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U/S; 11909 – Monitor and Advise on Substantive Conditions of Employment and Related Rights and Obligations in an Organization 

U/S; 11909 - Monitor and Advise on Substantive Conditions of Employment and Related Rights and Obligations in an Organization 

Learning Unit1

US:11909, NQF LEVEL 5 WORTH 5 CREDITS

MONITOR AND ADVISE ON SUBSTANTIVE CONDITIONS OF EMPLOYMENT AND RELATED RIGHTS AND OBLIGATIONS IN AN ORGANISATION

Unit Standard Purpose

This unit standard is intended for persons who are preparing to progress to a supervisor or shop steward position. Persons credited with this unit standard are able to advise organizations on the nature and application of statutory and other conditions of employment.

Learning Assumed to be in Place

It is assumed that people starting to learn towards this standard are able to:

communicate effectively (at least NQF level 4)

apply the competencies described in unit standard titled “Demonstrate understanding of employment relations in an organization”.



SESSION 1

SO 1

IDENTIFY RIGHTS AND OBLIGATIONS IN TERMS OF STATUTES, CONTRACTS AND AGREEMENTS.

Learning Outcomes

(Assessment Criteria)

Sources of information are correctly identified.

Rights and obligations are correctly identified from the identified sources of information.

Statutes, contracts and agreements are correctly ranked in the context of particular conditions.

Rights and obligations in terms of statutes, contracts and agreements are correctly prioritized.

Rights and obligations in terms of statutes, contracts, and agreements.

 

Rights and obligations of parties under contract

A contract is an agreement between parties which is binding in law. Furthermore, the rights and obligations of the parties under a contract may be enforced by the courts. The courts may compel performance of contractual obligations by the party in default or, more commonly, may award damages for breach of contract.

For a contract to be formed four basic elements must be present – offer,

acceptance, consideration, and the intention to create legal relations. Generally, much negotiation takes place between the parties before an agreement becomes binding and a contract is formed. It is important therefore to recognize the precise moment when a contract is formed as this is when the parties assume contractual obligations and the consequent risk of liability if the terms of the contract are breached.

Common Law

Law and the rights and protections formed under them are also created by judges’ decisions in court. This is known as common law. Common law has its basis in precedent – this means that judges follow decisions made in similar cases to create a consistent, just and fair system. However, there are cases when the circumstances or facts of the case are very different, have not arisen before or are viewed by a senior judge as not reflecting current society, so that a decision is made to create or amend the law.

In `common law` legal systems, the law is created and/or refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, common law judges have the authority and duty to `make` law by creating precedent. The body of precedent is called `common law` and it binds future decisions.

Different type of business agreement: there are three two of business agreement express term, implied term and Exemption clauses.

Express terms are terms that have been specifically mentioned and agreed by both parties at the time the contract is made. They can either be oral or in writing.

Breach of express term: Each time you discuss a product or service with a customer you become responsible for providing and agreeing specific information.

For services this may include a time when the service will take place and a price for the complete service

For a product this may include the price and product availability these are known as the express terms.

Exemption Clauses are a particular type of express term, taking two basic forms:

Clauses which exclude liability for the breach of a particular term or terms. This effectively negates any obligation to perform those terms. These may be called exclusion clauses.

Clauses which do not affect the obligation to perform, but which limit the remedies available for a breach. These may be called limitation clauses.

Implied terms on the other hand, are the unquestionable basic qualities of the product or service. Would you consider selling a product to your client that was of inferior quality? Would your mis-describe a product to a customer just to get a sale? Would you sell a service to a customer knowing full well that the service will not achieve the customer’s desired results?

The implied terms describe a basic level of trust between the vendor and the customer. The law provides that, in every transaction for the sale and supply of goods, certain terms are implied. The person selling the goods must have the right to do so, and the goods must:

Correspond with the description: Many transactions involve a description of some kind. When goods are supplied and the consumer relies on such a description, the goods must be ‘as described’. If the description is false, a criminal offence may also have been committed.

Sources of information are correctly identified. 

Information source. … An information source is a person, thing, or place from which information comes, arises, or is obtained. That source might then inform a person about something or provide knowledge about it. Information sources are divided into separate distinct categories, primary, secondary, tertiary, and so on. 

Types of Information Sources

Information can come from virtually anywhere: personal experiences, books, articles, expert opinions, encyclopedias, the Web.  The type of information needed will change depending on its application.  
Individuals generate information daily as they go about their work.  In academic institutions, staff and students consult various sources of information.  The choice of the source to consulted is usually determined by the type of information sought. The three types of information sources are:

  • Primary
  • Secondary
  • Tertiary
Primary Sources
  • Primary sources are original materials on which other research studies are based. 
  • Primary sources report a discovery or share new information [2];
  • they present first-hand accounts and information relevant to an event.
  • They present information in its original form, not interpreted or condensed or evaluated by other writers.
  • They are usually evidence or accounts of the events, practices, or conditions being researched.
  • and created by a person who directly experienced that event.
  • Primary sources are the first formal appearance of results in print or electronic formats Examples of primary sources are: eyewitness accounts, journalistic reports, financial reports, government documents, archaeological and biological evidence, court records, ephemerals (posters, handbills), literary manuscript and minutes of meetings etc [
    The definition of a primary source may vary depending upon the discipline or context. A diary would be a primary source because it is written directly by the individual writing in the diary.
  • Interviews are primary sources because the individual talks about the topic directly from what he/she knows about it.

Print
– Diaries 
–  Letters 
–  Speeches 
–  Patents
–  Photographs 
–  Newspaper articles
–  Journal articles 
–  Theses and dissertations
–  Survey Research (e.g., market surveys, public opinion polls)
–  Proceedings of Meetings, conferences and symposia
–  Original Documents (i.e. birth certificates, wills, marriage licenses, trial transcripts) 
–   Records of organizations, government agencies (e.g. annual reports, treaties, constitutions, government documents)

Electronic

  • Internet
  • E-mail communication
  • Communication in Listservs
  • Interviews (e.g., telephone, e-mail)
  • Video recordings (e.g., television programs)
  • Audio recordings (e.g., radio programs)
  • Web sites
  • Communications through social networking applications (e.g., Face book, blogs, RSS, U-tube etc.)

Others

  • Artifacts (e.g., coins, plant specimens, fossils, furniture, tools, clothing, all from the time under study)
  • Works of art, architecture, literature, and music (e.g., paintings, sculptures, musical scores, buildings, novels, poems).

 

A newspaper article reporting the bomb blast in Abuja, Nigeria, during the celebration of the country’s 50th Independent Anniversary.

Note: The types of information that can be considered a primary source may vary depending on the subject discipline, and how the material is being used.   For example:

  • A research article in a peer-reviewed journal that proved the effectiveness of a newly developed vaccine for the prevention of HIV virus would be a primary source, however,
  • A magazine article that reports the development of a new vaccine for the prevention of HIV infection would be regarded as a primary source.
  • Information in a magazine article that reports a study of how compact fluorescent light bulbs are presented in the popular media could be considered a primary source [3]. 
Grey literature

Grey literature is also important primary source material(s) not available through the usual systems of publication (e.g. books or periodicals) and distribution [11].  Examples are: Conference proceedings, data exchange, environmental impact statements, oral presentations, market research reports, online documents, oral presentations and working papers

Secondary Sources

A secondary source of information is one that was created by someone who did not have first-hand experience or did not participate in the events or conditions being researched.

They are generally accounts written after the fact with the benefit of hindsight.  Secondary sources describe, analyse, interpret, evaluate, comment on and discuss the evidence provided by primary sources.
Secondary sources are works that are one step removed from the original event or experience that provide criticism, interpretation or evaluation of primary sources.
Secondary sources are not evidence, but rather commentary on and discussion of evidence. A secondary data is one that has been collected by individuals or agencies for purposes other than those of a particular research study. 
However, what some define as a secondary source, others define as a tertiary source.  For example, if a magazine writer wrote about the speech Nelson Mandela delivered when he was inaugurated President of South Africa in 1990, it will be a secondary source. The information is not original, but an analysis of the speech.  If a government department has conducted a survey of, say, family food expenditures, then, a food manufacturer might use this data in the organization’s evaluations of the total potential market for a new product.
Similarly, statistics prepared by a pharmaceutical company on the production of a particular drug will prove useful to a host of people and organizations, including those marketing the drug.  
 

Tertiary sources

Definition: Tertiary sources consist of information which is a distillation and collection of primary and secondary sources

Generally, tertiary sources are not considered to be acceptable material on which to base academic research.

Tertiary sources are usually not credited to a particular author. They are intended only to provide an overview of what the topic includes, its basic terminology, and often references for further reading.  Some reference materials and textbooks are considered tertiary sources when their chief purpose is to list, summarize or simply repackage ideas or other information. Examples of tertiary sources include dictionaries and encyclopedias, Wikipedia and similar user-contributed online ‘encyclopedias’ and reference materials, as well as various digests (including the Reader’s Digest) and schoolbooks.

In a nutshell, tertiary sources are:

works which list primary and secondary resources in a specific subject area.
works which index, organize and compile citations to, and show secondary (and sometimes primary) sources can be used.
Materials in which the information from secondary sources has been “digested” – reformatted and condensed, to put it into a convenient, easy-to-read form [
Sources which are once removed in time from secondary sources.

General classification of selected primary, secondary and tertiary source

Primary sources
Secondary sources
Tertiary sources
Autobiographies
Correspondence: email, letters
Descriptions of travel
Diaries,
Eyewitnesses
Oral histories
Literary works
Interviews
Personal narratives
First-hand newspaper and magazine accounts of events
Legal cases, treaties
Statistics, surveys, opinion polls,
scientific data, transcripts
Journal articles
Records of organizations and government agencies
Original works of literature, art or music
Cartoons, postcards, posters
Map, paintings, photographs, films
Biographies,  Encyclopedias, dictionaries, handbooks
Textbooks & monographs on a topic
literary criticism & interpretation
history & historical criticism
political analyses
reviews of law and legislation
essays on morals and ethics
analyses of social policy
study and teaching material
Articles, such as literature reviews,
Commentaries, research articles in all subject disciplines
Criticism of works of literature, art and music

Difference between Primary, Secondary and Tertiary Sources of Information

Primary sources of information are original manuscripts, documents or records used in preparing a published or unpublished work.  For example, an article in a peer reviewed journal that discussed the development of a new vaccine for the prevention of HIV infection will be considered a primary source.  Secondary sources are published or unpublished works that rely on primary source(s).  A commentary by a magazine reporter based on the peer reviewed journal article on the newly invented vaccine for HIV prevention, would be a secondary source.  Tertiary sources are published or unpublished works that are based on secondary sources. Tertiary sources are index to primary sources.   Science Citation Index would be considered a tertiary source.  It is sometimes difficult to differentiate between primary, secondary and tertiary sources. The following publication details of the information adapted from University of Wisconsin libraries [12] can be helpful in determining whether a material is primary, secondary or tertiary source:

Timing of the event recorded–If the article was composed close to the time of the event recorded, chances are it is primary material.  For instance, a letter written by a soldier during the Second World War is primary material, as is an article written in the newspaper or a soldier’s letter home during the Liberian Civil War.  However, an article written analyzing the results of the battle during the Liberian Civil War is secondary material. 
Rhetorical aim of the written item–Often, an item that is written with a persuasive, or analytical aim is secondary material.   These materials have digested and interpreted the event, rather than reported on it
Context of the researching scholar–Primary materials for a critic studying the literature of the Civil War are different from primary materials for a historian studying Civil War prisons. The critic’s primary materials are the poems, stories, and films of the era.  The research scientist’s primary materials would be the diaries and writings of the prisoners.

Rights and obligations are correctly identified from the identified sources of information.

Contract rights are those rights that are granted through a valid contract. These can be expressly written, such as the exclusive rights to use copyrighted material. They can also be inferred from the contract, such as the party’s rights to a fair and equal disclosure of the contract material.

What are the contractual obligations?

Contract obligations are those duties that each party is legally responsible for in a contract agreement. In a contract, each party exchanges something of value, whether it be a product, services, money, etc. On both sides of the agreement, each party has various obligations in connected with this exchange.

What Are Contract Obligations?

Contract obligations are those duties that each party is legally responsible for in a contract agreement. In a contract, each party exchanges something of value, whether it be a product, services, money, etc. On both sides of the agreement, each party has various obligations in connected with this exchange.

An example of contract obligations is with the sale of a product such as an automobile. One party has the obligation to transfer ownership of the car, while the other has the obligation to pay for it. The contract will specify the terms that regulate the obligations, such as the method and amount of payment, and the time/place of delivery. 

If either party fails to perform their contractual obligations according to the contract terms, it will usually result in a breach of contract. This may result in a damages award to reimburse the non-breaching party for their economic losses.

What Are Some Examples of Contract Obligations?

As mentioned, contract obligations generally depend on the specific subject matter of the contract. Contract obligations for a sales contract may be much different than other types of contracts, such as a rental agreement contract. However, most legal agreements contain some of the same types of contract obligations, such as:

Payment:  One party (the buyer) is usually legally bound to provide payment for the sale of goods or services. The contract terms may state obligations regarding payment amounts and the deadline for payment.

Delivery:  The seller is usually bound to provide delivery of the goods or services. Again, the contract may state specific obligations in terms of delivery dates, method of delivery and other terms.

Quality of Goods:  The seller may also be bound to provide goods of a certain quality. This may be specifically described in the contract.

These types of obligations can vary according to the individual details of the contract. In addition to these specific obligations, each party in a contract is also bound by certain general principles and obligations when forming the contract.

For instance, each party is obligated to deal fairly and truthfully with the other party, and each party is also obligated to refrain from using force or coercion in obtaining the agreement.

Rights and obligations in terms of statutes, contracts and agreements are correctly prioritized.

What is the meaning of statutory obligation?

Statutory obligations are those obligations that do not arise out of a contract but are imposed by law. The statutory obligations applicable to the design, construction and operation of buildings are extensive and complicated, and they will depend on the specific nature of the proposed development.

What is the legal obligation?

The requirement to do what is imposed by law, promise, or contract, a duty. In its general and most extensive sense, obligation is synonymous with duty. In a more technical meaning, it is a tie which binds us to pay or to do something agreeably to the laws and customs of the country in which the obligation is made. 

Other conditions of employment.

 

What is basic conditions of employment?

The Basic Conditions of Employment Act stipulates that employers must give workers certain details each time they are paid. Rules for sick leave as prescribed by the Basic Conditions of Employment Act. … The Basic Conditions of Employment Act regulates working hours and rest periods for worker.

Working times: including shift work, weekend work, public holidays and any other overtime
Payment: including payment in kind, deductions, and so on
Leave: annual leave, sick leave, maternity leave, family responsibility leave, unpaid leave and absence without leave
Deductions: including those required by law and those you are allowed to make
Notice periods
Administration: documents needed by employees and record-keeping
Prohibition of victimization and exploitation of workers by the employer and co-workers

Contracts and conditions are regularly monitored according to best practices.

What are the conditions of a contract?                       

This means that each of the parties is obligated, or required, to perform a duty under the contract. The contract conditions determine the parties’ obligations. A condition is an act or event that affects a party’s contractual duty. It is a qualification that is placed on an obligation.

Contract Conditions

Contracts are common in the business world. A contract is a type of legally binding written or spoken agreement. A valid contract will create a mutual obligation. This means that each of the parties is obligated, or required, to perform a duty under the contract.

The contract conditions determine the parties’ obligations. A condition is an act or event that affects a party’s contractual duty. It is a qualification that is placed on an obligation. For instance, let’s say that I promise my brother that I’ll wash the dog if he’ll clean my room. This agreement has a condition. I’m not obligated to wash the dog unless my brother cleans my room.

There are three different forms of conditions. These conditions are categorized by the point in time that the condition must occur. There are conditions that must occur:

Before
During, or
After the contractual duty
Let’s look at each of these forms of conditions.

Condition Precedent

Sometimes a contract will require that a certain act or event occur before some other act or event. This form of condition is known as a condition precedent. A condition precedent is something that must occur before a party is obligated under the contract. The condition precedes the party’s obligation.

This type of condition is common. Contracts often stipulate that a party’s obligation occurs once another act or event occurs. For example, let’s look at my oral agreement with my brother. I promise my brother that I’ll wash the dog if he’ll clean my room. This agreement has a condition precedent. I’m not obligated to wash the dog unless my brother cleans my room. My brother must clean my room before I’m obligated to wash the dog. The clean room is a condition precedent. Once my brother cleans my room, I’m obligated to wash the dog. Until then, I have no obligation.

Condition Concurrent

The second form of contract condition is one that must occur at the same time as some other act or event. This is known as a condition concurrent. A condition concurrent is something that must occur simultaneously with another condition. Each party’s obligation acts as a condition precedent for the other.

When there is a condition concurrent, the parties’ obligations are mutually dependent on each other. Neither party has an obligation until the other party performs his or her obligation. For example, let’s say that I make an oral agreement with my brother. As long as he cleans my room every week, I’ll wash the dog every week. This is a condition concurrent because we are mutually obligated to one another, and our obligations are mutually dependent on each other. As long as he’s cleaning my room, I’m obligated to wash the dog. As long as I’m washing the dog, he’s obligated to clean my room.

This is a common contract condition in the sale of goods or services. When I buy a new shirt in a store, I’m obligated to pay the storekeeper and she’s obligated to give me the shirt. Or, if I purchase the shirt online, I’m obligated to send payment to the store and the store is obligated to send me the shirt. The obligations are concurrently contingent on one another.

Necessary adjustments are made.

Workplace adjustments

Returning to the same workload, commitments and responsibilities at work can often be too much for you to cope with, particularly in the early stages of your return to work. If you become disabled during employment, your employer should make reasonable adjustments to your workplace or working conditions to help you stay in work.

What are reasonable adjustments?

Reasonable adjustments are a key part of the Equality Act 2010 and require your employer to adjust your workplace or working conditions so you can return to work, or continue to work, when they’re aware you have a disability.

Under this law, your employer must:

make changes to your job to allow you to return to work or provide an alternative job, if no adjustments can be made.
prevent you from being at a disadvantage because of your disability.
ensure you have the same access to everything that’s involved in getting and doing a job as a non-disabled person.
remove any obstacles that prevent you returning to work.
Reasonable adjustments can be temporary or permanent. The nature and severity of your disability will determine how long these changes remain.

What adjustments can be made?

Many of the adjustments your employer can make will not be expensive, and you employer is not required to do more than is reasonable for them to do.

What is reasonable depends on:

the size and nature of your employer’s organization.
the nature of your disability.
how your condition affects your ability to work.
Your employer can adjust your:

working arrangements.
workplace or premise.
job and workload.
Involving occupational health, or your trade union when returning to work is advisable as they can make recommendations to your employer about the adjustments to make.

Working arrangements

You can ask for changes to your working conditions, such as:

a phased return to work.
a change to your working hours.
home working.
time off to attend treatment or rehabilitation.
help with transport to and from work.
A phased return, or change to working hours, allows you to readjust to your workload and routine, which can help with your recovery.

Workplace

If your illness or injury was caused by a work-related hazard or work equipment, or your disability requires alterations to your workstation, you can ask for adjustments to your workplace, such as:

improving accessibility to the premises.
altering or adapting workspaces to accommodate your needs.
purchasing specialist furniture or equipment to help you with your work.
moving or recalibrating equipment to improve safety.
Workload

It could be that your job can be adjusted or better supported to help your return. You could ask your employer to:

provide additional training or instruction.
provide a mentor or ask a colleague to help with your workload.
reduce your travel by providing other means to meet clients or colleagues.
provide alternative work or organize your workload around your capabilities.
Planning adjustments

Planning potential adjustments should begin as soon as you begin thinking of returning to work. You should work with your employer to develop a Return-to-Work Plan to incorporate any necessary adjustments.

When planning adjustments, both you and your employer should consider:

what you think you can and can’t do.
what would stop you from returning to work, even if these adjustments were made, and how you would overcome these issues.
how long these adjustments need to remain in place and how often you will review them.
how these adjustments affect health and safety and other regulations.
If you need help when planning adjustments, your occupational health service can support you to make informed decisions considering all of the options available to you.

Access to Work grant

If you need practical support to remain in, or get back to, work, you could be entitled to a grant through the Government’s Access to Work scheme.

This grant can help pay for:

adaptations or specialist equipment.
taxi fares to work if you can’t use public transport.
a support worker or mentor to help you at work.
More about reasonable adjustments

The Equality and Human Rights Commission provide information, with examples, of how reasonable adjustments should be made.

Affected persons are consulted and advised when adjustments are made.

Work adjustments for patients returning from long-term sickness absence.

The effects of long-term sickness absence

being off work for long periods can cause your patients negative health effects because of:

being less physically and mentally active.
a lack of structure to days/weeks.
increased financial pressures.
isolation caused by not participating in ‘normal’ activities due to health/financial constraints.
Because of these issues, it is important that your patients return to work as soon as possible after illness. If you have patients who are are off sick and/or recovering from an illness or injury, it is important that they maintain regular contact with their workplaces throughout their absence (not just when the return to work is imminent) so that they are kept up to date with developments in the workplace.

When your patients finally return to work after long periods of sickness absence they may struggle with:

a loss of confidence in their ability to do their job.
permanent health changes, which may make it impossible for them to perform certain elements of their job.
feelings of guilt, and isolation from other team members.
lack of knowledge about changes in the workplace (e.g., new processes, staff changes, etc.).
You are able to provide advice through the fit note on how employers might manage the return to work. The fit note offers four options for those who may be fit to work. You can choose any of the following options (or a combination of options):

Altered hours.
Amended duties.
Workplace adaptations.
Phased returns (usually recommended after long-term absence of over three months).
Altering the hours of work or a phased return to work may mean a reduction in an patients’ incomes so it is important that they understand that their wages may be affected. This usually depends on the contract of employment and whether sick pay has expired. Some patients will be keen to return to work as normal as soon as possible, with no special considerations, and this should be supported, if practicable and safe (e.g., people wanting to get back to ‘normal’ after chemotherapy). If the employer cannot accommodate your suggested options for the return-to-work plan, then your patient will have to remain absent form work until able to undertake their full role.

What are employers’ responsibilities?

Employees returning to work after long-term sickness absence may require support, including:

induction programmes to update them on what has been happening in their absence.
a phased return to work (working flexible hours or part-time for a fixed period);
temporary allocation of some tasks to another employee.
the option to work from home.
practical work aids and technical equipment.
refresher training on technical aspects of the role.
time off to attend ongoing medical appointments or support.
Employers have a duty to make reasonable adjustments for any of your patients who are covered by the disability provisions of the Equality Act 2010 (including adjustments to the working arrangements/workplace to prevent disabled employees from being substantially disadvantaged compared to non-disabled staff). However, as organizations vary in structure and size, what may be ‘reasonable’ for one may not be so for another? These considerations could include:

evacuation in case of an emergency (lifts cannot be used);
physical access to welfare facilities (e.g., toilets, canteen);
getting in and out the workplace.
conditions of the workplace (e.g., slippery floors, machinery, transport routes);
limitations to normal activity (e.g., standing for prolonged periods, walking long distances or manual handling).
rest periods.
Implications of medication for pain control, which may limit the ability to drive a motor vehicle or operate heavy machinery, for example.


 Provide advice on the application of substantive conditions.

 

Example sentences with “substantive condition”, translation memory.

 

Furthermore, requirements that the oral conclusion of certain types of contracts be customary or that arbitration agreements in certain types of contracts be customary had more to do with substantive conditions for finding that an agreement to arbitrate had been reached than with its form; since it was desirable that the model provision limit itself to issues of form and not deal with substantive conditions for the validity of arbitration agreements, the question of what was customary and how agreement between the parties was reached fell outside the model provision

Substantive Fairness – Misconduct (is my reason good enough to justify dismissal ??)

Was a company rule, or policy, or behavioral standard broken ?
If so, was the employee aware of the transgressed rule, standard or policy or could the employee be reasonably expected to have been aware of it? (You cannot discipline an employee for a breaking a rule if he was never aware of the rule in the first place.)
Has this rule been consistently applied by the employer?
Is dismissal an appropriate sanction for this transgression?
In other cases of transgression of the same rule, what sanction was applied?
Take the accused’s personal circumstances into consideration.
Consider also the circumstances surrounding the breach of the rule.
Consider the nature of the job.
Would the sanction now to be imposed be consistent with previous similar cases?

Substantive Fairness – Incapacity – Poor Work Performance.

Examples: incompetence – lack of skill or knowledge; insufficiently qualified or experienced. Incompatibility – bad attitude; carelessness; doesn’t “fit in.” inaccuracies – incomplete work ; poor social skills ; failure to comply with or failure to reach reasonable and attainable standards of quality and output.

Note: deliberate poor performance as a means of retaliation against the employer for whatever reason is misconduct and not poor performance.

Was there a material breach of specified work standards?
If so, was the accused aware of the required standard or could he reasonably be expected to have been aware of the standard?
Was the breached standard a reasonable and attainable standard?
Was the required standard legitimate and fair?
Has the standard always been consistently applied?
What is the degree of sub-standard performance? Minor? Major? Serious? Unacceptable?
What damage and what degree of damage (loss) has there been to the employer?
What opportunity has been given to the employee to improve?
What are the prospects of acceptable improvement in the future?
Consider training, demotion or transfer before dismissing.


Incapacity – Poor Work Performance – additional notes on Procedural fairness.

If the employee is a probationer, ensure that sufficient instruction and counseling is given. If there is still no improvement, then the probationer may be dismissed without a formal hearing. If the employee is not a probationer, ensure that appropriate instruction, guidance, training and counselling is given. This will include written warnings. Make sure that a proper investigation is carried out to establish the reason for the poor work performance and establish what steps the employer must take to enable the employee to reach the required standard. Formal disciplinary processes must be followed prior to dismissal.

Substantive Fairness – Incapacity – Ill Health.

Establish whether the employee’s state of health allows him to perform the tasks that he was employed to carry out.

Establish the extent to which he is able to carry out those tasks.

Establish the extent to which these tasks may be modified or adapted to enable the employee to carry out the tasks and still achieve company standards of quality and quantity.

Determine the availability of any suitable alternative work. 

If nothing can be done in any of the above areas, dismissal on grounds of incapacity – ill health – would be justified. 

Incapacity – Ill Health – additional notes on Procedural fairness. 

With the employee’s consent, conduct a full investigation into the nature of and extent of the illness, injury, or cause of incapacity.

Investigate alternative to dismissal – perhaps extended unpaid leave?

Consider the nature of the job.

Can the job be done by a temp until the employee’s health improves?

Remember the employee has the right to be heard and to be represented.

Operational Requirements – retrenchments.

All the steps of section 189 of the LRA must be followed. Quite obviously, the reason for the retrenchments must be based on the restructuring or resizing of a business, the closing of a business, cost reduction, economic reasons – to increase profit, reduce operating expenses, and so on, or technological reasons such as new machinery having replaced 3 employees and so on.

Re-designing of products, reduction of product range and redundancy will all be reasons for retrenchment.

The employer, however, must at all times be ready to produce evidence to justify the reasons on which the dismissals are based. The most important aspects of procedural fairness would be steps taken to avoid the retrenchments, steps taken to minimize or change the timing of the retrenchments, the establishing of valid reasons, giving prior and sufficient notice to affected employees, proper consultation and genuine consensus-seeking consultations with the affected employees and their representatives, discussion and agreement on selection criteria, offers of re-employment and discussions with individuals

Relevant source of information is identified and utilized.

One of the hallmarks of scholarly study is demonstrated in your ability to identify relevant information from the sources available. There are three types of information: Primary information which is the original or raw data; this is often referred to as your ‘source’.

Relevant information is applied to problem as identified.

 

Identifying relevant information 
One of the hallmarks of scholarly study is demonstrated in your ability to identify relevant information from the sources available.

There are three types of information:

Primary information which is the original or raw data; this is often referred to as your ‘source’. It is usually presented with little or no analysis. Examples of primary sources include statistics, standards, legislation and company data.
 

Secondary information usually takes raw data and analyses it and presents it in a format that is easier to read and understand. Reports, newspaper articles, textbooks are examples of secondary information.
 

Tertiary information includes books and articles based on the research of others. They aim to explain research for a general audience. This may be useful as a starting point for your research but provide little substance to support your academic assessment since they tend to oversimplify, rely on too few sources and are quickly out of date.
 The most important sources for you are academic literature. This includes refereed research journals and academic textbooks, which reflect upon and discuss the implications of results of research. This literature records and publishes the results of systematic and rigorous research. A systematic and rigorous approach allows the valid and reliable development of knowledge and theory. Research based knowledge relies upon evidence rather than opinion and anecdote.

There are other sources of literature that may be of value to you. These include:

census data
institutional records
private correspondence
oral testimony
research diary
original datasets
reports
dissertations
newspapers
conference reports


However, you need to check if these sources are the views of one person and are based on anecdote or opinion rather than the result of a systematic research approach. To be scholarly, you must be able to distinguish between different sources of literature and their different levels of value and importance to academic study, and then apply them appropriately.

In general, non-academic sources of literature should be treated with caution and not used to make exaggerated or generalized claims. For example, comments from a manager of one fast food restaurant or in one Health Trust can be used as an example of ‘opinions’ in the fast-food business or how to run a department in the Health Service, but cannot be generalized into an explanation (theory) about the fast food industry or the National Health Service.

If you want to be scholarly and produce the best possible academic work/assignments, you must work with the latest ideas and theory in your subject.

 

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