UNDERSTANDING PROVOCATION NOT EASY

by Lihle Menzeleleli | Mar 14, 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.

Appended to the Labour Relations Act is The Code of Good Practice: Dismissal. This Code requires an employer to consider a number of circumstances before dismissing a guilty employee. For example, the Code requires the employer to consider the gravity of the misconduct, the employee’s past record, length of service and personal circumstances.  Case law has added to the factors that could or should be considered including factors such as the seniority of the employee, aggravating circumstances, provocation and other extenuating circumstances.

Collins Concise Dictionary defines ‘extenuating circumstances’ as circumstances that cause an offence or fault to appear less serious or to mitigate or weaken.

However, in the labour law context, I tend to think of mitigating and extenuating circumstances as being slightly different to each other. I see mitigating circumstances as any circumstances that might reduce the seriousness of the offence whether such circumstances emanate directly from the actual incident or not. Whereas I see extenuating circumstances more narrowly, as only those emanating directly from the relevant incident as opposed to general circumstances such as length of service that have no bearing on the merits of the misconduct.

An example of extenuating circumstances based on my definition is provocation. In both criminal and labour law, and especially where an assault  or other abusive behaviour has taken place, provocation generally has an important role to play in considering the level of penalty of the offender.

As I mentioned in a previous last article, assault at the workplace is normally seen as serious misconduct because of:

• • • the harm or potential harm to the victim of the assault;
    • 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 culprits, and this is often because of the anger attached to incidents of assault or other unsavoury acts. 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.

One area where employers struggle with misconduct penalties in general is where provocation is alleged. The employer got it right in the case of Francis vs The Clicks Organisation (2010, 3 BALR 325). In this case Francis, a manager told a subordinate to stop chewing gum. It is reported that, when he refused in an insubordinate manner she assaulted him and bit him to the extent that she had blood on her mouth. When she was fired for this act she told the CCMA that she had been provoked by his refusal to stop chewing gum and by his attitude. The arbitrator found that the subordinate’s behaviour did not amount to provocation at all. Instead, his behaviour amounted to insubordination which should have been dealt with via proper disciplinary measures. This together with the seriousness of the assault and the manager’s relative seniority to her subordinate rendered the dismissal substantively fair.

However, in CEPPWAWU obo Mudau vs Super Group Supply Chain Partners (2009, 2 BALR 123) a shop steward was dismissed for, amongst other things, swearing at supervisors. The arbitrator found that he had been provoked into this behaviour because his supervisor had used an obscene term while addressing the shop steward. The dismissal was therefore unfair.

The above decisions tell us that it is important for employers:

• • • To deal with all alleged acts of misconduct coolly, calmly and without biting the offending employee
    • To ensure that their managers are trained never to speak abusively to employees
    • To give very careful and reasoned consideration to allegations of provocation by employees accused of misconduct. This is in order to establish whether the alleged act constituted provocation or not, whether the provocation was significant enough to be pertinent and whether the seriousness of the offence and/or aggravating circumstances outweigh the extenuating circumstances
    • To keep themselves constantly updated with case law decisions that can effect the fairness of their disciplinary decisions.

To view our experts debating thorny labour law topics please go to www.labourlawadvice.co.za andclick on the Labour Law Debate icon.

WHEN DOES A JOB APPLICANT BECOME AN EMPLOYEE?

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].

FALSE JOB CREDENTIALS A FREQUENT REALITY

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:

• • • 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:

• • • “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:

• • • 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].

TREAT PROBATIONARY EMPLOYEES WITH CAUTION

by Lihle Menzeleleli | Jan 25, 2022 | Employers

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].

Employers frequently misuse probation agreements to get rid of employees instantly because:

• • • the employee has committed misconduct
    • the employer wants to make space for a friend or cousin of the owner
    • the employee ‘does not fit in’
    • a manager ‘does not like the employee’s face’

As probation is not a licence to fire, ‘James Bond’ employers who think they have ‘007’ licences to fire at will are likely to fall foul of ‘Dr No’ arbitrators at the CCMA. In labour law, ‘probation’ simply means ‘testing the employee’s work performance’.

A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his/her performance to be unsatisfactory.

The employer is allowed to extend the employee’s probation period in order to further assess the employee’s performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.

However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.

The biggest mistake that employers frequently make is believing that the conditional nature of the probationary employment significantly reduces the probationer’s labour law rights. On the contrary, the employer that places an employee on probation has a number of legal obligations including:

• • • Making it clear that the employee is on probation
    • Clarifying the length of the probation period
    • Setting reasonable performance standards
    • specifying for and explaining to the employee the performance standards required
    • evaluating and monitoring the employee’s performance against the set performance standards
    • informing the employee of performance shortcomings
    • issuing warnings to the employee where he/she is failing to meet the required standards
    • assisting, guiding, counselling, training the employee where necessary
    • before dismissing the probationer, giving him/her an opportunity to state his/her case.

For example, in the case of Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of this misconduct and that it was serious enough to merit dismissal. Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges.

In the case of Tharratt vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.

These cases highlight the fact that probationary employees are strongly protected by labour law. At the same time, probationary employees often do not work out as well as was hoped. While the law allows the dismissal of such failed employees the employer must follow strict procedures first.

Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in:

• • • Designing a probationary policy and procedure
    • Setting realistic performance standards
    • Designing measures for monitoring and evaluating work performance
    • Training management in probation law and in the implementation of the probation policy and procedure.

To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].

Ulterior motives for Retrenchments not on

by Lihle Menzeleleli | Jan 14, 2022 | Employers

BY   lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].

While all retrenchments are painful and often devastating for employees it is normal, especially during Covid, for employers to retrench employees because the employer cannot afford to pay their salaries. It can also happen that those executives responsible for managing the company are disciplined for allowing the financial losses to occur. However, employers must be careful not to mix up the retrenchment of an employee with his/her dismissal for misconduct such as, for example, dereliction of duty.

Employers must be equally careful not to discipline executives or other employees for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses, it may look for scapegoats in order to relieve this pressure.

Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.

Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:

• • • the culprits have closed ranks and testimony is hard to come by
    • important documentary evidence has been doctored or destroyed
    • the powers that be have decided that the real culprit is not expendable
    • it has been agreed who will have to be sacrificed
    • acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.

Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.

For example, in the case of Van As vs African Bank Ltd (2005,  3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.

The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:

• • • The employer could not discipline him after a retrenchment agreement had been concluded
    • The employer was merely trying to scapegoat him for the losses incurred by the bank.

The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.

The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.

This could have been avoided had the employer made proper use of the appropriate experts to:

• • • assess the matter holistically
    • investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
    • decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
    • help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.