THE COMPULSORY COVID VACCINATION CONTROVERSY

THE COMPULSORY COVID VACCINATION CONTROVERSY

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to:www.labourlawadvice.co.za

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Earlier this year I wrote an article warning of the dangers of enforcing compulsory Covid vaccinations at the workplace. Despite this, a trend towards compulsory vaccination has begun. This is because Covid is still spreading, far too many people are still resisting the necessary safety measures, herd immunity is nowhere to be seen and unemployment continues to edge towards 50% due to our sick economy.

It appeared that our government was doing nothing at all to deal with this spiralling crisis. Then, in June 2021 the Minister of Employment and Labour published the “Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces”. This Direction appears, conditionally, to give licence to certain employers to require employees to get anti-Covid vaccinations. Two of the most important conditions attached to this ‘licence’ appear to be that:

  • The employer had to conduct a risk assessment by 23 July 2021; and
  • If an employee refuses to be vaccinated the employer is required to:
    • counsel the employee;
    • where it is established that the vaccine might constitute a medical danger to the employee, refer him for a medical assessment; and,
    • should the two above steps fail to resolve the issue, try to accommodate the employee where at all possible.

 

This so called “Direction” is unclear with respect to both of these conditions. That is, it is not clear whether an employer that missed the 23 July deadline for doing its risk assessment is still entitled to enforce mandatory vaccinations. And it is also unclear what the employer is entitled to do if an employee who flatly refuses to be vaccinated cannot be accommodated in any way. Must the employer allow the employee to carry on working despite the danger to his colleagues? Or is the employer entitled to consider the termination of his employment after, for example, following an incapacity or operational requirements procedure?

While a few companies have already begun gearing up to implement forced vaccinations on their staff, most employers are following the wait and see approach.

On the side of labour some unions are opposed to their members being forced into getting the jab. At least one union is reported to have put this in writing to employers. This  open letter cites people’s constitutional freedoms.

Specifically, section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Should employees be forced to be vaccinated and/or be dismissed for refusing to do so, there is little doubt that the matter will end up in court.

 

In Court, employers will counter argue sections 36, 11 and 24 of the Constitution’s Bill of Rights. Section 36 provides that the rights conferred by the Bill of Rights may be limited under specified conditions. Employers will argue that, in the case of Covid vaccinations, the employees’ section 12 and 15 rights should be limited in the greater social interest of preserving life and the survival of our economy.

This argument will be supported by the fact that section 11 of the Bill of Rights gives everyone the right to life. As Covid has been a very prolific taker of lives, those people who have to come in contact with a Covid objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Furthermore, section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. In view of this clash of constitutional rights the court will have a tough decision to make.

One circumstance that is likely to sway a Court in the employer’s favour is where the employer can prove that it has tried everything to solve the problem in other ways, and that dismissal is truly the only suitable solution. Employers will also have to prove that having unvaccinated employees at the workplace actually does pose a real threat to others who come into contact with them. As a result, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step.

The big question is, which employer will be the first to face a Court on this issue?

Until the Constitutional Court makes a finding on forced vaccinations the legal position will be uncertain. The real risk of losing in court and the potential harm that could be done to employee relations at the workplace by forced vaccinations make it wise for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails, the employer should consider alternatives to dismissal such as arranging for ‘Vaccinots’ to work in isolation even if this necessitates job swapping where that is viable.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.

EMPLOYEES WHO BLOW THE WHISTLE ARE PROTECTED

EMPLOYEES WHO BLOW THE WHISTLE ARE PROTECTED

The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith. and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures it requires the employee, when making an external disclosure, to at least hold a genuine belief that the employer has acted wrongly. 

Whistle blowing employees are also protected by sections 186(2)(d) and under section 187(1)(h) of the Labour Relations Act (LRA). The former section classifies as an “unfair labour practice” any employer conduct short of dismissal resulting in “an occupational detriment” to an employee who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim would be 12 months’ remuneration.

The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a disclosure protected in terms of the PDA. While few such cases have been reported in labour law it appears that the courts are trying to look after the interests of both employers and employees. 

In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee’s report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court therefore refused to assist the employee.

In a 2006 case the Minister of Justice is reported to have been taken to the Labour Court for removing Mike Tshishonga, a former deputy director-general, from office after Tshishonga had blown the whistle on the Ministry. The Sunday Times of 7 January 2007 reported on page 1 that the Minister of Justice as well as a then deputy director-general of Justice were taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry and alleged nepotism on the part of the Minister of Justice. According to The Sunday Times’s report the Court found that:

  • Tshishonga had been sidelined after refusing to appoint a friend of the Justice Minister
  • He was later axed after making public disclosures
  • The fact that the Minister and the former director-general had failed to testify in court aggravated the claim made against them
  • It was not right that the Public Protector, Auditor-General and Minister in the Presidency had failed to probe the allegations
  • The dismissal of Tshishonga was “vicious”
  • The Justice Department was required to pay Tshishonga 12 months salary in compensation as well as his legal costs.

 

In Baxter v Minister of Justice and Correctional Services and others
[2020] 10 BLLR 968 (LAC) the employee was dismissed after he became involved in a protracted dispute with the Regional Commissioner. The employee had alleged at Labour Court that he had been dismissed for disclosures he had made about manipulation of the selection of five candidates for vacant positions. The Labour Court found against the employee.

The Labour Appeal Court found that the appellant’s disclosures related to irregularities in the recruitment and selection processes and, accordingly, constituted protected disclosures. Even if some of his allegations had been made for an ulterior motive, it did not follow that he had acted in bad faith; his disclosures were not tainted by dishonesty and their contents were for the most part true.

The Court noted that the department had led no evidence relating to the charges of misconduct. It was apparent, however, that the remaining four charges on which the appellant had been found guilty were implausible and trivial and designed to cover the true reason for his dismissal.

The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. 

In view of the above employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.

To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

LABOUR LAWS CONSTRICT EMPLOYERS

LABOUR LAWS CONSTRICT EMPLOYERS

South Africa’s labour legislation provides very heavy protection for employees. That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be dismissed. These obstacles include:

  • A plethora of procedures that must be followed before a dismissal can be considered to be fair
  • Stringent and numerous criteria for deciding whether the reason for a dismissal is fair
  • Broad discrepancy between judges and arbitrators as to the interpretation of the labour law
  • The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order (up to 24 months’ pay in some cases) on the employer 
  • The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing
  • Despite the fact that many employers do not have the expertise to defend cases at the CCMA the law makes it difficult for them to use legal experts as representatives.
  • The Labour Relations Act effectively bans the use of fixed-term contracts except in cases where the employer can prove that the job itself is temporary. 

 

Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date. However, this is a dangerous tactic because labour law has virtually closed this loophole. That is, if the employer gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract. 

In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed term contracts. But then it allowed the last contracts to lapse even though there was still available work for the terminated employees. The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.

In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent. When Ms Pretorius’s contract expired the employer advertised the post to be filled on a permanent basis and refused to renew Ms Pretorius’s contract. She referred an unfair dismissal dispute to the bargaining council because she claimed to have had a reasonable expectation that her contract would be renewed. The arbitrator found that:

  • The employer had a policy that required a fixed-term employee occupying a permanent post to be made permanent if management approved. 
  • The fact that management had advertised the post constituted management approval 
  • This policy gave the employee a reasonable expectation of renewal of her contract
  • The employer’s failure to give the employee the permanent post constituted an unfair dismissal and the employee was retrospectively reinstated.

 

 Another method used by employers to bypass the tough labour legislation is the use of temp. agencies and labour brokers. These agencies are referred to in the Labour Relation Act (LRA) as “temporary employment services” (TES) 

Trade unions, who find this arrangement to be a thorn in their sides, call it ‘Atypical Employment’ and have succeeded in a campaign for severely curtailing it. 

Employers are now finding it very much more difficult to use fixed-term contracts and labour brokers to evade the heavy constraints of labour legislation. All employers now, more than ever before, need to use reputable labour law experts to sharpen their skills in running productive workplaces despite the ever increasingly restrictive labour legislation.

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]labourlawadvice.co.za. Website address: www.labourlawadvice.co.za. 

DISMISSALS UNFAIR IF EMPLOYMENT RELATIONSHIP STILL TOLERABLE

DISMISSALS UNFAIR IF EMPLOYMENT RELATIONSHIP STILL TOLERABLE

Item 92 of the CCMA’s Guidelines: Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, it should be able to show that the employee’s offence was so serious that it made “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, willful damage to the employer’s property, gross dishonesty and assault. 

While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:

  • Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
  • The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
  • Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.

In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”

However, the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness. 

The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. However, if the employer can show serious damage to the relationship caused by the misconduct then the dismissal would be likely to be seen as fair.

In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.

The employer would normally be entitled to argue that racist behavior has rendered continued employment intolerable In the case of CEPPWAWU obo Evans vs Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal.  

In Baxter v Minister of Justice and Correctional Services and others

[2020] 10 BLLR 968 (LAC) the appellant, then an area Commissioner for Kokstad, was dismissed for his alleged improper involvement in the learnership process, in which his daughter was one of the candidates. The appellant claimed that he had really been dismissed for protected disclosures he had made about a colleague’s manipulation of the selection of the five job candidates. 

The Labour Appeal Court found that the applicant’s disclosures were for the most part true and that his dismissal was automatically unfair. 

Turning to relief, the Court found that, although the appellant’s conduct relating to the non-appointment of family members did not justify dismissal, it was enough to make the continuation of an employment relationship intolerable. Reinstatement was, accordingly, not an appropriate remedy. The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. Thus, while employees should avoid making protected disclosures out of spite employers should avoid dismissing employees who make genuine protected disclosures.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

DEBATE HOTS UP RE LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS

DEBATE HOTS UP RE LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS

Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed …… the assistance of a trade union representative or fellow employee.” 

It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings. 

In the case of NUMSA obo Thomas vs Murray and Roberts Alucast (2008, 2  BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union’s claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.

The CCMA Guidelines: Misconduct Arbitrations states that an employee is not automatically entitled to legal representation.

However, in the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA. Report by Dr Elize Strydom distributed 30 January 2005) the employee was refused the right to an external legal representative. 

The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing. 

The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer’s disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances. This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation. 

In the case of Molope vs Mbha (2005, 3 BLLR 267) an area manager was dismissed for unauthorised use of funds and was brought to a disciplinary hearing. The accused employee chose a colleague to represent her but, shortly before the disciplinary hearing this colleague decided not to represent Mbha. The employee therefore applied for a postponement in order to obtain another representative but the employer refused and the employee was dismissed. The Labour Court it found the dismissal to be procedurally unfair and said that “it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented thereat by a co-employee or a trade union official or a lawyer.” 

In Public Servants Association of South Africa obo Leiee and others / Department of Police, Roads & Transport (FS)[2015] 3 BALR 276 (PSCBC) the arbitrator found that neither employers nor employees may appoint lawyers to represent them in disciplinary hearings. However, the courts have made it plain that, while there is no such general right, applications for legal representation must be considered on their merits even if collective agreements or disciplinary codes appear to exclude legal representation absolutely.

In view of the contradictions in the case law as evidenced in the above reports employers are advised, when receiving applications for external representation to consider whether:

  • Their policies allow external representation
  • The complexity level of the case is high
  • The consequences of an adverse finding could be serious
  • There would be no significant prejudice to the employer if legal representation would be allowed
  • The employee’s ability to deal with the case is low in comparison to that of the employer.

 

The above case findings have major consequences for employers engaging in disciplinary hearings. In particular:

  • An employee’s request for legal representation can no longer be dismissed out of hand. While such requests must not always be granted, they must be given very careful consideration.
  • This in turn means that employers will need to ensure that their presiding officers are highly skilled in chairing disciplinary hearings. This is so as to be able to make the right judgement as to whether to allow legal representation or not and also to be able to deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.
  • Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

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