UNCERTAINTY ON FAIRNESS OF DISMISSING ANTI-VAXERS

by Lihle Menzeleleli | Jul 12, 2022 | Employers

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

Early in 2022 the Daily Maverick reported on a case where an employee was dismissed for refusing to be vaccinated against Covid. In that case Ms Mulderij applied for exemption from the employer’s vaccination policy on the grounds that the Constitution gave her the right to bodily integrity; but she was turned down. When she refused to be vaccinated she was dismissed for reasons of incapacity.

The CCMA arbitrator found that her dismissal was fair essentially because:

• • • The employer’s mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps
    • The employee had refused to participate in the creation of a safe working environment.

Several arbitration decisions followed upholding the dismissal of anti-vaxer employees.

However, the CCMA more recently found against the retrenchment of an anti-vaxer. In the case of Kgomotso Tshatshu vs Baroque Medical the employer’s mandatory vaccination policy was based on the operational need to avoid employees missing work due to illness and to ensure a safe working environment for its employees.

Ms Tshatshu refused to be vaccinated claiming that she had suffered an adverse reaction to the flu vaccine she had previously received. She provided the employer with two medical certificates confirming this claim. Despite this she was retrenched without receiving any severance pay because the employer had found that the medical certificates that she had provided were neither reasonable nor substantiated.

When the employee took her dismissal to the CCMA the arbitrator found in her favour. I understand the arbitrator’s ruling to be as follows:

• • • the employer did not provide any evidence that a blanket mandatory vaccination policy had been effective in any other organisation
    • mandatory vaccination policies are illogical and fruitless because employees are frequently exposed, outside of the workplace, to many unvaccinated people. As a result, employees are still at risk of contracting Covid whether they are vaccinated or not
    • the employer did not submit any evidence relating to the risk assessment that it had claimed to have conducted prior to implementing its vaccination policy. This might have been because the risk assessment had never been carried out or because the employer did not want to submit its results.
    • The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement
    • No alternative to retrenchment, other than getting vaccinated, had been offered to the Applicant
    • The Commissioner disagreed with the employer’s argument that the Applicant was be entitled to severance pay
    • The dismissal was substantively unfair, and that the Applicant was entitled to 12 months’ severance pay.

The Tshatshu decision is the first one that I am aware of where the CCMA has found in favour of the dismissed anti-vaxer. It appears that the reason for this divergent decision could be the following:

• • • The arbitrator may have a different attitude to forced vaccination as compared to the commissioners in the other cases. This possibility is indicated by the arbitrator’s comment that mandatory vaccination policies are illogical.
    • The employer failed to prove, by submitting a risk assessment report, that the employee’s vaccination was necessary to avoid a health risk.
    • The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement
    • It does not appear that the employer, in this case, tried to accommodate the employee
    • The employee submitted two medical certificates in support of her claim that she reacted badly to vaccinations.
      The above factors do distinguish this case from the Mulderij case; and the outcome acts as a warning that employers must:
    • Take proper cognisance of medical certificates
    • Prove via proper risk assessments that vaccinations are essential
    • Try to accommodate anti-vaxers before considering dismissing them.

To book for our 12 August webinar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on [email protected] or 0845217492.

REPEAL OF COVID RESTRICTIONS

by Lihle Menzeleleli | Jun 29, 2022 | Employers

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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Yes, it is true that our government has lifted its Covid restrictions as a means towards promoting economic activity. While this will assist businesses to improve their sales, employers and employees need to bear some important things in mind:

• • • Firstly, the government’s latest move has not been spurred by the disappearance of Covid. The repeal of this legislation has occurred due to the fact that Covid infection and death numbers have dropped, and due to the desperate need to revive the economy. It is possible that Covid will make a comeback in the form of a new strain; in which case the legal restrictions will be re-instated unless everyone in South Africa is immune to the new strain at the time of its arrival. Such widespread immunity is unlikely due to the large numbers of anti-vaxers and to the fact that new strains can be resistant to old vaccines. This means that having solid anti-Covid policies, practices and systems firmly in place is crucial.
    • Secondly, it would be self-destructive to take the government’s move as a signal that Covid is gone and everyone is safe. Covid is very much alive and is still dangerous to all of us. This means that our common sense must take the place of government restrictions. We must still behave carefully in order to avoid contracting Covid and transmitting it to others in our private lives and at work. Those who have co-morbidities need to continue to continue social distancing, wear masks, work in isolation where possible and continue to take all other relevant precautions. Everyone must continue our hygienic practices of washing our hands, using sanitiser sprays and cleaning our workplaces regularly.
    • Thirdly, despite the repeal of the Covid restrictions the normal health and safety laws of South Africa have not been repealed. The Occupational Health and Safety Act (OHSA) requires you as an employer to take all steps necessary to protect employees and other persons present at the workplace from occupational hazards. Just because the special Covid restrictions have been lifted this does not mean that employers do not have the legal responsibility to ensure that people at the workplace are safe from Covid. Should employees and visitors contract Covid at your workplace you will be liable for prosecution.

For all of the above reasons you should:

• • • Conduct a risk assessment to determine the risk of exposure and the control measures to limit infection, transmission and mitigate the risk of serious illness or death on the part of employees and other persons who may be directly affected by the activities of the workplace;
    • Depending on the outcome of your risk assessment, very seriously consider implementing mandatory Covid vaccinations of your employees;
    • Develop and implement a plan to limit infection, transmission in order to mitigate the risks of serious illness or death on the basis of that risk assessment;
    • Manage absence from work due to infection, isolation and adverse effects of vaccination;
    • Seek to accommodate employees who refuse or fail to vaccinate against Covid.

Implementing the above requirements is not a simple task, and it therefore requires the assistance of health and legal experts.

Employers who pretend that the lifting of some of the legal restrictions means that the Covid threat is over will be the authors of their own destruction. Indeed, employers should use the lifting of the restrictions to secure and grow their businesses. However, essential to this advancement of our businesses is responsible behaviour necessary to protect all involved in the workplace and to ensure that unsanitary and irresponsible behaviour does not scupper our business advancement goals. Sick employees means sick businesses, and the breach by businesses of health and safety laws means sick bank accounts.

Yes, let’s celebrate the opportunity to advance our businesses, but not to the extent that we defeat that very goal.

To attend our 12 August webinar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on [email protected] or 0845217492.

EMPLOYERS HAVE TO PROTECT THEMSELVES

by Lihle Menzeleleli | Jun 13, 2022 | Employers

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.

The Labour Relations Act, seven other labour acts and numerous codes of good practice have all been designed to protect employees. And indeed, employees need protection from unscrupulous employers. However, the imbalance is so great that our labour laws leave employers virtually unprotected. This is despite the fact that section 9(1) of the Bill of Rights contained in the Constitution of South Africa provides that “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9(2) provides that “Equality includes the full and equal enjoyment of all rights and freedoms. Section 23(1) of the Constitution provides that “Everyone has the right to fair labour practices.” 

A basic question arising from the above is, ‘What does the Constitution mean by the word “Everyone”?’ does it refer only to human persons or does it refer also to juristic persons such as businesses and other employers? While the Constitution does not define the meaning of the word “Everyone” section 8(4) provides an answer to our question. It provides that “A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.” This, in my view, indicates that, as long as the nature of the right and of the juristic person make it possible for the juristic person to benefit from the right, the juristic person is entitled to it. This would mean that employers should have the right to fair labour practices by employees and should be able to sue employees at the CCMA for breaching such rights. However, the Supreme Court of Appeal appears to disagree.

In the case of NEWU vs CCMA (2007, Vol.16 No. 11 CLL page 111) both the CCMA and the Labour Court had found that the CCMA does not have jurisdiction to hear a case brought by an employer for unfair treatment by an employee. The Court said: “…. It is not thought that employers need any protection against unfair resignations by employees. …. The majority of workers in this country are still ununionised and remain extremely vulnerable.” The Court added that: “In my view the employer remains very economically strong compared to an individual worker and the fact that this protection is afforded the employee but no similar protection is afforded the employer does not come anywhere near to diminishing the power that the employer has.” The Court concluded that legislation that would give the employer protection “… would be a step backwards in the field of labour relations and employment law in our country.”

In my view the finding of the Court in this case is based on broad generalizations and ignores the provisions of the Constitution which clearly affords employers the right to fair labour practice. It is a very broad generalization to say that every employer is more powerful than its employees. Many employers are in a situation where they arte struggling to survive. And indeed, many employers are forced by economic weakness to close down. 

Be that as it may it is clear that the Courts are not prepared to uphold the employer’s Constitutional right to fair labour practice. It is also clear that labour legislation is there to protect employees. Whether this is fair or not is academic. The fact is that, if employers cannot rely on the law for protection, they must protect themselves. This involves implementing systems, strategies and mechanisms for protecting the employer’s interests. Employers are warned however, that these self protection mechanisms must themselves comply with the labour law in order to avoid infringing the myriad of employee rights contained in eight labour law acts, countless labour regulations and codes and a plethora of case law decisions.

How can employers protect themselves in a way that conforms with the law on the one hand but is effective on the other hand? Such employer protections include:

• • • Developing a thorough, comprehensive and in-depth understanding of all aspects of labour law
    • Ensuring that all managers and supervisors who hire, manage and fire employees have a clear understanding of what they may and may not do in carrying out their duties
    • Ensuring that all managers and supervisors are trained in the knowledge and skill required to manage employees in line with the law but, at the same time, in line with the principles of effective management
    • Developing human resources policies, procedures and rules that guide management in controlling employees both effectively and in compliance with the law
    • Ensuring that they have, within easy reach, reputable experts in employee relations and labour law who are able to guide employers in developing the above systems and to advise the employer in cases of employee misconduct, discipline, retrenchment, takeovers, mergers, trade union recognition, wage negotiations and CCMA disputes.

The above protection mechanisms, if they are properly implemented, can assist towards leveling the playing fields on which employers and employees operate. They can enable employers to operate profitably while treating employees fairly.

To book for our 12 August 2022 webinar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on [email protected] or 0845217492.

SOUTH AFRICAN JURISDICTION NETS FOREIGN COMPANIES

by Lihle Menzeleleli | Jun 7, 2022 | Employers

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.

Our labour dispute resolution system often claims jurisdiction over foreign employers. When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil. A South African working at a South Africa based foreign embassy would therefore be subject to the labour law of that foreign country. However, a branch of a foreign company based in South Africa is not considered to be on foreign soil and is therefore subject to South African law.

For example, in the case of August Lapple (SA) vs Jarrett & others (2003, 12 BLLR 1194) the dismissed employee had been the managing director of the South African subsidiary of German company. He referred his dismissal to the Bargaining Council for the Motor Industry in South Africa. However, the employer disputed the council’s jurisdiction as it claimed that it had been the company’s head office in Germany that had dismissed the employee. The arbitrator ruled that the bargaining council did indeed have jurisdiction. The employer therefore referred the jurisdiction ruling on review to the Labour Court which found that:

• • • Although the employee had been employed by the German parent company, the employee had also been employed by the South African subsidiary
    • The bargaining council did have jurisdiction to hear the matter
    • The employer was to pay the employee’s legal costs.

Even South Africans working outside South Africa can, in certain cases, refer labour disputes to the South African dispute resolution system. For example, in the case of Kleinhans vs Parmalat SA (Pty) Ltd. (2000, 9 BLLR 879) the employee was retrenched after having worked in Mozambique. The Labour Court decided that:

• • • An agreement by the parties as to where jurisdiction lies does not bind the Court.
    • South African law was “impliedly” incorporated into in the employment contract and this gave the South African courts jurisdiction
    • The contract was concluded and cancelled in South Africa
    • The employee’s salary was paid in South Africa and was paid in rand
    • The termination letter was written by the employer who considered the Mozambican operation as its own
    • The Court therefore did have jurisdiction to hear the case.

In the case of Parry vs Astral Operations Ltd. (2005, 10 BLLR 989) the employee was retrenched after having worked in the position of general manager of the employer’s operations in Malawi. The Labour Court decided that:

• • • Both parties were based in South Africa
    • The parties had agreed that the employer’s (South African) policies would apply
    • The employer had not approved the contents of Malawian law
    • Both parties had, when signing the contract, been under the impression that they were concluding it under South African law
    • The Labour Court therefore had jurisdiction
    • The employee was entitled to damages for breach of contract, balance of relocation costs, share options, accrued profit shares, salary, notice pay, severance pay and compensation equal to 12 months’ remuneration. In addition the employer had to pay part of the employee’s legal costs.

In the light of these cases, employers should not assume that they can hide behind foreign incorporation or foreign workplaces. That is they should not assume that they need not follow South African law merely because foreign elements exist in the working situation.  Instead, employers should first obtain expert labour law advice before taking any action against employees regardless of where the employee works or where the employer is based.

To observe our expert panel debating contentious labour law topics go to www.labourlawadvice.co.za and click on the labour law debate item in the main menu.

DON’T BYPASS YOUR OWN DISCIPLINARY POLICIES

by Lihle Menzeleleli | May 30, 2022 | Employers

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.

Section 188 of the Labour Relations Act (LRA) gives the employer the onus of proving that it has been procedurally and substantively fair in dismissing employees. This forces employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

No Labour Court decision illustrates these points better than the one delivered in Riekert vs CCMA and others (2006, 4 BLLR 353). In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management. He took the employer to the CCMA but the arbitrator upheld his dismissal.

He therefore took the arbitrator on review to the Labour Court where the judge made the following findings:

• • • The CCMA arbitrator had recognised that the employer had a very extensive disciplinary code but had not adhered to it
    • Since the employer’s disciplinary code was incorporated in his employment contract the employee was entitled to insist that it be complied with
    • Despite the above the arbitrator found that the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines
    • While it is true that disciplinary codes are merely guidelines this does not entitle employers to deviate from procedures as they liked
    • It was unclear how the arbitrator arrived at the conclusion that the hearing was substantially fair since, contrary to the employer’s own code, the chairperson of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions
    • The employer had waited six months from the time it became aware of the misconduct before bringing the charges against the employee. This was despite the employer’s own disciplinary code that required that charges be brought within a reasonable time.
    • The employee had been denied the opportunity to call witnesses
    • The CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation
    • No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis for that charge
    • The arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority. The employer’s witnesses were not even able to remember the date of the alleged incident
    • The arbitrator’s finding that the employee had not been frank in his testimony had neither been justified nor reasoned
    • The arbitrator had failed to apply his mind to the evidence at all
    • The arbitrator’s award was set aside
    • The dismissal was substantively and procedurally unfair
    • The employer was ordered to pay the employee R100 000 in compensation plus interest
    • The employer was to pay the employee’s legal costs.

This case is of great importance as it provides employers with a number of extremely valuable lessons including that they should not:

• • • ignore their own disciplinary codes
    • allow any unnecessary delays in notifying employees of disciplinary charges
    • prevent an employee from bringing witnesses to his/her disciplinary hearing
    • forget, before attending a disciplinary or arbitration hearing, to gather and prepare all evidence thoroughly.

To observe our expert panel debating contentious labour law topics go to www.labourlawadvice.co.za and click on the labour law debate item in the main menu