by Lihle Menzeleleli | Dec 8, 2021 | Employers, HR & Recruitment
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
It is a common erroneous belief amongst employers that they protect themselves by employing staff without a letter or contract. In fact, the converse is true. The law does not make signed employment contracts compulsory, but the Basic Conditions of Employment Act (BCEA) does require employers to inform employees in writing of their particulars of employment such as:
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- The employer’s name and address
- The employee’s job title or job description
- Starting date
- Working hours
- Remuneration details
- Leave
The reason that employers need to put such provisions into the form of a contract rather than just a letter and to get it signed is not because the law insists on it. It is rather because the employer needs to prevent the employee from denying that he/she agreed to the terms and conditions contained in the document. A contract signed by both parties prevents such misunderstandings and/or disputes.
Employers need to understand that labour legislation is there primarily to protect employees rather than employers. Therefore, employers need to protect themselves by:
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- Knowing all the labour acts
- Knowing all the codes and regulations attached to the labour acts
- Understanding the significance of this legislation for the employer
- Including details required by labour law into signed employment contracts
- Adding into employment contracts further clauses designed to protect employers.
These include clauses to protect employers from:
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- Employee dishonesty
- Moonlighting
- Loss of clients
- Misuse of telephones, equipment and electronic facilities
- Absenteeism and late coming
- Breaches of confidentiality
- Incompetent employees
- Law suits from the employee’s previous employers
A great many employers have policies of various types but fail to include these in employment contracts. When the employee breaches the policy and gets fired the employer ends up at the CCMA or at a bargaining council. Should the employee then claim that the employer did not have such a policy and/or that the employee was never made aware of it then the employer is placed under onus to disprove this claim. Where the policy in question has been included in the employment contract signed by the employee the employer will have little difficulty in discharging this onus.
Even if the policy is not spelt out in the employment contract but is alluded to in the agreement the employer will have some protection. For example, it is not reasonable for the employer to include its entire disciplinary code in its employment contracts. However, the employer can include in the employment contract clauses such as:
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- The employee agrees to comply with the attached rules of conduct
- The employee agrees that he/she will acquaint him/herself with the employer’s disciplinary code available from the HR Department
- The employee has read and understood the employer’s disciplinary rules and agrees to comply therewith.
However, employers cannot always take for granted that employees understand the contents of employment contracts. This is especially so where the contract is written in complex legalese or in a language that is not the employee’s home language. In such cases employers are advised to replace legalese with plain English and to translate the contract into the employee’s home language.
Employers should further understand that the mere presence of a requirement in an employment contract will not always mean that the employee can be forced to honour such requirement. In the case of Wallace vs Du Toit (2006, 8 BLLR 757) the employer fired the employee for being pregnant. The employer claimed that the employee had agreed that her employment would be terminated if she fell pregnant. The Court found that even if the employee had entered into a contract agreeing to such a thing such agreement would have been unconstitutional. The employer was ordered to pay the employee one year’s remuneration.
Employers need therefore to:
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- understand that labour law gives them far fewer rights than obligations
- accept that their labour law obligations are very numerous, complex and extremely heavy
- protect themselves by understanding the law and its ramifications
- design employment contracts that protect them from losing labour disputes
To view our experts’ debate opinions on thorny labour law issues please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the menu.
by Akhona Zembe | Dec 1, 2021 | Business & Management
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]. Go to:www.labourlawadvice.co.za
Strikes in South Africa are as ‘normal’ as warm weather. However, strikes have more recently occurred less frequently probably due to the reluctance of unions to weaken the employer and to spark resulting retrenchments. In the light of this partial mindset change the Massmart strike that has entered its second week is somewhat unexpected. The workers are likely to be aware that retailers are struggling with rising costs and lower public purchasing power. In this context this strike is a sign that employees are prepared to risk their jobs in order to get better working conditions.
We have had, for decades, a deadly vicious circle. That is, workers are not earning enough to be able to support their families. They go on strike for better pay and/or working conditions. If the strike goes on long enough the employer gives in and pays an increase that is well above what it has budgeted for. This erodes profits and sometimes causes financial losses. The employer then compensates for this by cutting wage costs through the implementation of retrenchments. The ensuing job losses reduce the public’s buying power and businesses suffer losses. The businesses then tighten their belts by reducing pay increases and/or spending on working conditions. The employees respond by going on strike, and the vicious spiral gets more vicious.
This ever more vicious spiral is more deadly than Covid, more poisonous that state capture and more disastrous than power outages. We are now 27 years into the new political dispensation but there is no sign whatsoever of anyone in leadership positions making any credible effort to reverse this vicious spiral, this toxic industrial relationship and this cancerous damage to our economy.
So called leaders in government, business and labour need, for their own self interest and for the betterment of South Africa’s people, to remove there hands from covering their eyes and use those hands to fix this vicious spiral. If these so-called leaders refuse to do their duty, then civil society needs to take over this responsibiity. This should not be done via any kind of insurrection. Instead, civil society should offer to government and NEDLAC a new labour economic system that turns the current vicious spiral upside down and creates a positive, upward economic spiral; and then see to it that the new system is implemented.
The new labour economic system needs to do away with the competing ideologies of socialism and capitalism. Those tenets of socialism that demand nationalisation of businesses and that strangle the operation of businesses need to be discarded in favour of the unarguably positive socialist tenet of fairness for all. Likewise, the exploitative tenet of capitalism needs to be replaced by truly inclusive free market principles.
In this way the positive aspect of a free market economy (that being the ability to generate wealth) will be combined with the positive aspect of socialism (that being fairness for all). This merging of the positives of socialism and capitalism will do away with the conflict between the two ideologies and create a new, common ideology called Shareism. Business owners and their workers will no longer be fighting over money because they will be partners in making and sharing the money.
Then the need for strikes will become redundant because the workers will be getting more money due to sharing in the profits they make. And they will not want to strike because that would erode the profits in which they have a share. And retrenchments will be rendered unnecessary by the increased profits generated by Shareism.
If our current so-called leaders refuse to take the responsibility to make this happen by implementing Shareism then civil society should peacefully but robustly see to it that new leaders take on this responsibility. It is the ordinary citizens of South Africa who are suffering most and shareism is their escape from this injustice.
To view our expert team debating contentious labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.
by Akhona Zembe | Nov 15, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Go to:www.labourlawadvice.co.za
Too often, when an employer finds an employee guilty of a serious offence, the employer fires the employee right away. However, being guilty of a very serious offence does not automatically entitle the employer to fire the employee. The employer must consider other remedies for misconduct which could include:
- Dismissal – the most severe corrective action
- Demotion – provided that the employee is given the choice of dismissal or demotion
- Suspension without pay – provided that the employee is given the choice of dismissal or suspension
- A warning or final warning – which must be very carefully worded
- Training – where lack of skill/knowledge is the cause of the problem
- Treatment – for example where addiction or alcoholism is an important factor
Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:
- the nature and seriousness of the misconduct
- aggravating circumstances
- the employee’s personal circumstances and length of service
- the employee’s disciplinary record
- extenuating circumstances.
Extenuating circumstances are those related to the case itself that might render the misconduct less serious. For example, where an employee refuses to obey an instruction from a manager due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction. This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.
Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.
For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:
- The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
- the employee had used the vehicle due to an emergency at the workplace
- this was an extenuating circumstance
- the dismissal was therefore too harsh
- the employee was to be reinstated.
In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather. A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:
- The employee’s conduct did not amount to an assault as the physical contact made during the scuffle was very slight
- The employer had not disputed the fact that the employee had been provoked by the insult from her colleague
- The employee had been provoked by her colleague’s insult but the presiding officer of the disciplinary hearing failed to take this into account
- The employee was to be reinstated with full back pay.
Where employers are unsure as to whether extenuating circumstances exist they should obtain expert labour law advice before acting against the employee.
To view our expert team debating contentious labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.
by Akhona Zembe | Nov 9, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za
According to sections 193 and 194 of the Labour Relations Act (LRA) the awards and orders that can be made against the employer for unfair dismissal are as follows:
o The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively.
o The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must give the employee his/her job back, this will not be with back pay.
o Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.
o If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.
o Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment.
Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date and says goodbye to the employee. However, this is a dangerous tactic because labour law has closed this loophole.
The main purpose of a fixed-term contract is supposed to be the filling of a temporary job. That is, the most appropriate time to hire an employee on a fixed-term contract is when the job itself is expected to come to an end at a specific time. It can be very dangerous to employ an employee on a fixed-term contract when the job itself is permanent (unless the temporary employee is merely standing for the permanent incumbent who is away on leave or who has temporarily been deployed elsewhere). The reason for this danger is that, according to the LRA, if the employer (even inadvertently) gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the CCMA or bargaining council could force the employer to renew the contract.
In the case of Nape vs INTCS Corporate Solutions (Pty) Ltd (CLL Vol. 19 June 2010 page 103) the employee’s contract was terminated because the employer’s client no longer required his services. The employer argued that the employment contract allowed for automatic termination on these very grounds and that the termination did not constitute a dismissal. The Court disagreed and struck down the employment contract’s provision as it clashed with and was overruled by the provisions of section 189 of the LRA that requires a retrenchment process in circumstances where employers are unable to provide work for the employee.
In the case of Khum MK Investments and BIE Joint Venture (Pty) Ltd v CCMA and others [2020] 4 BLLR 362 (LAC) the employer concluded a five-year service contract with Eskom and recruited 333 employees on fixed-term contracts to perform this work. Eskom then advised Khum that certain specified tasks had been cancelled. Khum in turn issued written notices of termination of their employment contracts to three employees. At the CCMA Khum claimed that the employees were “independent contractors” and that they had not been dismissed because their contracts had terminated “automatically”.
The commissioner dismissed both points, ruled the employees’ dismissals unfair and awarded them compensation equal to the amounts they would have earned during the unexpired portion of their contracts. A review having failed, Khum went to the LAC which noted that the employees’ contracts made no provision for automatic termination before the arrival of their expiry date. The appeal was dismissed with costs.
The wording of this decision appears to imply that, had the contracts indeed made provision for automatic termination the appeal might have been upheld. This creates uncertainty for employers needing to know whether or not such clauses are legally acceptable.
The above shows that employers should not take a chance when dealing with the termination of employment contracts. Instead, they should obtain expert advice from a genuine and reputable labour law expert.
To view our expert team debating contentious labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.
by Akhona Zembe | Nov 2, 2021 | Law & Criminology
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted via 011 888 7944 or 082 852 2973 or [email protected]. Go to: www.labourlawadvice.co.za.
Item 3(4) The Code of Good Practice: Dismissal (the Code) lists some examples of offences that might merit dismissal even in the absence of prior warnings. Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the potential seriousness of “insubordination” employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey an instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot. The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded. However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction. As the employee had already received a final warning for insubordination she was fired.
The arbitrator found, amongst other things, that:
- In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
- Decisions of Pilots as regards boarding operations are final
- The instruction given by the Pilot had been both lawful and reasonable
- However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
- According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
- Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
- While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
- Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
- Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
- The dismissal was substantively unfair
- The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case. These were:
- The employee did not believe the instruction to be reasonable on the grounds that it was unsafe
- Her opinion was based on her own view of what was dangerous practice
- Her opinion was within the bounds of rationality
- Her refusal to obey the Pilot’s instruction was based, not on a desire to flout authority, but rather on her professional opinion relating to safety which, according to orders, was paramount.
- There appeared to be a personal issue influencing the dismissal.
Employers must therefore avoid basing dismissal decisions on personal attitudes. Instead, expert advice should be sought to establish whether the employee truly committed an offence.
To book for our 23 September seminar in Durban on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at [email protected] or on 084 521 7492 or 011 782 3066.
by Akhona Zembe | Oct 25, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.
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Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds One of these grounds is that of religion. This means that no employer is entitled to discriminate against an employee or applicant for employment purely on the grounds of the employee’s religion. For example, it would be discriminatory for an employer to:
- Turn down a job applicant because he/she was Christian, Jewish, Moslem or a believer in any other religion
- Decide that only employees belonging to a specific religion will be allowed to go to church during working hours
- Require employees only of certain religions to work on public holidays.
However, while all of the above are examples of discrimination they will not necessarily always constitute unfair discrimination. Whether such discrimination is unfair or not will depend to an extent on whether or not the discrimination makes objective sense. For example:
- Turning down a Jewish person for the position of Pope would not be unfair
- Refusing to employ an atheist as a priest would be seen as fair
- It would not be unfair to allow only Moslems to go to mosque
A key contributing factor as to whether discrimination at the workplace makes sense is whether or not it is based on the inherent requirements of the job. For example, forcing employees to stop wearing emblems of their religion might be unfairly discriminatory especially if such emblems are worn under the clothing. This is because the wearing of such emblems is unlikely to affect the employees’ work circumstances in any way.
However, should employees working with machinery insist on wearing their religious emblems on chains dangling freely around their necks the employer would obviously be entitled to prohibit this on the grounds of safety. Such prohibition would then not constitute unfair discrimination unless employees of certain religions were allowed to wear the dangling chains and others were not. Hence, consistency also plays an important part in establishing the fairness of discrimination.
It is important to note that each case must be evaluated in terms of general principles such as consistency, the need for good sense and the inherent requirements of the job, as applied to the circumstances of each case.
In the case of Dlamini and Others VS Green Four Security (2006, 11 BLLR 1074) the employees, who were all security guards, belonged to the Nazarene religion. They had received an order to shave or trim their beards but refused on the grounds that the Nazarene religion forbade them to do so. As a result they were dismissed and claimed that the dismissal was automatically unfair as it involved unfair discrimination against them due to their religious beliefs.
The employer argued that:
- bearded guards looked untidy and that a tidy and clean-shaven appearance was both an inherent requirement of the job as well as a necessity of the image of the company.
- The employees had contractually agreed to be clean shaven
- The employees had been clean shaven when they were employed
The Court found that:
- The employees had failed to prove that cutting of beards was a central tenet of their religion and that they would have to suffer a harsh penance should they breach such tenet
- The employees worked on Sundays despite the fact that their religion forbade it. This indicated that the church applied its rules flexibly
- The employees had been selective about which religious rules they chose to follow
- The rules requiring guards to be clean shaven had been applied consistently by the employer
- Grooming is an important factor in all security establishments
- The employees had not been unfairly discriminated against.
Employers are warned that this finding does not mean that they will always win cases concerning alleged unfairness relating to religion or to the appearance of their employees. Employers require expert advice in applying the legal principles to each specific case.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.
by angelique | Oct 11, 2021 | 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]. Go to:www.labourlawadvice.co.za
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Earlier this year I wrote an article warning of the dangers of enforcing compulsory Covid vaccinations at the workplace. Despite this, a trend towards compulsory vaccination has begun. This is because Covid is still spreading, far too many people are still resisting the necessary safety measures, herd immunity is nowhere to be seen and unemployment continues to edge towards 50% due to our sick economy.
It appeared that our government was doing nothing at all to deal with this spiralling crisis. Then, in June 2021 the Minister of Employment and Labour published the “Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces”. This Direction appears, conditionally, to give licence to certain employers to require employees to get anti-Covid vaccinations. Two of the most important conditions attached to this ‘licence’ appear to be that:
- The employer had to conduct a risk assessment by 23 July 2021; and
- If an employee refuses to be vaccinated the employer is required to:
- counsel the employee;
- where it is established that the vaccine might constitute a medical danger to the employee, refer him for a medical assessment; and,
- should the two above steps fail to resolve the issue, try to accommodate the employee where at all possible.
This so called “Direction” is unclear with respect to both of these conditions. That is, it is not clear whether an employer that missed the 23 July deadline for doing its risk assessment is still entitled to enforce mandatory vaccinations. And it is also unclear what the employer is entitled to do if an employee who flatly refuses to be vaccinated cannot be accommodated in any way. Must the employer allow the employee to carry on working despite the danger to his colleagues? Or is the employer entitled to consider the termination of his employment after, for example, following an incapacity or operational requirements procedure?
While a few companies have already begun gearing up to implement forced vaccinations on their staff, most employers are following the wait and see approach.
On the side of labour some unions are opposed to their members being forced into getting the jab. At least one union is reported to have put this in writing to employers. This open letter cites people’s constitutional freedoms.
Specifically, section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Should employees be forced to be vaccinated and/or be dismissed for refusing to do so, there is little doubt that the matter will end up in court.
In Court, employers will counter argue sections 36, 11 and 24 of the Constitution’s Bill of Rights. Section 36 provides that the rights conferred by the Bill of Rights may be limited under specified conditions. Employers will argue that, in the case of Covid vaccinations, the employees’ section 12 and 15 rights should be limited in the greater social interest of preserving life and the survival of our economy.
This argument will be supported by the fact that section 11 of the Bill of Rights gives everyone the right to life. As Covid has been a very prolific taker of lives, those people who have to come in contact with a Covid objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Furthermore, section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. In view of this clash of constitutional rights the court will have a tough decision to make.
One circumstance that is likely to sway a Court in the employer’s favour is where the employer can prove that it has tried everything to solve the problem in other ways, and that dismissal is truly the only suitable solution. Employers will also have to prove that having unvaccinated employees at the workplace actually does pose a real threat to others who come into contact with them. As a result, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step.
The big question is, which employer will be the first to face a Court on this issue?
Until the Constitutional Court makes a finding on forced vaccinations the legal position will be uncertain. The real risk of losing in court and the potential harm that could be done to employee relations at the workplace by forced vaccinations make it wise for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails, the employer should consider alternatives to dismissal such as arranging for ‘Vaccinots’ to work in isolation even if this necessitates job swapping where that is viable.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.
by Akhona Zembe | Oct 4, 2021 | General
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.
The CCMA and Labour Court are wise to employers who misuse retrenchments in order to get rid of employees who they do not want. Due to this and the dire consequences of such misuse employers should consider the retrenchment route only when there is a genuine redundancy.
These authorities are putting more and more onus on employers to provide good reasons for retrenching employees. For example, in the case of FAWU vs SA Breweries Ltd (Contemporary Labour Law Vol 14 No. 2 September 2004) the employer retrenched employees after a major reorganisation in the way that work was done. This change required that production employees would need to be able to perform a much wider variety of work than previously. In order to establish whether these employees had the required skills to work in the changed jobs the employer applied, amongst others, the ‘ABET test’. That is, in the absence of other suitable educational qualifications, the employer tested the employees to assess their levels of at Adult Basic Education and Training (ABET). Certain employees who failed these tests were selected for retrenchment.
The Labour Court found that:
- Retrenchment has a “.. deleterious impact on the life of workers and their families …” and can be seen as a “death penalty”
- Therefore an employer contemplating retrenchments must be able to prove that such dismissals were implemented as “a last resort”
- And if there was a viable alternative to retrenchments the employer is obliged to implement it
- SAB acted unilaterally in applying the ABET levels
- These ABET levels were not a valid test of the retrenchees’ ability to work in the newly created jobs. This is because ABET measures more general abilities rather than the specific skills required for the specific jobs in question. The employees’ experience should also be taken into account in assessing their suitability for the jobs.
- SAB did not argue that it did not have the funds to devise a valid and appropriate test to assess the suitability of the employees for the newly created positions. The employer therefore could have and should have had such appropriate tests designed.
- The retrenchees had long service
- Due to apartheid the employees’ only schooling option had been “Bantu education”
- SAB had not taken adequate steps to assist the employees to obtain the desired ABET skills levels
- SAB had been inflexible as regards the consultation process.
- The retrenchments of these employees was unfair both procedurally and substantively (i.e. was for unfair reasons).
In the case of Pedzinski vs Andisa Securities (Pty) Ltd (2006, 2 BLLR 184) the employer retrenched Pedzinski. However, the Labour Court found that:
- The reason given by the employer for the retrenchment was bogus
- Pedzinski had reported the employer to seniors in the group of companies for irregular share trading activities
- The retrenchment was a false means of getting rid of Pedzinski in retaliation for the report he had made
- Pedzinski’s report fell under the ambit of a protected disclosure and his sham retrenchment was therefore automatically unfair
- The employer was ordered to pay the employee 24 months remuneration in compensation for the unfair dismissal as well as to pay the employee’s legal costs.
In Makwela / Unilever [2014] 4 BALR 371 (CCMA) the applicant was retrenched after the manager of a client’s store in which he worked informed his employer that he would no longer be allowed entrance to the store. The employer therefore retrenched the employee.
The Commissioner found that the respondent’s acquiescence to the wishes of its client had deprived the applicant of his right to fair labour practices – in particular the process required to address his alleged poor performance. Reliance on “operational requirements” was a fiction designed to avoid calling the client to justify its allegations.
The applicant was awarded compensation equal to ten months’ wages.
Employers need to learn form the above cases that:
- The biggest, most powerful and most experienced of employers can lose in the Labour Court. Therefore, no effort must be spared in ensuring legal compliance
- Retrenchment cannot be misused to execute private agendas
- The need to apply labour law expertise is not a luxury but a basic necessity
- Such expertise must be applied before a retrenchment decision is made.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 084 521 7492.
by Akhona Zembe | Sep 28, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.
All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit.
However, more often employers go to the opposite extreme and brush all grievances aside because they feel that they are not there ‘to deal with employees’ sob stories’ or because the statutes do not provide for the lodging of grievances. While it is true that no statute specifically requires employers to solve their employee’s personal problems there are many circumstances under which employers would be foolish to ignore grievances. For example:
- Where the continued existence of the problem affects employee morale this may in turn cause a drop in productivity, increases in wastage, resignations and even conflict. This normally occurs where the resolution of the grievance is seen by the employees as the employer’s responsibility. This would for instance be so if the employer moved premises resulting in commuting problems for the employees.
- Where employees are being abused verbally or physically by a manager the practical and legal consequences for the employer could be dire if the employer does not act quickly, fairly and effectively. This would be the case, for instance, where the employee is being sexually harassed, insulted or bullied.
Employers are reminded of the expensive consequences for the employer in the Real Security case we discussed some months ago. There the employer had to pay tens of thousands of rand in compensation to the employee who had been sexually harassed by a supervisor because the employee’s grievances were ignored by the employer.
Employees whose salaries are not paid to them and receive no satisfaction from the employer when expressing such grievances are, under specific circumstances, entitled by law to resign and take the employer to the CCMA or bargaining council for constructive dismissal (a type of forced resignation).
Some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as ‘trouble-makers’ and are told to ‘like it or take a hike’. In Sweet (James) v Namcon Logistics (Pty) Ltd[2021] 1 BLLR 104 (LC) a warehouse manager was dismissed for negligence. He claimed that his dismissal was automatically unfair because it was implemented in response to grievances he had lodged. The Court found that:
- Victimisation of an employee for lodging grievances does not breach the provisions of sections 187 or 5 of the LRA
- the employer’s reasons for justifying the misconduct dismissal were unconvincing
- While the employee had not lodged a dispute at the CCMA regarding his grievances he had indicated that he intended to take legal action in this regard
- The employee had been dismissed because of his intention to take legal action against the employer which was in breach of the LRA’s provisions according to an earlier Labour Appeal Court decision.
The applicant was awarded compensation equal to 24 months’ remuneration and the respondent was directed to pay his costs. In the light of the above it is crucial for employers who receive grievances:
- To ensure that the grievant is not mistreated in any way after having lodged the grievance
- To investigate each grievance thoroughly while keeping an open mind
- Judge the validity of the grievance based on the facts and not based on who has lodged the grievance or who has been named in the grievance.
- If there is any merit in the grievance use an industrial relations expert to help devise an appropriate solution that will not create a problematic precedent.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.
by Akhona Zembe | Sep 21, 2021 | Law & Criminology
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]. Go to: www.labourlawadvice.co.za.
Where employees disrupt the workplace the operations of the business can be seriously affected. Employees who behave in a disruptive manner might do so for a variety of reasons including:
- Abuse of alcohol or other substances
- Incompetence – that is, while the employee is not intentionally disruptive, his/her inability to perform properly disrupts the flow of work in the workplace
- Resentment – Employees may resent receiving a low or zero pay increase,
- Unwillingness to work – there are many employees who tend to behave disruptively either because they do not care if they get fired or because they
are trying to get fired. Then they can tell their families that it was not their fault and go and make money at the CCMA by alleging ‘unfair dismissal’
- Industrial action – employees trying to pressurise the employer may, instead of going on a fully fledged strike, embark on disruptive behaviour.
- Dislike of a colleague or a boss.
Disruptive behaviour at the workplace can be seriously damaging to the effectiveness of business operations and can even result in losses for the employer. For example, disruptive behaviour can cause:
- Bosses to lose their tempers
- The speed of production to slow down
- Legal disputes arising from unprocedural discipline and dismissal
- Service to clients to suffer
- Loss of orders or of clients
- Injury to employees or other people
- The quality of products to deteriorate
- Damage to property
- Clashes between employees and managers or amongst employees
It is therefore most important that the employer acts swiftly and firmly yet within the law in order to minimise the damage and send a strong message that such behaviour will not be tolerated. Especially where an employee’s disruptive behaviour is habitual the employer needs to follow the correct disciplinary procedure to prove that the employee is guilty. Otherwise there is a danger of the disruptive employee being reinstated by the CCMA, Labour Court or bargaining council.
In the case of Mofokeng vs Afrikaans Import and Export cc (2001, 11 BALR 1184) the employee was dismissed for disrupting the workplace after he had
been caught under the influence of alcohol and had refused to obey the instructions of a superior. However, the employer reinstated the employee as it wanted to give him one more chance and commuted the dismissal to a final warning. Later the employee was again dismissed, this time for driving a forklift under the influence of alcohol, damaging the employer’s property with the forklift, smashing the windows of the company quarters in which he lived and loudly threatening management while the owner was on an international telephone call. Instead of calling a disciplinary hearing the employer fired the employee on the spot. The CCMA stated that the existence of the final warning did not exempt the employer from holding a disciplinary hearing.
Employees are advised, if they are aggrieved by anything at work, not to disrupt the workplace lest they end up out on the street. Instead, aggrieved employees should lodge formal grievances and/or CCMA disputes.
Employers are advised, when faced with ‘disruptive employees to:
- Avoid losing their tempers
- Use their most expert labour law specialist to help:
- carefully and thoroughly investigate the cause of the problematic behaviour
- arrive objectively and unemotionally at the route cause of the problem
- decide upon a legally compliant, practical and effective course of action appropriate to the particular type of disruption and to its specific cause. Such action may vary from a warning to a disciplinary hearing or from counselling to training or treatment.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.
