Most Recent Publications http://www.labourguide.co.za/most-recent Mon, 21 Aug 2017 04:34:42 +0000 Joomla! - Open Source Content Management en-gb Contempt of court…on Facebook and WhatsApp? http://www.labourguide.co.za/most-recent/2501-contempt-of-court-on-facebook-and-whatsapp http://www.labourguide.co.za/most-recent/2501-contempt-of-court-on-facebook-and-whatsapp

Contempt of court…on Facebook and WhatsApp?

By Samiksha Singh, Director and Zola Mcaciso, Associate, Employment, Cliffe Dekker Hofmeyr

 

The Labour Relations Act regulates the right to strike and provides mechanisms to ensure the protection of employees who embark on protected strikes. Despite the clear letter of the law, some unions and employees have misunderstood the extent of the protections conferred by the right to strike. A tough lesson was learnt by the Commercial Stevedoring Agricultural & Allied Workers Union (CSAAWU) and certain striking employees when they embarked on a protected but acrimonious strike at Robertson Winery.

 

Robertson Winery approached the Labour Court on an urgent basis to interdict and restrain the striking employees from engaging in unlawful conduct in furtherance of the strike. The urgent application was opposed and the parties agreed on the terms of a final court order which was granted on 25 August 2016. They agreed on picketing rules which provided inter alia that the strikers conduct themselves in a peaceful and lawful manner and that they would not possess any weapons. 

 

Four days after the agreement was made an order of court, the union updated its Facebook account with photographs of its members carrying sticks, sjamboks and golf clubs. Furthermore, the strikers chanted a song with the words ‘dubula Reinette’, which directly translates to ‘shoot Reinette”. Reinette is the Human Resources manager for Robertson Winery. Robertson Winery raised this with the union and reminded them that the conduct was in contravention of the picketing rules and agreed terms of the court order. However, the union maintained that there was nothing wrong with the song, but that the strikers would nevertheless to stop singing it.  

 

On 8 October 2016, Robertson approached the Labour Court and sought to hold the union in contempt of the court order issued on 25 August 2016. Robertson Winery alleged that the court order was not complied with in three respects, 

 

(a) replacement labourers were prevented from going to work; 

 

(b) by chanting the song ‘shoot Reinette’; and 

 

(c) by uploading photographs on Facebook of strikers carrying dangerous weapons. 

 

The union opposed the application and alleged that these photographs were taken before the initial court order was granted. In support of its application, Robertson Winery relied on the photographs uploaded to the union’s Facebook account and affidavits and WhatsApp messages from the replacement employees who were threatened and intimidated to not tender their services.

 

Judge Steenkamp restated the principles applicable in contempt of court proceedings and held that in this case, the court order was not in dispute as the parties agreed to the terms. The court then had to determine whether there was non-compliance by the union with the court order and once this was established, whether the non-compliance was wilful and in bad faith. 

 

In dealing with the allegations of intimidating replacement employees, the Labour Court highlighted that the purpose of picketing is to peacefully encourage non-striking employees to support the protected strike and that in doing so they must conduct themselves peacefully, unarmed and in a lawful manner. The union was specifically restrained from inciting, instigating or promoting any unlawful conduct by its members. The Labour Court considered the affidavits and WhatsApp messages of the replacement employees which contained allegations that were met with bare denials by the union. In considering the evidence, the Labour Court found that the union’s denials were on the whole, so far-fetched or clearly untenable that the Labour Court could reject them on the papers. The Labour Court also found that the song ‘shoot Reinette’ was a variation of a well-known struggle song which has been held to constitute hate speech and that an incitement to kill does not enjoy constitutional protection. It also held that even though the striking employees had stopped singing the song, the misconduct took place on a date after the court order was issued. 

 

In relation to the carrying of dangerous weapons, the Labour Court found that Roberson Winery had proven that the uploading of photos of employees carrying dangerous weapons on Facebook constituted a breach of the court order and picketing rules. Furthermore, the union did not show that it was not wilful or in bad faith, nor did it take any efforts to remove the photographs on Facebook. Whilst the Labour Court found that the misconduct did not progress into significant violence, contempt of court is always serious and undermines the rule of law.

 

In mitigation of the punishment, Judge Steenkamp held that although the strike was protected, the union breached certain aspects of the court order and therefore to leave it unpunished would countenance a culture of impunity and undermine the rule of law. The Labour Court issued a 12 month suspended fine of R50,000 against the union. Certain individual members of the union were also found to be in contempt of court but no penalties were imposed on them. No order was made as to costs of the application as the Labour Court was of the view that this would negatively affect
a relationship which was already in a fragile state.    

 

This case serves as a reminder to unions and employees that they are not absolved from liability and cloaked with unlimited protection when on a protected strike. It is also useful to note the ability of employers to use evidence from social media in order to protect its rights against unlawful conduct by unions and employees. 

 

For more information please contact Samiksha Singh at samiksha.singh@cdhlegal.com or Zola Mcaciso at 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, 15 Aug 2017 05:45:31 +0000
Avoid conflicts of interest with your employer http://www.labourguide.co.za/most-recent/2500-avoid-conflicts-of-interest-with-your-employer http://www.labourguide.co.za/most-recent/2500-avoid-conflicts-of-interest-with-your-employer

Avoid conflicts of interest with your employer

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorney

 

In the recent case of City of Cape Town v SALGBC and Others (C353-16, 2 August 2017) the Labour Court found that an employee’s failure to declare his involvement in other business entities warranted his dismissal by the employer. The case serves as an important reminder to employees that a failure to declare their involvement in outside enterprises may compromise their duty of good faith owed to their employer and result in their dismissal.

 

The employee had worked for the City of Cape Town for some 29 years and at the time of his dismissal he worked as a technician in the City’s Housing Maintenance Unit in Elsiesrivier. After receiving an anonymous tip-off the City discovered that the employee had failed to declare his involvement with three entities. One of the entities was owned by his wife and was registered as a vendor with the City. Another was owned by his brother and had traded with the City for an amount totalling some R285 000 over a period exceeding two years. The third entity was jointly owned by the employee and his brother, but it appeared that the employee had resigned his membership of the entity.

 

As the City had clear rules in regard to the duty on employees to disclose their outside business interests and to avoid a conflict of interest at all times, the employee was charged with six counts of gross dishonesty. The first three charges related to his failure to disclose the outside interests mentioned, while the remaining charges dealt with the employee’s involvement in supply chain and other processes which created a conflict between his personal interests in the three entities and those of the City. The employee was dismissed following a disciplinary enquiry and he subsequently referred an unfair dismissal dispute to the CCMA.

 

At the CCMA, the arbitrator found that the employee had indeed failed to disclose his involvement in the three entities and had made himself guilty of gross dishonesty as charged. She therefore found that he was guilty of the first three charges of gross dishonesty. Notwithstanding this, when considering the appropriate sanction the arbitrator found that the employee had not engaged in ‘gross dishonesty’ and ordered the City to reinstate him and pay him one year’s back pay.

 

The City reviewed the arbitrator’s award in the Labour Court. It argued that the Commissioner had committed an error of law which rendered the award so unreasonable that no other arbitrator could have come to the same conclusion. The Court held that after the Commissioner had found the employee to be guilty of the first three charges of gross dishonesty, she then made an about turn by stating that he had not been guilty of ‘gross dishonesty’. The Court found that such a finding was ‘irrational’ and constituted a reviewable defect. The evidence before the arbitrator was that the employee had deliberately withheld information regarding his outside business interests from the City, in circumstances where he knew that he was required to disclose it. It was also clear from the employee’s evidence that he had knowledge of the rule, as he had resigned from one of the entities in the hopes of avoiding a conflict. For the arbitrator to have found that the employee was guilty of gross dishonesty, but to find that such gross dishonesty did not warrant dismissal rendered the award unreasonable. The Court accordingly found that the dismissal of the employee was fair and set aside the arbitration award.

 

Employees increasingly have to resort to outside business interests or even secondary employment to ensure that they are able to make ends meet in the modern economy. This has important implications for employers, even in circumstances where the outside business interests may not at face value appear to be in competition or in conflict with the employer’s interests. It often happens that outside business interests or secondary employment impacts on an employee’s ability to perform their normal duties, either due to fatigue or due to having to deal with issues arising from the outside interest during working hours. Employers should therefore carefully consider how these issues should be dealt with and implement appropriate policies to regulate them. Nevertheless, as in this case, any outside activity which conflicts with the interests of the employer is likely to result in dismissal.

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

 

 

 

 

 

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Mon, 14 Aug 2017 03:34:54 +0000
Fired for refusing a medical test http://www.labourguide.co.za/most-recent/2499-fired-for-refusing-a-medical-test http://www.labourguide.co.za/most-recent/2499-fired-for-refusing-a-medical-test

Fired for refusing a medical test

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

 

The Labour Court case of Pharmaco Distributors (PTY) LTD v Weideman LAC (2017) ZALCJHB 258 was the topic of discussion recently with emphasis placed on the role that the employment contract played in the matter. The case was recently taken to the Labour Appeal Court which further scrutinised the relevant issues. First, let us recap what the case involved.

 

This matter involved an employee suffering from bipolar disorder who refused to undergo medical testing despite her contract of employment containing a clause which provided that she had to undergo medical testing whenever the employer deemed it to be necessary. The employer ultimately dismissed the employee for disobeying this instruction and the Labour Court found that her dismissal was automatically unfair.

 

The employer then took this judgment on appeal to the Labour Appeal Court. The Labour Appeal Court ultimately confirmed the decision of the Labour Court. It emphasised the below important principles.

 

Firstly, it held that the clause in the employee’s contract of employment relied on by the employer is patently offensive and invasive of the privacy rights of the employee. It held that it was plainly inconsistent with s7(1) of the Employment Equity Act, No 55 of 1998 (EEA), which prohibits medical testing of employees unless certain conditions are met. The employer’s argument that “the testing was justified given that the [employee] had consented to undergoing a medical test…” therefore had to fail as consent was not one of the exceptions contained in s7(1) of the EEA.

 

The Labour Appeal Court also held that there was a clear manifestation of discrimination against the employee because of her bipolar disorder. This was because regardless of her exceptional performance reviews, the mere fact that she suffered from a bipolar disorder was a matter of such concern to the employer that she was dismissed when she refused to undergo the medical testing. Therefore, there was a direct causal connection between the employee’s disorder and the dismissal.

 

What the Labour Appeal Court importantly added to the Labour Court’s judgment is that no matter what the reasoning behind a request by an employer for an employee to undergo medical tests, such request must be in strict compliance with s7 of the EEA. The Labour Appeal Court dismissed the employer’s appeal in this case and essentially held that neither the argument of consent in terms of the contract, nor operational requirements for the job would stand as a legitimate defence in such circumstances. Therefore, as stated above, the ‘motive’ is irrelevant. 

 

For more information please contact Aadil Patel at aadil.patel@cdhlegal.com or 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 Tue, 08 Aug 2017 06:53:31 +0000
Shop stewards: “A licence to confront”? http://www.labourguide.co.za/most-recent/2498-shop-stewards-a-licence-to-confront http://www.labourguide.co.za/most-recent/2498-shop-stewards-a-licence-to-confront

Shop stewards: “A licence to confront”?

By Aadil Patel, Director and Courtney Jones, Candidate Attorney, Employment Law, Cliffe Dekker Hofmeyr

 

Shop stewards are not special. They may think they are. They also may at times believe that they manage the business. However, similar to CEOs, shop stewards must conduct themselves in an appropriate manner. They are held to the same standards as any other employee.

 

The recent case of National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and Others [2017] 5 BLLR 483 (LAC), dealt with the question of whether shop stewards are to be held to the same behavioural standard as other employees. 

 

In this case, the employee had been employed by the employer for a period of nine years and was a shop steward at the workplace. The employee had an altercation with the payroll administrator as he didn’t agree with management’s interpretation of a provision in the MIBCO collective agreement regulating how employees on night shift were to be paid for work performed on a public holiday.

 

The employer’s evidence was that the employee confronted the payroll administrator and, in an aggressive voice, said: “Don’t lie to my people that I agreed to how they would be paid”. 

 

Further evidence was led that the employee’s finger moved in the direction of the payroll administrator and that the service centre supervisor thought the employee was going to hit her. The employee was dismissed on the grounds of physical and verbal assault, serious disrespect and threatening and/or intimidating behaviour towards the payroll administrator. The employee challenged his dismissal. 

 

The Labour Appeal Court held that, “a shop steward should fearlessly pursue the interest of his/her constituency and ought to be protected against any form of victimisation for doing so. However, this is no licence to resort to defiance and needless confrontation. A shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship.”

 

The court was robust in its finding that it is unacceptable to reason that when an employee acts in a representative capacity, “anything goes”.

 

A vociferous shop steward should act in the best interest of his constituency and not in a manner that is unbefitting of the office which he holds.

 

This case is important as it fortifies the principle that shops stewards, regardless of their representative mandate, are to conduct themselves at the same standard as a CEO. 

 

For more information please contact Aadil Patel at aadil.patel@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, 01 Aug 2017 14:38:54 +0000
Accused employee in custody http://www.labourguide.co.za/most-recent/2497-accused-employee-in-custody http://www.labourguide.co.za/most-recent/2497-accused-employee-in-custody

Accused employee in custody

Compliance with ‘The Audi Principle’ v ‘Accused Employee’ In Custody – ‘Do Nothing’ or ‘Dismiss the Inmate/Employee’ – ‘On What Grounds’ or ‘Adopt a Wait & See Approach?’

By Johann Scheepers

 

“The respondent employee had been held for six months on suspicion of having participated in an armed robbery. At that point, the employer lost patience. The HR Manager sent the employee a letter, c/o the police cell, informing him that he had been dismissed…the employee reappeared at the workplace several months after that, the company granted him a ‘post-dismissal hearing’, after which the Labour Court declined to interfere with that ruling on review. The LAC held that dismissal was in the circumstances ‘substantively’ fair. However, the employer was still obliged to give the employee some sort of opportunity to make representations, which it had not done. Nor did the subsequent hearing rectify that oversight. The post-dismissal hearing was nothing more than an attempt to ‘rationalise’ the dismissal…”

 

[See: Dr John Grogan, ‘Dismissal’ Juta, 2014 ed. 288-289].

 

On appeal, the Labour Appeal Court ruled the dismissal substantively fair but procedurally unfair and ordered the employer to pay the employee compensation equal to six months' salary.

 

[See Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC)].

 

The LAC’s judgment did not survive a further appeal to the SCA. That court found that, apart from the that, ‘ that, apart from the fact that the LAC had not identified any reviewable irregularity, that court had based its ruling solely on the alleged ‘mischaracterization’ of the dismissal. The arbitrator had reasoned that the employer had given no reason why the employee’s contract had to be terminated after a mere 10 days’ absence.

 

The employee’s lack of blameworthiness should also have been taken into account. There was also no proof that the employment relationship had been irreparably damaged at that point. The arbitrator would have reached the same conclusion, however, the dismissal had been categorised. The SCA found that the commissioner’s finding that the employee should have been given a chance to make representations before his dismissal [was reasonable].

 

The Court noted further that, while it will interfere with decisions of the Labour Appeal Court only in exceptional cases, in this case, the LAC had failed to consider the issue before it, thus depriving the employee of his right to have that issue determined on appeal. This constituted a failure so fundamental that interference on further appeal was warranted.

 

The appeal was upheld.”

 

[See: NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others [2011] 11 BLLR 1041 (SCA); referred to by Grogan supra at 289].    

 

Introductory comments and observations  

The lengthy quotations above from judgments as well as the authoritative publication by the celebrated author Dr John Grogan has been done with justifiable reason and no excuse will follow for the reasons set out hereunder.

 

The reportedaward, Oberholzer / Central University of Technology, Free State [2017] 6 BALR 678 (CCMA), by V Basholo, Commissioner, should be read and applied within the context of the South African Law of precedence, to wit the doctrine of stare decisis, (which comes from the Latin maxim, stare decisis et non quieta movere) means one stands by (previous) decisions and does not disturb settled points.

 

HR Hahlo and E Khan in their book ‘The South African Legal System and its Background (Cape Town: Juta (1968) at 244 explain the doctrine of stare decisis as follows:

 

'In the legal system, the calls of Justice are paramount. The maintenance of the certainty of the law and of equality before it, the satisfaction of legitimate expectation, entail a general duty on judges to follow the legal rulings in previous judicial decisions. The individual litigant would feel unjustly treated if a past ruling applicable to his case were not followed where the material facts were the same. The authority given to past judgments is called the doctrine of precedent .'.

 

For the reasons set out above, the CUT arbitration award should be read and applied within the peremptory context of the SCA judgment and the reasons as set out in the judgment.

 

Be that as it may, the CUT award is of importance in that it has been reported and constitutes a well-reasoned arbitration award. For this reason, it has been deemed appropriate to summarise the award for the edification of the reader.

 

Background Information & Material Facts – [Oberholzer / Central University of Technology, Free State [2017] 6 BALR 678 (CCMA)]:

Editor's Summary: The applicant/employee (the employee), a lecturer, was dismissed after a disciplinary hearing held in his absence while he was in police custody. However, the employee had been invited to make written representations and his legal representative was present during the hearing. The employee was twice invited to present submissions in mitigation.

 

The employee claimed that his dismissal was procedurally unfair because he was not afforded an opportunity to state his version.

 

The Commissioner noted that the Code of Good Practice: Dismissal merely requires an employer to conduct a pre-dismissal investigation and afford the accused employee an opportunity to "state a case".

 

It was common cause that the employee was not in a position to attend the hearing. He was afforded the opportunity to make representations. The employee was an admitted advocate and could have done so. The date on which he would be available to attend a hearing was unknown.

 

The Commissioner found that the employer, CUT had not acted unfairly by proceeding with the inquiry in the manner in which it had done.

 

The application was dismissed.

 

The Arbitration Proceedings

The employee, Advocate Christiaan Mauritz Oberholzer was represented by Advocate S Grobler. The employer was represented by Ms JP Monahadi, an Attorney.

 

For reasons explained above the parties did not present oral evidence, but agreed to submit heads of argument.

 

The issue to be decided

Whether a proper procedure was followed when the employee, who was incarcerated, was dismissed. Substantive fairness was not in dispute.

 

Survey of the evidence

The employee was charged with 8 counts of serious misconduct and his disciplinary hearings were scheduled for 11 March 2016 and 8 April 2016 while he was incarcerated. He was aware of the charges.

 

They were served on him at his legal representative's address. The parties agreed to postpone the hearing scheduled for 11 March 2016. On 8 April 2016, the employee was absent and his legal representative applied for a postponement which was rejected. His legal representative withdrew as his representative, but he was allowed to sit through the disciplinary proceedings as an observer.

 

He was found guilty on 7 charges and he was dismissed on 11 May 2016.  The outcome of the hearing was sent to his legal representative by email on 25 April 2016.

 

Written submissions in respect of the sanction were due on 29 April 2016, but none was received from him or his representative.

 

The employer complied with item 4(1) of Schedule 8 of the LRA.

 

He was given an opportunity to present his version. Although the employee was incarcerated, he was given an opportunity to make written representation but he chose not to do so.

 

A second opportunity to submit written representations was on 8 April 2016 at the disciplinary hearing. Another opportunity to present his version or to argue against the sanction of dismissal was when the employee was served with the outcome of the disciplinary hearing.

 

His legal representative was allowed to observe the disciplinary proceedings and hear the respondent's evidence. The reasons for his incapacity (incarceration) were intrinsically linked to his employment.

 

Substantive fairness was not in dispute.

 

The period of incarceration/incapacity could not be determined, therefore making it impossible to determine when he would be in a position to attend a disciplinary hearing and/or resume employment.

 

The employee was employed as a lecturer which is a key position in the delivery of the employer’s core business.

 

As confirmed in Samancor supra it was not unreasonable to proceed with the disciplinary hearing in the absence of the employee when considering the importance of his position in the framework of the employer’s organisation.

 

Applicant's case

  • In matters with a severe procedural flaw, dismissals have been held to be substantively unfair.

  • Decisions such as Samancor do allow for the dismissal of incarcerated employees, unable to render service, on the ground of incapacity. This is however it is submitted fundamentally different from dismissal for misconduct. The employee was dismissed for misconduct.

  • He was not charged with absenteeism. He was charged with allegations related to specific incidents of alleged misconduct. The charge sheet itself almost supinely set out the nature of these alleged transgressions, and the substance of the charges was only explained during the disciplinary enquiry. It did not record even a paraphrased version of the evidence the respondent was intent on leading.

  • The employer did not provide a synopsis of what evidence it intends leading, what exactly the charges related to and who would testify in that context for the employer

  • Thus, the employee was left with a holistic statement of misconduct related not to his incarceration per se, but to alleged incidents unrelated to the reason for his "incapacity".

  • The reason for his incarceration was related only to one charge bringing the employer’s name into disrepute.

  • His representative could not defend him in his absence, as he could not get proper instructions as to the charges.

  • He could not have made written representations or submissions related to the charges.

  • How was he to know under those circumstances what the evidence entailed? The employer did not wish to conduct the hearing by means of written representations.

  • Nothing stopped the respondent from adding affidavits to its charges, allowing the applicant to deal with such allegations under oath.

  • As an alternative to dismissal, and if the true reason was related to his temporary absenteeism, the employer could simply have refused to remunerate him and placed him on unpaid leave. The employer knew that he could not defend himself.

  • It moreover is somewhat of a chimaera to suggest that the applicant admits that he was guilty of any charges levelled against him. His criminal proceeding is sub judicae and it would have been daft indeed of him to submit himself to any kind of examination on inter alia that question under such circumstances. This is essentially the reason why substantial issues of the dismissal had not been raised.

  • As a consequence, the employee sought ten months compensation.

 

The Arbitration Award

 

Substantive fairness

Substantive fairness was not in dispute.

 

Procedural fairness

Code of Good Conduct, Schedule 8, Item 4 Fair procedure states that the employer should conduct an investigation, notify the employee of the allegations and that the employee should be allowed the opportunity to state a case in response to the allegations.

 

In the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);[also reported at [2006] 9 BLLR 833 (LC) Ed], the court held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.

 

The question is, given the abovementioned whether the respondent had followed a fair procedure in respect of the employee who was incarcerated.

 

It was common cause that the applicant was incarcerated on 17 November 2015 and could not attend the hearings scheduled for 11 March 2016 and 8 April 2016.

 

A referral was made to Samancor Tubatse Ferrochrome v MEIBC and others(2010) ILJ 1838 (LAC) [also reported at [2010] 8 BLLR 824 (LAC) Ed], the court found that an employee who was incarcerated was dismissed without a fair procedure, he was merely given a letter of dismissal.

 

The award:

The Commissioner found that in the case of the employee the employer followed a proper procedure in that:

 

The employee was afforded an opportunity to make written representation but argued that he did not know under the circumstances what the evidence entailed. It was argued that the employer did not wish to conduct the hearing by means of written representations.

 

It was further argued that nothing stopped the employer from providing affidavits to its charges, allowing the applicant to deal with such allegations under oath. The employer did not follow such procedure.

 

The employee was an Advocate and he was represented by an Attorney [sic]. He was facing allegedly serious charges and there was no proof that he communicated in writing to the respondent that, due to his incarceration and him not being able to attend the hearing, he requested the respondent to provide affidavits to the charges, allowing him to respond under oath and that the employer refused.

 

It was further found that the employer did follow a proper procedure given the chain of events and the circumstances.

 

It was not submitted that the employee would be available from a specific date to attend the hearing and that the employer was unreasonable and unfair not to wait but proceeded with the hearing.

 

Therefore, the dismissal of the employee was procedurally fair.

 

Substantive fairness was not in dispute.

 

The application was dismissed.

 

Conclusion

The award is of significant importance in that it deals with the seemingly never-ending fixation with unnecessary formalism insofar as procedural fairness is a requirement for a fair dismissal.

 

The presiding Commissioner referred to the judgment Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);[also reported at [2006] 9 BLLR 833 (LC) Ed], by Van Niekerk, J which by now could be labelled a locus classicus insofar as the judgment extensively stipulates the procedural requirements of a fair hearing.

 

Of equal importance is the ratio in the judgment NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others [2011] 11 BLLR 1041 (SCA) where the SCA pronounced on the employer's duties and obligation in the event of a situation where the employee has been arrested and incarcerated over a lengthy period.

 

In conclusion, the reader hereof is advised to peruse the judgment, Samancor Tubatse Ferrochrome v MEIBC and others(2010) ILJ 1838 (LAC) [also reported at [2010] 8 BLLR 824 (LAC) Ed, that was overturned on appeal in order to be fully aware of the events that led to the matter being pronounced upon by the SCA.

 

If the reader for some or other reason is very much interested in the historical development of the requirement of procedural fairness in South African Labour Law then he/she is welcome to read the article, "The Deformalisation of Disciplinary Proceedings - Demise of the Criminal Justice Model." Scheepers J, ILJ Vol 33, July 2012 Juta, 1539 – 1760.

 

Copyright:

Copyright reserved by the writer and SA Labour Guide hereof. No part of this article/guide may be reproduced, without prior written permission of the author and SA Labour Guide.

The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.

The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.

 

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Sun, 30 Jul 2017 17:04:43 +0000
Not my strike, still my problem http://www.labourguide.co.za/most-recent/2496-not-my-strike-still-my-problem http://www.labourguide.co.za/most-recent/2496-not-my-strike-still-my-problem

Not my strike, still my problem

By Gillian Lumb, Director, Anli Bezuidenhout, Senior Associate and Brynn Travill, Candidate Attorney, Cliffe Dekker Hofmeyr

 

May a company interfere in a labour dispute to which it is not a party if the dispute results in violent strike action adversely affecting its business operations?

 

Strike action can often turn violent. Violence, in addition to the withdrawal of labour, is used to force the employer to meet the employees’ demands. In the process, the employer’s property is frequently damaged. Unfortunately, innocent third parties are sometimes drawn into the dispute and affected by the violence. This scenario, and one of the options available to third parties, was addressed in the judgment of South African Breweries (Pty) Ltd v Professional Transport & Allied Workers Union of South Africa AKA PTAWU [2017] ZAGPJHC 178.

 

The South African Breweries (SAB) is one of South Africa’s premier brewers and leading distributors of beer. SAB implemented an owner-driver scheme in terms of which it contracted with drivers previously employed by it to transport its products. The drivers owned and operated their own trucks and distributed SAB’s products from its various depots to retail outlets. The drivers employed their own staff, consultants and crew. The crew members were members of the Professional Transport & Allied Workers Union of South Africa (PTAWU). PTAWU demanded that the drivers employ a fourth crew member, in addition to the usual three. The drivers refused and a strike ensued. 

 

The strike turned violent quickly. A truck owner was attacked while making deliveries and a truck was vandalised. During the attack, SAB’s product was thrown off the truck. In addition to the violence and damage to SAB’s product, PTAWU sent an email warning SAB that should they continue with their strike action, it would affect SAB’s normal business operations. SAB was forced to engage a private security firm to escort the drivers when delivering SAB’s products and in this way, protect its product. Needless to say, SAB incurred substantial financial costs in doing so. 

 

SAB applied to the High Court seeking an urgent interdict against PTAWU and its representative. The PTAWU representative argued that SAB had no right to the relief or to act on behalf of the truck owners. He further argued that the truck owners should have approached the court to demand protection of their trucks against damage by their employees.

 

In considering the matter, the court had regard to the Constitution and found that it provides for a right to strike and protest peacefully. The reason for this being, at least in part, to protect private and public property from damage or destruction by those participating in a strike. The court held that valuable property warrants protection, whether at the workplace or elsewhere and that despite SAB not having a contractual or employment relationship with the members of PTAWU, it was entitled to protect its product from further damage by those involved in the strike. 

 

Contrary to the PTAWU representative’s argument that only the truck owners could seek relief, the court granted SAB’s application to protect its product from further damage by the strikers and in so doing, protect its business operations. The relief included interdicting and restraining PTAWU from encouraging its members to interfere with, threaten or intimidate drivers’ employees, contractors or representatives while engaging in strike action and encouraging its members to damage SAB’s products. 

 

The judgment confirms a company’s right to seek assistance from the courts when its property is being damaged or its business adversely affected by a violent strike in which it plays no role. As with every strike, we recommend that any company impacted by violent strike action keeps a strike diary and takes photographs of any violent conduct. In this instance, SAB’s foresight in taking photos and submitting these to court as evidence proved invaluable in establishing the nature and extent of the damage caused to its product.

 

For more information, please contact Gillian Lumb at gillian.lumb@cdhlegal.com or Anli Bezuidenhout at anli.bezuidenhout@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, 25 Jul 2017 03:36:59 +0000
Update: Assign Labour Appeal Court Judgment http://www.labourguide.co.za/most-recent/2495-update-assign-labour-appeal-court-judgment http://www.labourguide.co.za/most-recent/2495-update-assign-labour-appeal-court-judgment

Subsequent to an article published recently titled “Victory for temporary employees in the Labour Appeal Court”, we deemed it necessary to also publish a media release by the Confederation of Associations in the Private Employment Sector (Capes) dated 14 July 2017.The aforementioned media release was issued a couple of days after the article was written and provides clarity on the way forward until such time the Constitution Court has dealt with this matter.

 

 Update: Assign Labour Appeal Court Judgment

Media Release: CAPES

 (Confederation of Associations in the Private Employment Sector)

 

On 10 July 2017, the Labour Appeal Court handed down its Judgment in the Assign matter.

 

CAPES has read, with a degree of frustration and disappointment, several reports about the Judgment which seem to fail to appreciate some important aspects of the Judgment. More importantly, these fail to appreciate the fact that all involved in the matter have known, since the challenge was originally made to the CCMA in 2015, that the matter would, in all likelihood, go from the CCMA, to the Labour Court, to the Labour Appeal Court and ultimately to the Constitutional Court.

 

Appeal will be lodged

It is now a matter of public knowledge that the legal team has been instructed to file an application for leave to appeal to the Constitutional Court. This will be done within the three-week period contemplated in the rules.

 

In terms of s18(1) of the Superior Courts Act, the noting of an application for leave to appeal has the effect of suspending the decision which forms the subject matter of that application. Accordingly, the noting of the appeal will have the effect of the status quo remaining until the Constitutional Court finally determines the matter.

 

Accordingly, and despite all knee-jerk responses to the Judgment, it is not anticipated that anything will change, and if it does, that will only be after the Constitutional Court ruling.

 

Whilst it is normally very difficult to determine how long it will take for the matter to be heard in the Constitutional Court, we anticipate that it should be dealt with within a year.

 

Quite apart from the fact that the status quo will remain for the time being, even the Labour Appeal Court Judgment itself envisages labour brokers remaining in the equation post-deeming becoming operative. If the labour broker does remain involved, the joint and several liability provisions apply to both the labour broker and client. It follows that should the Constitutional Court dismiss the appeal, the Labour Appeal Court Judgment will continue to allow labour brokers to play an important role, servicing clients in much the same way as they do now.

 

Having consulted with our legal team, CAPES is optimistic, believing that there are excellent prospects on appeal.

 

Appeal Grounds

CAPES was admitted to the Labour Appeal Court hearing as an amicus curiae (friend of the court) with a view to arguing one primary point. That point being that the Labour Appeal Court has, itself, ruled that the Basic Conditions of Employment Act and Labour Relations Act must be interpreted in a manner that do not conflict with another. They must be interpreted as being in harmony with each other. Despite a great deal of argument being placed before the Labour Appeal Court as to why the single employer argument would result in disharmony (and other problems) this issue was not dealt with by the Labour Appeal Court. CAPES believes that if this issue was dealt with by the Labour Appeal Court, the result would probably have been different.

 

CAPES, with respect to the learned Judges of Appeal, finds it extraordinary that the court deemed it prudent to admit CAPES into the matter because of the issue CAPES wanted to address, but then did not deal with that issue in the Judgment.

 

There are various other legal grounds that serve to lead CAPES to be optimistic about the appeal. For example, another significant aspect not addressed by the court is that one of the primary objectives of the amendments was affording labour broker employees extra protection. While much of the argument in both the Labour Appeal Court and Labour Court addressed this issue, the Labour Appeal Court Judgment does not address this issue. We understand it to be accepted by most that the fact that the labour broker remains involved serves to give added protection.

 

Industry plays crucial role in South Africa

It is a fact that workforce solutions and flexible staff arrangements contribute to major socio-economic gains. It is necessary for the sustainability of many businesses. South Africa competes in the global market and needs the same flexibility as that enjoyed by other countries to remain competitive. In addition, the industry has been proven to provide an essential gateway to the labour market for particularly Youth, enabling access to skills development and employment opportunities.

 

In summary, too many people have read too much into the Labour Appeal Court Judgment and have failed to appreciate the consequences of the pending appeal.

 

In our view, it is business as usual for the industry and all should await the outcome of the Constitutional Court ruling before forming views about the future.

 

Should you have any queries relating to this matter or require context to the case, please do not hesitate to contact Assign’s Attorney of Record, Craig Kirchmann of Kirchmanns Incorporated on 043 721 0963.

 

 

 

 

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andre@labourguide.co.za (andre) Most Recent Publications Tue, 18 Jul 2017 07:16:06 +0000
When a Temporary Employment Service is disputed, who can go on strike? http://www.labourguide.co.za/most-recent/2494-when-a-temporary-employment-service-is-disputed-who-can-go-on-strike http://www.labourguide.co.za/most-recent/2494-when-a-temporary-employment-service-is-disputed-who-can-go-on-strike

When a Temporary Employment Service is disputed, who can go on strike?

By Fiona Leppan, Director, Employment, Cliffe Dekker Hofmeyr

 

Jimmy Nyambi & 14 Others V H C Shaik Investments CC (Shaik) and Nampak Glass (Pty) Ltd (Nampak):

 

The applicants, in this case, are employed by H C Shaik Investments CC (Shaik). They applied to the Labour Court on an urgent basis to restore unilateral changes to their employment conditions until the dispute about whether Nampak is also their employer is determined at arbitration. The changes imposed by Shaik pertained to a relocation of the workplace, the imposition of short time, a reduction in staff per shift with a less than proportionate cut in minimum target rates. The arbitration, which is still pending, will determine whether the applicants are employed by Shaik or deemed to be employed by Nampak.

 

Shaik is engaged in tasks to check and remove any defective bottles produced by Nampak once the entire production process is complete, and after the goods have been sorted and packaged by a different service provider. The applicants allege that Shaik is a labour broker providing temporary employment services to Nampak and that the latter is their employer. This allegation is denied, Shaik and Nampak submit that the relationship is a commercial one governed by a service level agreement, where Shaik is the managed service provider to Nampak.

 

The object of the applicants’ urgent application to the Labour Court was for them to preserve their ability to engage in protected strike action against their true employer/employers where they claimed that there had been unilateral changes made to their terms and conditions of employment. Shaik is their current employer, but the applicants have alleged that Nampak is also their employer and until such time as the pending arbitration is determined, they could not be sure whether they had a right to impose a primary protected strike against Shaik and Nampak. Obviously, this was provided that such changes amounted to unilateral changes to terms and conditions of employment.

 

A primary strike against Nampak, so the applicants argued, would allow Nampak’s own employees to strike in support of the applicants’ demands that the unilateral changes to their conditions of employment be reversed. It is a well-established legal principle that not only the employees who are directly affected by strike demands made on an employer may take part in a protected strike. The applicants, in essence, wanted to interdict the changes to their conditions of employment in the meantime and only exercise their right to strike when they knew whether Nampak’s own employees could participate in the strike. If Nampak was also their employer, its own employees could also participate in the primary strike.

 

Regardless of whether Nampak is the deemed employer of the applicants, or if Shaik is found to be a labour broker, the Labour Court concluded that Nampak’s own workforce could participate in a secondary strike in support of a primary strike by the applicants against Shaik, provided, all the relevant procedural steps under sections 64(4) and 64(2) of the Labour Relations Act, No 66 of 1995 had been followed.

 

That said, the applicants’ urgent application for an interdict to prevent an alteration of their conditions of employment and to preserve the right to strike against the alleged true employer was dismissed on the basis that the applicants had a suitable, alternative remedy, namely possible protected secondary strike action.

 

The gravamen of this case is that if there is an inextricably close link between the work performed by the employees of a service provider and the operations of its client, a protected secondary strike could be possible.

 

For more information please contact Fiona Leppan at 

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, 18 Jul 2017 05:07:31 +0000
Victory for temporary workers in Labour Appeal Court http://www.labourguide.co.za/most-recent/2493-victory-for-temporary-workers-in-labour-appeal-court http://www.labourguide.co.za/most-recent/2493-victory-for-temporary-workers-in-labour-appeal-court

Victory for temporary workers in Labour Appeal Court

Labour Broker Employees the permanent employees of the client after a period of three months

By Jan Du Toit

 

Assign Services & Others (case no JA96/15) – Labour Appeal Court

 

The recently inserted section 198A of the Labour Relations Act has resulted in a significant amount of debate surrounding the “deemed to be” provision. In terms of the aforementioned section of the Act, an employee placed by a Temporary Employment Service Provider (“TES”) with a client, is deemed to be an employee of the client if that temporary employee has worked for the client for a period exceeding three months.

 

After three months of employment with a client, the temporary employee may not be significantly treated less favorably than a permanent employee of the client performing the same or similar work, unless there is proper justification for doing so.

 

It has been widely accepted that the “deemed to be” provision found in section 198A is to be interpreted to mean that after three months of employment with a client, a dual employer relationship will come into existence between the temp, the client and the TES. This was however rejected in the 2015  NUMSA v Assign Services interpretation arbitration award.

 

In the stated case, the stance adopted by the TES was that the placed workers remained employees of Assign for all purposes, and were deemed to also be employees of Krost (the client), for the purposes of the Act. NUMSA’s position was that the placed workers were deemed, for the purposes of the LRA, to be employees only of Krost. The subsequent judgement of acting judge Brassey in the Labour Court resulted in further confusion regarding the aforementioned.

 

On 11 July 2017 Jonathan Jones from Norton Rose Fulbright reported that The Labour Appeal Court on 10 July 2017, confirmed the CCMA’s view that the employment relationship that existed between the TES and its temporary employee, will come to an end if that employee has worked for the client of the TES for a period exceeding three months. The temporary employee of the TES will therefore automatically, in terms of legislation, become a permanent employee of the client.

 

The court considered the provisions of sections 198 and 198A on the whole and held that the “joint and several liability” provision, found in section 198, is intended to deter the TES from further involvement in the employment relationship between the “new” employer and the (no longer temporary) employee. It was further held that the “equal pay for equal work” provision is “to ensure that the deemed employees are fully integrated into the enterprise as employees of the client.”

 

It was also held that:

 

  • section 197 of the Act would not apply under the aforementioned circumstances;

  • the termination of employment by the TES would not prevent the operation of section 198A; and

  • the continued involvement of the TES in the employment relationship in an administrative capacity does not reinstate the TES as the employer.

 

It is important to note that section 198A of the Act and the Labour Appeal Court judgement are only applicable to employees earning less than the prescribed threshold that is currently set at R205433.30 p.a.

 

It is anticipated that this judgement will have serious implications for both Temporary Employment Service Providers and its clients and will as such have to finally determined by the Constitutional Court.

 

For more information please contact Jan du Toit at jand@labourguide.co.za

 

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smclaassen@labourguide.co.za (Fanie) Most Recent Publications Mon, 17 Jul 2017 05:25:00 +0000
You can’t discipline me – I have resigned. Yes, I can. http://www.labourguide.co.za/most-recent/2492-you-can-t-discipline-me-i-have-resigned-yes-i-can http://www.labourguide.co.za/most-recent/2492-you-can-t-discipline-me-i-have-resigned-yes-i-can

You can’t discipline me – I have resigned. Yes, I can.

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

 

The scenario is as follows: an employer discovers wrongdoing on the part of an employee and seeks to discipline them. Upon receiving notice of the employer’s intention, the employee elects to resign rather than to face disciplinary action. The employee purports to resign with immediate effect and fails to honour their notice period in terms of their contract of employment. May the employer nonetheless proceed with the disciplinary inquiry during the employee’s notice period?

 

The applicable legal principles are as follows: an employee’s failure to honour their contractual notice period amounts to a repudiation of the contract of employment. A repudiation is defined as one party demonstrating an unequivocal intention to no longer be bound by the terms of a contract. This gives rise to an election on the part of the innocent party (in this case the employer) to either accept the employee’s repudiation and cancel the contract, or alternatively to reject the repudiation and to hold the employee to their notice period. The latter applies in the case of an employer wanting to discipline an employee during their notice period. There is a further legal principle at play, namely the legal effect of a resignation in terms of South African law. In this regard, it is recognised that a resignation is a unilateral act on the part of the employee which has the effect of bringing about a termination to the contract of employment. It is unilateral in the sense that it does not rely on the consent or acceptance by the employer; it is the act of a resignation which has the effect of terminating the contract subject to the applicable statutory or contractual notice period. In other words, once an employee resigns, the contract is terminated, with the termination taking effect on the last day of the applicable notice period.

 

In 2016, the Labour Court in Kalipa Mtati v KPMG held that the dismissal of an employee who had resigned with immediate effect was null and void since the employee had brought about an immediate end to their contract of employment by resigning with immediate effect, ie without honouring their contractual notice period. The effect of this judgment was that employees who resigned with immediate effect prior to disciplinary action being instituted or concluded could not be disciplined as their employer lacked the requisite jurisdiction to discipline them pursuant to the immediate termination of their contract of employment. This decision gave weight to the aforementioned legal principle that resignations are unilateral acts on the part of an employee which don’t require acceptance on the part of the employer before becoming effective.

 

The obvious controversy created by this authority is that it affords employees facing disciplinary action the option of avoiding a possible dismissal by resigning with immediate effect thereby denying their employer the opportunity of taking disciplinary action against them. This situation may be undesirable for many employers who would, in the face of serious misconduct seemingly committed on the part of the employee, be forced to reflect the reason for termination as being that of a resignation as opposed to a dismissal for misconduct.

 

More recently, the High Court in Ngoduka v Minister of Department of Higher Education and Training was called upon to consider the application of the above-mentioned legal principles. The employee, a lecturer at a public further education and training college, was charged with various charges of misconduct. After being suspended with full pay, pending an investigation, he was subsequently served with a notice to attend a disciplinary enquiry. Two days prior to the date of the hearing the employee submitted a medical certificate the effect of which was to postpone the hearing to a later date. Prior to the enquiry reconvening, the employee served the college with a letter stating that he was resigning with immediate effect. The employee’s contract of employment required him to give one month’s notice of termination of employment. The college refused to accept his resignation with immediate effect and indicated its intention to proceed with the disciplinary enquiry during the employee’s notice period. The employee refused to attend the hearing and the chairperson proceeded with the hearing in his absence. The employee was found guilty of the allegations and subsequently dismissed prior to the expiry of his notice period.

 

The employee referred an application to the High Court to review and set aside the disciplinary proceedings on the basis that they were null and void. He argued that his resignation had brought about an immediate end to his contract of employment and, hence, the employer was not legally permitted to proceed with his disciplinary inquiry. The college opposed the application and argued that it derived authority to discipline the employee from his employment contract read with s16B(3) of Public Service Act of 1994 (the Act) which provides:

 

“if notice of disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice applicable to the employee”.

 

The court established jurisdiction to entertain this employment law dispute in terms of s77(3) of the Basic Conditions of Employment Act (BCEA) which gives the High Court concurrent jurisdiction with civil courts to determine any matters concerning employment contracts. The court held that s16B(3) of the Act was introduced inter alia to deal with scenarios where employees resign in order to avoid adverse disciplinary findings, thereby leaving their employment with a clean disciplinary record. The court held that the college was precluded by the Act from accepting the resignation of the employee which was not in compliance with the requisite contractual notice period pertaining to termination. The employee was thus obliged to serve his notice period. Accordingly, he was still an employee of the college at the time of the disciplinary proceedings and when the dismissal was handed down. He chose to not attend the hearing at his own peril and the finding of dismissal in his absence was thus binding on him. Accordingly, his dismissal was valid and his application was dismissed.

 

Employers will no doubt welcome the authority in Ngoduka notwithstanding that it was decided within the context of the Public Service Act and is therefore arguably of limited application within the private sector. The authority is surely correct, in the sense that notwithstanding an employee’s right to unilaterally terminate their contract of employment by means of a resignation (which is not dependent on an employer’s acceptance or otherwise) they nonetheless remain obligated in terms of contract to honour their notice period by giving their employer the requisite notice of their intention to resign. To not do so amounts to a repudiation of the contract of employment which an employer should be entitled to reject and in so doing, convene and finalise disciplinary proceedings prior to the last day of the employee’s notice period.

 

For more information contact Gavin Stansfield at gavin.stansfield@cdhlegal.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, 04 Jul 2017 04:27:40 +0000