by Akhona Zembe | Jul 4, 2022 | General
BY lvan lsraelstam, 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. Go to: www.labourlawadvice.co.za
South Africa’s labour legislation was largely conceived by our country’s trade unions. As a result the statutes heavily protect employees and, in particular, protects the jobs of workers. The Labour Relations Act (LRA) and its Schedule 8 fall short of prohibiting the dismissal of workers, but only allows such dismissals to stand if the employer has proved that the employee deserved to be dismissed despite mitigating circumsances and that the employee had a fair hearing prior to dismissal.
The Labour Relations Act has twelve sections devoted, in effect, to protecting employee’s jobs and to the imposition of extremely stringent obligations on employers contemplating the dismissal of employees. These 12 sections are heavily reinforced by the Code of Good Practice: Dismissal attached to the LRA in the form of Schedule 8. This Schedule is itself divided into eleven items or sections all devoted to the protection of the jobs of employees. This Code stresses that dismissal must be the last resort taken by employers and details numerous factors and steps that employers must consider and carry out before contemplating dismissal. The code focuses on protecting employees from dismissal in circumstances of alleged misconduct, poor work performance, discrimination, illness, injury and strikes. Further reinforcement comes from the Code of Good Practice on Dismissal Based on Operational Requirements that contains numerous items setting out the employer’s obligations when contemplating retrenchment. Here the main focus is the employer’s obligation to find ways of avoiding termination of the worker’s employment.
But perhaps the most powerful reinforcement of these provisions are the countless employee-friendly decisions at CCMA, bargaining councils, Labour Court and Labour Appeal Court. The arbitrators and judges presiding over these cases are obliged by the LRA to assume the employer to be guilty until it proves itself innocent of unfair dismissal. This principle is implemented despite that fact that it directly contravenes section 35(3)(h) of the Constitution of South Africa which provides that all accused persons (including juristic persons such as employers) are entitled to be assumed innocent until proven guilty.
This means that the requirement to protect the jobs of South African employees is considered by the authors of the LRA to be more important than the innocence presumption provision of the Constitution; a provision that has been upheld and respected in the constitutions of civilized and democratic states around the world for well over a century.
In practice the above means that there are no short cuts for employers. Employers either follow NAGA169 the law or lose the case. For example, in the case of Mthethwa vs Capitol Caterers (2007, 5 BALR 469) the employee, a catering manager was apparently told that he had ‘dismissed himself’ after he had failed to attend work for two weeks. In a default decision the CCMA arbitrator found that:
- Absence from work due to illness or injury will only merit possible dismissal if its duration is unreasonable
- There is a difference in law between absenteeism and abscondment
- Absenteeism rarely warrants dismissal for a first offence
- Disciplinable absenteeism normally contains the elements that the employee is not at work, no permission is given for the absence and the employee failed to inform the employer of the reason for his absence
- An employee on authorized absence cannot be guilty of absenteeism unless the sick leave is being abused
- There is no principle of law to support the view that the employer appeared to have had that employees “dismiss themselves” after a certain period of unauthorized absence.
- The dismissal was both procedurally and substantively unfair
- The employer was required to reinstate the employee with full back pay.
In Ngubane vs Shell Ridley Park Motors (2011, 4 BALR 353) Ngubane’s dismissal was found to be unfair because he had not been given an opportunity to state his case.
These cases are typical of thousands of cases where employers apply outdated principles and fail to understand the fact that, over the past 26 years, the labour law pendulum has swung very far to the side of employees and job preservation. All of this makes it clear that, in South African law, the jobs of employees are sacrosanct. Thus, employers must exercise extreme care before treading on the rights of employees.
While many employers have successfully dismissed errant employees it will come as no surprise that such success is normally based on the fact that the employer has carefully navigated all the legal protections of employees. This the employers have done via appreciating the legally disadvantaged situation they are in and taking strong steps towards the leveling of the playing fields. Accessing labour law expertise is the first step in this quest.
To book for our 12 August webinar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
by Lihle Menzeleleli | Feb 21, 2022 | Employers, General, HR & Recruitment
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. Web Address: www.labourlawadvice.co.za.
It is often easier and less expensive to promote an employee into a vacnt senior post than to go through the costly and time-consuming process of hiring a new incumbent from outside the organisation. Where the employer has made sure that the junior employee being promoted has the necessary skills for the senior post such a promotion will not only be operationally advantageous but employee relations and workforce morale will be boosted by the advancement of a junior employee.
Employees want the increased remuneration that goes with promotion, they want the status, the feeling of success and recognition and/or the challenge of the higher level responsibility. Employees also enjoy the new challenge and the feeling that their efforts have been appreciated.
Despite these aspirations, employees do not have an unfettered and automatic right to be promoted. Were such an automatic right to exist this would place an unfair and impossible burden on employers. However, where certain circumstances exist employees may have a legal right to be promoted. Often such circumstances need to exist in combination with each other, but this will not always be the case. For example:
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- The employer orally promises the employee a promotion
- The employer signs an agreement that says that the employee will be promoted. Such a clause could exist in the employment contract signed when the employee was originally appointed.
- A signed agreement obliges the employer to promote the employee provided that a certain potential event takes place, and that event does take place. For example, this potential event could be that:
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- The employee’s superior vacates his/her position for any reason including promotion, retirement, resignation, dismissal etc.
- The employee ‘proves himself/herself’
- A particular period of time elapses
- A suitable vacancy arises
- A potential new customer places a large order
- A new workshop is opened.
- A vacancy is advertised, an internal employee applies for it and is legitimately recommended as the most suitable person for the job.
For example in the case of Mokhobo and others vs Department of Education (2005, 8 BALR 836) the employees applied for posts advertised within the Department. Despite the fact that these employees were recommended for the posts they were not promoted. At the CCMA the employer maintained that there were insufficient funds to finance the cost of the promotions and that a moratorium had been placed on appointments. The arbitrator found that:
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- No moratorium had been in place at the time that the employees had been recommended for the promotions
- The shortage of funds was an insufficient reason not to promote the employees as they had already been recommended for promotion
The CCMA therefore ordered the employer to promote the employees in question retrospectively and to pay them compensation.
In the case of Ngidi vs Cape Peninsula University of Technology [2019] 10 BALR 1108 (CCMA) the applicant applied internally for a post of committee officer but was told that she had not been short-listed. At the CCMA the employer claimed that the applicant did not satisfy the requirements of the job even though she satisfied the requirements stated in the job advertisement.
The Commissioner noted that the advertisement required at least three years’ experience in committee work but did not state that committee work must have been a primary function. The employee had performed committee work, albeit not as a core function, and was otherwise fully qualified for the post. The shortlisting committee’s decision to set committee work as a core function went outside the requirements specified in the advertisement and made the applicant’s exclusion from the shortlist unfair. While there was no guarantee that the applicant would have been appointed had she been shortlisted, she was entitled to an opportunity to be heard by the selection committee.
The applicant was awarded compensation equal to two months’ salary.
In view of this employers are advised:
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- Not to advertise posts if they are unable to fund them
- To make sure that those officials authorised to recommend employees for promotion are competent to do so on a purely objective basis
- To ensure that job adverts must fully detail all qualification requirements.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or ronni@labourlawadvice.co.za.
by Lihle Menzeleleli | Feb 2, 2022 | Employers, General
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.
Employers fairly frequently demote employees. This could be for any of many legitimate and illegitimate reasons including:
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- The boss dislikes the employee
- The employee has broken a rule
- The employee’s work performance is unsatisfactory
- The boss wants to create a vacancy for somebody else
- Things have gone wrong and the boss needs a scapegoat
- The employer cannot afford to pay the employee’s salary
- The employee is not able to carry out his/her job due to illness or injury
Regardless of the reason for the demotion the employer is advised to hold a hearing before implementing a demotion for reasons of poor performance or misconduct. While the Labour Relations Act (LRA) does not specifically require a hearing in such cases it is important to hold a hearing because:
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- The spirit of the LRA requires that it is unfair to punish an employee without giving him/her a chance to defend the case
- Failure to hold the hearing will make it difficult to prove, on record, that the employee was guilty and that the reason for the demotion was fair.
What constitutes a demotion is not always straightforward. In different circumstances alleged demotions can occur in numerous ways including:
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- The employer gives the employee a letter stating that he/she has been demoted
- The employee’s pay and/or responsibilities are reduced
- The employee’s subordinates are taken away
- The employee is required to report to someone who used to report to him/her.
- An employee acting temporarily in one position gets transferred back to his/her old position
Regardless of the circumstances employers are advised to take the law into account before doing anything that could potentially resemble demotion. This is because, should the CCMA or bargaining council find the demotion to be unfair the arbitrator has the right to:
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- Reinstate the employee into the position from which he/she was demoted
- Award the employee compensation
- Apply any other corrective measure that he/she deems to be appropriate.
For example, in the case of Mavimbela vs Sterikleen (Pty) Ltd (2006, 11 BALR 1128) the employee had been a cleaner. He was later asked to carry out supervisory duties but, after failing to carry out these duties properly, he was relegated to being a cleaner. He therefore lodged a dispute at the CCMA for unfair demotion. The employer said that the employee had never been promoted but rather had been asked to carry out limited supervisory duties in return for receiving an allowance.
However, the arbitrator found that the employer had failed to prove that the employee had in fact performed poorly. He found therefore that the employer had acted unfairly and ordered the employer to pay the employee compensation equal to eight months’ of the extra managerial ‘bonus” granted when he was given the supervisory duties.
In Plaatjies vs RK Agencies (2005, 1 BALR 77) the employer offered the employee an alternative post at a lower salary due to the fact that the employer had lost a major contract. While the arbitrator accepted this as a valid reason the demotion was still unfair because the employer had failed to consult with the employee before making the offer. This CCMA decision is a frightening one because the offer of a reduced position made by the employer would, in my mind, itself constitute part of a consultation process rather than a demotion.
In Sass vs African Life Assurance (2005, 6 BALR 682) the employer demoted the employee for failing to make sufficient sales. The CCMA found this to be unfair as the employer had proved neither that the performance had been bad nor that it had followed legal procedure before implementing the demotion. The employer was ordered to reinstate the employee in the higher position.
In view of the above case decisions employers should never implement demotion before obtaining expert labour law advice as to:
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- Whether the demotion is merited
- The procedure to be followed in implementing a fair demotion
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or ronni@labourlawadvice.co.za.
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: ivan@labourlawadvice.co.za. 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 ronni@labourlawadvice.co.za or 084 521 7492.
by K-Ci Henry | Jun 29, 2021 | General
The Labour Relations Act (LRA) provides two ways of going about setting aside an arbitration award; via a Labour Court review or via a rescission application.
In a Labour Court review the party who is unhappy with the award asks the labour Court to set the award aside on the grounds that the arbitrator, in making the award, ‘misconducted himself/herself’. That is, the review application is not an appeal against the award decision but rather a claim that the arbitrator:
- Committed misconduct in relation to his/her arbitration duties
- Committed a gross irregularity in the conduct of the arbitration proceedings
- Exceeded his/her powers or
- Made the award improperly
The above criteria refer to misconduct and irregularities including, but not limited to:
- Taking into account evidence that was not put before the arbitrator
- Refusing to allow valid and relevant evidence to be brought
- Ignoring statutory requirements or legal principles
- Unduly assisting one or other party with his/her case
- Delivering a biased award
- Taking a bribe
- Failure to apply his/her mind to the facts in evidence
A party may, within 14 days of becoming aware of the arbitration award, apply to the arbitrator to rescind (cancel) the award on the grounds that the award:
- Was erroneously sought or made in the absence of any party affected by it
- Contained an ambiguity (i.e could mean two different things) or an obvious error or omission
- Was granted as a result of a mistake common the parties.
The grounds for rescission are very narrow and such applications are most commonly brought when one party has not attended the arbitration hearing and the award has been made in that party’s absence. Where the party who has failed to attend the hearing has an excuse for his/her absence he/she may apply to the arbitrator to rescind the award so as to allow a new arbitration hearing to be set down. Typical reasons for rescission applications being granted include:
- The rescission application is made within the 14-day deadline and
- Valid proof is submitted of illness, or of failure of CCMA/bargaining council to serve the notice of set down on the party concerned.
However, employers are warned that the CCMA requires valid reasons and thorough explanations for the absence of parties. In the case of Shoprite Checkers vs CCMA & others (2005, 8 BLLR 816) the employer party failed to attend the arbitration hearing. The arbitrator held the hearing in absentia and granted an award in favour of the employee. The employer then applied for a rescission on the grounds that the assistant of the person in charge of the matter had mis-diarised the date of the arbitration. The CCMA turned down the rescission application.
The employer therefore took the matter on review to the Labour Court. The Court upheld the CCMA’s decision saying that a negligent error by the employer is not grounds for rescission. The Court ordered the employer to pay the employee’s legal costs expended on defending the Labour Court review application.
In Sebati vs Rens Security Services cc (2009, 11 BALR 1170) the CCMA turned down a rescission application where the employer failed to explain how the notice of hearing had failed to reach the relevant employer official.
Parties are therefore advised to:
- Exercise extreme care in keeping records of CCMA hearings
- Ensure that they attend all CCMA meetings and hearings
- Get advice from a reputable labour law expert before applying for rescissions and lodging applications at the Labour Court
To register for our 16 July webinar on Investigating in the Covid Environment please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
by K-Ci Henry | May 10, 2021 | General
Section 60 of the Employment Equity Act (EEA) EEA, in effect, provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment the employer can be charged with unfair discrimination.
In the case of Christian vs Colliers Properties (2005, 5 BLLR 479), two days after Ms Christian started work, her boss invited her to sit on his lap and kissed her on the neck. When she later objected to the owner’s conduct he asked her whether she was “in or out”. When she said that she was “not in” she was dismissed with two days pay and referred a sexual harassment dispute.
In a default judgement the Court decided that:
The employee had been dismissed for refusing her superior’s advances
This constituted an automatically unfair dismissal based on sexual discrimination
Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues. The employer had to pay the employee:
24 months’ remuneration in compensation
Additional damages
Interest on the amounts to be paid
The employee’s legal costs
The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment. However, this is not always so. For example, in the case of SABC
Ltd VS Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (amongst other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact with her in his car. An arbitrator later found that, while he was guilty of sexual harassment the level of seriousness of his conduct did not merit dismissal. This was largely because the alleged victim had not seemed to mind his advances very much and had said she thought he should not be dismissed. The arbitrator therefore ordered the employer to reinstate the employee. The Employer took this decision on review to Labour Court but lost again as the Court pronounced the arbitrator’s finding to have been properly thought out and justified.
In Liberty Group Ltd v MM [2017] 10 BLLR 991 (LAC) the respondent employee resigned due to having been sexually harassed by her manager. The Labour Court awarded the respondent compensation of R250 000.
The Labour Appeal Court noted that there was no basis for the appellant’s contention on appeal that the respondent had fabricated the claim of sexual harassment in order to extort money from it.
No investigation had been conducted before the respondent resigned and no steps, as required by section 60(2) of the EEA, had been taken by the employer to ensure that the harassment did not continue. The appeal was dismissed with costs.
The above case findings show that:
1. Employers cannot ignore sexual harassment of their employees and must act
swiftly.
2. However, this does not mean that dismissal is appropriate in every case.
3. Employers need to use reputable labour law experts to assist with:
Deciding what the appropriate action should be in each individual case of
sexual harassment
Designing a comprehensive sexual harassment policy
Ensuring that every owner, manager and employee knows and understands
the severe consequences of committing such acts
Communicating to all concerned that such misconduct will result in severe
penalties including possible dismissal
Ensuring that all employees feel entirely free to report sexual harassment.
Training all employees in the above listed issues as well as in what
constitutes sexual harassment, how to deal with it, where to report it and the
company’s supportive policy towards sexual harassment victims
To observe our experts debating hot labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate item in the main
menu.
