by Lihle Menzeleleli | Mar 8, 2022 | Employers, HR & Recruitment, Jobs
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]. Web Address: www.labourlawadvice.co.za.
Even serious assault might not merit dismissal if the employer is unable to show that the misconduct rendered the employment relationship intolerable. The Code of Good Practice: Dismissal (The Code) states that:
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- Advice and correction are the best ways of dealing with minor offences
- Repeated misconduct will merit warnings
- More serious infringements or repeated misconduct may call for final warnings or other action short of dismissal
- Dismissal should be reserved for cases of serious misconduct or repeated offences
- Dismissal for a first offence is not appropriate unless it is so serious that it makes a continued employment relationship intolerable
- Included amongst offences that might merit dismissal for a first offence are wilful endangering of the safety of others and physical assault.
Assault at the workplace is normally seen as serious misconduct because of:the harm or potential harm to the victim of the assault;
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- the potential disruption of workplace harmony;
- the potential for the employer to be sued for vicarious liability by the assault victim;
- the loss in working time due the need for an assaulted employee to to take sick leave
- the loss of business if the victim of the assault is a client.
Despite this, employers sometimes bungle disciplinary action against alleged assault culprits, and this is often because of the anger attached to incidents of assault. This can be disastrous for the employer because section 188(1)(a) of the Labour Relations Act (LRA) makes it clear that the employer cannot fire an employee without good cause.
Should the employee dispute a dismissal via the CCMA or a bargaining council the employer will have the legal duty to prove that the dismissed employee was guilty of the assault and that, under the specific circumstances, dismissal was the most appropriate corrective measure. If the employer fails to convince the arbitrator of this it could be the employer’s bank balance that is assaulted. That is, the arbitrator could award reinstatement with back pay or could order the employer to pay up to 12 months’ remuneration in compensation.
In the case of NUMSA obo Madobeng vs Macsteel Tube and Pipe (2006, 10 BALR 982) the employee was dismissed for assaulting a colleague who had accused her of sleeping with her grandfather. The employee and her trade union took the matter to the Metal and Engineering Industries Bargaining Council accusing the employer of unfair dismissal. The arbitrator found that the scuffle that had taken place between the two employees did not constitute an assault and that Madobeng had been provoked by her colleague. As the employer had exaggerated the seriousness of the offence and had ignored the mitigating effect of the provocation the arbitrator found the dismissal to be unfair. The employee was reinstated with full back pay.
In NUMSA obo Hlela & others vs Jasco Special Cables (2009, 10 BALR 1012) The employees went on strike and were later dismissed for assault and intimidation during the protest action. While the arbitrator accepted that the employees had been guilty of assault the dismissal was found to be unfair. This was because the employees had only been given notification of their disciplinary hearings three weeks after the assaults had occurred and had been allowed to work during the three-week period. The arbitrator therefore found that the employment relationship had not been rendered intolerable by the assault. The employer was ordered to re-employ all the dismissed employees.
The above cases show that, even in serious cases of assault, the CCMA will not always approve of dismissal as a sanction. Therefore, employers should understand that:
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- The individual circumstances of each case are crucial in deciding whether dismissal for assault is acceptable;
- The ability to anticipate the thinking of CCMA and other arbitrators is vital;
- Substantial labour law experience and expertise should be obtained before discipline is implemented.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Feb 28, 2022 | Employers
You can be an employee before you start work!
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]. Web Address: www.labourlawadvice.co.za.
Case law makes it very dangerous for an employer to sign employment contracts before it is certain that there is definitely a job for the applicant and before the employer is certain that it wishes to employ the job applicant.
The Labour Relations Act does not deal with the situation where a job applicant has been offered the job but, before starting work, is told that he/she has no longer got the job. This is a serious gap in the legislation for a job applicant may who have resigned from his/her old job on receiving the offer of the new job. On hearing that the new job is no more he/she will have lost both the old and new jobs and be without a livelihood.
Neither the Basic Conditions of Employment Act (BCEA) nor the EEA nor the Labour Relations Act (LRA) shed any light on the recourse of a person who finds him/herself in this unenviable situation. Historically, the view has been that one is not an employee until he/she starts working and can therefore not use the labour dispute resolution system to take the employer to task.
One therefore had to rely on the law of contract. That is, when an employer offers a position to an applicant and the applicant accepts then a contract has been concluded. Such a contract is legally binding whether it is in writing or not. Therefore, if the employer then refuses to let the employee start work, the employer is in breach of contract and can be sued in civil court.
There is little if any dispute as to the employee’s theoretical right to sue the employer and the employee has a very good chance of succeeding with his/her suit if he/she can prove breach of contract. However, in practice, many employees do not have the substantial resources necessary to fight such a case in civil court. Secondly, it could take years for the employee to get his/her pound of flesh should the case go ahead.
It is possibly for this reason that Labour Court Judges and CCMA arbitrators have more recently become willing to broaden their view of what constitutes an employee.
According to section 213 of the LRA an employee is:
“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying out or conducting the business of an employer…”
This definition seems to make it clear that a person only gains the status of ‘employee’ when he she begins working for the employer. That is, the definition strongly implies that the employer’s legal obligations begin on the day that the employee physically begins work.
In the case of Wyeth SA (PTY) Ltd vs Manqele and others (2005, 6 BLLR 523) Wyeth and Manqele signed an employment contract. Before Manqele began working a dispute arose between the parties as to Manqele’s company car. As a result the employer terminated the employment contract on the grounds that the parties to it had been unable to agree to one of its terms (relating to the company car). Manqele took the employer to the CCMA for unfair dismissal. The employer contended that the CCMA had no jurisdiction to hear the matter as Manqele had not been an employee. It based this claim on the fact that Manqele had not yet begun work and that the legal definition of an employee includes the provision that an employee is someone who “works for another person”. However, neither the CCMA nor the Labour Court was prepared to accept this argument. Wyeth therefore took the matter on appeal to the Labour Appeal Court which rejected the literal interpretation that Wyeth had put on the definition of an employee. The Court found that Manqele had become an employee the moment the employment contract was signed by the parties. The Court therefore dismissed the employer’s appeal and required the employer to pay the employee’s legal costs.
In Solidarity obo Nortje vs Xtrata Lydenburg Works (2009, 7 BALR 673) the employer repudiated the contract before the job applicant began work. The employer had offered Nortje a contract post in Lydenburg which he accepted. After he relocated to Lydenburg but before he took up his post the company told Nortje that it would not take him into service because he had failed to pay the company money owed to them in respect of a previous period of employment. At arbitration the company denied that their action constituted dismissal. The arbitrator found that the employment relationship had begun once the contract was finalised and that the company’s refusal to allow Nortje to commence work constituted a dismissal. As a proper procedure had not been followed the dismissal was unfair.
The above case decisions make it clear that employers should not enter into employment agreements with job applicants before all the terms and conditions of employment have been fully agreed and until all possible reasons for not employing the applicant have been fully considered.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Feb 21, 2022 | Employers, General, HR & Recruitment
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]. Web Address: www.labourlawadvice.co.za.
It is often easier and less expensive to promote an employee into a vacnt senior post than to go through the costly and time-consuming process of hiring a new incumbent from outside the organisation. Where the employer has made sure that the junior employee being promoted has the necessary skills for the senior post such a promotion will not only be operationally advantageous but employee relations and workforce morale will be boosted by the advancement of a junior employee.
Employees want the increased remuneration that goes with promotion, they want the status, the feeling of success and recognition and/or the challenge of the higher level responsibility. Employees also enjoy the new challenge and the feeling that their efforts have been appreciated.
Despite these aspirations, employees do not have an unfettered and automatic right to be promoted. Were such an automatic right to exist this would place an unfair and impossible burden on employers. However, where certain circumstances exist employees may have a legal right to be promoted. Often such circumstances need to exist in combination with each other, but this will not always be the case. For example:
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- The employer orally promises the employee a promotion
- The employer signs an agreement that says that the employee will be promoted. Such a clause could exist in the employment contract signed when the employee was originally appointed.
- A signed agreement obliges the employer to promote the employee provided that a certain potential event takes place, and that event does take place. For example, this potential event could be that:
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- The employee’s superior vacates his/her position for any reason including promotion, retirement, resignation, dismissal etc.
- The employee ‘proves himself/herself’
- A particular period of time elapses
- A suitable vacancy arises
- A potential new customer places a large order
- A new workshop is opened.
- A vacancy is advertised, an internal employee applies for it and is legitimately recommended as the most suitable person for the job.
For example in the case of Mokhobo and others vs Department of Education (2005, 8 BALR 836) the employees applied for posts advertised within the Department. Despite the fact that these employees were recommended for the posts they were not promoted. At the CCMA the employer maintained that there were insufficient funds to finance the cost of the promotions and that a moratorium had been placed on appointments. The arbitrator found that:
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- No moratorium had been in place at the time that the employees had been recommended for the promotions
- The shortage of funds was an insufficient reason not to promote the employees as they had already been recommended for promotion
The CCMA therefore ordered the employer to promote the employees in question retrospectively and to pay them compensation.
In the case of Ngidi vs Cape Peninsula University of Technology [2019] 10 BALR 1108 (CCMA) the applicant applied internally for a post of committee officer but was told that she had not been short-listed. At the CCMA the employer claimed that the applicant did not satisfy the requirements of the job even though she satisfied the requirements stated in the job advertisement.
The Commissioner noted that the advertisement required at least three years’ experience in committee work but did not state that committee work must have been a primary function. The employee had performed committee work, albeit not as a core function, and was otherwise fully qualified for the post. The shortlisting committee’s decision to set committee work as a core function went outside the requirements specified in the advertisement and made the applicant’s exclusion from the shortlist unfair. While there was no guarantee that the applicant would have been appointed had she been shortlisted, she was entitled to an opportunity to be heard by the selection committee.
The applicant was awarded compensation equal to two months’ salary.
In view of this employers are advised:
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- Not to advertise posts if they are unable to fund them
- To make sure that those officials authorised to recommend employees for promotion are competent to do so on a purely objective basis
- To ensure that job adverts must fully detail all qualification requirements.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Feb 14, 2022 | Employers, Job Search, Jobs
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]. Web Address: www.labourlawadvice.co.za.
There are three main categories of grounds on which employers may be taken to the CCMA for breach of rights. These are unfair dismissal, unfair discrimination and unfair labour practice. The latter category includes claims for:
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- Unfair discipline
- Unfair suspension
- Unfair demotion
- Unfair promotion
- Unfair training
- Unfair labour practices related to probation
- Unfair detriment as a result of the employee making a protected disclosure
- Unfair provision of benefits
This relates to benefits to which the employee is entitled in the course of his/her employment. Such benefits may include.
Unfair provision of benefits occurs where the employer, as regards leave, retirement, medical aid, life insurance, funeral and other benefits unfairly:
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- provides such benefits to some employees and not others. For example, employers might provide retirement benefits for office workers only or may provide inferior benefits for factory workers.
- cancels the benefit. For example, an employer that had been giving employees paid study leave might decide to stop providing such benefit. This would require employees to use annual leave or unpaid leave should they need to write or study for examinations.
- halts the benefit temporarily. For example, in the case of Van Amstel vs ESKOM (2002, 9 BALR 995) the employer halted payment to the employee of his vehicle allowance while it was in the process of reviewing the payment of such allowances. The employer required the employee to reapply for the allowance. When he did so his application was turned down. The CCMA found that the employer had indeed committed an unfair labour practice and ordered the employer to reinstate the benefit.
- fails to facilitate the provision of the benefit to employees. For example, should the employer fail to pay over the benefit scheme contributions the service provider might halt the benefits. This will mean that the employees lose those benefits permanently or temporarily.
- reduces the employer’s contribution to the benefit fund resulting in the employee having to pay more. This often occurs when the employer decides to cap its share of the benefit contribution. For example, when the benefit scheme administrators impose an increase in contributions the employer might unilaterally decide that, in order to control costs, it will not increase its portion thereof. This would require the employee to pay his/her own portion of the increase as well as the employer’s increased portion.
Or the employer might change its mind about contributing towards the benefit costs of employee’s dependents. A case in point is that of Solidarity obo Du Plessis vs ABB Services (2005,8 BALR 820). When the employee joined the business his employment contract stated that the employer would pay half of the medical aid contributions for himself and his family. For a while the employer kept to this agreement. However, after he got married the employee discovered that the employer had changed its medical aid policy and no longer paid any contributions for employees’ spouses. As a consequence, the employee had to bear the full cost of the contribution in respect of his wife.
The employee therefore referred a dispute to the Metal and Engineering Industries Bargaining Council for unfair labour practice. The arbitrator found the employer’s action to be unfair and ordered the employer to:
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- Pay its portion of all future contributions in respect of the employee’s wife
- Refund to the employee the amount of the contributions that he had had to pay since his marriage.
- It is very often true that employee benefits in the modern day can be extremely expensive for employers. However, the cost to employers of interfering with employee benefits can be even higher than the cost of the benefit itself! Such costs include:
- Legal fees
- The time wasted by management in preparing for and fighting CCMA cases
- Lump sums paid to the employees in accordance with arbitration awards
- The negative effect on employee relations of removal or reduction of benefits.
Employers are therefore advised to obtain expert labour law advice before embarking on any changes that affect their employees.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Feb 10, 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]. Web Address: www.labourlawadvice.co.za.
In South Africa, where there is heavy competition for jobs it is not unusual for job applicants to deceive prospective employers in order to improve their chances of being offered a job. This type of deception includes:
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- Claiming qualifications that do not exist
- Falsification of CVs and academic certificates
- Provision of false reference letters
- Exaggeration of skills and experience
- Lying about reasons for termination of previous jobs
- Denying that the employee is pregnant
- Lying about the employee’s age
- Provision of incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references
- Withholding of information such as criminal convictions and disciplinary action.
The key questions are:
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- “What information does the law require the job applicant to provide?” and
- “What legal recourse is there for the employer who subsequently finds that it has employed someone who deceived it prior to employment?”
It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant.
While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstances. For example, section 6 of the Employment Equity Act (EEA) prohibits discrimination against job applicants on a number of arbitrary grounds including race, gender, pregnancy, age and numerous others. Logically therefore, it would normally be unacceptable to fire an employee who had withheld information related to these prohibited arbitrary criteria. For example, it would, in most cases, be wrong to fire an employee for having failed to inform the employer, during the job application stage, that she was pregnant. Although the employee may have proved to have been dishonest about this at her interview, job applicants are not required to divulge such information.
However, where the deception of the employee relates to the employee’s ability to do the job and thereby satisfy the employer’s operational requirements the employer is on firmer ground should it wish to bring disciplinary action against the employee.
For example, in the case of Evans vs Protech (2002 7 BALR 704) the employee had, prior to employment, informed the employer that she had previously worked as a qualified hairdresser and that a certain person was to be contacted for a reference. The employee was then employed. Thereafter the employer discovered that the employee had never worked with the alleged referee and that the employee had not been a qualified hairdresser. The employer therefore dismissed the employee. The CCMA found that the dismissal was procedurally unfair because no disciplinary hearing was held, but substantively fair because the employee had not been justified in lying about her qualifications during the job application stage.
However, in the case of NUMSA obo Engelbrecht vs Delta Motor Corporation (1998 5 BALR 573) the CCMA found the dismissal of Engelbrecht to be unfair despite the fact that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.
It is not only job applications that can result in misrepresentation. In the case of PSA obo Mojake vs SARS (2005, 12 BALR 1308) the employee worked as an auditor for SARS. She was dismissed for having written to SARS a letter purporting to come from a consumer organisation. The letter requested SARS to cancel garnishee orders issued against Mojake. The CCMA agreed that such misrepresentation was deserving of dismissal but nevertheless ordered the employer to pay the employee compensation because it had breached its own disciplinary procedure in the process if dismissing Mojake.
The decisions in these cases mean that employers must:
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- check all information that job applicants give them
- put in place systems for preventing employees from misusing their knowledge of the organisation for personal gain
- give employees disciplinary hearings that are procedurally and substantively fair before acting against them for misrepresentation
- Employers must, before holding such hearings, consult with a reputable labour law expert as to whether the deceptive behaviour in each individual case merits discipline and dismissal.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
