The Litigation Unit defends or initiates legal action on behalf of the University at the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour and/or High Courts. The Unit also provides legal advice and prepares legal opinions on all aspects of employee and labour relations.

Dismissal for purposes of the LRA has a much wider meaning than the common law. Section 186 of the Labour Relations Act defines what an unfair dismissal constitutes:-

  1. an employer has terminated a contract of employment with or without notice.
  2.  an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.
  3. an employer refused to allow an employee to resume work after she

    (i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
    (ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after theactual date, of the birth of her child.
  4. an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.
  5. an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

The current definition of an unfair labour practice is set out in Section 186(2) of the Labour Relations Act as follows:

‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-

  1. unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
  2. the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
  3. a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
  4. an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act’.

A strike is a refusal to work or the slowing down of work by employees, for purposes of remedying a grievance or resolving a dispute. Strikes at the workplace can take the form of work stoppages, go-slows, overtime bans, work to rule, sympathy strikes and picketing.

A dispute process is initiated by an employee referring a dispute to the CCMA. A Referral to the CCMA Form (LRA 7.11) is completed by the employee and/ or his/her trade union.
A copy of the referral must be served upon the employer.

The employee needs to ensure that its dispute is referred timeously. In respect of unfair dismissal cases the employee must refer it within 30 days of such dismissal. In unfair labour practice matters the employee must refer the matter within 90 days of the unfair act being committed by an employer.

Should the timeframes not be adhered to, the employee would have to apply for condonation. The conciliation application will be heard before the matter can proceed. If no condonation applies then Conciliation becomes the first step in the process.

Conciliation/mediation is a dispute settlement process whereby disputing negotiating parties make use of a neutral third party, a mediator, or conciliator, to assist them in reconciling their differences and coming to an agreement. The mediator may facilitate the process of negotiation by encouraging better communication and helping parties to understand each other’s positions more clearly. It is a non-binding process of persuasion, which leaves the parties entirely free to settle on such terms as they see fit, to negotiate further or even to take strike or lock-out action, if settlement cannot be reached.

Means the process whereby the employer’s decision to dismiss is reviewed and or the determination of an unfair labour practice is conducted by the CCMA.

Should the employee or the employer be aggrieved by the decision of the CCMA the party can refer the dispute to the Labour Court to be reviewed.

The Litigation Unit also provides opinions and advice to Council, Executive and Management on labour related issues. The functions and duties of a Litigation Consultation is explained in the Employee and Labour Relations Policy.

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