The Covid-19 developments have taken our breath away. My personal Covid-19 period memory bank takes me back to a flight back to South Africa from Frankfurt in mid-January 2020, when most of us were pretty oblivious to the impending drama that was about to unfold. I had missed my flight and had to spend 24 hours at Frankfurt airport before catching a flight home the following evening. Up to this day, I ponder the level of risk I was unknowingly exposed to at the airport, for a relatively prolonged period of time.
On March 15, 2020, the President declared Covid-19 a national disaster in terms of the National Disaster Act (57 of 2002). Later that day, a Sunday, a client of ours sent me a WhatsApp message asking us for advice on how to deal with a national “mandatory shutdown” of the retail industry. This is a national retailer, operating across the globe. To be honest, this surprised me – “mandatory shutdown”? This was reflected in my reply to him – “No indication of retail closures, if so, will be a combination of annual leave and negotiated unpaid closures.” At the time, the prospect of a national lockdown was, apparently, highly improbable.
Within a mere eight days of receiving that client’s WhatsApp message, the president announced a 21-day national lockdown, commencing at midnight on Thursday, March 26, 2020 – a bold and decisive measure to limit the spread of Covid-19. On March 26, 2020, the Minister of Employment gazetted the directive relating to the establishment of the Covid-19 Temporary Employee/Employer Relief Scheme (TERS). Today TERS has become a colloquialism which was largely unheard of a mere two weeks ago. Yet it is set to be the difference between food on the table and starvation, for thousands of South Africans over the coming weeks.
Quite simply, TERS is a scheme to fund income shortfalls during the national lockdown, to be paid from the National Disaster Fund. Time will tell how efficient this well-intended scheme will work. Predictably, our firm has been inundated with enquiries and requests for assistance in the TERS application process from employers across the country. Since then, to date, South Africa’s Covid-19 infection and death rates, while alarming in their own right, have not mirrored the awful infection and death rates experienced elsewhere. We have also experienced the real economy in apparent free-fall, and this has bludgeoned jobs. In the USA, for example, approximately 10 million applications for unemployment benefits were received in the last two weeks of March 2020 alone.
South Africa, and the rest of the world, has followed suit, with some predicting that our already outrageously high unemployment rate will climb at least another 10 percent, or higher, within weeks. As a labour relations consultancy firm, at any one time, we are typically partnering clients in the implementation of retrenchments. This should come as no surprise if one stops to think about the parlous state of our economy in recent years. The impact of Covid-19 has however, pretty much overnight, impacted job security on a massive scale not experience in our lifetime, or perhaps at any time in history. Many employers are clamouring to retrench staff any which way possible. Some industries have clearly been more affected than others.
The hospitality industry has fallen off a cliff. Hotels, bars and restaurants have closed. Many won’t reopen. Most of our hotel clients have closed down for three months, irrespective of whether or not the lockdown period lasts that long. They realise that hotel bookings are not going to be normalised for many months to come, regardless of how long the lockdown continues, or how long it takes for Covid-19 infections and deaths to be brought under control. Most anticipate a long, and slow, resumption in hotel and guest confidence levels, which are crucial to enable the hospitality industry to get out of the red. Employers are in a conundrum in deciding how to navigate the unchartered waters of needing to reduce all costs, especially payroll, when in lockdown mode.
It will take a very brave employer indeed, to attempt to commence a retrenchment procedure, as provided for in the Labour Relations Act – the national lockdown prevents an employer from complying with the letter and spirit of consultation required in the Act. That is why many employers have decided to offer staff voluntary retrenchment during the lockdown. In most other circumstances, most employees would not consider the prospect of voluntary retrenchment enticing, and yet in the current circumstances many employees are even applying for voluntary retrenchment to access funds to see them through the next few months. Employees applying for voluntary retrenchment understand that they would otherwise qualify for UIF TERS benefits, but only up to a maximum of 60% of their salary, if they are lower paid workers. The world of work is going to be a wild ride for quite some time to come.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. For back-copies of articles, visit Tony Healy & Associates.
ASSAULT is an understandably emotionally charged, category of gross misconduct which, more often than not, justifies dismissal. Assault is a very serious workplace offence, however, it need not always warrant dismissal.
In the arbitration award in Saccawu obo A Carolus v Freshmark (Case number 16835-18), it was noted that: “There is no doubt that the rule against assault is an important one. An employer is obliged to provide its employees with a safe working environment and an assault by one employee on another (whether a permanent employee or contracted worker) causes a breach of this duty. For this reason, the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) lists assault as one of the valid grounds for dismissal for a first offence with no requirement for prior warnings.”
In Bombela Operating Company and Jackson Mthukwane, NO & others JR 1922/13, the Labour Court held that an “assault takes a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant or the threat that such force will be applied. In this case, there was such application of physical force. By its very nature, assault is a serious form of misconduct. This, however, does not imply that every case of assault should be met with dismissal, in that it acknowledges that defences such as provocation may negate the unlawfulness of that conduct”.
In this case, the Court concluded that the order of reinstatement of the dismissed employee should have been accompanied by some form of sanction. It upheld the reinstatement of the employee, ordering that he be issued with a final warning, rather than be dismissed. In a January 21, 2020 arbitration award, the Commission for Conciliation, Arbitration and Conciliation (CCMA) upheld the notion that while assault is clearly a form of gross misconduct, it will not always warrant dismissal. The arbitration award in Petheni Andrews Mhlabeni v Rainbow Chicken Farms (Case number NWRB2867-19), the employee, a machine operator, had been dismissed for assault.
One of the employee’s colleagues had grabbed him by the lapel of his coat, after which he then struck him in retaliation. As noted in the judgment. “The footage clearly shows (the colleague) grabbed (the employee’s) coat. (The employee) retaliated by striking (his colleague) with both hands on either side of his head. Both then disengaged. Had (the employee) then struck (his colleague), I would have no hesitation in agreeing with the respondent that dismissal was the appropriate penalty. However, I am required to find whether the sanction of dismissal was fair in these circumstances.”
That said, John Grogan in his book, Dismissal wrote that: “Assault is generally accepted as a valid ground to dismiss the assailant. The legal requirements for the offence are the intentional and unlawful application of physical force, however slight, to the body of the complainant or threat that such force will be applied. In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship between the employee and the complainant, and the effect of the assault on the interpersonal relations and the business of the employer.”
Like pretty much all misconduct cases, each individual assault case needs to be assessed on its merits. No two cases are the same; they may be at face value, but on closer scrutiny, each case has its own unique set of circumstances. Dismissal for assault was also considered too harsh in the MEIBC arbitration award in Numsa obo A Ntlabezi v Betafence SA (Case number MEWC 10814) in which it was held that, on a balance of probabilities Ntlabezi was guilty of a minor assault after extreme provocation from Swartz. “However, such provocation was not taken into account by the employer and a sanction short of dismissal should have been applied.”
Professional advice should be sought if in doubt as to the seriousness of such cases.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5 375.
SECTION 96 of the Labour Relations Act outlines the steps to be followed when a trade union or employer’s organisation wishes to register with the Department of Labour.
The process is relatively straightforward and includes the completion of a prescribed form, the submission of, for example, the trade union’s constitution and “any other information that may assist the registrar to determine whether the trade union or employer’s organisation meets the requirements for registration”.
Once registered, there are various ongoing requirements to remain registered, including the keeping of accounting records and conducting of annual audits. In addition, unions have a duty to keep certain records, including a list of all its members, the minutes of meetings, as well as ballot papers for a period of three years from the date of every ballot.
Provision is made in Section 101 of the Act for the changing of a trade union’s constitution or its name. This is a relatively simple process and may include circumstances in which the trade union wishes to change or replace its constitution. One of the key components of any trade union’s constitution is a description of its scope. A trade union’s scope describes, in simple terms, the industries in which the trade union seeks to operate.
This is typically listed in an annexure to a trade unions constitution. It follows that when a trade union drafts a constitution that specifies the industries and sectors in which its scope of operations is to operate, it is obliged to limit its activities to those specific sectors and industries, but not stray into other non-specified sectors. One would expect a trade union, and indeed an employer’s organisation for that matter, to stay in its lane in conducting its day-to-day activities in the industries and sectors that it identifies as its jurisdiction, in its constitution.
For example, a trade union registered to be active in the hairdressing industry should not seek to represent members in the mining industry. However, the fact of the matter is that quite frequently trade unions operate in industries and sectors outside the list of industries and sectors listed as their scope in their constitution.
This issue was addressed in a Labour Appeal Court judgment handed down in mid-2019 in the case of Lufil Packaging (Isithebe) v Commission for Conciliation, Mediation & Arbitration & 2 Others (Case number DA8/2018). In that case, it was held that: “A trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so, they act in excess of their powers and the act has no validity.”
A purported decision by a union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision that cannot be challenged by an affected employer. Such a decision is ultra vires (acting beyond one’s power) and invalid and as such, open to challenge by the employer from whom organisational rights, based on the membership concerned, is sought. So, what we saw in this case was the employer challenging the union’s scope in that it was successfully argued by them that the printing and packaging sector in which it operates does not form part of the union’s scope.
The National Union of Metalworkers of South Africa (Numsa) approached the employer “asking it to provide stop orders for the deduction of union fees for its alleged members who were employees” of the employer. The employer refused to recognise Numsa by virtue of the fact that Numsa had registered scope, namely “metal and related industries), specified in its constitution, which fell outside of the employer’s scope of business. More specifically, the employer operated in the printing and packaging sector, not in the metal and related industries.
The Lufil Labour Appeal Court judgment held that: “Trade unions at common law have only those powers and capacities that are conferred on them by their constitutions. The Labour Relations Act required unions to determine in their constitutions which employees are eligible to join them and by necessary implication precludes them from admitting as members employees who are not eligible to be admitted in terms of the trade union’s registered constitution. If it is shown that the persons concerned are precluded by the union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires the union’s constitution and invalid.”
For that reason, it was held that: “The employees on which (Numsa) relied in alleging it was sufficiently representative could not be and thus were not in law members of Numsa as they did not fall within the scope of the union in terms of Numsa’s constitution.” Put differently, Lufil operated in the printing and packaging sector, not the metal and related industries sector.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5375.
Disciplinary procedures and codes, among other things, clarify the validity periods of varying degrees of disciplinary warnings, sometimes referred to as sanctions.
Validity periods vary from company to company. Typically, verbal warnings are valid for three months, written warnings for six months and final written warnings for 12 months.
The principle of progressive warnings is also long established. It is based on the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired valid warning, the subsequent sanction will be progressively more severe.
All things being equal, warnings are no longer valid after the expiry date, therefore cannot be referred to as an aggravating factor at a later date.
Put differently, if I am found guilty of late coming today and a previous final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.
That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction in certain circumstances. However, caution must be exercised.
There is case law that supports the fact that expired warnings may be considered in certain circumstances. The Labour Appeal Court case of NUM obo Selemela v Northam Platinum (JA25.11) held that: “Even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so, she committed an irregularity.”
The judgment more especially noted that: “Indeed, the employee’s written warnings, even after they have lapsed may be taken into account in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings.”
This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others (DA7/04) which held that: “It must also be recalled that there was a written warning dating from March the previous year with a 12-month duration. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. The employer is always entitled to take into account the cumulative effect of these acts (of misconduct). To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals falling outside the periods of applicability of final written warnings.”
More recently, in the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration case of Maduwandile Mbenenge v Mango5 (WECT18335-16), it was held that: “I note that Applicant also had two expired warnings on his record, both from 2014 and both concerning absenteeism, one being a breach of the very same rule that is before me now.”
In Shoprite Checkers v Ramdaw & Others (2000) 7 BLLR 835 (LC), it was held that there was no fixed rule against taking lapsed warnings into account when deciding penalty for later misconduct.
In yet a further CCMA arbitration case, that of Cheslyn Visser v Overberg Agri Bedrywe (WECT 2680-16), it was noted that: “The courts have ruled that where a pattern of misconduct repeats itself, expired warnings may be brought into consideration.”
In fact, in Numsa obo Williams v Robertson & Caine (2005) 10 BALR 1062 (MEIBC), it was further held that previous warnings for different offences may be taken into account when assessing penalty for later misconduct.
Expired warnings also serve as confirmation that the employee was aware of the company rule. For example, if an employee has been charged with using his or her cellphone during working hours, but denies having knowledge of a rule prohibiting this, a previous warning, expired or otherwise, would serve as proof of knowledge of this rule.
Ideally, employers should make provision in their disciplinary procedures for the retention of expired disciplinary warnings for potential use in circumstances in which an employee may repeat misconduct for which they have expired warnings. This suggests that warnings should be retained once they have expired.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 or visit www.tonyhealy.co.za.
ABOUT 50% of all arbitrated alleged unfair dismissal cases result in an unfair dismissal verdict. This is not a particularly encouraging statistic, especially in light of the fact that the Commission for Conciliation, Mediation and Arbitration (CCMA) receives about 750 referred labour disputes every working day across the country, with nearly 80% of those cases being alleged unfair dismissals.
Our case law reaffirms that workplace disciplinary hearings were never intended to be conducted in a formal and legalistic manner akin to the requirements of criminal cases in a court of law. On the contrary, workplace disciplinary procedures are meant to be conducted with minimum formality, ensuring that certain basic procedural rights are tendered to employees in the process.
Workplace discipline is assessed in accordance with the principles of procedural and substantive fairness. In short, was there a fair reason for the discipline applied and did the employer follow a fair procedure? The requirements for the fair application of workplace discipline can be distilled into 10 factors.
- To begin with, and as the point of departure, does the employer have sufficient proof of misconduct? An employer is required to prove that the employee is guilty on a balance of probabilities. In short, is there sufficient proof to prove that the employee is “probably” guilty of the alleged misconduct.
- Secondly, the employer must prove that the employee can be held blameworthy for and committed the act/omission. Employers frequently overlook the fact that it is not merely the alleged act or omission that must be proved. For misconduct to be proved, it must be proved that the alleged act or omission occurred, and that the employee can rightfully be held blameworthy for the act or omission alleged. For example, an employee can never be held blameworthy (or guilty) for having contravened a company policy if it cannot be proved that the employee had no prior knowledge of that policy.
- Thirdly, are witnesses available and agreeable to testifying, and is other evidence available? An employee can only be found guilty on that proved at the disciplinary hearing. This may or may not correlate with what the employer knows to be true. Documentary evidence should be handed to the employee prior to the hearing for their perusal.
- Fourthly, written allegation(s) must be furnished to the employee clearly in a form and language that the employee can reasonable understand.
- Fifthly, the employee must be afforded reasonable time to prepare for a disciplinary hearing. In practice, no less than two working days notice is considered reasonable, unless additional time is warranted in more complex cases.
- The sixth key factor is that employees have a right to an interpreter and representation. The employer must afford the employee the right to an interpreter when they deem this necessary and the right to an internal representative.
- Next, employees have a right to submit a defence and cross-examine the employer’s witnesses. All employees have the right to reply to the allegation(s) levelled against them and challenge employer evidence, normally by way of cross-examination.
- Employees found guilty have the right to submit factors in mitigation prior to a sanction being imposed and the right to have these submissions carefully considered by the chairperson.
- The penultimate factor is that of the imposition of an appropriate sanction. Put differently, the punishment must fit the crime, taking “the totality of circumstances” into consideration. The Labour Court occasionally refers to this aspect of sanction selection by imploring employers not to select a sanction that makes the court “whistle”.
- Finally, alleged unfair dismissals may be referred to the CCMA or a Bargaining Council. Employees should be provided with the reasons for their dismissal and informed of their right to refer the alleged unfair dismissal to the CCMA or a Bargaining Council with jurisdiction within 30 days of the dismissal.
Disciplinary hearings are invariably chaired by internal managerial employees or, on occasion, by external qualified people. It goes without saying that workplace discipline must be applied consistently. Such consistency in the application of workplace discipline is assessed in three ways.
Firstly, an employer may not discipline today for an act or omission that was, for example, overlooked yesterday, as it would be considered to have been inconsistent to do so. Secondly, all employees deemed guilty of having committed an act of misconduct should be disciplined. Thirdly, if all are found guilty, they should, all things being equal, receive the same sanction.
Tony Healy is a labour expert at labour law consultancy Tony Healy & Associates. Call 086 111 5375.