by Ivan Israelstam | Jan 6, 2020 | Jobs
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
Workplace rebellion can bring the company to its knees. The most typical form of rebellion known in South Africa is industrial action. Such rebellion can cripple the organisation especially if it lasts for several weeks and if the majority of employees take part. However, even smaller scale workplace rebellion or defiance can result in costly damage including:
- Discipline and lost employment for employees
- Damaged management-employee relationships
- Trade unions being brought into the workplace
- Reduced morale
- A strained working atmosphere
- Demotivation
- Slowed production output
- Lack of teamwork and co-operation
- Unhappy clients
- Loss of clients and/or loss of orders
- Retrenchments
- Material wastage
- Industrial sabotage
- Increased accidents and injuries
- Go slows
- Outright refusal to obey instructions
There are two basic reasons why employers need to avoid or at least quickly resolve such rebellions:
- Firstly, the above factors are likely to affect profitability.
- Secondly, rebellions have the habit of ending up in the CCMA or bargaining counsel. Neither of these are good places for employer to go. Fighting disputes at such tribunals is time wasting, energy sapping, emotionally draining and financially costly.
In the case of NUMSA obo Rewu vs Borbet SA (2008 3 BALR 237) the employee refused to perform quality inspection work because it did not fall within his job description. As a result he was dismissed. The arbitrator found that the work did fall within his job description and that his repeated refusal to do this work constituted defiance. The dismissal was therefore found to be fair. The employer won this case because it was able to show that the employee’s defiance was unjustified and that the employer had not done anything unreasonable to provoke the defiant act of Rewu.
However, defiance does not always merit dismissal. In the case of Mushi v Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine [2019] 10 BLLR 1134 (LAC) the employee was dismissed for refusing his supervisor’s instruction to allow him to board a truck that the employee was manoeuvring. The employee was dismissed. The Labour Court on review found the dismissal to have been fair.
The Labour Appeal Court found that the employer’s disciplinary code provided for a final warning for insubordination. While it was okay to treat this only as a guideline, departures from such codes must be justified. The Commissioner had taken all relevant circumstances into account before determining that dismissal was too severe. The employee’s appeal was upheld with costs.
Thus, while the law does not give employees the right to disobey instructions or to defy the employer, decisions as to the sanction must be made rationally and not emotionally. Had it been 50 employees that rebelled and were reinstated with backpay this employer would have been in extremely serious trouble. This could mean disaster for the employer because such reinstated rebels will feel untouchable and could become even more disruptive knowing that they are protected by the courts. Therefore, any decision to dismiss such employees should be informed by advice from a reputable labour law expert.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Law Management Consulting.
by Ivan Israelstam | Dec 9, 2019 | Jobs
You can inadvertently guarantee a temp. employee further employment
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
According to sections 193 and 194 of the Labour Relations Act (LRA) the awards and orders that can be made against the employer for unfair dismissal are as follows:
- The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively.
- The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must take the employee back, this will not always be in the same job.
- Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.
- If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.
- Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment.
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 and says goodbye to the employee. However, this is a dangerous and unacceptable tactic because labour law has closed this loophole.
The main purpose of a fixed-term contract is supposed to be the filling of a temporary job. That is, the appropriate time to hire an employee on a fixed-term contract is when the job itself is expected to come to an end at a specific time. It can be very dangerous to employ an employee on a fixed-term contract when the job itself is permanent (unless the temporary employee is merely standing for the permanent incumbent who is away on leave or who has temporarily been deployed elsewhere). The reason for this danger is that, according to the LRA, if the employer (even inadvertently) gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the CCMA or bargaining council could force the employer to renew the contract.
However, the LRA does not define what constitutes a “reasonable expectation”. This confuses employers and allows arbitrators to make their own decisions as to what does and does not constitute a “reasonable expectation”. 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.
The above shows that employers should not take a chance when dealing with the termination of employment contracts. Instead they should obtain expert advice from a genuine and reputable labour law expert.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Law Management Consulting.
by Ivan Israelstam | Dec 2, 2019 | Jobs
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
A previous article discussed the unfair practice of illegally entrapping a suspected employee in order to prove him/her guilty of misconduct. I explained that illegal entrapment occurs when the employer unduly induces an employee to break a rule as opposed merely to providing an opportunity for the employee to break that rule.
I mentioned that illegal entrapment is not the only unfair method used by parties to ensure that an employee is found guilty or not guilty. Numerous other unfair methods may be used at disciplinary hearings, appeal hearings and arbitration hearings. These unsavoury tactics include the falsification of documents, the influencing of witnesses, coercing employees to make admissions or confessions and tampering with audio and video tapes.
It can also happen that the employer instructs the chairperson of a disciplinary hearing to dismiss the accused employee regardless of the evidence brought. It is even possible for a party to attempt to bribe or otherwise influence an arbitrator or presiding officer to make a decision contrary to the evidence. Such methods might be used because there is a lot at stake. But this is obviously not a justification for dishonest practices. Let us look at these unfair tactics in more detail:
Falsification or Fabrication of Documents. This could take the form of:
- An employee getting a medical certificate forged by the doctor’s assistant or from a business specialising in selling certificates
- The accused employee falsifying a letter from a supplier stating that the missing cash refund had not been given to the employee.
- An employer fabricating a letter from a client complaining that the employee was rude to the client.
Parties must be wary of these and other means of bringing false documentary evidence. At a hearing a party is entitled to question the validity of a document. If a competent witness is not present to validate the document and to be examined as to its genuineness the opposing party has a right to oppose the admissibility of the document. However, the presiding officer has the discretion to allow such documents in certain exceptional cases. Even where a witness to the document is produced the other party has the right to challenge that witness’s statements. For example, where the employee brings a doctor to the hearing to validate a doctor’s certificate the employer is entitled to question whether the witness is a qualified doctor or to point out that the medical certificate does not bear an official PR number (practice number).
Influencing of Witnesses: For example, a manager acting as a charging officer could use his authority to intimidate one of his/her employees into giving false testimony against the accused. Alternatively, the employee could offer a witness money in exchange for lying at the hearing. Such tactics are unacceptable.
Coercing Admissions and Confessions: The employer could threaten to hold back the employee’s pay unless he confesses to the misconduct. This is not only unfair, it is also dangerous because, if it comes out that the employer forced the confession, this taints the employer’s case.
Tampering with Taped Evidence: Either party could make deletions or additions to audio or video tapes relevant to the case. However, technical experts are able to pick up such tampering quite easily. For this reason parties are strongly advised not to try such tricks because they are likely to backfire badly.
Instructing a Chairperson to make a False Finding: For example, a senior manager might tell his subordinate who is chairing a hearing to ‘fire the accused come what may’. This is not only dishonest but will be detected and punished at the CCMA because the failure of the chairperson to link the dismissal decision logically to the evidence will be a dead giveaway.
Bribery of a Presiding Officer or Arbitrator: Such practices are highly illegal and, where detected, will nullify the presiding officer’s decision. While bribery itself is not always easy to prove, it is not difficult to prove that the presiding officer who allegedly took the bribe was biased. This is because his/her decision, having been influenced by the bribe, will not fit with the evidence brought at the hearing.
In the case of SACTWU obo Baaitjies and others vs PEP Stores (2004, 3 BALR 377) several shop assistants were dismissed when high levels of stock losses were discovered. The employees had all previously received warnings for the same offence of negligence leading to stock loss. The commissioner accepted that the employees were responsible for the stock losses and that the dismissal decision was justified. However, the Commissioner also found that the presiding officer was biased as he had discussed the case with the charging officer before the hearing. This rendered the dismissals unfair and the employer was ordered to pay each of the employees compensation.
The above makes it clear that there are no shortcuts to proving an employee guilty. The only way to succeed with this is for the employer to use available expertise to gather, prepare and present valid, truthful and relevant evidence and to convert that evidence into solid, unbreakable proof.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Law Management Consulting.
by Ivan Israelstam | Nov 25, 2019 | Jobs
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
I have constantly warned employers that winning at the CCMA is difficult because:
- The employer is the accused at arbitration in the same sense as the defendant in a criminal case
- The employer is normally required to present its case first
- The employer is assumed, from the outset, to be guilty of committing unfair dismissal until it proves itself innocent.
These three factors make the employer’s task of convincing the arbitrator that the dismissal was fair extremely difficult. The employer will not even get to first base until it has persuaded the arbitrator that the employee was guilty of the misconduct or poor performance that resulted in his/her dismissal. An added factor that seriously tips the scales is that too many employers do not make enough effort to provide proof of the employee’s guilt.
On the other hand there are a number of employers who do fully appreciate the uphill battle they have in proving the employee guilty, and who appreciate why such proof of guilt is crucial to winning at arbitration. However, these enlightened employers are still stuck with the problem of how to prove the employee’s guilt. Employers use a variety of methods to prove guilt, some of which are neither recommended nor legal. Methods that are legitimate and potentially effective include:
- Carrying out a thorough investigation so as to gather relevant facts
- Using documents as proof
- Backing up the documentary proof with video footage, audio evidence and polygraph test results
- Calling witnesses to give truthful and relevant testimonies
- Trapping the suspected employee.
Methods that are illegitimate and dangerous include:
- Falsifying documents and taped evidence
- Getting witnesses to lie
- Coercing the accused employee into confessing
- Entrapping the suspected employee illegally.
Often employers get confused between the method of trapping the employee (which is legal) and illegal entrapment. Entrapment occurs where the employer lures the employee into carrying out misconduct that the employee would not have carried out but for the ensnaring methods of the employer. For example, the employee is suspected of using illegal drugs at the workplace. The employer hires a detective to pose as an employee and the detective offers to sell the suspect some Mandrax.
The employee refuses the drug but the detective then persuades the employee to accept the drugs by taking one himself giving one to the suspected employee for free. The employee is caught taking the Mandrax and is dismissed. In this case, the employer has engineered a situation where the employee was pressured into taking the Mandrax (because the detective used strong persuasive methods to get the employee to take the Mandrax). While the employee might have taken drugs anyway, without the undue inducement he/she might not have taken them.
On the other hand, trapping the employee is acceptable. A legitimate trap would be, for example, where the employer suspects that the employee uses a particular vacant office to shoot up with heroin at tea time. The employer would be entitled to wait until the employee goes into that office, give him/her time to begin the injecting process and then go in and catch the employee red handed. This is not entrapment because the employer did not unfairly induce the employee into taking drugs.
While the examples I have given above of legal trapping and illegal entrapment represent two very different methods of catching an employee out there are many cases where the line between trapping and entrapment is blurred. For example, in the case of Mbuli vs Spartan Wiremakers cc (2004, 5 BALR 598) the employer set the suspected employee up by getting a colleague to ask the suspect to supply him with wire for private purposes. The suspect then sold to the colleague, at half the normal price, some wire taken from the employer’s stock. The employee was caught, disciplined and dismissed. He complained to the bargaining council that he had been entrapped illegally because the employer had set him up. The arbitrator found that the trap was a fair and legal one because:
- The employer had suffered a serious shrinkage problem
- The trap was set due to reasonable suspicion against the employee
- The employer did not go beyond giving the employee the opportunity to commit the offence. That is, the trapper did not pressure the suspect into supplying the wire, did not use persuasive measures such as comradeship or sympathy and did not exploit any weakness of the suspect employee.
This case reveals the subtle factors that can distinguish between legal trapping and illegal entrapment. Due to the technical nature of these distinctions employers are strongly advised not to use traps until they have consulted with a reputable expert.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Management Consulting.
by Ivan Israelstam | Nov 18, 2019 | Jobs
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Visit: Labour Law Management Consulting.
In common law employers and employees have the obligation to treat each other fairly and within the law.
For its part, the employer is required to pay the employee the agreed remuneration by the normal pay date. The employer is also required to employ the employee in reasonable working conditions and to avoid rendering the employment circumstances intolerable. Failing this, the employee is entitled to seek legal remedy.
The employee has the obligation towards the employer to refrain from misrepresenting his/her qualifications and to carry out his/her work to the best of his/her ability. The employee is also obliged to behave in an honest and reasonable manner, to serve the interests of the employer and to refrain from rendering the employment relationship intolerable. Failing this, the employer has a right to legal remedies including discipline, dismissal and even court action.
While both parties have legal recourse against the infractions of the other they must beware of the dangers of taking such action. That is:
- Legal action can be extremely expensive. Many lawyers charge high fees for representing parties at the CCMA, bargaining councils or at Labour Court.
- Sometimes, legal fees are paid to attorneys or advocates for representation services at the CCMA but the arbitrator, on the day of the case, evicts the lawyer from the hearing because the case in question does not, in the discretion of the arbitrator, require a legal mind. As such arbitrator discretion does not apply to union representation more and more employers are joining employers’ organisations (unions for employers) in order that they can be represented at arbitration by an employers’ organisation official.
- The judge or arbitrator sometimes orders the losing party to pay the legal costs of the winner even if the loser’s case was a reasonable one. It appears that this practice may be carried out as a means of deterring parties from taking cases to court.
- Should it be found in court, at the CCMA or at bargaining council that a party has referred a frivolous or vexatious case, that party is likely to be required to pay the legal costs of the winner. In this context, a frivolous case is one that is devoid of seriousness, sense or worth. A vexatious case is one that is brought more to cause annoyance than because it has valid grounds.
- A party may also be punished for bringing a case to the CCMA with ‘dirty hands’. This means that the party bringing the complaint has broken a rule or transgressed the law. For example, an employer may be accused by the employee at the CCMA of retrenching him unfairly. However, the employer may be able to show that the employee’s disloyal or malicious behaviour was the cause of the financial backslide and the need to cut back on staff. This misbehaviour of the employee would then mean that he has come to the CCMA with dirty hands. This is likely to count against him/her at the arbitration.
Alternatively, where the employee claims unfair dismissal at CCMA, but is proved to have committed the misconduct for which he/she was dismissed, his/her ‘dirty hands’ are likely to disqualify him/her from the right to relief from the CCMA even if the employer was partly at fault. For example, in the case of Simani vs Coca Cola Furtune (2006, 10 BALR 1044) the employee was dismissed for dishonesty. The arbitrator found that the employee, well aware of his guilt, nevertheless approached the CCMA. This was unacceptable as it was not a genuine dispute. The employee came to the CCMA with dirty hands and, in addition to having his case dismissed, was ordered to pay the respondent’s costs resulting from the losses that he had caused.
In the case of Mothibi vs Department of Education – North West [2019] 3 BALR 229 (ELRC) the applicant claimed unfair demotion. He had admitted that, as a school principal, he had used R500 000 paid to the school for his personal benefit. The applicant contended that the procedure that led to the demotion was unfair. The Commissioner accepted the procedural unfairness of the demotion and found that the only possible remedy was compensation. However, as the applicant had sought relief with dirty hands he was not entitled to compensation.
In the light of all the dangers discussed above employers and employees should:
- Think carefully before taking legal action
- Avoid making the decision to go to CCMA or court merely because they are angry
- Avoid misusing the CCMA as a means of extorting money out of the other party
- Ensure that they have valid reasons for the legal action they take
- Gather solid proof of their allegations
- Check that their own hands are clean before pointing a finger at the other party.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Law Management Consulting.
