by Akhona Zembe | Sep 13, 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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury.
Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances in deciding whether the potential alternatives to dismissal could realistically have been implemented as a viable solution to the problem at hand. Where this has been done it has been in the interests of balancing fairness towards employees and employers.
However, a number of unfair dismissal decisions under the new dispensation can be seen as suggesting a trend towards an imbalance favouring employees. The highly publicised Sidumo vs Rustenburg Platinum Mines epic has been described as a case in point. While space does not allow for discussion of numerous other case decisions bemoaned by employers, we will discuss one case decision reported in 2010.
In Nape vs INTCS Corporate Solutions (Pty) Ltd (2010 CLL Vol. 19 No. 11)INTCS provided employees to Nissan (Pty) Ltd on the basis of a labour broker or TES (temporary employment service) contract. Nape, one of INTCS’s employees assigned to Nissan was found guilty of distributing, via Nissan’s email system, an offensive email to another person working at Nissan. At his disciplinary hearing he was issued with a final warning. This appears to have been based on INTCS’s disciplinary guidelines or policy relating to offensive communications. However, Nissan viewed this conduct as far more serious and refused to accept Nape back on to its premises.
Being unable to place Nape at Nissan or anywhere else, Nape was retrenched on the basis that there was no job for him and that a clause in his employment contract required INTCS to withdraw Nape from the client’s premises should the client require this. The Labour Court found that:
- Such a contractual clause was against public policy and therefore invalid and unlawful
- INTCS could have and should have resisted Nissan’s refusal to take Nape back by interdicting Nissan in court to prevent Nissan from refusing to take Nape back
- It was unfair for INTCS to have retrenched Nape before having attempted to resist Nissan’s decision to refuse Nape’s return to work.
This decision is a major shock for employers because:
- The finding that the clause giving Nissan the right to bar Nape was contrary to public policy fails to take into account that any person(including a business) has the right to bar any other person from its premises particularly where the person barred has committed an offence
- Had INTCS ignored Nissan’s decision for Nape to be barred and had it ignored the relevant contractual clause Nissan could still simply have refused Nape entry to its premises and halted its payments to INTCS for Nape’s assignment
- Had INTCS then have continued to press for Nape’s return to work at Nissan by, for example, sending threatening letters to Nissan or suing this client in Court, INTCS would have incurred the serious and real risk of losing the entire Nissan contract which was one of its biggest contracts. This would have resulted in the loss of a great many jobs and serious financial losses to INTCS.
Furthermore, It would have been most unlikely that INTCS would have succeeded via an interdict application to force Nissan to take Nape back. This is especially because:
- Nissan is a large and powerful company with the resources to fight such cases robustly
- The clause in the agreement between Nissan and INTCS gave Nissan the contractual right to bar any INTCS employee
- Nape was found guilty of a serious offence committed on Nissan property
- In addition, such interdicts are normally only granted on the basis where urgency can be proved and it is highly unlikely that the High Court would accept a claim of urgency in a situation where INTCS was unable to show serious losses due to the barring of Nape and where a contract agreeing to such banishment was in place.
Thus, while INTCS could in theory have applied for such an interdict, this route was unviable in the extreme.
To access the opinions of our labour law experts please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.
by Akhona Zembe | Sep 6, 2021 | Legal
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: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.
The Code Of Good Practice: Dismissal in Schedule 8 makes it clear that, while the disciplinary process can, under certain circumstances, be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.
While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The key question is ‘How can the employer go about proving that the dismissal was procedurally fair without using formal processes to ensure fairness and to demonstrate that the procedure was indeed fair?’ for example, The Code Of Good Practice does accord the employee the following procedural rights:
- The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the accused employee
- The right to a proper opportunity to prepare – Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the accused employee well in advance of the hearing date
- The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. In my view this conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.
However, it appears that my view is in conflict with that of one Labour Court Judge. In the case of Avril Elizabeth Home for the Mentally Handicapped vs CCMA and others (2006, 9 BLLR 833) the finding of the Court suggests that avoiding of bias at a disciplinary hearing is not a requirement. Other findings that came out of this case are as follows:
- Video coverage does not have to be absolutely conclusive to be accepted, it need only satisfy the balance of probabilities requirement
- The procedure bringing about a dismissal does not have to be a formal enquiry unless the parties have agreed that it will be a formal hearing
I am in agreement with the honourable Court as regards the principle of balance of probabilities and as to the fact that The Code Of Good Practice does not require a formal hearing. I have, however, explained why, in practice, it is very difficult for an employer to comply with the requirements of The Code Of Good Practice without using the mechanisms of a formal process. This is necessary, not because the Code says so (which it does not) but rather to make sure that the employer can satisfy its onus of proving that it has complied with the content and spirit of that Code.
As regards the apparent finding that an unbiased chairperson is not necessary at a disciplinary hearing I respectfully believe that, if the Court really meant to say this, its decision cannot be correct and that other judges have found to the contrary. I would prefer to believe that the Court only meant that the test for bias of the chairperson should not be as stringent as that applied in criminal law.
My view is based on the fact that The Code Of Good Practice requires that the employee is afforded the opportunity to present his/her case, and the central core of labour law requires fairness. I submit that no employee can present his/her case fairly before a biased chairperson. To allow biased chairpersons to chair internal disciplinary hearings and then dismiss employees would make a mockery of such hearings. The employee would lose his job and livelihood unfairly and could then lose his/her house, car and other assets while he/she is waiting for the labour law process at CCMA and Labour Court to take its course. Allowing such a situation would be akin to allowing a kangaroo court.
In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled disciplinary hearing essential. This holds true even if the only procedural rights an employee has are those few specifically provided for in The Code Of Good Practice.
While the officials who carry out the corrective procedure do not need to be lawyers they do need to be well skilled in disciplinary procedure in order to make sure that each and every legal right of the employee is strictly adhered to.
Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
by angelique | Aug 30, 2021 | Employers
The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.
Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith. and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures it requires the employee, when making an external disclosure, to at least hold a genuine belief that the employer has acted wrongly.
Whistle blowing employees are also protected by sections 186(2)(d) and under section 187(1)(h) of the Labour Relations Act (LRA). The former section classifies as an “unfair labour practice” any employer conduct short of dismissal resulting in “an occupational detriment” to an employee who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim would be 12 months’ remuneration.
The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a disclosure protected in terms of the PDA. While few such cases have been reported in labour law it appears that the courts are trying to look after the interests of both employers and employees.
In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee’s report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court therefore refused to assist the employee.
In a 2006 case the Minister of Justice is reported to have been taken to the Labour Court for removing Mike Tshishonga, a former deputy director-general, from office after Tshishonga had blown the whistle on the Ministry. The Sunday Times of 7 January 2007 reported on page 1 that the Minister of Justice as well as a then deputy director-general of Justice were taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry and alleged nepotism on the part of the Minister of Justice. According to The Sunday Times’s report the Court found that:
- Tshishonga had been sidelined after refusing to appoint a friend of the Justice Minister
- He was later axed after making public disclosures
- The fact that the Minister and the former director-general had failed to testify in court aggravated the claim made against them
- It was not right that the Public Protector, Auditor-General and Minister in the Presidency had failed to probe the allegations
- The dismissal of Tshishonga was “vicious”
- The Justice Department was required to pay Tshishonga 12 months salary in compensation as well as his legal costs.
In Baxter v Minister of Justice and Correctional Services and others
[2020] 10 BLLR 968 (LAC) the employee was dismissed after he became involved in a protracted dispute with the Regional Commissioner. The employee had alleged at Labour Court that he had been dismissed for disclosures he had made about manipulation of the selection of five candidates for vacant positions. The Labour Court found against the employee.
The Labour Appeal Court found that the appellant’s disclosures related to irregularities in the recruitment and selection processes and, accordingly, constituted protected disclosures. Even if some of his allegations had been made for an ulterior motive, it did not follow that he had acted in bad faith; his disclosures were not tainted by dishonesty and their contents were for the most part true.
The Court noted that the department had led no evidence relating to the charges of misconduct. It was apparent, however, that the remaining four charges on which the appellant had been found guilty were implausible and trivial and designed to cover the true reason for his dismissal.
The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration.
In view of the above employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
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: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.
by K-Ci Henry | Aug 23, 2021 | Legal
In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to:
- Subpoena witnesses and documents
- On authorisation, enter and inspect any premises on which any relevant document or other object is to be found
- On authorisation, remove and inspect any relevant document or other object
- Take from persons on the premises any statement relevant to the matter
- Make a finding that a person is in contempt of the CCMA
- Attempt to settle labour disputes amicably
- Hear evidence at arbitration hearings
- Award employees reinstatement or compensation in respect of disputes that the LRA allows the CCMA to arbitrate
- Dismiss applications lodged with the CCMA
- Make default awards against employers who fail to attend arbitration hearings
- Make rulings on matters such as:
- The jurisdiction of the CCMA to hear specific matters
- The right of parties to be represented at conciliation and arbitration hearings
- Applications for variation or rescission (cancellation) of an arbitration award
Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. In deciding whether a dismissal is fair the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This means that, even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate.
In the light of this power conferred by the LRA for commissioners to decide on the appropriateness of the dismissal sanction employers, trade unions, employees and other interested parties have become confused by the finding of the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Limited vs CCMA and Others (SCA case number 598/05 as reported in CLL Vol.16 No. 4 November 2006). In this case a Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the several reasons that the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.
The Supreme Court of Appeal found that:
- Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal;
- CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings;
- CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.
The meaning of this finding is not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision discourages commissioners from overturning dismissals without strong reasons.
While employers are hailing this decision as a victory they should not interpret it to mean that they can now impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure. This must include a solid rationale as to why the mitigating circumstances failed to prevent dismissal.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
by K-Ci Henry | Aug 16, 2021 | Legal
As a result of South Africa’s highly restrictive labour legislation employers threaten to close down their businesses. But it is not necessary for employers to take such drastic steps merely because the labour law interferes with their right to make business decisions. This is because every employer has the ability and opportunity to acquire the expertise necessary to implement business decisions without transgressing the law and still maintain a viable business.
Employers too often make the mistake of retrenching problem employees because they perceive the disciplinary process as being too drawn out and complicated. However, they are not allowed to use retrenchment to get rid of ‘deadwood’, trouble makers, poor performers or other undesirables. Retrenchment only becomes a possible option if the job is truly redundant.
Employers are not required negotiate retrenchments but only to consult with the trade union or other employee representatives (if these exist) or with the employees themselves. The difference between consultation and negotiation is most important:
Negotiation means that the parties must reach agreement before any idea can becomes a decision or is implemented. This is not required in retrenchment law although the trade unions are pressing hard for this to be legislated.
On the other hand, the law of consultation provides that, as long as the employer can prove that it disclosed relevant information and tried thoroughly and in good faith to reach consensus, it does not have to actually reach agreement with the employees/representatives.
The halls of the CCMA and Labour Court echo endlessly with the groans of many thousands of employers (and some ex-employers) who refused to believe the labour law requiring fair or agreed retrenchment criteria and who failed to acquire the knowledge and expertise necessary to reconcile business pressures with legal requirements.
Countless cases have been decided at the CCMA and Labour Court where employers have either had to reinstate retrenchees and/or have had to pay huge amounts in compensation. This is often a disaster for the employer because the biggest reason for retrenchments is financial weakness and these awards against employers can place an unbearable burden on the already strained finances of the employer.
A case in point is that of Toyota SA reported in the Business Report of 30 November 1999. Here, the employer was required to reinstate 280 employees and to pay them R15,2 million because Toyota had failed to disclose to the employees sufficient information necessary for effective consultation.
In Ntshanga vs South African Breweries Ltd (2003, 8 BLLR 789) Ntshanga, a commodity manager, was retrenched as part of a restructuring exercise. Prior to his retrenchment he had applied for a post in the new structure but was rejected. He therefore lodged a dispute of unfair retrenchment. The Court found that:
- The employer failed to offer the employee one of the available posts because it was dissatisfied with his work performance
- The retrenchment was therefore unfair and the employee was awarded compensation.
In SACCAWU and others v Woolworths (Pty) Ltd [2019] 4 BLLR 323 (CC) Woolworths decided to convert many of its full-time employees to flexi-time and retrenched those who refused the conversion. 44 employees took the matter to the Labour Court which ruled their dismissals unfair, and ordered Woolworths to reinstate them with retrospective effect. The Labour Appeal Court upheld the unfair dismissal finding but altered the remedy from reinstatement to compensation equal to 12 months’ remuneration.
The Constitutional Court noted that Woolworths had failed to consider a number of alternatives including SACCAWU’s proposal that the full-timers be converted to flexi-time and be paid lower salaries. It followed that the dismissals were unfair. The Court ordered that all 44 employees be reinstated to their positions as full-timers with effect from the date of the dismissals.
The courts will often tolerate the employer requiring operational flexibility but will not tolerate the employer getting rid of those who refuse unreasonable demands of the employer.
Proper strategic thinking and understanding of what are often complex legal principles would have prevented these costly awards! Managers therefore require advice and training on how to restructure businesses and how to deal effectively and legally with poor performers or other undesirable employees.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
by K-Ci Henry | Aug 10, 2021 | Legal
The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to:
- be remunerated for work done
- be given vacation leave, sick leave, maternity leave and family responsibility leave
- be paid for overtime worked
- lunch breaks
- weekly and daily rest periods
- night work allowances
- public holidays
- salary advices and written terms and conditions of employment.
The BCEA also entitles employees to discuss their terms and conditions of employment with each other. Therefore, disciplining employees for revealing their salaries to each other would be contrary to the law.
The Department of Labour (DOL) is required (with the help of the courts) to enforce this legislation unless the employee in question does not fall under the BCEA’s protection because, for example, he/she earns above R12478 per month or is a senior manager.
The DOL employs Inspectors who are required to investigate complaints against the employer and also to carry out routine inspections of the employer’s labour law compliance. Such inspections may be carried out without advance notice and without a warrant (unless the inspection is at a private place of residence. Where the inspector finds that the employer is guilty of, for example, paying employees for overtime worked, the inspector may request an official Undertaking from the employer to rectify this infraction by a deadline date.
Should the employer fail to make and/or to carry out such Undertaking the inspector may issue a Compliance Order. Should this order not be complied with the DOL may ask the Labour Court to make the order an order of court. Defaulting employers can then be jailed and/or fined for contempt of court.
An employer who has been issued with a compliance order is entitled to lodge an objection with the Director General of Labour (DG). Should the DG uphold the objection the employer is not obliged to comply with the Compliance Order. However, the DG may confirm the order which then obliges the employer to comply. The employer may delay compliance and lodge an appeal against the order at the Labour Court.
The DOL is also entitled to prosecute the employer in criminal court if the employer, for example, employs a child below the age of 15 or if the employer undermines, hinders or obstructs the work of a labour inspector.
Where the employee does not fall under the protection of the BCEA (e.g. due to his/her position or salary level), he/she may be able to refer any dispute relating to his/her employment contract directly to the Labour Court. The Court has, in fact, indicated its willingness to adjudicate matters referred to it by employees even when the employees have not specifically sued for breach of contract as long as the dispute relates to the employees’ basic employment conditions.
In the case of Minny & another vs Smart Plan CC (2010, 4 BLLR 439) the employees fell outside the protection of the BCEA because they were too senior. They were therefore unable to refer a dispute to the DOL and instead went straight to the Labour Court claiming that the employer had breached the provisions of the BCEA by failing to pay their leave pay. The Court overlooked the fact that the employees had failed to word their claim as a suit for breach of contract. The Court chose to assume that the applicants had intended to lodge such a claim and therefore agreed to hear the case. This shows that employers should beware of believing that they can have matters thrown out due to technicalities.
Employers should also beware that, should the employee properly refer a dispute of unfair dismissal to the CCMA under section 191 of the Labour Relations Act (LRA), he/she may add with that dispute, a dispute relating to any payment due to the employee in terms of the BCEA; and the arbitrator may make an award in that regard. In the case of Douglas & others vs Gauteng MEC for Health (2008, 5 BLLR 401) the Court pointed out that section 74 of the BCEA would entitle it to consider a claim for unpaid salaries if such claim were made together with an unfair dismissal claim lodged under section 191 of the LRA.
Due to the comprehensive protections afforded to employees employers should not do anything that could be construed as interfering with employee rights until they have received proper labour law advice
To attend our 23 July 2010 seminar in Johannesburg on WALKING THE LABOUR LAW TIGHTROPE please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
by K-Ci Henry | Aug 2, 2021 | Legal
To have a chance of winning a case at CCMA a party must present proof to the
arbitrator. In the days when I arbitrated CCMA matters parties argued their cases
before me very vehemently, passionately and in great detail but often brought
little or no support for their arguments. They were then most surprised when they
lost the case.
What parties do not understand is that they are responsible for presenting clear,
relevant and persuasive facts in support of their cases. All arbitrators are
required to follow the rules of procedure and principles of justice during the
arbitration hearing. These requirements include the paramount principle that the
arbitrator must base his/her findings primarily on the facts presented at the
arbitration hearing.
It is not up to the arbitrator to bring the evidence or to show that the evidence
brought constitutes proven fact. The arbitrator merely creates the environment in
which the parties can present their evidence if they have brought it with them. In
this sense the arbitrator acts as a master of ceremonies. That is, he/she
manages the following arbitration process:
opening statements are made by each party outlining what they intend to
prove
the parties present their cases via witnesses, documents and other evidence
if the employer goes first then, each time the employer’s representative is
finished questioning one of his/her witnesses, the employee has a right to
cross examine that witness
the arbitrator has the right to ask the witness questions for clarity and the
employer is allowed to re-examine the witness, but only regarding the issues
raised during cross examination
once all the employer’s witnesses have been heard the employee presents
his/her case according to the above listed steps.
Each party presents a closing statement
The arbitrator adjourns to assess the evidence and to make the award.
While the arbitrator is required by law to give you, via the above process, every
opportunity to present the evidence that you have brought you are likely to lose
the case if you do not take full advantage of this opportunity.
In NUMSA obo Daki vs Colven Associates (2006, 9 BALR 877) the employee,
who was employed by a labour broker, was dismissed for being involved in a
fight with a colleague at the premises of the employer’s client. The client had
reported the alleged fight to the labour broker and instructed the broker to
remove the employee from the client’s premises. The labour broker then placed
the employee in its pool of people waiting for employment but ceased paying the
employee. The arbitrator decided that:
The employer’s actions constituted a dismissal
The dismissal was unfair because the employer (the labour broker) had relied
only on the allegations of the client and dismissed the employee without proof
that he had been involved in the fight.
The employer was required to reinstate the employee.
Thus, in many cases, a party may lose, not because there is no evidence, but
because he/she failed to bring the evidence to the arbitration hearing or because
the evidence was not properly presented and converted into proof.
The arbitrator’s role is to manage the flow of evidence during the hearing but not
to bring the evidence. His/her duty is to collect the evidence brought by the
parties and then adjourn the proceedings to evaluate the evidence.
Therefore, if you are an employer or an employee party and you have an
arbitration pending you must immediately:
Obtain advice form a reputable labour law expert on how to gather all the
evidence needed at arbitration
Use the labour law expert to make sure that your evidentiary documents,
tapes and other evidence are carefully sorted into the right sequence
Get assistance form the expert as to how to prepare your witnesses in a legal
yet effective manner
Ensure that your witness evidence dovetails with your other evidence
Learn from the labour law expert how to anticipate what evidence your
opponent is likely to bring and how to counteract it.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE
COVID ENVIRONMENT please contact Ronni on ronni@labourlawadvice.co.za
or 0845217492.
by K-Ci Henry | Jul 26, 2021 | Legal
When an employer temporarily requires an employee to vacate its premises and
to stop performing his/her duties this is called ‘suspension. The effect of a
suspension is that the employee is not allowed to return to work until the
employer instructs that he/she may do so. Such suspensions normally occur:
While the employer is investigating misconduct/poor performance allegations
against the employee
While the employer and/or employee are preparing for a disciplinary hearing
After the employer has decided that the employee is guilty of misconduct/poor
performance.
In our experience the reasons that motivate employers to suspend employees
include:
To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
poor performance
To prevent the employee from interfering with the investigation instituted
against the employee
To avoid disharmony at the workplace that could be caused due to the
employee’s awareness that he/she is being investigated
As a result of the employer’s anger. That is, the employer is so furious with
the employee due to his/her alleged actions that the employer wants the
employee ‘out of my sight!’
As a means of retribution. The employer wishes to humiliate or demean the
employee or otherwise punish him/her for the alleged offence.
Often, especially when the employer evicts the employee in a fit of anger, it is
unclear whether the employee has been suspended (evicted temporarily) or
whether the employee has been fired. This is because the employer shouts at
the employee to ‘get the @#&*!!€» out of my face!’
Regardless of whether such evictions are meant as suspensions or dismissals
the affected employees more often than not go to the CCMA or bargaining
council claiming unfair dismissal and/or unfair suspension. Especially where the
eviction takes place while the employer is in a fit of anger the employer loses the
case.
Labour law does not prohibit employers from suspending employees but does
allow employees to challenge the fairness of suspensions. Section 186(2)(b) of
the Labour Relations Act (LRA) defines as a type of unfair labour practice “the
unfair suspension of an employee”. Section 191(1) allows an employee to refer
an alleged unfair labour practice to the CCMA or to a bargaining council. Where
the employer has suspended the employee for an unfair reason or in an unfair
manner the employer can be forced to pay the employee compensation or lost
wages or to lift the suspension.
In the case of CEIWU obo Khumalo vs SHM Engineering cc (2005, 10 BALR
1009) the employee, a boilermaker was accused of failing to obey an instruction
from his superior and was therefore suspended for six weeks. The employee’s
excuse for defying his superior was that his superior had screamed at him. The
arbitrator found that this was not a sufficient reason for disobeying a reasonable
and lawful instruction and that the employee’s behaviour constituted gross
insubordination. However, the arbitrator found the suspension to be unfair and
ordered the employer to pay the employee for the full period of the suspension.
The arbitrator’s rationale for this was that, while the suspension might have
started out as a “holding” measure, it became punitive due to its unreasonably
long duration.
In the case of Sajid vs Mohammed NO & others (1999, 11 BLLR 1175) the
employee, who worked as an Imam for a mosque, was suspended from duty.
The charges against him included removal of copies of notices, persuading
congregants to make false statements and failure to attend prayers. The Labour
Court found that there was no evidence to prove that there had been a
breakdown in the employment relationship and that the suspension had been
unfair. The Court ordered the employer to lift the suspension.
In the case of MEC for Tourism and Environmental Affairs Free State vs
Nondumo & others (2005, 10 BLLR 974) the employee was suspended after
being charged with several counts of misconduct. The Labour Court found that
the suspension was unfair and ordered the employer to pay the employee
compensation and lost pay amounting to R840 000.
In the light of the above employers are advised to avoid suspending employees
unnecessarily or due to anger and to obtain expert advice before acting against
employees.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top
menu.
by K-Ci Henry | Jul 19, 2021 | Legal
Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include:
The employer dislikes the employee for reasons unrelated to the workplace.
The owner wants a more attractive secretary
The employee is unwilling to grant her superior sexual favours
The employee has clashed with a key executive who has threatened to resign
The employee has reported the employer to SARS, the Department of Labour
or Department of Health for violating the law
The manager is under pressure to perform and uses the dismissed employee
as the scapegoat for performance problems
The employer feels that it is time that it shows the workers who is boss and
picks on the first employee who makes a mistake
The shop steward stands up for the employee’s rights and is labelled as a
trouble maker.
Employers then conspire to get rid of such undesirables through the use of a
number of tricks including:
Firing the employee orally and then pretending that the employee absconded
Framing the employee for poor performance or misconduct
Provoking the employee into committing misconduct
Setting up a disciplinary hearing where the presiding officer has been primed
in advance to fire the employee.
This latter trick clearly renders the presiding officer biased. This constitutes a
serious breach of the employee’s right to fair procedure. Where the employer is
caught out using such a biased presiding officer the CCMA has no mercy. The
employee is likely to be reinstated with full back pay or to be granted heavy
compensation to be paid by the employer.
Such bias on the part of a disciplinary hearing chairperson can be discovered in
a number of ways including:
The chairperson grants the complainant (person bringing the case for the
employer) the opportunity to obtain more evidence, take adjournments or
interrupt the employee; but does not grant the employee similar rights.
The presiding officer ignores evidence brought by the employee
The chairperson is chosen to hear the matter despite having been the one
who caught the employee breaking the rule.
The chairperson says things early in the hearing that indicate that he/she has
decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs
Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for
attempting to remove several frozen chickens that he had hidden in a bucket.
The arbitrator accepted that the employee was guilty of the offence but still found
the dismissal to be unfair. This was primarily because the chairperson of the
disciplinary hearing had revealed his bias by asking the employee at the
beginning of the hearing “do you have an excuse for stealing the chickens?”
In South African Policing Union obo Moorcroft vs South African Police Service
[2018] 11 BALR 1192 (SSSBC) the employee, who had been dismissed for
calling a colleague a “dom apie”, was reinstated. This was partially due to the fact
that the arbitrator found that there was a reasonable apprehension of bias of the
presiding officer because of his historical relationship with the accused.
The fact that arbitrators do not hesitate to punish biased or inept presiding
officers means that employers should:
resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
avoid misusing disciplinary processes to pursue private agendas
ensure that only impartial and properly trained persons chair disciplinary
hearings.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top
by K-Ci Henry | Jul 12, 2021 | Legal
It is extremely dangerous for any employer to dismiss an employee unfairly. This is because South African labour law strongly protects employees. The forums provided by the Labour Relations Act (LRA) to carry out labour dispute resolution include:
- The Centres for Dispute Resolution attached to the numerous bargaining councils established in South Africa
- The Commission for Conciliation, Mediation and Arbitration (CCMA)
Many employers, via bitter experience, will already be aware that going to any of these forums can be extremely costly. Such employers will be aware that, should things go wrong with a dismissal, they may have to pay the following:
- A settlement amount in order to avoid having to go to court or arbitration
- Legal fees to be represented at arbitration or court
- The legal fees of the employee
- Retrospective back pay to employees who the courts or arbitrators have reinstated
- Compensation to employees who they have been found to have dismissed unfairly.
Most employers will however be unaware that, in addition to the hugely expensive costs listed above, they may also have to pay arbitration fees to the CDR or CCMA).
I will deal with each of these in more detail:
OUT OF COURT SETTLEMENTS
The first stage of labour dispute resolution is conciliation. Here a CDR or CCMA commissioner attempts to mediate an out of court settlement between the employee and employer. Especially where the employer comes to realise that it messed up the dismissal it lands up agreeing to pay a substantial settlement amount to make the problem go away. Due to the fact that such settlements are made by agreement there is no legally prescribed maximum limit to the amount thereof.
LEGAL FEES AND THE EMPLOYEE’S LEGAL COSTS
Should the employer’s case be found to be frivolous and/or vexatious it may have to pay, in addition to its own legal fees, a significant portion of the employee’s legal fees. This may occur when the court/arbitrator finds that the employer was clearly in the wrong and/or defended the case unreasonably.
RETROSPECTIVE BACK PAY
Where the arbitrator or court finds that the dismissal was unfair it may require the employer to take the employee back and to pay the employee remuneration lost between the date of dismissal and the date of the reinstatement order. (Such back pay is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)
COMPENSATION
Even where reinstatement is not ordered the employer may be required to pay the employee compensation in recompense for unfairly depriving him/her of his/her job. (Such compensation is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)
ARBITRATION FEES
In terms of the little known section 140(2) of the LRA the arbitrator may charge the employer an arbitration fee where it is found that a dismissal for misconduct or incapacity was procedurally unfair. For example, in the case of Martini and others vs Galata Eksport Chain cc (2006, 8 BALR 836) the employees were dismissed after 20 oriental carpets worth R 800 000 went missing. The arbitrator found that the employer had good reason to dismiss the employees but that, because the employer had failed to give the employees a fair hearing, the dismissal had been procedurally unfair. He/she therefore ordered the employer to pay the CCMA an arbitration fee in terms of section 140(2) of the LRA. It is uncertain what the intension of this fee is. Perhaps it is for wasting the CCMA’s time by failing to follow procedures that every employer ought to be aware of.
In the light of the above employers are advised to:
- Make sure that they know and fully understand all aspects of labour law
- Use that knowledge to comply with the law when dealing with employees.
To register for our 16 July webinar on Investigating in the Covid Environment please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
