by Tony Healy | Feb 19, 2020 | General
While dismissals on grounds of ill health can be fair in our law, as with all cases of dismissal, there are specific procedures to be followed.
What makes these kinds of cases all the more challenging is that there is no fault on the part of the employee; they are simply, and most unfortunately, the victims of ill health over which they have no control.
Be that is it may, our law provides for these scenarios. When considering the fairness of a dismissal on grounds of ill health, our courts, the Commission for Conciliation, Mediation and Arbitration (CCMA) and Bargaining Councils must “consider the provisions of items 10-11 of the Code of Good Practice: Dismissal, which are binding on all commissioners as dictated by the provisions of section 188 (2) of the Labour Relations Act”, as noted in the Labour Court judgment in the National Bargaining Council for the Road Freight Logistics Industry v the CCMA 7 2 others Case number 875/15.
When reading items 10 and 11 of the Code, you will find an explanation of how employees should be treated in cases of temporary and permanent ill health or injury. They are precisely the steps any one of us would want our employer to follow if we were the employee afflicted with ill health or injury.
For example, “the employer should investigate the extent of the incapacity or the injury”, “the employer should investigate all the possible alternatives short of dismissal”, “the possibility of securing a temporary replacement for the ill or injured employee” and in cases of permanent incapacity “the employer should ascertain the possibility of securing alternative employment or adapting the duties or wok circumstances of the employee to accommodate the employee’s disability”.
The schedule goes on to say that: “Any person determining whether a dismissal arising from ill health or injury is unfair should consider (1) whether or not the employee is capable of performing the work; (2) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or where this is not possible the extent to which the employee’s duties might be adapted and (3) the availability of any suitable alternative work”.
Experience over the years shows that when the incapacity (ill health or injury) is first identified, the cards are, quite understandably, stacked in favour of the employee. The employer must show reasonable accommodation, investigate the incapacity and monitor the situation.
As time goes by, however, the pendulum swings towards the interests of the employer, which are, after all, also legitimate. It should come as no surprise that ill health can be of both a physical and mental health nature.
In “Imatu obo Strydom v Witzenburg Municipality & others (Labour Appeal Court: 2012) 7 BLLR 660, it was noted in the judgment by the judge that: “My reading of item 10 and 11 gives me the impression that an incapacity inquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the inquiry or in any suitable alternative position. I am of the view that the conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the inquiry does not end there, the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity or adapt the employee’s duties or provide him with alternative work if (the) same is available.
“I must mention that I have no doubt in my mind that permanent incapacity arising from ill health or injury is recognised as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.”
Finally, in short, extra special attention should be given to employees injured at work, as evident in item 10 (4) of the Schedule, which informs us that “particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness”. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375. Email [email protected] or visit www.tonyhealy.co.za.
by Tony Healy | Feb 7, 2020 | General
Many employers have experienced strike action, protected or otherwise, which resulted in unacceptable striker behaviour such as intimidation and malicious damage to property. The employer then trundles off to the Labour Court to secure an interdict to restrain the strikers and, on occasion, their picketing rights.
One question that arises is whether an employer is entitled to discipline and ultimately dismiss a striker for apparently acting in breach of the court interdict? This precise question was answered in a January 21, 2020 Labour Court judgment in Panorama Park Retirement Village v Commission for Conciliation Mediation & Arbitration (CCMA) & 1 other (Case number JR2472/2015).
At the outset, the judgment informs us that: “The question that arises in this review application is whether it is substantively fair to dismiss an employee on allegations of being in contempt of a court order.”
The background to this case was one with which employers will be familiar. The union had embarked on a protected strike, after which the parties agreed picketing rules at the CCMA.
As is all too common, the strikers misbehaved and the employer approached the Labour Court and obtained an interim order “interdicting and restraining the first respondent as union and the second to 49th respondents from striking and/or picketing closer than 100m from each side, left or right, and within 50m in front of each of the entrances (Green and Reg gates) in Best Street, Klerksdorp, to the Applicant’s property”. Except it did not have the desired effect. Instead, at approximately 4pm, after the interdict had been obtained, management observed one of the strikers “cycling from town on his way home in Best Street close to the employer’s premises in contravention of the terms of the court order”.
The employer was of the opinion that it had the authority to discipline the striker in question for his contravention of the court order interdicting the strikers from picketing within 100m of the entrances of the employer’s premises. The employee had also allegedly come across and spoken to two replacement workers.
The employer then initiated a disciplinary process, charging the employee with “contempt of court on July 23, 2015 at approximately 4pm you were observed by the assistant manager of Panorama Aftree Dorp riding up and down Best Street, Oudorp, passing the Red gate, which is one of the entrances to Panorama Park Aftree Dorp.Your action is contravention of the ruling of the honourable Justice Whitcher’s Court order on July 2, 2015, Case No. J1309/15, paragraphs 2.2 and 2.3, in that you harassed and threatened replacement labour and were striking closer than 100m from each side left or right and within 50m in front of each gate of the entrances (Green and red gates). Your behaviour amounts to contempt of a Labour Court order.”
Once the disciplinary hearing commenced, the employer abandoned the charges related to allegations of intimidation and threatening violence, and only focused on the contempt of court misconduct allegation. The employee was found guilty and dismissed.
Unsurprisingly, he appealed against the fairness of his dismissal at the CCMA.
The commissioner held that the dismissal of the employee was unfair, noting that:
“(1) Only the courts were empowered to determine whether there was contempt of its orders and if so, what sanction to impose. A court order, however, could not be said to be an instruction issued by an employer and that disobedience of a court order cannot amount to insubordination within the employment context.
(2) The employer failed to prove on a balance of probabilities that a workplace rule existed in respect of which it had the power to discipline and dismiss the employee. In the absence of such a rule related to contempt of court, it could not be said that the employee was guilty of a breach of a rule.
(3) Even if such a rule existed, it could not be said that the employee had breached that rule since the court order did not restrain or prohibit employees from being in the area when they were not picketing and on strike. The employee as observed in the area was not ‘striking or picketing’, but was on his way home from town, which was his usual route. He had stopped to speak to the two other employees at the end of their shift and there was nothing wrong with what he did.”
The Labour Court agreed. It ruled that: “The commissioner in this case had regard to the essence of the charge of contempt of court and correctly concluded that it is only the court that could pronounce on whether there was contempt of its orders or not.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375, email [email protected] or visit www.tonyhealy.co.za.
by Tony Healy | Feb 3, 2020 | General
Strong suspicion that an employee has committed misconduct is a persuasive thing. So persuasive, in fact, that employers frequently conclude that the suspicion is so compelling that it proves an employee’s guilt of misconduct.
Nothing could be further from the truth.
The fact of the matter is that alleged misconduct must be provable with evidence that shows that the employee is guilty “on a balance of probabilities”. In simple terms, this means that the employer must lead enough evidence to prove that the probabilities that the employee is guilty are greater than the probabilities that the employee is not guilty.
Put differently, proving guilt in disciplinary hearings requires employers to have proof that the employee probably committed a blameworthy act, or on occasion omitted to act in circumstances where the omission to act can be held to be blameworthy.
Proof of suspicion fails to meet this requirement. Our courts have been quick to confirm this. This was the case in Moahlodi v East Rand Gold & Uranium (Industrial Court: 1988). In which it was held that “mere suspicion does not satisfy the test of proof on a balance of probabilities”.
The landmark and most often quoted case law on this subject is the Labour Appeal Court judgment in Mbanjwa and Senzeni v Shoprite Checkers & 2 others (Case number DA4/11).
The case involved an allegation that the “employee had attempted to under-ring items being purchased by a customer who appeared to be an accomplice of the employee”.
To begin with, a key employer witness acknowledged, under cross-examination, that “the whole case against the appellant was based on her suspicion in relation to what she had seen the appellant doing”. Continuing, it was noted that “without the contravention of any rule and without any reprehensible conduct by Senzeni on April 27 and 28, 2006, we are left with Vino’s substance of her suspicion on which she subjectively concluded that Senzeni attempted to under-ring the items brought to her till by Lindiwe”.
Critically, the judgment further noted that: “It is my opinion that whereas there might have been grounds to suspect Lindiwe’s conduct on April 28, 2006, but to suspect that Senzeni was implicated in the attempt to under-ring the respondent’s items was based on Vino’s figment of imagination”.
In analysing and evaluating the evidence led, the Labour Appeal Court held that: “It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee through the latter’s movements or conduct may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question.”
The Labour Appeal court judgment in Dion Discount Centres v Rantlo (LAC: 1995) was quoted as having held that: “It was argued by the appellant’s counsel with reference to Moletsane v Ascot Diamonds (1993) 6 LLC 15 (IC) and EATWCSA v The Productions Casting Company (1988) 9 ILJ 702 (IC) that the termination of respondent’s employment was fair as there was a strong suspicion that the respondent had participated in the four transactions. The presiding officer in the Moletsane matter relied on the judgment in EATWCSA v The Production Casting Company as authority for the finding that ‘it was not unfair for the respondent to dismiss the applicant in the particular circumstances of this case on a strong suspicion of diamond swopping’.
“I do not find support for this view in the latter judgment. The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship”.
Perhaps the most damning remark made by the judge in the Shoprite Checkers case was that: “The high-water mark in this case is nothing but mere suspicion on the part of Pillay that the appellant committed the misconduct charged. There was simply no shred of evidence to buttress or lend any credence to the allegation of the misconduct. It is beyond my comprehension why the appellant was charged for misconduct at all.”
So, there you have it. Employers who rely on suspicion alone to prove guilt in misconduct cases do so at their peril.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 countrywide.
Email [email protected] or visit www.tonyhealy.co.za.
by Tony Healy | Jan 24, 2020 | Employers
Discipline and dismissal will continue to account for in excess of 80% of all labour disputes country-wide, this year. This should come as no surprise.
Ask any supervisor or line manager out which aspect of shop floor labour relations has the greatest impact on them day-to-day; the answer is uniformly ‘disciplinary action’. Yes, trade union management can be time-consuming and prickly, and unfair labour practice cases rear their head from time to time.
But it’s the management of discipline at work, and performance management, which typically makes demands of supervisors and management, when it comes to workplace labour relations.
Indeed, in excess of 80% of all labour disputes account for alleged unfair dismissal claims alone.
That said, it follows that when contemplating, or more importantly, prioritising, line management training, special attention should be paid to the conducting of disciplinary hearings and the general management of workplace discipline and employee performance.
Employers continue to lose almost 50% of all unfair dismissal arbitration hearing cases. SETA accredited discipline training goes a long way to reducing discipline and dismissal risk, and significantly increases the prospects of a dismissal being upheld at the arbitration hearing stage.
Discipline training is targeted at all line managers and supervisors who are tasked with the responsibility of ensuring workplace discipline to ensure a safe and orderly working environment.
SETA accredited training ensures that discipline training material, content and incorporated practical exercises, meet strict quality requirements.
SETA disciplinary hearing accreditation is a rigorous process which accredits successful training providers as a Provider of Education & Training for disciplinary hearing training. A sound Quality Management System is a pre-requisite for SETA accreditation, to ensure that the training material and methodology meets stringent quality requirements.
SAQA unit standard number 10985 (NQF Level 5) is the specifically designated Unit Standard for the Conducting Disciplinary Hearings SETA accredited training programme.
The specified learning outcomes in the SETA accredited discipline workshop include (1) Conduct and manage a hearing, (2) Procedural fairness, (3) Handling non-dismissible offences, (4) Understanding the employer’s burden of proof, (5) Summarising of evidence and (6) Sanction selection.
Course content includes (1) what is misconduct and how is it proved?, (2) What procedures must be followed in a disciplinary hearing?, (3) What are an employee’s rights in a disciplinary hearing?, (4) What are an employer’s rights in a disciplinary hearing?, (5) What role does mitigation play in a disciplinary hearing?, (6) How should a sanction be selected which will meet the requirements of fairness and withstand scrutiny at an arbitration hearing?. Material also includes time-keeping and attendance offences.
SETA accredited discipline workshops also include role-plays to enable delegates to practice the skills acquired, as well as case studies, self-tests and practical exercises to assess and ensure the transfer of knowledge to delegates.
Such training interventions are facilitated by way of public workshops on occasion, but more commonly via in-house workshops facilitated in such a way as to customise material to align with the employers, disciplinary procedures and codes.
Outside of disciplinary hearing, there has also been increasing demand for training in the management of absenteeism and time-keeping. Employers should be aiming for no more than a three percent absenteeism rate, and time-keeping should be prioritised. The costs associated with high absenteeism and poor time-keeping can be prohibitive, even though they are not always immediately obvious. Given recent high profile sexual harassment cases, many employers have sought staff training for insight into our law in so far as it relates to sexual harassment, and insight into related appropriate and inappropriate behaviours. Training objectives in this instance ordinarily incorporate the promotion of dignified and respectful conduct, and the minimisation of legal and reputational risk.
A more recent trend in training, as we have seen in our own firm, is the evolution of e-learning, which is a cost-effective solution which enables delegates to acquire knowledge via an online multi-media solution which incorporates video content, written content, animation, voice overs, and a multiple choice assessment process.
Yet another field of labour law training which is always commonly a focus, is Employment Equity Act compliance.
There are many facets to the regulations imposed on employers in regards Employment Equity Act compliance which, if not met, can lead to significant costs, in the form of fines, for non-compliant employers.
As Mark Twain once said, “continuous improvement is better than delayed perfection”.
Given the ever increasing myriad of employment law regulation, it can reasonably be assumed that employers can’t afford not to train staff on day to day labour relations and employment law compliance issues.
Tony Healy is CEO at Tony Healy & Associates Labour Law Consultants – www.tonyhealy.co.za. Tel: 0861 115 375
by Tony Healy | Jan 17, 2020 | Employers
Sections 193(1) and (2) of the Labour Relations Act list a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings.
On the one hand, retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal. On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.
Sections 193(1) and (2) of the Labour Relations Act read: “Remedies for unfair dismissal and unfair labour practice (1) if the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the court or the arbitrator may (a) order the employer to reinstate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless (a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure.”
However, not every employee who is held to have been substantively unfairly dismissed is granted retrospective reinstatement, even though that is precisely the remedy they sought.
Section 193(2) leaves little dispute that retrospective reinstatement “must” be applied in cases of substantively unfair dismissal, yet exceptions are nonetheless made for cases in which the unfairly dismissed employee does not seek reinstatement or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practicable for the employer to reinstate or re-employ the employee”.
In a recent Labour Court judgment in Sinenhlanhla Precious Mthetwa v the CCMA & 2 others (Case number JR1806/18), the acting judge was required to pass judgment on an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed and when the employee sought reinstatement.
The employee had pleaded guilty at a disciplinary hearing to various allegations of serious misconduct, including assault, intimidation and harassment. She was dismissed. She challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have been procedurally and substantively unfair.
After that she sought the remedy of compensation in the pre-arbitration minutes. She then changed her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.
The commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she had sought. The employee then took the judgment on review to the Labour Court, arguing that the commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the applicant sought ”.
Not so, said the judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision maker could not have arrived at”.
So, why did the commissioner and the judge conclude that the primary remedy of retrospective reinstatement should not apply in this case?
Various reasons were articulated. To begin with, the employee was already on a final warning for misconduct and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.
The commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion that the judge noted “is not explained”.
Be that as it may, this judgment aligns with prior case law that gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement in cases of substantively unfair dismissals.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375, email [email protected] or visit www.tonyhealy.co.za
