LESSON 08

LABOUR RELATIONS STRUCTURES AND PROCEDURES

CONTENTS
Page
1 INTRODUCTION ............................................................................................................................. 2
2 AIM OF THE LESSON .................................................................................................................... 2
3 LEARNING OUTCOME FOR THE LESSON ................................................................................... 2
4 KEY CONCEPTS ............................................................................................................................ 3
5 RECAP OF PRIOR LEARNING ...................................................................................................... 4
6 RESOURCES .................................................................................................................................. 4
7 LABOUR RELATIONS STRUCTURES IN THE WORKPLACE ...................................................... 5
7.1 Briefing groups ....................................................................................................................... 6
7.2 Health and safety committees................................................................................................. 6
7.3 Shop steward committees ...................................................................................................... 7
8 THE NEED FOR LABOUR RELATIONS PROCEDURES IN THE WORKPLACE .......................... 7
9 THE GRIEVANCE PROCEDURE .................................................................................................... 8
9.1 The concepts "complaint", "grievance" and "dispute" .............................................................. 8
9.2 The value of effective grievance handling ............................................................................... 9
9.3 Ensuring the effectiveness of a grievance procedure .............................................................. 9
10 THE DISCIPLINARY PROCEDURE .............................................................................................. 10
11 THE RETRENCHMENT PROCEDURE ......................................................................................... 13
12 MERGERS, TRANSFERS AND OUTSOURCING ......................................................................... 14
13 DISPUTE RESOLUTION ............................................................................................................... 15
14 SUMMARY .................................................................................................................................... 15
15 SELF-ASSESSMENT .................................................................................................................... 16
16 LIST OF REFERENCES AND ADDITIONAL READING ............................................................... 17
Lesson 08 LRM4801

1 INTRODUCTION

In this lesson you will learn about various labour relations structures in the workplace, as well as about
procedures pertaining to these structures. On completion of this lesson, you should be able to evaluate the
various structures and procedures in your workplace and, where applicable, link the structures with the
various procedures. You should also be able to evaluate the relevance and appropriateness of certain
structures in your workplace and recommend setting up entirely new structures, where needed. Bear in mind
that the perspectives adopted in the organisation when dealing with organised labour will influence the type
of labour relations structures and procedures adopted in an organisation (see lesson 1). These procedures
and structures are adopted to execute the overall employment relations strategy of the organisation and
should, therefore, be closely aligned with this strategy.

2 AIM OF THE LESSON

The aim of this lesson is to enable you to align the various labour relations structures and procedures in an
organisation with the employment relations strategy and policy.

3 LEARNING OUTCOME FOR THE LESSON

On completion of this lesson, you will be required to demonstrate the specific learning
outcome:
Learning outcomes

infer from complex and real world scenarios to contribute to the overall formulation, implementation
and control of the organisational strategy and the management of conflict, group dynamics and diversity
from a labour relations management perspective

analyse and deal with complex and real world evidence of both external and internal environmental
influences on the strategic management of labour relations in an organisation

provide an epistemological formulation of a labour relations policy based on the labour relations strategy
and the overall strategy of an organisation

engage with current research and oversee the implementation of a labour relations
policy in line with the organisational and labour relations strategies

You should demonstrate your ability to do this by:

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Determining the labour relations structures that should

be set up in an organisation to enable the labour
relations function to operate effectively and contribute
towards meeting the organisational objectives

Evaluating the need for particular labour relations

procedures in the workplace and how these
procedures are aligned with the employment relations
strategy and policy

set up and use various labour relations structures and

procedures in an organisation
Drawing up a grievance procedure and using it to deal
effectively with grievances in the workplace

engage with current research and

oversee the implementation of a
labour relations policy in line with
the organisational and labour
relations strategies

Critically discussing the value of effective grievance

handling in terms of organisational success

Examining the legal provisions relating to discipline and

dismissal and applying these provisions in drawing up
and utilising disciplinary and retrenchment procedures
in the workplace

Using appropriate dispute resolution procedures to

resolve disputes in the workplace

4 KEY CONCEPTS

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5 RECAP OF PRIOR LEARNING

Let’s start with an activity to determine if you remember what you learnt about labour relations
policies and procedures at undergraduate level.

Activity 8.1: Self-assessment

Click on the Self-assessments link on the LRM4801 myUnisa module site. You will notice a
number of self-assessments available for this module. Select the one indicated as Self-
assessment: Activity 8.1. You will notice that the self-assessment consists of 10 multiple-
choice questions. Answer these questions without referring to any sources, such as books or study guides
previously used. Once you have answered all the questions, submit the self-assessment. Don’t be concerned.
This score will be for your own assessment purposes only and will not contribute to any marks for this module.
You will receive a score as well as answers to and brief feedback on each question.

Feedback

This activity focused on the fundamentals of grievances, discipline and dismissal in the
workplace. Did you do well? If you were able to answer the questions easily, you may
continue with the lesson. However, if you experienced difficulty in answering the questions,
you should first do some reading before commencing with the lesson. You may use lesson 3 in the LRM3702
study guide (available under Additional Resources on the LRM4801 myUnisa module site) as your point of
departure. At this point, you should be able to answer the following questions:

(1) Describe the nature and importance of grievances and grievance handling, and indicate how to use
grievance procedures and processes.
(2) Discuss the nature and dynamics of discipline, and demonstrate how to handle the disciplinary process.
(3) Explain what "fair dismissal" involves by referring, inter alia, to the following three categories:
• misconduct
• incapacity
• operational requirements

6 RESOURCES

You are now ready to begin with this lesson. The first step is to ensure that you have sufficient resources that
deal with the topic. Start by downloading the e-reserves for this lesson.

E-reserves

Venter, R (ed), Levy, A (ed), Bendeman, H & Dworzanowski-Venter, B. 2014. Labour

relations in South Africa. 5th edition. Cape Town: Oxford University Press. Chapter 8
(Managing labour relations in the workplace).

Remember that all the e-reserves for this module are listed on the LRM4801 myUnisa module site (see the
Prescribed books link). You should download them from the OASIS Library catalogue. See the Study @
Unisa brochure or the frequently asked questions (FAQs) on the LRM4801 myUnisa module site for more
details.

Additional reading

The following books may be consulted to obtain a more holistic view of the topics addressed
in this lesson:

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• Bendix, S. 2015. Labour relations, a southern African perspective. 6th edition. Cape Town: Juta.
Chapter 6 (Employee grievances, discipline, dismissal and unfair labour practices), chapter 7 (No-fault
terminations: incapacity, operational requirements, mergers and transfers), chapter 12 (Dispute
settlement).

• Finnemore, M, Koekemoer, GM & Joubert, YT. 2018. Introduction to labour relations in South Africa.
12th edition. Durban: LexisNexis. Chapter 10 (Workplace agreements and procedures) & chapter 12
(Conciliation, arbitration and Labour Court adjudication).

• Nel, PS, Kirsten, M, Swanepoel, BJ, Erasmus, BJ & Jordaan, B. 2016. South African employment
relations, theory and practice. 8th edition. Pretoria: Van Schaik. Chapter 8 (Organisation-level
perspectives: strategies, policies, procedures, processes and practices).

• Swanepoel, BJ & Slabbert, JA. 2012. Introducing labour relations management in South Africa. Durban:
LexisNexis. Chapter 8 (Managing the mainly divergent interests in labour relations).

• Venter, R (ed), Levy, A (ed), Bendeman, H & Dworzanowski-Venter, B. 2014. Labour relations in South
Africa. 5th edition. Cape Town: Oxford University Press. Chapter 11 (Dispute resolution).

Also refer to the list of references at the end of the lesson for additional sources of information relevant to
this lesson.

7 LABOUR RELATIONS STRUCTURES IN THE WORKPLACE

Bendix (2010:315) explains that just as labour relations cannot be confined to collective bargaining with
unions, so the labour relations function is not the function solely of the labour or employment relations
department. Labour relations practitioners and managers perform the roles of advisors, facilitators and
coordinators, because it is, after all, the function of line management to manage, motivate and satisfy those
who work under them. Every manager is a “people” manager and, therefore, also a human resource, labour
relations or employment relations manager. For this reason, the success of a labour or employment relations
manager may be measured by the degree to which they make themselves redundant, that is, the extent to
which the policies, structures, systems and processes instituted and the advice given by them allow other
managers, including line supervisors, to manage their people on their own.

Bendix (2010:316) concludes that, in light of the above, it is obvious that the labour relations function cannot
be viewed in isolation, and that the policies, structures, systems and processes implemented have to be part
of a total management strategy and have to be established in consultation and conjunction with other
members of management, as well as with the consideration of, and representation from, the employees in
the undertaking.

We have already dealt with the employment relations policy in lesson 5, so the focal point of this current
lesson is workplace structures and procedures. These structures and procedures are derived from an
organisation’s employment relations policy and, as such, should be closely aligned with its employment
relations strategy. By structures, we mean the various committees or bodies that are formed in an
organisation to fulfil certain functions. Remember that some of these structures are provided for in legislation
and are therefore obligatory (such as health and safety committees in terms of the Occupational Health and
Safety Act 85 of 1993 [OHSA]), while others are non-statutory, but make good business sense from a
strategic labour relations management perspective. The main structures in the South African labour relations
environment are briefing groups, health and safety committees, shop steward committees and workplace
forums. As workplace forums have already been discussed in detail in lesson 6, they are not included here,
but you should keep in mind that they are also important plant-level committees.

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7.1 Briefing groups

Briefing groups involve systematic communication through an organisation’s lines of command, with each
manager/supervisor communicating information to their own work group comprising 3 to 20 employees. It
can be described as "a system which provides a systematic, face-to-face communication channel through
the line of command, by which groups of employees are informed on aspects in the work environment which
affect them" (Slabbert et al 2006:10-7). Slabbert et al (2006:10-8) continue by explaining that briefing group
meetings are held during regular working hours and are 20 to 30 minutes in duration. Information is
communicated accurately, in good time, and is received by all relevant employees within a set time (e.g. 36
hours). Briefing meetings are held on a regular basis and are an integral part of the manager's/supervisor's
tasks. The system is monitored effectively to ensure that information is communicated accurately and in good
time. The briefing group system does not supersede other communication systems and methods (see lesson
6), but supplements it.

Gennard and Judge (2010:269) warn that although briefing groups can be regarded as a systematic way to
cascade information from the top to the bottom of the organisation, the disadvantage of using briefing groups
is that, as the information cascades down, it becomes diluted, obscured by rumour, out of date and imprecise.
Gennard and Judge (2010:270) also stress that if a trade union is recognised in an organisation, management
should carefully consider the use of briefing groups so that the trade union does not see these as an attempt
to undermine its influence. Briefing groups are therefore unlikely to succeed if the relations between
management and employee representatives are distrustful.

Read

Carefully study one or more of the suggested resources indicated at the beginning of the
lesson in order to grasp the objectives, characteristics and benefits of briefing groups fully.
You also need to be aware of the role that such a structure could play in an organisation.

7.2 Health and safety committees

Health and safety committees are vital structures that should be provided for in the strategic labour relations
management planning of any organisation. The OHSA places the responsibility for safety in a work
environment equally in the hands of both employers and employees. It is the duty of employees to bring
unsafe working conditions to the attention of management. If management fails to address the safety issues
mentioned, employees can report them to the Department of Labour. It goes without saying that safety issues
will always form part of the essential labour relations management functions of any organisation, and that
health and safety committees play a key role in this regard. The OHSA regulates the establishment of health
and safety committees in an organisation (refer back to lesson 4). Health and safety committees are formed
with the sole purpose of helping to regulate the health and safety of employees in the workplace.

Activity 8.2: Addressing safety issues in the workplace

Think of the number of fatal accidents that have occurred in South African workplaces, as
reported in the media. For example, access Google or any other internet search engine that
you are familiar with. Type "fatal accidents mines South Africa" as a search term. There are a
vast array of reports and articles on this topic. Read through some of them. Also consider other working
environments such as the construction industry or agriculture.

Now formulate an opinion about the adequacy or inadequacy of the role that the Department of Labour plays
in addressing safety issues in South African workplaces.

Access Forum 9: Lesson 08 Activities and complete activity 8.2 by sharing your views here. Also read what
the other students have to say. Do you agree with their views? If not, argue your case in the discussion forum
and see whether you can come to an agreement.

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Feedback
There have been a number of fatal accidents in the mining industry over the last number of
years, with trade unions such as the National Union of Mineworkers (NUM) placing the
blame squarely at the door of management. One of the most horrific accidents occurred in
a factory in Lenasia. The owner locked the workers, who had to work night shift, inside the
factory. A fire broke out during the night and all the workers burnt to death because there was no escape
route for them to flee the fire. Surviving factory workers claimed to have reported the unsafe working
conditions to the Department of Labour. The Department of Labour allegedly sent inspectors to the factory
and the inspectors returned without having accomplished anything, stating that they could not find the place.
No further action was taken.

Read

Familiarise yourself with the role of health and safety committees in the workplace. Are
employers compelled to establish health and safety committees? In addition, read about the
composition of health and safety committees, with special reference to the representatives
and their functions, the establishment and functions of these committees, and the training of the
representatives.

7.3 Shop steward committees

Shop steward committees are formed in workplaces where more than one shop steward is elected by
members of a recognised union. This committee meets with management at regular intervals. During these
meetings, matters of mutual interest (particularly those affecting union members) are discussed, such as
proposed changes in working hours or the shift system, retrenchments and redundancies, the use of casual
labour or temporary employees, and grievances raised by employees (Bendix 2015:580).

Read

Read some of the suggested resources listed at the beginning of the lesson (or any other
resource) and establish the role of shop steward committees. You should be familiar with the
composition of the shop steward committee, with specific reference to its representatives and
functions.

8 THE NEED FOR LABOUR RELATIONS PROCEDURES IN THE WORKPLACE

In the previous sections we discussed various structures, some of which are optional. We will now focus on
the essential labour relations procedures in the workplace. Salamon (2000:552) defines procedures as "those
organisational mechanisms which provide a formal regulatory framework for handling specific issues and, in
doing so, define and limit the exercise of managerial authority and power". Bendix (2010:349) points out three
areas in which formal communication or consultation has become a necessity, namely procedures for
employee grievances, for disciplining and dismissing employees, and for retrenchments and redundancies.
These procedures should be based on the labour (or employment) relations policy and should be aligned
with both the employment relations and organisational strategies.

Consistency achieved by set procedures ensures the equal and fair treatment of all employees. A policy or
procedures that employees deem to be inconsistently applied by the employer will result in an unhappy
workforce, because such procedures discriminate against employees on arbitrary grounds. An employment
relations policy and procedures need to be seen to apply equally and consistently to all employees in the
organisation. Revisit lesson 5 if you are not yet sure how the employment relations strategy, policy (or
policies) and procedures are interrelated.

Grievance, disciplinary and retrenchment procedures may be negotiated with a trade union, be drafted by
management in consultation with a union, or be the sole product of management. We will now look at each
of these procedures in more detail.

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9 THE GRIEVANCE PROCEDURE

The purpose of a formal grievance procedure is to enable employees, who are experiencing dissatisfaction
of some kind or injustice relating to their work situation and employment relationship, to have their grievances
heard and resolved fairly by management without fear of victimisation, reprisals and intimidation. A formal
grievance procedure is not obligatory under the law, but usually forms part of a formal recognition agreement
between the trade union and management. It forms part of sound labour relations practices in an organisation,
because unresolved grievances could result in the trade union declaring disputes on behalf of its employees.

9.1 The concepts "complaint", "grievance" and "dispute"

Owing to the fact that employee grievances can vary in nature, it is important to distinguish between a
complaint, a grievance and a dispute, and to highlight the possible relationship between these concepts.
According to Slabbert et al (2006:10-37), a complaint occurs when dissatisfaction is expressed without
activating the formal procedure, whereas in the case of a grievance, the formal procedure is triggered.
Therefore, any work-related complaint has the potential to become a grievance. A grievance can be defined
as "a complaint, other than demands formulated by a collective body, which is based on the perception that
a right has been infringed, and which, because it may result in a dispute, warrants the formal attention of
management" (Bendix 2015:245). From this definition, it is clear that much in the same way as a formal
grievance may arise if a complaint is not resolved, a dispute may arise if a formal grievance is not properly
dealt with by management. Therefore, it is important to note the definition of a dispute as well. Salamon
(2000:554) explains that the term "dispute" is “applied to grievances as soon as a shop steward is involved,
when a full-time official of the union is called in, or if it is not resolved at domestic level and is referred to an
external procedure". Therefore, although a dispute also refers to the failure of parties to reach agreement,
within the context of grievance handling, it relates to the failure to reach an acceptable outcome after all the
steps in a grievance procedure have been exhausted. Slabbert et al (2006:10-38) explain the relationship
between complaints, grievances and disputes within the context of grievance handling as follows: In practice,
a dissatisfied employee will express their dissatisfaction with a certain matter in the form of an informal
complaint. If the outcome of management’s solution to the problem is not satisfactory, the employee will
probably activate the formal procedure, in which case the informal complaint will now become a formal
grievance. If the grievance is not resolved, a formal dispute will be declared, after which the matter becomes
an external labour relations issue for resolution by an independent third party such as the Commission for
Conciliation, Mediation and Arbitration (CCMA) or a bargaining or statutory council.

Activity 8.3: Using a grievance procedure

Conduct an interview with the labour relations manager of your organisation or an organisation
with which you are familiar, and find out if the organisation has a formal grievance procedure
in place. If it does, establish – by interviewing shop stewards and employees – whether the
grievance procedure is used freely, without any fear of subsequent victimisation and reprisals. Establish what
the perceptions of managers, supervisors, employees and shop stewards are with regard to the value and
utilisation of a grievance procedure. Have you had any experience with grievances as a manager, supervisor
or shop steward? Or have you ever used your organisation's grievance procedure to lodge a grievance?
What was the outcome?

Access Forum 9: Lesson 08 Activities and complete activity 8.3 by sharing your views here. Also read what
the other students have to say. Do you agree with their views? If not, argue your case in the discussion forum
and see whether you can come to an agreement.

Feedback

Depending on the nature and size of your organisation, you may have found that in a small
business, no formal grievance procedure is in place, while a large organisation does have
one. You may also have established that in some organisations, even though they may
have a formal grievance procedure, employees hardly ever use it, for fear of victimisation and reprisals. It is

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hoped that these are exceptions, rather than the norm. The approach of managers to dealing with employee
grievances would also be a product of the "frame of reference" adopted by top management when dealing
with trade unions (refer back to lesson 1).

9.2 The value of effective grievance handling

According to Nel et al (2016:343), the existence of a clearly defined and freely accessible channel for workers
to air their grievances and to have them settled is probably the most important part of any organisation's
employment relations structure. As such, it is one of management's most important assets, for the following
reasons:
• It is a safety valve that will release the tension and dissipate the latent aggression inherent in all
businesses.
• It allows the raising and settlement of grievances of a worker without fear of retribution or victimisation.
• Because of the above two points, it makes for a more open and honest relationship between manager
and worker.
• It allows managers to identify and remove legitimate causes of dissatisfaction or conflict.
• It allows the removal of conflict sources that make small problems escalate into major unrest.
• It facilitates the development of positive worker morale.
• It assists in promoting goal achievement by a business.

If a sound grievance procedure does not exist, managers will not be aware of grievances or sources of
dissatisfaction. This does not mean, however, that grievances do not exist, but only that they will be allowed
to develop below the surface. When they eventually erupt, the effect on the business is usually out of all
proportion to the gravity of the underlying causes.

Managers who profess to "know the workers" and who suggest that they (the managers) have an "open-door
policy" that is sufficient to meet workers' needs are living in a fool's paradise and will eventually experience
the consequences of such a short-sighted policy.

Managers who limit the scope of the grievance procedure to those grievances relating to formal human
resource policies, or to the items contained in the collective agreement, are ignoring the complexity and
unique nature of individual human beings. Owing to this complexity of human nature, and the resultant
behaviour, managers should recognise that many issues that can give rise to a grievance fall beyond the
scope of a written and formal company policy. Such issues must be catered for by dealing with some
grievances on an ad hoc basis.

9.3 Ensuring the effectiveness of a grievance procedure

Nel et al (2016:344) and Bendix (2015:246) outline certain conditions that should be met to ensure the
effectiveness of a grievance procedure:
• Both managers and workers must view the system as fair and just. If at all possible, the commitment of
both parties must have been ensured by having both involved in the formulation of the procedure.
• The procedure must be derived from, and be supportive of, a formal, written, just and rational set of
employment relations policies. By itself, a grievance procedure tends to be weak – it needs the support
of a firm policy and a fair disciplinary procedure.
• It should preferably be formulated and introduced in a period of normality (labour peace, high morale
and good organisational climate). A system born in a period of conflict and unrest will always tend to
retain the "odour of conflict" and be viewed with mistrust by both management and workers.
• It must have the full support, commitment and involvement of all levels of management, but especially
top management. All managers must be willing and able to take the necessary action, but must also be
subject to the sanction of the organisation’s rules for non-compliance.
• It ought to be company policy that any worker has the right to submit a grievance via the prescribed
channels, without any prejudice whatsoever with regard to their status, job security or promotional
opportunities. Similarly, workers should be guaranteed protection by the business against victimisation
or threat in any form whatsoever by an individual or group within the jurisdiction of the organisation.

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Employees should be encouraged to use the procedure, but also be warned not to abuse it by instituting
trivial grievances.
• The procedure must be simple and easy to use by all workers concerned.
• The procedure must be known to all employees, and training regarding the grievance procedure needs
to be undertaken, either during induction or in other training sessions.
• Trade union representatives should also receive training with regard to the use of the grievance
procedure.
• The grievance procedure will be effective only if the members of management who will be involved in
the handling of grievances are trained for the task. Line managers, from supervisors upwards, should
be completely conversant with all the steps in the grievance procedure and should be trained to listen
carefully to the grievance, to clarify any uncertainties, to distinguish fact from opinion, to confirm that
their understanding is correct, and to elicit a suggested solution from the employee. The manager
should know how to investigate the grievance, verify the facts, and how to find and promote a solution.
They should show sympathy, not be defensive or hostile, but state their own position clearly to the
employee.
• It must provide immediate and effective action, without any undue delays.
• Finally, the grievance procedure will be effective only if there is a sincere desire on all sides to solve
problems. The labour or employment relations department should therefore monitor the use of the
grievance procedure and advise on possible solutions.

Study

Before moving to the next section, carefully study the information provided above, as well as
section 8.10 (pp 369-373) in Venter et al (2014). You may also consult the relevant chapters in
the suggested resources listed at the beginning of this lesson, as well as any other relevant
literature on the topic. Familiarise yourself with the following:
• the definition of a grievance
• the difference between a complaint, a grievance and a dispute
• the objectives of a grievance procedure
• how the grievance procedure is applied in practice
• the value of effective grievance handling
• prerequisites for an effective grievance procedure

You can easily obtain examples of grievance procedures and forms that need to be
completed as part of the procedure on the internet. Click on the following links for some
examples:

• Grievance policy and procedure (Bregmans Attorneys) (available at:

http://www.bregmans.co.za/grievance-policy-and-procedure/)
• Grievance procedure (Kumba Iron Ore): http://www.kumba.co.za/pdf/policies/grievance_policy.pdf
• Grievance procedure for academic staff and professional, administrative support and service staff
(University of Cape Town)
(available at: http://hr.uct.ac.za/employee_relations/grievance/academic_staff/
and http://hr.uct.ac.za/employee_relations/grievance/pass_staff/)

By accessing some examples, it should be clear that the grievance procedure should not be a lengthy
document. It is usually brief and merely outlines the general principles and the steps that need to be followed.
Remember, however, that each organisation is unique and no "template" exists that will suit all organisations.
When drawing up a grievance procedure, you need to consider aspects such as the structure of your
organisation and the roleplayers (e.g. union involvement). The procedure should also be aligned with the
employment relations strategy and policy.

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10 THE DISCIPLINARY PROCEDURE

There is often a misconception that discipline relates to the disciplinary hearing only. Salamon (2000:565),
however, states that the disciplinary process is "that element of the system concerned with formal action
taken by management against an individual who fails to conform to the rules established by management
within the organisation". Nel et al (2016:350-351) indicate that the process of maintaining disciplined
behaviour essentially entails a number of elements. Firstly, standards of conduct (rules and norms) must be
formulated – they are usually turned into a document called a disciplinary code. Secondly, the employee’s
conduct should be monitored and measured against these standards. This is a continuous process – it
happens throughout the employment relationship. Thirdly, an employee’s conduct, in instances where it falls
short of the standards set out, needs to be corrected. This may include the formal use of disciplinary
measures (the disciplinary procedure, including the disciplinary hearing). Fourthly, it is necessary to
determine whether the corrective measure has had the desired effect by ascertaining whether or not the
employee’s conduct has been corrected or changed, and whether it now complies with the rules or norms as
set out in the code.

The disciplinary procedure ensures that discipline is exercised fairly and in a way that ensures that action
is taken to forestall dismissals. For this purpose, rules and regulations must be spelt out between employer
and employee. Employers must ensure that employees are aware of the rules of conduct and standards in
the workplace. If an employee contravenes these rules and regulations, or does not meet the standards,
management will need an instrument to deal with the matter.

Salamon (2000:567) explains that there are potentially three aims of the formal disciplinary process, namely
retribution, deterrence or rehabilitation, and that it can be viewed as either a punishment or a training process.
The negative (punitive) approach is directed towards retribution or deterrence, while the positive
(corrective) approach is directed toward rehabilitation. Nel et al (2016:350) reiterate this by explaining that
the negative approach to discipline is mainly regarded as a method to punish employees. Such employers
will therefore often act on half-truths and take arbitrary decisions regarding discipline and dismissals. They
tend not to act in a preventative or rehabilitative way, or to obtain the cooperation of employees. This
approach creates tension and will, almost without exception, cultivate industrial unrest. On the other hand,
employers who follow a positive approach create a climate in which employees accept the leadership and
role of management and supervisors in a positive manner. Since workers understand the rules of the
undertaking, they are motivated to obey them. Positive discipline implies that there is regular contact,
cooperation and discussions between employees, trade unions and management in order to determine the
boundaries of discipline and its consistent application. It furthermore requires that supervisors give intensive
guidance to employees in respect of the required standards of conduct and performance levels within the
rules and regulations of the undertaking.

Activity 8.4: Disciplinary code and procedure

Try to obtain the disciplinary code and procedure of the organisation you work for, or of an
organisation with which you are familiar. Carefully evaluate the disciplinary code and
procedure and indicate the extent to which it is aligned with Schedule 8 (the Code of Good
Practice: Dismissal) of the Labour Relations Act 66 of 1995 (LRA). How does your organisation's approach
to discipline and dismissal correlate with your employment relations strategy and policy statements in this
regard?

Feedback

Schedule 8 of the LRA (the Code of Good Practice: Dismissal) may be regarded as the
“national disciplinary code”. In terms of section 138(6) of the LRA, the commissioner, or
anybody considering whether or not dismissal is an appropriate sanction, must take into
account any code of good practice that has been issued by the National Economic Development and Labour
Council (NEDLAC), or guidelines published by the commission in accordance with the provisions of this Act,
which are relevant to the matter under consideration. The same sentiment is echoed in section 188(2). All

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this means is that a disciplinary code that is not based on the code of good practice will not stand up to
scrutiny.

You may find a statement such as, "Our employees are our most valuable asset", in your organisation's
labour relations mission statement. Your disciplinary code and procedure should then be in line with such a
statement. Managers will therefore be expected to follow a positive approach to discipline, attempting to
correct employee behaviour rather than "punishing" employees for contravening workplace rules.

You can easily obtain examples of disciplinary codes and procedures on the internet. For
instance, click on the following links for some examples:

- Kumba Iron Ore (AngloAmerican) disciplinary code and procedure (available

at: https://www.angloamericankumba.com/~/media/Files/A/Anglo-American-
Kumba/policies/disciplinary-code-procedure.pdf)

- CSIR disciplinary code and procedure (available

at: https://www.csir.co.za/sites/default/files/Documents/Conduct_Ethics.pdf)

By accessing some examples, you will notice that there is no prescribed format. Nevertheless, it is important
that all employees be aware of the expected behaviour. Forms of employee behaviour regarded by the
employer as misconduct are usually outlined in a disciplinary code. This code also provides guidelines for
the appropriate disciplinary sanctions. Furthermore, the disciplinary procedure outlines the steps to be taken
in the event of misconduct. Again, keep in mind that each organisation is unique and no "template" exists
that will suit all organisations. When drawing up a disciplinary code and procedure, you need to consider the
unique needs of your organisation. It is, however, essential to incorporate the provisions outlined in Chapter
VIII of the LRA and the Code of Good Practice: Dismissal. The disciplinary code and procedure should also
be aligned with the employment relations strategy and policy.

Study

Before continuing with the next section, study sections 8.3-8.7 (pp 320-356) in Venter et al
(2014), as well as some of the suggested resources listed at the beginning of this lesson, or any
other relevant sources. Make sure that you understand the following:
• what the disciplinary process entails
• the purpose of a disciplinary code and procedure
• the difference between a positive and a negative approach to discipline
• the general principles underlying the disciplinary process
• the requirements for a disciplinary hearing
• how a disciplinary dismissal due to misconduct should be conducted

In studying the above, you should also refer back to the provisions of the LRA relating to dismissal in lesson
4.

It is important for you to differentiate clearly between discipline and dismissal as a result of unacceptable
conduct as explained above, and an employee’s inability to do their job owing to reasons other than their
conduct. Employee performance should not be regarded as a disciplinary matter and should not be dealt with
by means of the disciplinary process. Instead, a process of problem-solving and assistance should be
followed. This forms part of performance management, which falls outside the scope of this module. However,
dismissal due to incapacity falls squarely within the labour relations domain. This is a clear example of the
interrelationship between human resource management and labour relations. It illustrates our argument that
these fields cannot be separated, but should both form part of the broader field of employment relations
management. Therefore, although incapacity does not fall under the disciplinary procedure, you are expected
to know and be able to apply the provisions of the LRA and the Code of Good Conduct: Dismissal relating to
incapacity.
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Read

Read section 8.8 (pp 356-359) in Venter et al (2014), as well as some of the suggested
resources listed at the beginning of this lesson. Ensure that you understand how cases of
incapacity should be handled. Also refer back to the provisions of the LRA relating to
dismissal in lesson 4 (section 8.8).

11 THE RETRENCHMENT PROCEDURE

Although both retrenchment and redundancy relate to dismissal for operational requirements, you need to
distinguish between these two concepts. Bendix (2015:316) explains that retrenchment is attributed to
cyclical downturns, market losses or other economic factors that oblige the employer to reduce their labour
force, whereas redundancy occurs when jobs are lost through restructuring or the introduction of technology.
In the case of retrenchment, the jobs may be reinstated if economic circumstances improve, but where
redundancy occurs, the loss of jobs is usually permanent. Note, however, that irrespective of this distinction,
both instances of dismissal are usually managed in terms of an organisation's retrenchment procedure.

It is essential for any organisation to have a retrenchment procedure that is aligned with its employment
relations strategy and policy. Bendix (2015:318) reiterates this in stating that "it is preferable to have a policy
or procedure before the fact than to run around for solutions when the reality of retrenchment has to be
faced".

Figure 1 outlines a possible retrenchment procedure.

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Figure 1: Retrenchment procedure

STAGE III:
NOTIFICATION TO Aftercare EMPLOYEES LEAVE
EMPLOYEES –
RETRENCHMENT Prepare forms and pay Counselling and
OCCURS assistance

Notify management concerned Notify employees

Final list

Representations on list

Brief all
List of proposed retrenchees Union or employee
management of
representatives
proposed list
Apply agreed on fair criteria to
select retrenchees

STAGE II: Agreement reached/not reached

CONSULTATION WITH
REPRESENTATIVES Consider proposals of
AND INFORMATION TO representatives.
MANAGEMENT React and give reasons

Consult on all aspects – criteria,

retrenchment pay, aftercare, etc.

Proof of necessity for retrenchment

Consult in terms of agreement, or

Notify managers of departments
with workplace forum, unions or
concerned
employees

STAGE I: Need for retrenchment arises

PRIOR RETRENCHMENT
POLICY OR Retrenchment policy
AGREEMENT

• Circumstances which would lead to retrenchment

• Alternatives to be considered
• Criteria
• Notification (when and who)

Consult with all key Consult with

members of Decision that retrenchment policy is workplace forum,
management necessary union or employees

Source: Bendix (2015:341)

Study

Before continuing with the next section, study section 8.9 (pp 359-369) in Venter et al (2014),
as well as some of the suggested resources listed at the beginning of this lesson, or any other
relevant sources. Make sure that you understand the following:
• the difference between retrenchments and redundancies
• the reasons or need for having a retrenchment procedure
• the legislative requirements for the retrenchment procedure (also refer back to section 8.8 in lesson 4),
including the requirements for substantive and procedural fairness relating to dismissal for operational
reasons

12 MERGERS, TRANSFERS AND OUTSOURCING

Matters closely related to dismissals for operational requirements are mergers, transfers and outsourcing.
Van Niekerk, Christianson, McGregor, Smit and Van Eck (2008:299) state that globalisation has had the
consequence of large-scale restructuring. Mergers, acquisitions and other "corporate events", as they are
sometimes described, have had a massive impact on security of employment. At the same time, companies
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are increasingly restructuring to focus on what is termed "core business", and many services and functions
once provided in-house are being outsourced, to be provided by independent service providers engaged in
a commercial business. In many of these instances, one employer transfers businesses, or parts of
businesses, to another, a situation where commercial interest in greater flexibility and profitability are often
in conflict with employee interests in security of employment.

Sections 197 and 197A of the LRA (which you studied in lesson 4) regulate the employment-related
consequences of the transfer of the whole or part of a business. Bendix (2015:347) argues that although the
LRA provides for the effect that transfers and mergers have on employers and employees, merely adhering
to the legal provisions is not sufficient. Transfers, mergers and outsourcing also have important labour
relations management implications, which you should consider.

Study

Study the suggested resources listed at the beginning of this lesson, or any other relevant
resources, and make sure that you fully comprehend the following before commencing with the
next lesson:
• the provisions of the LRA (ss 197 and 197A) in terms of transferring contracts of employment from one
business to another
• the role of the labour or employment relations manager in mergers, transfers and outsourcing

13 DISPUTE RESOLUTION

Throughout this module, we have stressed that although employers and employees have some common
interests and objectives (the success and continued existence of the organisation), the relationship between
these parties is formed by the inherent conflict and continuous power play between them (see lesson 2). As
Venter et al (2011:420) state, it is therefore vital for organisations to have effective and easy-to-use
procedures in place, through which disputes can be channelled and resolved, if and when they arise, in order
to ensure and maintain constructive labour relations. We have already focused on grievance, disciplinary and
retrenchment procedures, which should be used to resolve conflict at the lowest possible level and prevent
it from escalating to the level of a dispute. However, even organisations with the best procedures in place
often have to deal with disputes following unresolved grievances, an inability to reach agreement during
negotiations or perceived unfair actions. Therefore, although dispute resolution cannot, strictly speaking, be
regarded as an organisation-level procedure, it is essential for any organisation to have policies and
procedures in place to deal with disputes when they occur.

Study

Refer back to section 8.7 in lesson 4. Read through the relevant provisions in the LRA again
and then study some of the suggested resources listed at the beginning of this lesson, or any
other relevant sources. Make sure that you understand the following:
• the concept and nature of labour disputes (also see section 9.1 in this lesson)
• how disputes can be minimised in organisations
• the different dispute resolution processes that can be followed
• the roles and functions of the relevant dispute resolution structures instituted by the LRA

14 SUMMARY

The main labour relations structures and procedures that organisations may have in place were discussed in
this lesson. However, this list is not exhaustive. Bear in mind that even if an organisation has the necessary
structures and procedures, this does not guarantee that all disagreements will be resolved; they may lead to
disputes that have to be resolved by external dispute resolution structures (see section 8.7 in lesson 4 and
section 13 in this lesson). In some instances, should the disputes remain unresolved, extreme measures,
such as industrial action, may be taken. Therefore, in the next lesson we will focus on industrial action and
the necessary strategic planning and decision-making that needs to take place to provide for effective
management of industrial action.
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After working through this lesson, you should have compiled notes on the following topics for revision
purposes:

(1) The grievance procedure

(a) the definition of a grievance
(b) the difference between a complaint, a grievance and a dispute
(c) the objectives of a grievance procedure
(d) how the grievance procedure is applied in practice
(e) the value of effective grievance handling
(f) prerequisites for an effective grievance procedure

(2) The disciplinary procedure

(a) what the disciplinary process entails
(b) the purpose of a disciplinary code and procedure
(c) the difference between a positive and a negative approach to discipline
(d) the general principles underlying the disciplinary process
(e) the requirements for a disciplinary hearing
(f) how a disciplinary dismissal due to misconduct should be conducted

(3) The retrenchment procedure

(a) the difference between retrenchments and redundancies
(b) the reasons or need for having a retrenchment procedure
(c) the legislative requirements for the retrenchment procedure

(4) Mergers, transfers and outsourcing

(a) the provisions of the LRA in terms of transferring contracts of employment from one business
to another
(b) the role of the labour or employment relations manager in mergers, transfers and outsourcing

(5) Dispute resolution

(a) the concept and nature of labour disputes
(b) how disputes can be minimised in organisations
(c) the different dispute resolution processes that can be followed
(d) the roles and functions of the relevant dispute resolution structures instituted by the LRA

15 SELF-ASSESSMENT

After you have completed each lesson, it is necessary for you to determine whether you have
achieved the relevant learning outcomes stated at the beginning of the lesson. Therefore, read
through the relevant learning outcomes again before attempting to answer the self-
assessment questions.

To ensure that you have achieved the learning outcomes, answer the questions that follow and then study
the feedback on the questions. Remember, the feedback is provided only to ensure that you are on the right
track – it does not provide “model answers”. You are still required to consult sources of your choice to answer
the questions and achieve the learning outcomes.

Question 1

Explain and justify the criteria you would use to evaluate whether a grievance procedure was operating
effectively.

Question 2

You are the labour relations manager at a group of companies in the retail industry. You find that the line
managers do not deal with disciplinary matters consistently. You decide to brief them on the role and purpose
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of the disciplinary policy, process and procedure. You intend to emphasise that discipline is not simply a
matter of punishment. Prepare your brief.

Question 3

Your human resource director is concerned that owing to a sudden downturn in the economy, the company
needs to review its retrenchment policy and procedure. She would like you to brief her on the essential
elements/items that need to be included in a retrenchment policy and procedure, as well as other aspects of
good employment practice. Prepare an outline of the briefing you will give her, justifying what you will include.

FEEDBACK

Question 1

You should use section 9 as a point of departure in answering this question. In determining
the effectiveness of a grievance procedure, you would have to consider the perceptions of
employees (Do they view the procedure as fair and just?), managers (Are they committed to resolving
grievances as quickly as possible?) and trade unions (Do they regard the grievance procedure as a viable
means of resolving their members' work-related problems?). If these parties do not find the grievance
procedure acceptable, they will not use it, which means that it will be ineffective. You should further comment
on issues such as the alignment of the procedure with relevant employment relations and organisational
strategies, policies and objectives and the training required.

Question 2

Use section 10 as a point of departure to answer this question. Explain the approaches to discipline and give
reasons for proposing that a positive approach be followed in your organisation. Ensure that the managers
understand that discipline is a process, and what the role of the disciplinary procedure (including the hearing)
and disciplinary code are within this process. Finally, explain the actions that they should take in terms of the
disciplinary code and procedure to ensure consistency in management actions throughout the organisation.

Question 3

As a point of departure for your briefing, you should outline the legal requirements related to dismissal for
operational requirements. It would also be beneficial to benchmark your policy and procedure against those
of other similar organisations to determine best practice. Do they, for instance, provide training opportunities
for retrenchees in order for them to find alternative employment?

16 LIST OF REFERENCES AND ADDITIONAL READING

If you want to cite this Lesson in your assignments, you may cite it as follows:

In the text:
According to Deas (2019)… OR ….(Deas 2019)

In the list of references:

Deas, A. 2019. Advanced Labour Relations Management, Lesson 08 (2019).
Pretoria: University of South Africa.

Bendix, S. 2010. Industrial relations in South Africa. 5th edition. Cape Town: Juta.

Bendix, S. 2015. Labour relations, a southern African perspective. 6th edition. Cape Town: Juta.
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Finnemore, M, Koekemoer, GM & Joubert, YT. 2018. Introduction to labour relations in South Africa. 12th
edition. Durban: LexisNexis.

Gennard, J & Judge, G. 2010. Managing employment relations. 5th edition. London: Chartered Institute of
Personnel and Development.

Grogan, J. 2014. Dismissal. Cape Town: Juta.

Nel, PS, Kirsten, M, Swanepoel, BJ, Erasmus, BJ & Jordaan, B. 2016. South African employment relations,
theory and practice. 8th edition. Pretoria: Van Schaik.

Republic of South Africa. 1995. Labour Relations Act 66 of 1995. Government Gazette, 366(16861). Pretoria:
Government Printer.

Republic of South Africa. 2014. Labour Relations Amendment Act 6 of 2014. Government Gazette,
590(37921). Pretoria: Government Printer.

Salamon, M. 2000. Industrial relations: theory and practice. 4th edition. Upper Saddle River, NJ: Prentice
Hall.

Slabbert, JA, Prinsloo, JJ, Swanepoel, BJ & Backer, W. 2006. Managing employment relations in South
Africa. Service issue 9. Durban: LexisNexis.

Swanepoel, BJ & Slabbert, JA. 2012. Introducing labour relations management in South Africa. Durban:
LexisNexis.

Van Niekerk, A, Christianson, MA, McGregor, M, Smit, N & Van Eck, BPS. 2012. Law@work. Durban:
LexisNexis.

Venter, R (ed), Levy, A (ed), Holtzhausen, M, Conradie, M, Dworzanowski-Venter, B & Bendeman, H. 2011.

Venter, R (ed), Levy, A (ed), Bendeman, H & Dworzanowski-Venter, B. 2014. Labour relations in South Africa.
5th edition. Cape Town: Oxford University Press.

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