by Tony Healy | Jan 10, 2020 | Employers
South African labour courts still frequently hear cases in which employers have made employees retire prematurely. In the main, this has to do with employers either retiring employees before the correct normal retirement date or imposing a retirement age when none exists.
This emphasises the importance of employers ensuring that they have a prescribed, normal retirement age. Provision for a company-prescribed normal retirement age is most often found in the contract of employment, which confirms, for example, that an employee will retire when he or she reaches 65.
Section 187(2)(b) of the Labour Relations Act confirms that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.
This must be contrasted with section 187(1)(f) which provides that “a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including but not limited to age”.
However, many employers do not confirm their applicable normal retirement age anywhere whatsoever. It is not confirmed in any contracts of employment, and there is no policy on the company’s retirement age. If that is so, clues need to be sought on what the applicable retirement age is. From time to time, the clue can be found in the rules of a benefit fund, such as a pension or provident fund. This was the case is a recent Labour Court matter, in NTM obo Israel Mothapo v Interwaste (Case number J791/16) in a judgment passed on November 13, 2019.
In this case, the employer had made the employee retire two-and-a half months after he had reached 60. He was then offered a 12-month fixed-term contract of employment. The employee objected to this, saying that this was a “forced retirement”, as his benefit statement confirmed his normal retirement date was recorded as June 30, 2020, when he would turn 65.
The employer replied that the “retirement age is 60 as per the normal practice in our business. While the benefit statement makes provision for retiring at 65, it does not (and cannot) enforce the company to retire its employees at that age – it is a company prerogative”. The employer’s representative argued that the employer’s reliance was placed on the norm, as opposed to an agreement.
The Labour Court was underwhelmed by this argument, holding that: “As pointed out, the respondent relies on the norm and not an agreement. The Labour Appeal Court in Rubin Sportswear v Sactwu and Others made it clear that an employer may not just wake up and say a particular age is a norm.
The Court specifically stated the following: ‘A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period – so long that it can be said that the norm for employees in that workplace or for employees in a particular category is to retire at a particular age.
An example would be where, without any formal agreement, employees in a particular category have over 20 years been retiring at a particular age without fail. The period must be sufficiently long and the number of the employees in the particular category who have retired at that age must be sufficiently large to justify that it is a norm for employees in that category to retire at that age.
If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. If the period is very long, but the number of employees in the particular category who have retired at that age is not large enough, it might be difficult to prove that a norm has been established’.”
The adjudicator went on to note that: “It is apparent to me that this defence of 60 years being a norm is nothing but an afterthought”.
In this case, it was held in the judgment that: “Accordingly, this Court is not satisfied that the respondent succeeded in showing that 60 years is a normal retirement age.
On the probabilities, account taken of the benefit statement, the agreed retirement age between the applicant and the respondent is age 65. It being common cause that the applicant had not reached the agreed age at the time of termination, his dismissal is automatically unfair.”
The employee was awarded 24 months’ remuneration in compensation.
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 | Nov 29, 2019 | General
The 2005 Amended Code of sexual harassment refers to:
“Unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
4.2 whether the sexual conduct was unwelcome;
4.3 the nature and extent of the sexual conduct and
4.4, the impact of the sexual conduct on the employee”.
But what if an allegation of sexual harassment is false? In such circumstances, is an employer entitled to take disciplinary action against the apparent wrongful accuser?
In a Labour Court judgment in the case of NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee had been found guilty and dismissed for having “falsely and/or maliciously accused (her manager) of sexual harassment” during a disciplinary hearing she did not participate in.
At the Commission for Conciliation, Mediation and Arbitration (CCMA) hearing, her dismissal was held to have been procedurally and substantively fair. She took this finding on review to the Labour Court.
The background to this case was that the employee had been charged with three acts of alleged misconduct. It was, however, the third allegation that stood out. It was namely “failing to comply with the (employer’s) conditions of service, procedures and directives in that on February 24, 2014 (you) had falsely and/or maliciously accused (her manager) of sexual harassment”.
Her version was that: “On February 24, 2014 (she) went to see (her manager) about her request for a car allowance that had not been finalised. She alleges that at that meeting he had told her that if she slept with him, he would grant the car allowance. (Her manager) denies such discussion. The following day she lodged a grievance in that regard demanding a written apology. The first grievance hearing found the complaint unproved.”
The employer’s first witness testified that “some time before the incident of February 24, 2014 the applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance, she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager).
(Her manager) gave evidence about the events of February 24, 2014 and his demand that the matter be further investigated thereafter.”
It was submitted that the employer “took allegations of sexual harassment very seriously and once it had been found that the allegations were without proof, it was harmful to an ongoing employment relationship.
Essentially, the applicant was found to have falsely laid a complaint of sexual harassment. Such conduct is detrimental to any ongoing employment relationship.”
For various reasons highlighted in the judgment, the Labour Court upheld the dismissal of the employee on grounds that she had falsely and maliciously accused the manager of sexual harassment.
While there were various allegations of procedural unfairness, none of them were held to have been so serious as to have prejudiced the employee.
While employers are duty bound to investigate and address allegations of sexual harassment robustly, and indeed any form of harassment, it is equally arguable that false and malicious allegations of sexual harassment warrant the same thorough investigation.
It is precisely for this reason that employers should sensitise all employees on the nature and implications of sexual harassment to ensure that cases of this nature are kept to a minimum.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
Call 0861 115 37, email [email protected] or visit www.tonyhealy.co.za
by Tony Healy | Nov 22, 2019 | General
In the Labour Court case of EOH Abantu vs CCMA & Others (Pty) Ltd (Case No JA4/18), the employee was found guilty of a charge that was not specified in the employer’s charge sheet.
In specific, the employee had been found guilty of gross negligence when gross negligence was not included in the charge sheet. On the contrary, the charge sheet included allegations of, among other things, dishonesty, theft and fraud. The employee was then dismissed.
What makes this case particularly interesting is the fact that the employee was found guilty of and dismissed for misconduct, which did not appear anywhere on the charge sheet. Put differently, the employee “was found to have committed the offences although it was not established that he had acted intentionally”.
The arbitration award said: “It is common cause that the chairperson of the disciplinary inquiry could not find any dishonesty on the (employee’s) part, but instead he found the (employee’s) actions grossly negligent” and “I find that the (employer) is bound by the choices it made at the time of charging the (employee)”.
The employer took the arbitration award on review at the Labour Court, but lost. The Labour Court upheld that: “The arbitrator had correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged. That is why the dismissal was unfair.”
As also held by the Labour Court, the employee was charged with dishonesty – and “that is the case he went to meet and that is the case that the employer could not prove”.
On appeal, the Labour Appeal Court had an entirely different view. It posed the question: had the commissioner acted unreasonably “in concluding that a finding of negligence was not a competent verdict under the charge”?
In its judgment, the Labour Appeal court acknowledged that “it is always best for the charges to be precisely formulated and given to the employee in advance of the hearing to afford a fair opportunity for preparation. However by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.”
This view was supported in the judgment that further held that: “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary inquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed.”
This is an entirely sensible judgment. Essentially, it deals with circumstances in which the alleged act of misconduct is proved on a balance of probabilities, but the employer mistakenly attributes blameworthiness to intent, rather than negligence.
The judgment went further to add that “there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced”. Therefore care must be taken when drafting allegations of misconduct in disciplinary cases.
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 | Nov 8, 2019 | General
Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining council commissioners must conduct arbitration impartially and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct.
This is precisely what occurred in a recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others (Case no: JR135/16). As noted in the judgment, “The main grounds for this review is that it is contended that the commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”.
It was further argued that: “In support of these grounds, (the applicant contended) that the commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the commissioner’s interventions were such that he failed to afford the parties a fair hearing and that his conduct gave rise to a reasonable apprehension of bias.”
Apprehensions of bias occur frequently at the CCMA and bargaining councils. Let’s face it, in every arbitration hearing there is a winner and a loser. The losers can be prone to blaming a one-eyed commissioner for the loss, rather than face up to the fact that they may have simply lost on the merits or demerits of their case.
The judgment also quoted Baur Research v Commission for Conciliation, Mediation and Arbitration and others as follows, “What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant.
“In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity.” [2014 (35) ILJ 1528 (LC).
So, had the commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”? Not so, the court held.
On the contrary, it was held that: “The commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.
“(The applicant) had the onus to show that the commissioner acted mala fide and in breach of his duties so as to afford City of Johannesburg an unfair advantage. She failed to do.”
The judgment continued that: “I believe that the commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.
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 | Oct 24, 2019 | Jobs
AN EMPLOYEE may regret having committed an act of misconduct, but they may not be remorseful for having done so.
This distinction is important when considering both in the context of mitigating circumstances after an employee has pleaded guilty or been found guilty. Item 3(5) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) reads: “When contemplating whether to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.”
The same considerations would apply in the selection of a sanction in lesser offences. Regret and remorse are also factors to be considered when establishing mitigating circumstances before deciding on an appropriate sanction to be imposed, but they are quite different concepts, which should not be confused. This was highlighted in the Supreme Court of Appeal (SCA) judgment involving The State v Phakamani A Nkunkuma & 2 others (SCA: 101/2013), which held that: “There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error.
Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. For the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed, what has since provoked his or her change of heart and whether he or she does indeed have a true appreciation of the consequences of those actions.” In The Foschini Group (Pty) Ltd v Marie Fynn (Labour Appeal Court: DA1/04), it was held that: “It would be difficult for an employer to re-employ an employee who has shown no remorse. Remorse is much, much more than regret. You can regret committing the act of misconduct, but not be remorseful.”
As was put in the Labour Court in Toyota SA Motors (Pty) Ltd v the CCMA & 3 others (Case No: D600/11) “remorse is a complex emotion, a mixture of shame and regret for the apparent victim. But supposed remorse may as well be linked to the perpetrator’s own sense of regret that it happened at all and that he got caught.” Remorse was also dealt with in the Labour Court judgment in Blitz Printers v CCMA & 1 other (JR 1782/2012), where it was held that: “The fact that an employee shows remorse for his or her actions and takes responsibility for his or her actions may militate, depending on the circumstances, against imposing the sanction of dismissal. The converse also applies, dismissal may be an appropriate sanction where the employee commits an act of dishonesty, falsely denies having done so and then shows no remorse whatsoever for having done so. It is also important to point out that the respondent had persisted with her lying not only in the course of the investigations, but also at her disciplinary hearing and in her sworn testimony before the arbitrator.”
Remorse can be likened to contrition. A lack of remorse will typically confirm that the trust relationship is broken beyond repair, thereby justifying a sanction of dismissal. It should also be borne in mind that an admission of guilt does not, in and of itself, amount to an expression of remorse. As noted in the Labour Court judgment in Bongani Wellcome Rakhivhani v South African Police Services & 2 others (Case number: CJR1158 /13): “Genuine remorse contemplates an unconditional acknowledgement of the wrongdoing, a plea for forgiveness and an undertaking that the misconduct will not be repeated if the employee is permitted to remain in the fold of the employment relationship.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5375 or email [email protected].
