Most Recent Publications http://www.labourguide.co.za/most-recent Thu, 25 May 2017 01:09:14 +0000 Joomla! - Open Source Content Management en-gb Possible change in section 189 requirements: Can employers embark on redeployment before retrenchment processes commence? http://www.labourguide.co.za/most-recent/2465-possible-change-in-section-189-requirements-can-employers-embark-on-redeployment-before-retrenchment-processes-commence http://www.labourguide.co.za/most-recent/2465-possible-change-in-section-189-requirements-can-employers-embark-on-redeployment-before-retrenchment-processes-commence

 

Possible change in section 189 requirements: Can employers embark on redeployment before retrenchment processes commence?

By Aadil Patel, Director, National Practice Head and Samantha Bonato, Associate, Employment, Cliffe Dekker Hofmeyr

 

The recent case of ArcelorMittal South Africa Limited v NUMSA (case number: J 421/17) unpacked what is meant by avoiding job losses.

 

Judge Van Niekerk held that s189 of the Labour Relations Act, No 66 of 1995 (LRA):

 

“specifically contemplates that prior to a formal invitation to consult being issued, measures to avoid job losses are to be considered and where necessary, implemented. Indeed, a failure to do so undermines the notion of retrenchment as a measure of last resort and amounts to breach of this section.” 

 

What does this mean for employers? The answer lies in the facts of this case. 

 

The employer sought to restructure its operations in order to avoid retrenchments. It had not issued any s189(3) notices. The National Union of Metalworkers of South Africa sought to halt the redeployments to consult further with ArcelorMittal.

 

Their application was dismissed. The Court held that an employer must embark on measures to avoid job losses even before a s189(3) notice is issued. Such measures include the redeployment of employees from one job to another.

 

In light of this recent decision, could an employer offer voluntary severance packages to employees in order to avoid job losses prior to issuing s189(3) notices. Current case authority seems to suggest otherwise. 

 

For more information please contact Aadil Patel at aadil.patel@cdhlegal.comor Samantha Bonato at samantha.bonato@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Wed, 24 May 2017 11:07:29 +0000
Employees Have a Legal Recourse Against Unfair Discrimination in the Workplace http://www.labourguide.co.za/most-recent/2464-employees-have-a-legal-recourse-against-unfair-discrimination-in-the-workplace http://www.labourguide.co.za/most-recent/2464-employees-have-a-legal-recourse-against-unfair-discrimination-in-the-workplace

 

Employees Have a Legal Recourse Against Unfair Discrimination in the Workplace

By Magate Phala

 

Section 6 (1) of the Employment Equity Act 55 of 1998 as amended provides that no person may unfairly discriminate, directly or indirectly, against any employee in any employment policy or practice. Such discrimination includes race, gender, sex, pregnancy, marital status, family responsibility, ethnic, or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

 

The Act further provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsection 1.

 

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) defines discrimination as meaning:

 

“any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly:

 

(a) imposes burdens, obligations or disadvantage on, or

 

(b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds.”

 

Section 6 of PEPUDA supra stipulates that neither the State nor any person may unfairly discriminate against any person.

 

In his book entitled Employment Rights second edition (Juta 2014) at page 214, Professor John Grogan distinguishes between direct and indirect discrimination. He states that direct discrimination occurs when adverse action is taken against people precisely because they possess one of the characteristics listed in section 6 of the Employment Equity Act, or akin thereto; for example, when a woman is overlooked for promotion merely because she is a woman. Direct discrimination, however, occurs when seemingly objective or “neutral” barriers are placed before people which exclude members of particular groups merely because they happen to members of those groups. Indirect discrimination may be either intentional or unintentional.

 

An employee who has been unfairly discriminated against may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination. If the dispute remains unresolved after conciliation, the employee may refer the dispute to the Labour Court for adjudication or an employee may refer the dispute to arbitration if the employee alleges unfair discrimination on the grounds of sexual discrimination.

 

Who bears the burden of proof?

Section 11 (1) of the Employment Equity Act supra further provides that if unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination:

 

(a) did not take place as alleged or

 

(b) is rational and not unfair or is otherwise justifiable.

 

Subsection 2 provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:  

 

(a)   the conduct complained of is not rational;

 

(b)   the conduct complained of amounts to discrimination, and

 

(c)   the discrimination is unfair

 

Remedies for Unfair Discrimination Disputes

If the CCMA or the Labour Court decides that an employee has been unfairly discriminated against, the Court/CCMA may make any appropriate order/arbitration award, including:

 

(a)   the payment of compensation by the employer to that employee;

 

(b)   the payment of damages by the employer to that employee;

 

(c)   an order/award directing the employer to take steps to prevent the unfair discrimination or similar practice occurring in the future in respect of other employees.

 

In Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC), a female employee had resigned and claimed constructive dismissal arising from the complaint that she was sexually harassed and assaulted by another security guard who was her supervisor. The employer failed to take any disciplinary action against the supervisor despite receiving and being aware of the complaint. In the first instance, the Court confirmed the power it had in terms of section 50(2) of the EEA to award (a) compensation and (b) damages in cases of discrimination. In dealing with the facts of the case the Court held that:

 

“For the purposes of the EEA, failure of the respondent to attend to the problem brings the whole issue within the bounds of discrimination. The nub of the complaint laid with the respondent involved sexual harassment. Its failure to attend to the matter is by definition as envisaged by s6 (3) read with s6 (1) of the EEA, discrimination based on sexual harassment.”

 

In Department of Correctional Services and Another v Popcru and Others, the Supreme Court of Appeal ruled as automatically unfair the dismissals of male correctional officers who were dismissed for refusing to cut their dreadlocks on the basis that it discriminated against the officers on the grounds of religion, culture and gender. The SCA held as follows at paragraph 25:

 

“Even assuming otherwise, no evidence was adduced to prove that the respondents’ hair, worn over many years before they were ordered to shave it, detracted in any way from the performance of their duties or rendered them vulnerable to manipulation and corruption. Thus, it was not established that the short hair, not worn in dreadlocks, was an inherent requirement of their jobs. A policy is not justified if it restricts the practice of religious belief – and by necessary extension, a cultural belief that does not affect an employee’s ability to perform his duties, nor jeopardises the safety of the public or other employees, nor causes any undue hardship to the employer in a practical sense.”

 

Written by Magate Phala, who specialises in Labour Law, and writes in his private capacity. For more information, kindly contact Magate Phala at magatephala@gmail.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Mon, 22 May 2017 07:40:56 +0000
Be wary of incorporating disciplinary codes and procedures into employment contracts http://www.labourguide.co.za/most-recent/2463-be-wary-of-incorporating-disciplinary-codes-and-procedures-into-employment-contracts http://www.labourguide.co.za/most-recent/2463-be-wary-of-incorporating-disciplinary-codes-and-procedures-into-employment-contracts

 

Be wary of incorporating disciplinary codes and procedures into employment contracts

By Gavin Stansfield, Director and Zola Mcaciso, Associate, Employment, Cliffe Dekker Hofmeyr

 

In the case of Steven Motale v The Citizen 1978 (Pty) Ltd and Others LC (J2819/16) [2017] ZALCJHB 22, the employee, a newspaper editor, was suspended after allegedly breaching the employer’s policy by publishing a potentially sensitive article as an exclusive story without receiving prior approval from the employer’s lawyers before publication. The employer alleged in the suspension letter that the employee failed to act in a trustworthy manner and failed to implement agreed procedures and that this conduct ultimately led to the breakdown of the employment relationship. 

 

A few days after the employee was suspended, the employer addressed a second letter to the employee formulating the alleged misconduct committed by the employee and calling him to make representations in respect thereto.

 

In response, the employee wrote a letter to the effect that he regarded himself innocent until proven guilty and that he wished to exercise his right to have the matter determined through a disciplinary enquiry before an independent chairperson as prescribed by the employer’s own disciplinary code and procedure. The employee was insistent that in terms of his employment contract, he was entitled to have a disciplinary enquiry in accordance with the employer’s disciplinary code since that code was incorporated into his employment contract. The code entitled the employee to have his dispute heard where witnesses could be called and cross-examined. 

 

The employer responded with a third letter stating that the employee’s letter was factually incorrect. In this letter, it appeared as though the employer was no longer relying on the allegation of misconduct on the part of the employee, but rather on the fact that the employment relationship has broken down between the parties. It was apparent from this letter that the employer had already decided that the employee was guilty of misconduct, but what was left to be determined was the impact of the misconduct on the employment relationship, namely the breakdown of trust.

 

The employer insisted that the employment relationship had been broken and gave the employee a deadline to make written submissions as to why he thought the employment relationship had not broken down. The employee refused to make written submissions and insisted on his right to be heard at a disciplinary inquiry. The employer served the employee with a notice of dismissal after he failed to present written submissions. The employee approached the Labour Court on an urgent basis and sought an order declaring his suspension null and void and declaring the termination of his employment a breach of his employment contract. The employer argued that the termination of the employment relationship was not based on misconduct, but rather based on the employer’s view that the employment relationship had broken down, while the employer argued that it was not obliged to follow the disciplinary code but to dismiss the employee summarily. The Court held that it was clear that in the absence of an enquiry the employer had already decided that the employee was guilty of misconduct resulting in the break of the trust relationship between the parties. The Court held that it appears as though the employer has conveniently ignored the fact that what led to the alleged breakdown of trust relationship was the alleged misconduct of the employee and that the employee disputed being guilty of misconduct and requested a hearing which requests the employer ignored and unjustifiably considered the employment relationship irretrievably broken. The employer, the Court held, denied the employee his contractual right to have his misconduct dispute heard at an enquiry.

 

The Court concluded that the disciplinary code was incorporated into the contract of employment which mandated that disciplinary enquiries be held in cases of alleged misconduct, and in this case it was clear that the employer failed to comply with the disciplinary code when it terminated the employee’s contract without affording him an opportunity to be heard at a disciplinary enquiry. The Court concluded that this constituted a breach of the employee’s employment contract entitling the employee to be reinstated. The Court ordered the employer to comply with its disciplinary code.

 

This case confirms the position that employers must follow their disciplinary code and procedures, particularly where they form part of an employee’s employment contract. A failure to do so may result in a breach of the employment contract which may have significant financial implications for the employer. 

 

For more information contact Gavin Stansfield at gavin.stansfield@dlacdh.com or Zola Mcaciso zola.mcaciso@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Tue, 16 May 2017 06:01:44 +0000
Think twice before you prosecute: Can employers be held liable for malicious prosecution claims arising from internal disciplinary proceedings? http://www.labourguide.co.za/most-recent/2462-think-twice-before-you-prosecute-can-employers-be-held-liable-for-malicious-prosecution-claims-arising-from-internal-disciplinary-proceedings http://www.labourguide.co.za/most-recent/2462-think-twice-before-you-prosecute-can-employers-be-held-liable-for-malicious-prosecution-claims-arising-from-internal-disciplinary-proceedings

 

Think twice before you prosecute: Can employers be held liable for malicious prosecution claims arising from internal disciplinary proceedings?

By Nicholas Preston, Director, Sean Jamieson, Associate, Employment, Cliffe Dekker Hofmeyr

 

This question arose in the judgment of Mahlangu v Minister of Police (66326/2010) [2017] ZAGPPHC 13.

 

In this case, the employer laid charges of assault with intent to do grievous bodily harm against Mahlangu, which resulted in his suspension for approximately four months pending an investigation. The charges were subsequently withdrawn. 

 

Ordinarily, this would be the end of the matter and the employee would return to work with no disciplinary record. However, this was not the case for Mahlangu, who claimed that the dubious charges proffered against him by his employer constituted malicious prosecution. Mahlangu instituted a claim for damages against the employer in the High Court for compensation in the amount of R625,000.00.

 

There is no automatic right to claim compensation in a malicious prosecution claim in South African law. The claimant is first required to prove the damages suffered before any right to claim compensation accrues. Prior to dealing with the merits of the claim, however, the parties agreed that the Court must first determine whether a claim of malicious prosecution may arise from internal disciplinary proceedings or whether such a claim is limited to civil or criminal proceedings instituted in a court of law.

 

The employer, relying on English case law, argued that internal disciplinary proceedings are excluded from the law of malicious prosecution and such a claim is limited to malicious criminal or civil proceedings. However, the Court indicated that while foreign law may have a persuasive value, courts should “avoid an uncritical adoption of foreign law principles”. 

 

In dismissing the English law relied upon by the employer, the Court focused its analysis on the requirements of the South African law of delict, its flexibility and the South African Constitutional order. In doing so, the Court held that the fact that these proceedings were not instituted in a court of law should not be a decisive factor and that South African law adopts a flexible approach in this regard. 

 

The Court went on to state that the charge against Mahlangu, albeit in the forum of internal disciplinary proceedings, nevertheless impaired the good name and dignity of Mahlangu and, according to the Court, it was difficult to see how this type of harm could only manifest itself in the form of criminal proceedings. 

 

The Court, therefore, ruled that the charges proffered against Mahlangu constituted a cause of action for malicious prosecution. However, what is crucial is the Court’s comments and seeming differentiation regarding the fact that Mahlangu was charged under regulations promulgated in terms of the South African Police Services Act, No 68 of 1995, which governed the disciplinary procedures of the employer. The Court held the following:

 

“There can be no doubt that the plaintiff was charged departmentally in terms of a (statutory) law promulgated in the form of subordinate legislation as opposed to, for instance, a domestic code of conduct which came into existence by agreement only”

 

The Court’s focus on this differentiation leaves us with a level of uncertainty regarding the position of non-state, private employers whose disciplinary proceedings are not regulated under statute. The Court essentially stated that it is dependent on the facts of each case. The Court held: 

 

“It is important to bear in mind that not all disciplinary proceedings are of a similar nature. It should, therefore, be pointed out that I have attempted to apply the law as it is found to be, or should be, in the case before me, without suggesting that it should necessarily also apply to all other cases of disciplinary proceedings”

 

Employers with disciplinary procedures regulated by statute/regulations may, therefore, be subjected to malicious prosecution claims, depending on the circumstances of each case. Where non-state, private employers are concerned, the Court’s position is unclear and as such, it seems that it may also be possible for these employers to similarly be exposed to claims for malicious prosecution. Accordingly, both state and private employers are advised, as should always be the case, to first ensure that any disciplinary proceedings instituted against employees are founded upon reasonable and probable cause, along with the necessary evidence, in order to avoid the risk of malicious prosecution claims.

 

For more information contact Nicholas Preston at nicholas.preston@cdhlegal.com or Sean Jamieson at sean.jamieson@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Tue, 16 May 2017 03:52:01 +0000
Labour Appeal Court Sanctions Employer for Sexual Harassment http://www.labourguide.co.za/most-recent/2461-labour-appeal-court-sanctions-employer-for-sexual-harassment http://www.labourguide.co.za/most-recent/2461-labour-appeal-court-sanctions-employer-for-sexual-harassment

 

Labour Appeal Court Sanctions Employer for Sexual Harassment

By Neil Coetzer, Partner and Taryn York, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

 

In Liberty Group Limited v Margaret Masango JA105/2015 the Labour Appeal Court dealt with a claim of unfair discrimination arising from an employee’s sexual harassment by a manager of the employer.

 

In this case the employee had been sexually harassed on at least four occasions by her line manager and reported the incidents of sexual harassment to the employer. The employee was referred to the employer’s Sexual Harassment Policy in order to determine whether the harassment she was being subjected to amounted to sexual harassment, and if so, what requirements she would need to fulfil in order to lodge a complaint against her manager.

 

The employee did not lodge the complaint of sexual harassment against her line manager, as she was contacted by him and informed that he was aware that she had reported the harassment. The employee was thereafter afraid to lodge a complaint.

 

The employee attempted to resign from the employer on 28 September 2009, but was persuaded not to do so by her team leader in order for the employer to be able to deal with and investigate the matter.

 

The employer then appears to have taken no further steps to investigate the claims of sexual harassment following the employee’s attempted resignation. The employee resigned on 13 October 2009 and cited the reason for her resignation as her working environment being intolerable due to the ongoing and continued sexual harassment by her manager.

 

The Labour Appeal Court found that it had to determine, inter alia, whether the Labour Court had failed to apply section 60 of the Employment Equity Act 55 of 1998, as amended (“the EEA”) correctly, whether the employee’s manager had contravened a provision of the EEA in committing sexual harassment and whether the employer failed to take the necessary steps in order to eliminate the alleged misconduct.

 

The purpose of the EEA is to promote equal opportunity in the workplace and to ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds. Section 60 of the EEA also provides for liability of employers who fail to take all reasonable steps to ensure that its employees do not contravene the EEA.

 

The Court considered the requirements for employer liability under the EEA and found that the requirements to prove employer liability were, inter alia, that the alleged harassment must be brought to the immediate attention of the employer and that the employer must have failed to take all reasonable and practicable measures to ensure that employees did not act in contravention of the EEA.

 

The Court found that as the employer did not call upon the employee’s manager to give evidence to indicate that no sexual harassment had occurred, the employee had proved that she had been sexually harassed by her manager and that she had proven the existence of unfair discrimination as defined in the EEA.

 

The Court further found that the employee had brought the sexual harassment to the attention of the employer immediately and that the employer did not take all reasonable and practicable steps to eliminate the alleged conduct and comply with the EEA after being notified of the sexual harassment by the employee.

 

The Court reiterated that the employer, in its response to the employee’s report of sexual harassment, failed to take note of the purpose of the EEA and acted in a manner which the EEA seeks to prevent. The employer failed to recognise the serious nature of the misconduct, was disinterested in resolving the issue in the prescribed manner and did not protect its employee against such unfair discrimination.

 

The employer’s appeal was dismissed with costs and it was ordered to pay the employee damages in the amount of R250 000,00.

 

The judgment serves as a warning to employers to ensure that reports of sexual harassment and unfair discrimination are addressed quickly and in an appropriate manner. Failure to do so may lead to a breach of the EEA and a subsequent award for damages being made against the employer.

 

For more information please contact Neil Coetzer or Taryn York at ncoetzer@chlegal.co.za or TYork@chlegal.co.za telephone (011) 783 8711 / (011) 048 3000

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Mon, 15 May 2017 03:28:17 +0000
Constructive criticism or constructive dismissal? http://www.labourguide.co.za/most-recent/2460-constructive-criticism-or-constructive-dismissal http://www.labourguide.co.za/most-recent/2460-constructive-criticism-or-constructive-dismissal

Constructive criticism or constructive dismissal?

By Samiksha Singh, Director, Rebecca Cameron, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr

 

It is trite that in terms of the Labour Relations Act, No 66 of 1995 (LRA), ‘dismissal’ includes a scenario where “an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee.” In the circumstances, the termination by the employee will be regarded as a constructive dismissal in terms of s186(1)(e) of the LRA. The onus is on the employee to establish the existence of a dismissal when the employee claims that he/she has been constructively dismissed. 

 

In such circumstances, the employee will need to show that:

  • the employment circumstances were so intolerable that the employee could not continue employment;

  • the unbearable circumstances were the cause of the resignation by the employee; There was no reasonable alternative at the time but for the employee to resign to escape the circumstances;

  • the unbearable situation must have been caused by the employer; and

  • the employer must have been in control of the unbearable circumstances.

 

In the case of Snyman/Solveco (Pty) Ltd [2017] 4 BALR 467 (CCMA), an employee, who held the position of an actuarial scientist, resigned after two meetings that had occurred some months prior. The employee alleged that the employment relationship had become intolerable because of the manner in which she had been treated by the managing director (MD) during these two meetings. The employee testified that the MD had made comments such as, “I cannot believe you said that you want a career since you act like a …. packer…”, “I can surely scratch out some filing work, since you cannot f..k that up”, and “I do not have money to pay you to sit and roll ‘boogers’!”

 

During the disciplinary enquiry, the MD denied making the statements towards the employee. He later changed his stance at the arbitration and attempted to claim that it should not be interpreted as an intention to insult and offend the employee. Despite the MD’s denial, the employee’s evidence on what the MD had said was not challenged under cross-examination. In the absence of contesting the evidence of the employee, her version, that the MD made such statements, was accepted.

 

The Commissioner took issue with the fact that the employee did not lodge a grievance against the MD in order to bring the issues to the attention of the employer prior to her resignation. During the evidence of the MD, she conceded that the situation could have been worse for the employee had she lodged a grievance.

 

In this particular case, the failure to lodge a grievance was not detrimental to the employee’s allegation of a constructive dismissal.

 

The Commissioner found that the treatment of the employee at these two meetings had gone beyond criticising the employee’s work performance. In this instance, the Commissioner found that the dismissal was unfair as the employer’s behaviour went so far as to intimidate, belittle, humiliate and threaten the employee. The employee was awarded two months’ compensation.

 

Employers are therefore advised to exercise caution in the manner and form that they provide their employees with guidance, mentoring and evaluation of performance. Constructive guidance and instruction should be provided to employees to enable them to perform well. It should never be calculated to victimise or demean the employee as this could be construed as grounds for a claim of constructive dismissal. 

 

For more information please contact Samiksha Singh at samiksha.singh@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Thu, 04 May 2017 11:02:18 +0000
The provision of transport for day-shift employees working until late: when overtime and night work overlap? http://www.labourguide.co.za/most-recent/2459-the-provision-of-transport-for-day-shift-employees-working-until-late-when-overtime-and-night-work-overlap http://www.labourguide.co.za/most-recent/2459-the-provision-of-transport-for-day-shift-employees-working-until-late-when-overtime-and-night-work-overlap

 

The provision of transport for day-shift employees working until late: when overtime and night work overlap?

By Siphamandla Dube, associate, Fasken Martineau

 

The regulation of night work is governed by section 17 of the Basic Conditions of Employment Act, 1997.  Section 17(1) defines night work as work performed after 18h00 and before 06h00 the next day.  Section 17(2)(b) of the Act provides that an employer may only require or permit an employee to perform night work if transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.

 

In TFD Network Africa (Pty) Ltd v Singh NO & Others [2017] 4 BLLR 377 (LAC), the Labour Appeal Court had to determine whether an employer has to ensure that transport is available to a day-shift employee who is required to work overtime beyond 18h00.

 

The employee, Mr Maas was employed by TFD Networks Africa (Pty) Ltd ("TFD Networks") as a truck driver.  Mr Maas’ normal day-shift ended at 17h00.  In terms of his contract of employment, Mr Maas agreed to work overtime when required to do so and the main agreement concluded in the National Bargaining Council for the Road Freight and Logistics Industry ("NBCRFLI") also provides for overtime work.

 

On 6 and 7 December 2010, TFD Networks instructed Mr Maas to work overtime from 17h00 to 19h00.  Mr Maas worked until 18h00 on both days but refused to work until 19h00.  Mr Maas’ reason for refusal was that the last bus that normally dropped him off near his residence in Lentegeur in Mitchell’s Plain left shortly after 18h00.  If he had to take the last bus to Mitchell’s Plain at 19h00, it would drop him off at the Mitchell's Plain town centre which is far from his residence and he would then have to walk home through a dangerous crime area to his residence.

 

Aggrieved by Mr Maas’ conduct, TFD Networks instituted disciplinary proceedings against him on the allegations of gross insubordination and breach of contract.  Mr Maas had a final written warning for similar misconduct and was dismissed following a disciplinary hearing.

 

Mr Maas referred an unfair dismissal dispute to the bargaining council.  The arbitrator found that his dismissal was unfair and ordered TFD Networks to reinstate him.  The arbitrator held that in terms of section 17 of the Act, any work performed after 18h00 and before 06h00 was considered night work; TFD Networks was obliged to ensure that transport was available to Mr Maas’ place of residence; that the available transport was ‘not suitable’ for Mr Maas; and the fact that Mr Maas was prepared to work until 18h00 indicated that he did not have the intention to be ‘deliberately insubordinate’.

 

TFD Networks took the award on review to the Labour Court.  TFD Networks criticised the arbitrator for applying the provisions of section 17 of the Act while the parties’ conditions of employment were governed by the main agreement under the NBCRFLI.  However, it is important to note that the main agreement contained a similar provision to section 17 of the Act.  TFD Networks argued that section 17(2)(b) of the Act is only applicable to those employees who regularly do night work.

 

In determining the matter, the Labour Court considered the purpose of the legislation and the mischief that the legislature was trying to combat by regulating night work.  The Labour Court found that the purpose of the regulation of night work is to avoid or minimise health risks, including the risks to the safety of workers commuting to and from work.

 

The Labour Court rejected TFD Networks’ contention that section 17(2)(b) of the Act only applies to employees who regularly do night work.  The Labour Court held that such an interpretation would deprive the employees of any protection afforded by section 17(2)(b).  Accordingly, the Labour Court held that section 17(2)(b) envisages that an employer must ensure that transportation is available between the workplace and the employee's place of residence on each occasion where that employee has to work beyond 18h00, and not only where the employee regularly performs night work or where his or her shift falls predominantly during the hours after 18h00 and before 06h00.

 

In the circumstances, the Labour Court concluded that Mr Maas’ concern that it would endanger his life to walk home for a considerable distance at night from Mitchell’s Plain town appears to be a valid one.

 

However, the Labour Court found that the arbitrator’s finding that the employer 'was obliged to provide transport' was an incorrect reading of section 17(2)(b).  The employer must only ensure that transport is available between the workplace and the employee’s place of residence.  The Labour Court further noted that the transport was available at 19h00 but it was not suitable for Mr Maas since it was not going to drop him off 'in the vicinity' of his residence.  The award of the arbitrator was held not to be unreasonable and the review was accordingly dismissed.

 

Dissatisfied with the judgment of the Labour Court, TFD Networks appealed the decision to the Labour Appeal Court.  TFD Networks argued that the provisions of the main agreement regulating night work applied only when most of an employee’s shift falls between 18h00 and 06h00 and that the agreement did not apply when employees perform work after 18h00 on overtime.  The Labour Appeal Court rejected these submissions.  It  found that the employer’s duty to provide transport at the beginning and end of a “shift” contemplated in section 17(2)(b) applies to work performed after the end of the working day, including overtime work, between 18h00 and 06h00.  The LAC further held that an employee’s safety to get home is one of the considerations that the regulation of night work attempts to preserve.

 

The Labour Appeal Court concluded that since TFD Networks had failed to provide the protective measures to Mr Maas while he was required to perform night work, TFD Network had attached an unlawful condition to the instruction, that he find his own way home, the instruction had been unreasonable.  Mr Maas was accordingly entitled to raise absence of those measures as a defence to a charge of insubordination.

 

In light of this judgment, when an employer requires an employee to work beyond 18h00, the employer needs to assess whether it is safe for an employee to commute on the available transport to get to his or her place of residence. Employers who engage employees on night work should ensure, inter alia, that employees are able to obtain safe transportation between their places of residence and their workplace even if an employee does not regularly work night shift and even if the most part of the employee’s shift is before 18h00.  The employee cannot be compelled to work beyond 18h00 in circumstances where the employer does not ensure that transport is available between the workplace and the employee’s place of residence.  A further point to note is that the provisions regulating night work apply regardless of the employee’s gender, geographical location, whether it is light or dark at 18h00 or 06h00, and whether the employee lives in a dangerous area or one that is generally considered to be a safe area.

 

For more information please contact Siphamandla Dube at sdube@fasken.com or 011 586 6095 

You may visit Fasken Martineau at http://www.fasken.com/en/johannesburg/

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Tue, 02 May 2017 04:16:38 +0000
Review applications and post-transfer realities http://www.labourguide.co.za/most-recent/2457-review-applications-and-post-transfer-realities http://www.labourguide.co.za/most-recent/2457-review-applications-and-post-transfer-realities

Review applications and post-transfer realities

By Samiksha Singh, Director, Employment, Cliffe Dekker Hofmeyr

 

When contemplating the purchase of a business as a going concern, it is necessary to carry out the appropriate due diligence of the respective business. It is always positive to find that no red flags exist and especially comforting to know that the business has, in the past, successfully defended unfair dismissal claims. There is an arbitration award in favour of the business so you think that there is no cause for concern. Think again! Get those additional warranties.

 

Section 197 of the Labour Relations Act (LRA) provides for the automatic transfer of employment rights and obligations which existed immediately before the date of transfer of business and continue in force as if they have been rights and obligations of the new employer. Of particular relevance, s197(5) of the LRA also provides that the new employer will be bound by any arbitration award, in respect of employees to be transferred, immediately prior to the date of transfer. 

 

The purpose of s197(5) of the LRA was scrutinised by the Labour Appeal Court in High Rustenburg Estate (Pty) Ltd v NEHAWU obo Cornelius & others.

 

This dispute spanned approximately 14 years since the dismissal of 18 employees. The dismissals were initially found to be fair by the Commission for Conciliation, Mediation and Arbitration (CCMA) during 2004. Aggrieved by the CCMA’s award in favour of High Rustenburg Hydro (Pty) Ltd, (the old employer at the time), National Education Health & Allied Workers’ Union (NEHAWU) instituted review proceedings in the Labour Court. Prior to the finalisation of the review proceedings, High Rustenburg Hydro (the old employer), sold its business as a going concern. Subsequent to further commercial transactions, High Rustenburg Estate (Pty) Ltd (the applicant) became the new employer.  

 

The old employer failed to inform the Labour Court of the transfer of its business during the review proceedings. When the Labour Court set aside the CCMA award, declared the dismissals to be unfair and ordered compensation equivalent to 12 months’ remuneration for the 18 employees, the old employer did not pay the compensation, resulting in a writ of execution being issued against property in order to secure payment of the compensation owed to the dismissed employees. 

 

The applicant became aware of the dispute as the property which became the subject of a writ of execution formed part of the business that had been transferred to it and therefore belonged to the applicant.

 

Further protracted litigation ensued as the applicant argued that NEHAWU was required to obtain a separate declaratory order which held that it was liable for the old employer’s debt. The applicant also argued that it was not provided with an opportunity to defend a claim against it when it became the new employer. The applicant was therefore permitted to file a stated case, in which it argued that the writ of execution be set aside. 

 

Upon hearing the stated case of the applicant, the Labour Court found that the writ of execution was lawfully issued in terms of s197(5) of the LRA and the property of the applicant could validly be sold in execution. It is this order that has become the subject of appeal in the present case. 

 

The Labour Appeal Court was required to evaluate “whether a substitution of an arbitration award made after the transfer of the business from an old employer to a new employer binds the new employer in that the award is deemed to have taken effect at the very least from the date on which it was made, albeit incorrectly”.

 

The Labour Appeal Court reiterated that the purpose of s197, in its entirety, was to ensure job security of affected employees when a business is transferred. Therefore, in the circumstances of the present case where the employees were eventually successful, they could not be denied protection simply because of the timing of the transfer of the business of their old employer. 

 

In essence, the Labour Appeal Court held that the review and substitution of an arbitration award is of full force and effect as if it was done on the date of the arbitration award. Whilst the arbitration award which was initially in favour of the old employer will undoubtedly favour the new employer in terms of s197(5) of the LRA, so too must the reversal of that arbitration award bind the new employer, albeit many years later. 

 

It is, therefore, important for “old and new” employers to take caution in respect of favourable arbitration awards considered during a due diligence of a proposed sale of business, as a reversal of the award will bind the new employer.

 

For more information please contact Samiksha Singh at samiksha.singh@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Wed, 26 Apr 2017 04:36:55 +0000
Flying high – Weed in the workplace http://www.labourguide.co.za/most-recent/2455-flying-high-weed-in-the-workplace http://www.labourguide.co.za/most-recent/2455-flying-high-weed-in-the-workplace

Flying high – Weed in the workplace

By Jose Jorge, Director and Steven Adams, Associate, Employment, Cliffe Dekker Hofmeyr

 

In the last few weeks, several news outlets have suggested that the use of cannabis is now legal. Before employees are emboldened to light up, it’s important to note that this isn’t what the High Court found.

 

In Prince v Minister of Justice and Constitutional Development and Others [2017] ZAWCHC 30, the Western Cape High Court reasoned that the “blunt” instrument of criminal law as employed under the current legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned.

 

The Court declared parts of the Drugs and Drug Trafficking Act, No 140 of 1992 and the Medicines and Related Substances Control Act, No 101 of 1965 inconsistent with the Constitution to the extent that they encroach upon private use and consumption of cannabis for personal purposes. The Court suspended its declaration of invalidity for two years to allow Parliament to correct the defects in the legislation.

 

If Parliament amends the relevant legislation to give effect to the Prince judgment, employers may have to reconsider how, in the workplace, they deal with the effects of personal cannabis use.

 

Most employers have policies dealing with alcohol and drug abuse. Depending on the industry and the nature of the employees’ duties, the employer’s approach to alcohol abuse and the sanction imposed may vary. Employers, however, generally adopt a zero-tolerance approach to the use of illegal drugs.

 

Testing for alcohol is relatively easy. Breathalysers, although not uncontroversial, provide an efficient and quick means to estimate blood alcohol levels through the analysis of a person’s breath. This allows an employer a fairly accurate view of the probable physical and mental impairment of the employee based on the blood alcohol concentration.

 

If the personal use of cannabis is legalised, it is likely that employees who previously feared the legal consequences of partaking may now do so. This may lead to an increasing focus on cannabis use and its impact on the workplace.

 

There are a number of ways to test for cannabis. These include urine, hair and blood analysis. Traces of cannabis can be detected for up to 10 days to six months after use. In contrast, alcohol may leave the bloodstream within hours after consumption.

 

Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known and the tests are likely to be more complicated and time-consuming. It appears that the tests for cannabis also cannot accurately determine the degree of impairment of the employee to do his or her job.

 

A more nuanced approached in the workplace will be required for dealing with the use of cannabis than that for alcohol. An employee that has a “drag” in the morning before coming to work may be able to function optimally at work even though technically they may be under the influence. An employee that legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday, even though no longer under the influence, and unlikely to be impaired.

 

As is apparent from the examples provided above, it may be difficult for an employer to justify a dismissal in such circumstances. While an employer may prohibit cannabis use while at work, it would be difficult to police the legal use of a drug that may or may not have an effect in the workplace.

 

As with alcohol abuse, an employer may take disciplinary action against an employee, without a test, where the effects of cannabis are clearly observable and it is clear that the employee is too impaired to do their job or are a risk to other employees in the workplace.

 

Any policy aimed at addressing specifically the use of cannabis and its effects in the workplace, would have to take into account factors such as consent to testing for cannabis, the manner of testing, the nature of the employer’s business, the employee’s duties, the circumstances in which the offence was committed, the observable extent of the impairment, and the employee’s history of cannabis or other drug-related offences at work.

 

Whatever test an employer decides to apply it must comply with s7 of the Employment Equity Act, No 55 of 1998. In terms of s7, the test must be permitted or required by law, or must be justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.

 

Employers should be careful to distinguish between misconduct and incapacity when it comes to cannabis use. Where an employee can show an addiction to cannabis, the employer will have to consider whether counselling and rehabilitation may be appropriate steps. This would require that the employer provide assistance to the employee in terms of item 10(3) of the Code of Good Practice: Dismissals.

 

The fact that cannabis may in future be used by an employee at home does necessarily mean that the employee is entitled to come to work under the influence or with his or her ability to work impaired. The employee is still required to adhere to the employer’s workplace rules and policies. The difficulty employers will face with employees using cannabis is the complexities around proving that an employee’s ability to work was impaired or that the employee was under the under the influence whilst at work.

 

The Occupational Health and Safety implications of the Prince judgment will be addressed in another alert by Fiona Leppan, a Director in our Employment law practice area.

 

For more information contact Jose Jorge at jose.jorge@cdhlegal.com or Steven Adams at steven.adams@cdhlegal.com

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Thu, 20 Apr 2017 04:39:46 +0000
Jurisdictional Prerequisites Stipulated by S32(1)(B) of The Labour Relations Act when Extending Collective Agreements to Non-parties http://www.labourguide.co.za/most-recent/2454-jurisdictional-prerequisites-stipulated-by-s32-1-b-of-the-labour-relations-act-when-extending-collective-agreements-to-non-parties http://www.labourguide.co.za/most-recent/2454-jurisdictional-prerequisites-stipulated-by-s32-1-b-of-the-labour-relations-act-when-extending-collective-agreements-to-non-parties

 

Jurisdictional Prerequisites Stipulated by S32(1)(B) of The Labour Relations Act when Extending Collective Agreements to Non-parties

By Bongani Khanyile, Director at Bongani Khanyile Attorneys

 

In the reportable judgment of Plastics Converters Association of South Africa and NEASA v MEIBC and Two Others JR2282/16, Judge Steenkamp had to deal with the review application to set aside a request to the Minister to extend a collective agreement to non-parties.

 

The Facts

The MEIBC took a decision, purportedly in terms of s32(1) of the LRA, to request the Minister of Labour, who was the third respondent in the matter, to extend a Registration and Administration Expenses Collective Agreement. The applicants argued that that decision is reviewable, either in terms of s 158(1)(g) of the Labour Relations Act or under PAJA or on the grounds of legality.

 

The trade unions party to the Council voted in favour of the extension. However, only two employers’ organisations voted through their representatives at the meeting, and another two exercised their votes by proxy. Between them, the employees employed by those four employer organisations represent, at best, 36% of the employees employed by the members of the employer’s organisations that are party to the bargaining council as envisaged by s32(1)(b).

 

On 30 August 2016, the Council requested the Minister to extend the administration agreement to non-parties for a period of 12 months after a meeting held on 28 July 2016. The Minister published a notice in the Government Gazette on 7 October 2016, inviting representations from interested parties in terms of s32(5)(c) of the LRA.

 

The Analysis

The Learned Judge provided clarity on the impugned decision that was sought to be reviewed. He found that the decision to be reviewed is not the Minister’s decision to extend the collective agreement. That had not happened. What the applicants sought to review was the decision of the MEIBC to request the Minister to extend the administration agreement. The distinction is important, said the Judge, not least in addressing the questions of ripeness and the nature and method of the decision itself.

 

The applicants argued that the jurisdictional facts required by s32(1)(b) were not present. The employer organisations that voted in favour of the request for an extension did not employ the majority of the employees employed by members of the employer parties to the Council.

 

The Respondents argued, inter alia, that the application was premature and therefore not ripe and that the decision of the Bargaining Council did not constitute administrative action.

 

On the issue of ripeness, the Court found that the premise of this argument appears to be that the Minister has not yet extended the agreement. But the impugned decision is that of the Bargaining Council, not the Minister. And the Council’s decision is complete. Should that decision be reviewable, now is the time to review it. The Court further held that it would lead to far greater costs and uncertainty to wait for the Minister to extend the agreement, and then seek to review the Minister’s decision once it had already taken effect and fees had already been levied from non-parties. The matter was, therefore, ripe for hearing as the decision by the Council had been made.

 

Does the decision to request the Minister to extend collective agreements to third parties constitute an administrative action?

As it was conceded by Numsa and the Council that this application could be brought in terms of s158(1)(g) which empowers the Labour Court to review the performance of any function provided for in the LRA on any grounds permissible in law, the Court found it less important to decide whether the Council’s decision to request the Minister to extend the administration agreement to non-parties constitutes administrative action that is reviewable under PAJA or on the principle of legality.

 

Jurisdictional requirements stipulated by s 32(1)(b)

Section 32 stipulates a number of jurisdictional facts before the Council may ask the

 

Minister to extend a collective agreement to non-parties. In casu the one in section 32(1)(a), that at a meeting of the Council, one or more registered trade unions whose members constitute the majority of the members of the trade unions that are a party to the Council voted in favour of the extension, is met. The Applicants contended that the Council did not comply with section 32(1)(b).

 

Section 32(1)(b) requires that, at a meeting of the Council, one or more registered employer’s organisations whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to the bargaining council, vote in favour of the extension.

 

The applicant’s counsel referred the Court to the description of the prescribed process by a full bench of the High Court in the Free Market Foundation v Minister of Labour (2016) 37 ILJ 1638 (GP) which found that “Section 32(1) of the LRA stipulates a number of legal prerequisites to the bargaining council’s action. The collective agreement in question must be concluded in the bargaining council. The decision to ask the Minister to extend it to non-parties must be by way of a resolution taken at a bargaining council meeting. The resolution must be supported by one or more trade unions whose members constitute the majority of members of all the trade union parties to the council. Likewise, the resolution must be supported by one or more employers’ organisations which employ the majority of employees employed by the employer organisation members who are party to the council. The request to the Minister must be in writing. The non-parties sought to be bound must be identified in the written request to the minister, and they must fall within the registered scope of the council.”

 

The Court stated that if these jurisdictional facts are not present, the Council cannot validly ask the minister to extend a collective agreement. The Court found that the legal requirements of section 32 were not met.

 

At the meeting of 28 July 2016, only two employer’s organisations voted in favour of extension and a further two by proxy. Together, they represented no more than 36% of the employees employed by members of the employers’ organisations that are party to the council. However, the percentage did not meet the majoritarian requirement stipulated by section 32(1)(b).

 

The Decision

The Court found that the decision by the Council did not meet the jurisdictional prerequisites stipulated by s 32(1)(b) of the LRA. It also found that it is reviewable in terms of s158(1)(g) of the LRA, but whether it is also reviewable under PAJA and the Constitutional principle of legality, the Court found to be moot.

 

 For more information please contact Bongani at bongani@bkhanyileattorneys.co.za

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Tue, 18 Apr 2017 04:35:22 +0000