by Lihle Menzeleleli | Apr 19, 2022 | Employers, Jobs
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.
It is contentious as to whether second generation outsourcing falls under section 197 of the Labour Relations Act, which is the law protecting employees when a business or a part thereof is taken over.
In the case of SAA vs Aviation Union of SA obo Barnes the airline transferred its Infrastructure and Support service (I & S service) to a company called LGM as a going concern and accordingly transferred the relevant employees to LGM under section 197 of the LRA.
Before LGM’s contract with SAA expired SAA fired LGM and sought tenders from other contractors to take over the service. However, SAA did not include in the tender documents the requirement that the tenderers had to undertake to take over all the LGM staff providing services to SAA. Therefore, before any tender could be considered the union applied to the Labour Court for orders that, in effect, would prevent any takeover of the services until the LGM employees were first taken over by the new service provider and that would declare any retrenchment of the LGM staff automatically unfair.
The Labour Court refused to grant such orders for reasons including that second generation outsourcing would become untenable and because section 197 of the LRA did not cover second generation outsourcing. This was because section 197 (1), in effect, defines a transfer in terms of this section as a transfer of a business or part thereof “by” one employer to another. In a situation where the I & S service of SAA would be transferred to a new contractor (i.e. whichever tenderer won the contract) the I & S service would not be transferred by one employer to another because SAA, who ‘owned’ this service, was not the employer (LGM was) would be the one to transfer the service to the new contractor.
The LAC overturned the LC’s decision and found that:
If the LC’s interpretation were applied it would directly conflict with the purpose of section 197 which was to protect employees from losing their employment due to a transfer of a business or part thereof. The LAC preferred the purposive interpretation of the meaning of the word “by” which is that, although it would technically be SAA initiating the transfer of the I & S service to the new contractor, the service would effectively be moved by LGM to the new contractor even if this was done via the auspices of SAA. That is, while it would be SAA making the transfer decision, the old employer, LGM would be the one to be effecting the transfer.
Another way of explaining this is that the word “by” in the definition of a transfer of a going concern should, in the view of the Court, be read to mean “from”. This would mean that, although it would be SAA who would legally transfer the I & S service to the new contractor, the service would be transferred from LGM to the new contractor thus rendering the takeover a section 197 transfer.
SAA then took the matter further to the Supreme Court of Appeal which reversed the LAC’s decision. It said that the literal interpretation of section 197 should be applied and that applying the LAC’s interpretation would require every new service provider to take over the staff of any previous service provider every time the client changed its mind as to who it was going to use
The union then took the matter to the Constitutional Court and won its case. However, the Court said that second generation outsourcing would not fall under section 197 in cases where the client had never carried out the function itself but had aoutsourced it from day 1. This is because, in such a case, there would never have been a transfer of the function, and section 197 applies only to transfers of businesses or part thereof.
In Jenkin vs Khumbula Media (2010, 12 BLLR 1295) the applicant was told that his contract had lapsed after the business had changed hands twice. The Court rejected the employer’s version that the employee had been a fixed-term contractor and found that the employee had, in effect, been retrenched. It also found that on both occasions of takeover these had been carried out as transfers as a going concern. The employer had conducted only one meeting with the employee and this one meeting was not held in good faith because the employer had not even made its intentions clear. The retrenchment was thus procedurally unfair and the employer was ordered to pay the employee eight months’ salary in compensation plus severance pay calculated on the basis of 29 years of service.
Even the judges in the Courts differ with each other as to whether a business or part thereof has been transferred in terms of section 197 or not. Therefore, employers need to get expert advice before effecting any transfer that could possibly be seen as a section 197 takeover. Also, everyone in management and other dealing with employee dismissals must be thoroughly trained in the complexities and requirements of the law.
To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or ronni@labourlawadvice.co.za
by Lihle Menzeleleli | Mar 8, 2022 | Employers, HR & Recruitment, Jobs
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.
Even serious assault might not merit dismissal if the employer is unable to show that the misconduct rendered the employment relationship intolerable. The Code of Good Practice: Dismissal (The Code) states that:
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- Advice and correction are the best ways of dealing with minor offences
- Repeated misconduct will merit warnings
- More serious infringements or repeated misconduct may call for final warnings or other action short of dismissal
- Dismissal should be reserved for cases of serious misconduct or repeated offences
- Dismissal for a first offence is not appropriate unless it is so serious that it makes a continued employment relationship intolerable
- Included amongst offences that might merit dismissal for a first offence are wilful endangering of the safety of others and physical assault.
Assault at the workplace is normally seen as serious misconduct because of:the harm or potential harm to the victim of the assault;
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- the potential disruption of workplace harmony;
- the potential for the employer to be sued for vicarious liability by the assault victim;
- the loss in working time due the need for an assaulted employee to to take sick leave
- the loss of business if the victim of the assault is a client.
Despite this, employers sometimes bungle disciplinary action against alleged assault culprits, and this is often because of the anger attached to incidents of assault. This can be disastrous for the employer because section 188(1)(a) of the Labour Relations Act (LRA) makes it clear that the employer cannot fire an employee without good cause.
Should the employee dispute a dismissal via the CCMA or a bargaining council the employer will have the legal duty to prove that the dismissed employee was guilty of the assault and that, under the specific circumstances, dismissal was the most appropriate corrective measure. If the employer fails to convince the arbitrator of this it could be the employer’s bank balance that is assaulted. That is, the arbitrator could award reinstatement with back pay or could order the employer to pay up to 12 months’ remuneration in compensation.
In the case of NUMSA obo Madobeng vs Macsteel Tube and Pipe (2006, 10 BALR 982) the employee was dismissed for assaulting a colleague who had accused her of sleeping with her grandfather. The employee and her trade union took the matter to the Metal and Engineering Industries Bargaining Council accusing the employer of unfair dismissal. The arbitrator found that the scuffle that had taken place between the two employees did not constitute an assault and that Madobeng had been provoked by her colleague. As the employer had exaggerated the seriousness of the offence and had ignored the mitigating effect of the provocation the arbitrator found the dismissal to be unfair. The employee was reinstated with full back pay.
In NUMSA obo Hlela & others vs Jasco Special Cables (2009, 10 BALR 1012) The employees went on strike and were later dismissed for assault and intimidation during the protest action. While the arbitrator accepted that the employees had been guilty of assault the dismissal was found to be unfair. This was because the employees had only been given notification of their disciplinary hearings three weeks after the assaults had occurred and had been allowed to work during the three-week period. The arbitrator therefore found that the employment relationship had not been rendered intolerable by the assault. The employer was ordered to re-employ all the dismissed employees.
The above cases show that, even in serious cases of assault, the CCMA will not always approve of dismissal as a sanction. Therefore, employers should understand that:
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- The individual circumstances of each case are crucial in deciding whether dismissal for assault is acceptable;
- The ability to anticipate the thinking of CCMA and other arbitrators is vital;
- Substantial labour law experience and expertise should be obtained before discipline is implemented.
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 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 14, 2022 | Employers, Job Search, Jobs
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.
There are three main categories of grounds on which employers may be taken to the CCMA for breach of rights. These are unfair dismissal, unfair discrimination and unfair labour practice. The latter category includes claims for:
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- Unfair discipline
- Unfair suspension
- Unfair demotion
- Unfair promotion
- Unfair training
- Unfair labour practices related to probation
- Unfair detriment as a result of the employee making a protected disclosure
- Unfair provision of benefits
This relates to benefits to which the employee is entitled in the course of his/her employment. Such benefits may include.
Unfair provision of benefits occurs where the employer, as regards leave, retirement, medical aid, life insurance, funeral and other benefits unfairly:
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- provides such benefits to some employees and not others. For example, employers might provide retirement benefits for office workers only or may provide inferior benefits for factory workers.
- cancels the benefit. For example, an employer that had been giving employees paid study leave might decide to stop providing such benefit. This would require employees to use annual leave or unpaid leave should they need to write or study for examinations.
- halts the benefit temporarily. For example, in the case of Van Amstel vs ESKOM (2002, 9 BALR 995) the employer halted payment to the employee of his vehicle allowance while it was in the process of reviewing the payment of such allowances. The employer required the employee to reapply for the allowance. When he did so his application was turned down. The CCMA found that the employer had indeed committed an unfair labour practice and ordered the employer to reinstate the benefit.
- fails to facilitate the provision of the benefit to employees. For example, should the employer fail to pay over the benefit scheme contributions the service provider might halt the benefits. This will mean that the employees lose those benefits permanently or temporarily.
- reduces the employer’s contribution to the benefit fund resulting in the employee having to pay more. This often occurs when the employer decides to cap its share of the benefit contribution. For example, when the benefit scheme administrators impose an increase in contributions the employer might unilaterally decide that, in order to control costs, it will not increase its portion thereof. This would require the employee to pay his/her own portion of the increase as well as the employer’s increased portion.
Or the employer might change its mind about contributing towards the benefit costs of employee’s dependents. A case in point is that of Solidarity obo Du Plessis vs ABB Services (2005,8 BALR 820). When the employee joined the business his employment contract stated that the employer would pay half of the medical aid contributions for himself and his family. For a while the employer kept to this agreement. However, after he got married the employee discovered that the employer had changed its medical aid policy and no longer paid any contributions for employees’ spouses. As a consequence, the employee had to bear the full cost of the contribution in respect of his wife.
The employee therefore referred a dispute to the Metal and Engineering Industries Bargaining Council for unfair labour practice. The arbitrator found the employer’s action to be unfair and ordered the employer to:
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- Pay its portion of all future contributions in respect of the employee’s wife
- Refund to the employee the amount of the contributions that he had had to pay since his marriage.
- It is very often true that employee benefits in the modern day can be extremely expensive for employers. However, the cost to employers of interfering with employee benefits can be even higher than the cost of the benefit itself! Such costs include:
- Legal fees
- The time wasted by management in preparing for and fighting CCMA cases
- Lump sums paid to the employees in accordance with arbitration awards
- The negative effect on employee relations of removal or reduction of benefits.
Employers are therefore advised to obtain expert labour law advice before embarking on any changes that affect their employees.
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 | Dec 14, 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: ivan@labourlawadvice.co.za.
Even without the effects of Covid absenteeism is a most problematic form of misconduct because it reduces productivity. Most employers therefore require employees who are absent from work due to alleged illness to provide proof, in the form of a medical certificate and/or a positive Covid test result, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness.
Covid complicates the process of dealing with allegedly sick employees because it is such a virulent disease. Therefore, when an employee presents with Covid-like symptoms, employers often send them home and require a Covid test to be done. But, even where the test result is negative, the employer might not allow the employee to return to work due to the possibility of a false negative result. This might require a second test to be done.
Section 23 of the Basic Conditions of Employment Act entitles employers to withhold payment of remuneration if the absent employee has failed to provide a legally acceptable medical certificate proving that the employee was ill. However, this only applies where the employee has been absent from work:
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- For more than two consecutive days or
- For two or fewer consecutive days recurring three times in the space of eight weeks.
Previously, the employer was entitled to withhold payment in the above circumstances and also, at the same time, to discipline the employee. However, one or two CCMA commissioners have found that withholding remuneration and also disciplining the employee constitutes double punishment. I strongly disagree with this view because the reason for withholding pay is merely to satisfy the principle of no work no pay and is not a punishment. However, due to this shift in the attitude of some arbitrators, employers need to beware of how they go about dealing with absenteeism.
Another problematic question is the validity of sick notes issued by traditional healers or sangomas. Generally speaking, employers are not expected to accept certificates issued by persons who are not medical practitioners registered with a council established by an act of Parliament. Many traditional healers do issue such sick notes and some of these appear to indicate that the healer is registered. However, the Department of Health has indicated that no traditional healers have been registered as yet. It thus appears that employers are not yet obliged to accept medical certificates from traditional healers. However, employers need to proceed with great care in such cases.
An even more vexed issue is that many medical certificates often do not constitute sufficient proof of illness. This is because the employee might:
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- provide a genuine medical certificate which does not cover the period of his/her absenteeism or
- amend what was a valid medical certificate or
- obtain a genuine blank certificate belonging to a genuine and properly registered medical practitioner and complete it so as to make it appear to be what it is not or
- obtain a certificate from a person masquerading as a medical practitioner.
Where a genuine certificate fails to cover the period of absenteeism the employer is not obliged to accept it.
Where the employer can prove that the employee has knowingly submitted a medical certificate amended by someone other than the relevant doctor this can be grounds for a disciplinary hearing for dishonesty. This also applies where the employee has completed a blank certificate and submitted it to the employer.
The situation becomes more complex where it is found that the medical certificate submitted was issued by a fake medical practitioner. It is clear that, should the employer establish this to be the case, it does not have to accept the medical certificate. However, the question arises as to whether, in such a case, the employer can dismiss the employee for submitting such a false medical certificate. The complexity arises due to the fact that the employee may not be aware that the person posing as a doctor is not a genuine medical practitioner.
That is, it can and does happen that people set up consulting rooms and advertise themselves as doctors despite the fact that they have either been struck off the role of the Health Professions Council or have never been registered with this council. Many such charlatans even print fake practice numbers on their certificates so as to make it appear that they are properly registered medical practitioners.
In many cases the employee is well aware that the certificate he has obtained is false because he/she has knowing bought the false certificate without being ill and/or without having been medically examined. This would justify a case of discipline for dishonesty. However, it is possible that a genuinely ill employee consults someone purporting to be a doctor and then innocently submits the impostor’s certificate to the employer. In this case the employee cannot be found to have been dishonest and a dismissal would therefore be unfair.
Employers therefore need to proceed with extreme caution before dismissing employees who submit questionable medical certificates and should get advice on this from a reputable labour law expert.
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 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: ivan@labourlawadvice.co.za.
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.
