by K-Ci Henry | May 24, 2021 | Legal
Since 1995 the Labour Relations Act (LRA) and Basic Conditions of Employment Act have been replaced with entirely new versions. In addition
new legislation in the form of the Skills Development Act and the Employment Equity Act have been born. The LRA has also been further amended more than once. Attached to these acts are numerous codes of practice that provide guidelines as to what is fair and acceptable.
However, as large as this body of legislation is it often falls short when it comes to detail. For example, the LRA requires employers to prove that a
dismissed employee’s conduct must have been so gross as to render a continued employment relationship intolerable. However, the LRA neither
defines what would make an employment relationship intolerable nor what degree of behaviour can be considered gross.
Therefore, employers and employees need to look to case law for more detailed guidance as to what the law means and what would be fair in specific
circumstances. In addition, the employer’s own rules and terms and conditions of employment can, within limits, play a significant role in determining what
discipline is and is not fair.
For example, in the case of Rubin Sportswear vs SACTWU and others (2004, 10 BLLR 986) the employer took over a business and then introduced a rule
changing the age at which employees were to take retirement. The Labour Appeal Court found that the word “normal” means “the way things are
normally done” and that the employer could not unilaterally change what was normal.
It is therefore imperative that employers have their rules reviewed in line with the latest interpretation of the law by the courts. Furthermore, had the new
employer, at the time of takeover, negotiated renewed employment contracts with its employees, it could have included the new retirement age in those
contracts. This would have legitimated the change in the retirement age. There are other equally important reasons that employers need to update their
rules and terms and conditions of employment. For example, employers are not allowed to suspend employees unfairly and one element of unfairness
could be the extreme length of the employee’s suspension period. That is, if the employer’s disciplinary code does not cater for protracted suspensions
then a drawn out period of suspension could be considered unfair even if the employee is being paid.
Protracted suspensions could be unfair not only on the employee but also on the employer and on the general public! This is because, where the employee
is being paid to sit at home without working, the employer bears the burden of the cost of the employee’s unearned remuneration. Thus, either the
company’s shareholders have their profits eroded or the taxpayer shoulders the burden where the employer is the state. For example, it was reported in
The Star that 11 officials of the Road Accident Fund were suspended on full salary for a period not less than 10 months at a cost of R5,3 million (The Star,
3 June 2004, page 17.
The standard clauses in employer’s disciplinary codes are no longer sufficient because provision needs to be made for exceptions as well. For example,
should the employer wish to discipline an employee twice for the same act of misconduct the employer’s disciplinary code should provide for this. In the
case of BMW (SA) (Pty Ltd vs Van der Walt (Contemporary Labour Law vol. 13 No.5 page 49) the Labour Appeal Court held that it is important, that, for a
second hearing for the same incident of misconduct to be fair, this should ideally be permitted by the employer’s disciplinary code. In addition, the
holding of a second hearing must be fair in all respects. Employers are warned that the holding of such second hearings will only be fair in
exceptional cases.
Should employers fail to keep up with such decisions of court judges and of arbitrators they will be unable to run their organisations according to law
because labour law is a constantly changing thing. Should employers fail to update their rules, disciplinary codes and terms and
conditions of employment in the light of new case law decisions they will be caught short when it comes to implementing discipline and dismissal. This is
because an employer’s rules and policies should encapsulate the latest labour laws so that, when management applies the policies, they are in line with the
law. It can be a laborious and complex task for an employer to draw up a comprehensive set of rules, but dealing with the consequences of having no
rules can be far more onerous for employers at the CCMA, bargaining councils and Labour Court. If employers are not in a position to take charge of
this vital task there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.
To attend our 14 May 2010 seminar in Cape Town on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at
ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.
by K-Ci Henry | May 17, 2021 | Legal
South African employees are so heavily protected by the Constitution, by labour legislation, by the Labour Courts the CCMA and trade unions that they
are less often afraid to defy the employer’s instructions. For the employer the resulting insubordination is a nightmare.
This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
What insubordination really is
How it differs from disrespect
What a reasonable instruction is
When a charge of insubordination is not appropriate
How seriously the law views insubordination
How it should be dealt with
WHAT IS INSUBORDINATION?
The Collins Concise Dictionary defines “insubordinate” as “not submissive to authority, disobedient or rebellious”. It is the refusal of an employee to bow to
the authority exercised reasonably by the employee’s superior.
This could include conduct such as:
Refusal or intentional failure to obey reasonable and lawful instructions
Comments such as “You have no authority over me”
Telling the manager to go and get what he/she wants from someone else
INSUBORDINATION VS DISRESPECT
Insubordination applies only upwards and can only be perpetrated by a junior towards a senior. Disrespect, on the other hand, can apply upwards and
downwards. For example, it would be disrespectful for a manager to shout at an employee and tell him/her to ‘get out of the office’. Disrespect is therefore
not necessarily linked to a person’s position of authority but can also be linked to one’s human dignity.
WHAT IS A REASONABLE INSTRUCTION?
In my view a reasonable instruction is one that:
The employee is capable of carrying out and
Involves a task that is not substantially beneath the employee and
Does not infringe the rules of the employer or the laws of the country and
Involves a task that truly needs to be done.
For example, if the boss tells the Human Resources Manager on a 4-day week contract to come in on the weekend to repair the faulty elevator the HR
Manager might be entitled to refuse because The HR Manager is being required to carry out a task:
That is completely outside the sphere of the HR Manager’s duties
Outside of the HRM’s capabilities
Assigned for a time that is not normally worked
That, if carried out by the HRM, could result in danger to users of the elevator.
However, telling the HRM to conduct recruitment interviews because the HR Officer is in hospital would, in most cases, be both legal and reasonable.
WHEN A CHARGE OF INSUBORDINATION IS NOT APPROPRIATE
Insubordination is not the same as poor work performance. That is, poor work performance relates to how badly the employee has performed work or
missed deadlines. While poor work performance can sometimes be wilful there is usually some work that is done albeit badly and the poor performance
occurs regardless of whether the employee has been given an instruction. On the other hand Insubordination means the employee’s refusal to obey a
specific instruction whether the instruction relates to work performance or not. Employers confuse these two concepts at their peril. For example, in the case
of Fourie vs Capitec Bank (2005, 1 BALR 29) the employee was dismissed for insubordination. The dismissal decision was influenced by the fact that the
employee had previously received a final warning for poor work performance. The arbitrator found the dismissal to be unfair because these were not two like
offences.
Also, an employee might fail to carry out an instruction because:
The equipment used is really faulty
The employee truly does not have the required skill
The employee is genuinely disabled
These examples do not amount to insubordination because the employee is
not refusing to carry out the instruction.
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.
by K-Ci Henry | May 3, 2021 | Legal
According to section 213 of the LRA an employee is:
“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying out or conducting the business of an employer…”
This definition strongly implies that the employer’s legal obligations begin only on the day that the employee physically begins work. However, this is not necessarily so. The courts have found that the employee is protected by labour law from the moment the employment contract is concluded even if the employee has not yet started work; and even if the contract has only been orally agreed.
For example, in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39). Manqele was offered a position by the employer as a sales rep. The parties concluded a written contract of employment in terms of which he was to commence work on 1 April. Prior to Manqele beginning work, he was advised that the employer was no longer prepared to employ him. In terms of the contract of employment, Manqele had been entitled to a company vehicle.
The employer believed that Manqele had made a misrepresentation as to the status of the car he had chosen, and on this basis took the view that there was no contract, as the parties had not reached agreement as to the condition of the motor vehicle stipulated in the letter of appointment.
Manqele took the matter to the CCMA where the arbitrator ruled that Manqele had become an employee the moment he accepted Wyeth’s offer of employment. Wyeth took the arbitrator on review at the Labour Court on the
grounds that the arbitrator had arrived at an “unjustifiable conclusion in ruling on the definition of an employee”.
That is, Wyeth argued in the Labour Court that Manqele did not become an employee merely because of the employment contract. This argument is supported by an earlier Labour Court finding in the case of Whitehead vs
Woolworths (Pty) Ltd (1999 20 ILJ 2133). In that case the Court found, according to the report, that a person who is party to a contract of employment but who has not yet commenced employment is not an employee for the purposes of the LRA.
However, despite the Woolworths case finding the Court, in the Manqele case found that, as a party to a valid and binding contract of employment, Manqele was an employee for the purposes of the LRA.
The employer recently took the matter further to the Labour Appeal Court (In Wyeth SA (Pty) Ltd vs Manqele & others 2005, 6 BLLR 523) but lost yet again. The Court upheld the earlier decisions by the CCMA and Labour Court that Manqele had achieved legal employee status the moment his employment
contract was signed. This decision poses a number of concerns for employers.
– Firstly, the fact that two different benches of Labour Appeal Court judges (Woolworths on the one hand and Wyeth on the other) made two such diametrically opposed decisions on a matter as fundamental as this one
creates major uncertainty as regards the law.
– Secondly, employers are now clueless as to whether they are or are not entitled to cancel employment contracts prior to commencement of work.
– Thirdly, where the parties have agreed in principle that the employee will get the job it is now not clear whether a disagreement on the terms of the employment does or does not delay the legal validity of the contract of
employment.
In the light of these dangers employers should:
– Avoid entering into employment agreements until all the terms and conditions
have been dealt with thoroughly
– Ensure that, before offering anybody a job, there are no obstacles to allowing
the candidate to take up the position
– Make it clear that the discussion of the terms and conditions of a contract in
no way constitutes an offer of employment.
– Never employ, contract with or cancel the employment contract of any person
without involving a labour law expert experienced in dealing with these tricky issues.
To observe our experts debating controversial labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate menu item.
