’) has created a statutory formula to be applied when dealing with breaches of workplace rules. Depending on the manner in terms of which the relevant workplace rule has been breached, various items of Schedule 8 of the LRA would be applicable. What is the approach to be adopted to determine which items of Schedule 8 are applicable when judging the statutory fairness of an employer’s conduct?
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Scenario 1: misconduct
- If the employee breached a workplace rule with fault (intentionally or negligently) and in a wrongful manner, then, in essence, the employee committed misconduct
- Misconduct generally is to be treated in terms of items 1 to 5 and 7 of Schedule 8.
- On the other hand, misconduct, entailing the participation in an unprotected strike and the collective withdrawal of labour, is to be dealt with in terms of items 6 and 7 of Schedule 8
Scenario 2: ill-health/injury
If the employee fails to comply with a workplace rule in a faultless scenario (i e without intention or negligent) but still wrongfully, and the basis for non-compliance with such workplace rule is his/her ill-health or injury, then items 10 and 11 of Schedule are applicable.
Scenario 3: poor-work performance
- Scenario 3 is similar to scenario 2, but the only difference is that the reason for such non-compliance is not the ill-health/injury of the employee, but the employee’s poor work performance.
- Treating an employee for poor work performance is thus the default position if non-compliance with a workplace rule has not been established on the basis of ill-health/injury and such non-compliance is faultless – items 8 and 9 of Schedule 8 of the LRA are then applicable.
