Take Mitigating Circumstances Seriously

by Akhona Zembe | Nov 15, 2021 | Law & Criminology

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za. Go to:www.labourlawadvice.co.za

Too often, when an employer finds an employee guilty of a serious offence, the employer fires the employee right away. However, being guilty of a very serious offence does not automatically entitle the employer to fire the employee. The employer must consider other remedies for misconduct which could include:

• Dismissal – the most severe corrective action
• Demotion – provided that the employee is given the choice of dismissal or demotion
• Suspension without pay – provided that the employee is given the choice of dismissal or suspension
• A warning or final warning – which must be very carefully worded
• Training – where lack of skill/knowledge is the cause of the problem
• Treatment – for example where addiction or alcoholism is an important factor

Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:

• the nature and seriousness of the misconduct
• aggravating circumstances
• the employee’s personal circumstances and length of service
• the employee’s disciplinary record
• extenuating circumstances.

Extenuating circumstances are those related to the case itself that might render the misconduct less serious. For example, where an employee refuses to obey an instruction from a manager due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction. This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.

Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.

For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:

• The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
• the employee had used the vehicle due to an emergency at the workplace
• this was an extenuating circumstance
• the dismissal was therefore too harsh
• the employee was to be reinstated.

In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather. A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:

• The employee’s conduct did not amount to an assault as the physical contact made during the scuffle was very slight
• The employer had not disputed the fact that the employee had been provoked by the insult from her colleague
• The employee had been provoked by her colleague’s insult but the presiding officer of the disciplinary hearing failed to take this into account
• The employee was to be reinstated with full back pay.

Where employers are unsure as to whether extenuating circumstances exist they should obtain expert labour law advice before acting against the employee.

To view our expert team debating contentious labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.

Use Automatic Termination Clauses With Caution

by Akhona Zembe | Nov 9, 2021 | Law & Criminology

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

According to sections 193 and 194 of the Labour Relations Act (LRA) the awards and orders that can be made against the employer for unfair dismissal are as follows:

o The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively.

o The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must give the employee his/her job back, this will not be with back pay.

o Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.

o If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.

o Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment.

Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date and says goodbye to the employee. However, this is a dangerous tactic because labour law has closed this loophole.

The main purpose of a fixed-term contract is supposed to be the filling of a temporary job. That is, the most appropriate time to hire an employee on a fixed-term contract is when the job itself is expected to come to an end at a specific time. It can be very dangerous to employ an employee on a fixed-term contract when the job itself is permanent (unless the temporary employee is merely standing for the permanent incumbent who is away on leave or who has temporarily been deployed elsewhere). The reason for this danger is that, according to the LRA, if the employer (even inadvertently) gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the CCMA or bargaining council could force the employer to renew the contract.

In the case of Nape vs INTCS Corporate Solutions (Pty) Ltd (CLL Vol. 19 June 2010 page 103) the employee’s contract was terminated because the employer’s client no longer required his services. The employer argued that the employment contract allowed for automatic termination on these very grounds and that the termination did not constitute a dismissal. The Court disagreed and struck down the employment contract’s provision as it clashed with and was overruled by the provisions of section 189 of the LRA that requires a retrenchment process in circumstances where employers are unable to provide work for the employee.

In the case of Khum MK Investments and BIE Joint Venture (Pty) Ltd v CCMA and others [2020] 4 BLLR 362 (LAC) the employer concluded a five-year service contract with Eskom and recruited 333 employees on fixed-term contracts to perform this work. Eskom then advised Khum that certain specified tasks had been cancelled. Khum in turn issued written notices of termination of their employment contracts to three employees. At the CCMA Khum claimed that the employees were “independent contractors” and that they had not been dismissed because their contracts had terminated “automatically”.
The commissioner dismissed both points, ruled the employees’ dismissals unfair and awarded them compensation equal to the amounts they would have earned during the unexpired portion of their contracts. A review having failed, Khum went to the LAC which noted that the employees’ contracts made no provision for automatic termination before the arrival of their expiry date. The appeal was dismissed with costs.
The wording of this decision appears to imply that, had the contracts indeed made provision for automatic termination the appeal might have been upheld. This creates uncertainty for employers needing to know whether or not such clauses are legally acceptable.

The above shows that employers should not take a chance when dealing with the termination of employment contracts. Instead, they should obtain expert advice from a genuine and reputable labour law expert.

To view our expert team debating contentious labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.

Insubordination Not Always Dismissible

by Akhona Zembe | Nov 2, 2021 | Law & Criminology

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted via 011 888 7944 or 082 852 2973 or labourlaw@absamail.co.za. Go to: www.labourlawadvice.co.za.

Item 3(4) The Code of Good Practice: Dismissal (the Code) lists some examples of offences that might merit dismissal even in the absence of prior warnings. Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.

Despite the potential seriousness of “insubordination” employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey an instruction may, in some cases, not even constitute misconduct!

In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot. The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded. However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction. As the employee had already received a final warning for insubordination she was fired.

The arbitrator found, amongst other things, that:

• In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
• Decisions of Pilots as regards boarding operations are final
• The instruction given by the Pilot had been both lawful and reasonable
• However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
• According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
• Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
• While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
• Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
• Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
• The dismissal was substantively unfair
• The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.

The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case. These were:

• The employee did not believe the instruction to be reasonable on the grounds that it was unsafe
• Her opinion was based on her own view of what was dangerous practice
• Her opinion was within the bounds of rationality
• Her refusal to obey the Pilot’s instruction was based, not on a desire to flout authority, but rather on her professional opinion relating to safety which, according to orders, was paramount.
• There appeared to be a personal issue influencing the dismissal.

Employers must therefore avoid basing dismissal decisions on personal attitudes. Instead, expert advice should be sought to establish whether the employee truly committed an offence.

To book for our 23 September seminar in Durban on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 084 521 7492 or 011 782 3066.

Employers Have Close Shave With Religious Discrimination

by Akhona Zembe | Oct 25, 2021 | Law & Criminology

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

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Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds One of these grounds is that of religion. This means that no employer is entitled to discriminate against an employee or applicant for employment purely on the grounds of the employee’s religion. For example, it would be discriminatory for an employer to:

• Turn down a job applicant because he/she was Christian, Jewish, Moslem or a believer in any other religion
• Decide that only employees belonging to a specific religion will be allowed to go to church during working hours
• Require employees only of certain religions to work on public holidays.

However, while all of the above are examples of discrimination they will not necessarily always constitute unfair discrimination. Whether such discrimination is unfair or not will depend to an extent on whether or not the discrimination makes objective sense. For example:

• Turning down a Jewish person for the position of Pope would not be unfair
• Refusing to employ an atheist as a priest would be seen as fair
• It would not be unfair to allow only Moslems to go to mosque

A key contributing factor as to whether discrimination at the workplace makes sense is whether or not it is based on the inherent requirements of the job. For example, forcing employees to stop wearing emblems of their religion might be unfairly discriminatory especially if such emblems are worn under the clothing. This is because the wearing of such emblems is unlikely to affect the employees’ work circumstances in any way.

However, should employees working with machinery insist on wearing their religious emblems on chains dangling freely around their necks the employer would obviously be entitled to prohibit this on the grounds of safety. Such prohibition would then not constitute unfair discrimination unless employees of certain religions were allowed to wear the dangling chains and others were not. Hence, consistency also plays an important part in establishing the fairness of discrimination.

It is important to note that each case must be evaluated in terms of general principles such as consistency, the need for good sense and the inherent requirements of the job, as applied to the circumstances of each case.

In the case of Dlamini and Others VS Green Four Security (2006, 11 BLLR 1074) the employees, who were all security guards, belonged to the Nazarene religion. They had received an order to shave or trim their beards but refused on the grounds that the Nazarene religion forbade them to do so. As a result they were dismissed and claimed that the dismissal was automatically unfair as it involved unfair discrimination against them due to their religious beliefs.

The employer argued that:

• bearded guards looked untidy and that a tidy and clean-shaven appearance was both an inherent requirement of the job as well as a necessity of the image of the company.
• The employees had contractually agreed to be clean shaven
• The employees had been clean shaven when they were employed

The Court found that:

• The employees had failed to prove that cutting of beards was a central tenet of their religion and that they would have to suffer a harsh penance should they breach such tenet
• The employees worked on Sundays despite the fact that their religion forbade it. This indicated that the church applied its rules flexibly
• The employees had been selective about which religious rules they chose to follow
• The rules requiring guards to be clean shaven had been applied consistently by the employer
• Grooming is an important factor in all security establishments
• The employees had not been unfairly discriminated against.

Employers are warned that this finding does not mean that they will always win cases concerning alleged unfairness relating to religion or to the appearance of their employees. Employers require expert advice in applying the legal principles to each specific case.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Beware Victimising Workplace Grievants

by Akhona Zembe | Sep 28, 2021 | Law & Criminology

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit.

However, more often employers go to the opposite extreme and brush all grievances aside because they feel that they are not there ‘to deal with employees’ sob stories’ or because the statutes do not provide for the lodging of grievances. While it is true that no statute specifically requires employers to solve their employee’s personal problems there are many circumstances under which employers would be foolish to ignore grievances. For example:

• Where the continued existence of the problem affects employee morale this may in turn cause a drop in productivity, increases in wastage, resignations and even conflict. This normally occurs where the resolution of the grievance is seen by the employees as the employer’s responsibility. This would for instance be so if the employer moved premises resulting in commuting problems for the employees.
• Where employees are being abused verbally or physically by a manager the practical and legal consequences for the employer could be dire if the employer does not act quickly, fairly and effectively. This would be the case, for instance, where the employee is being sexually harassed, insulted or bullied.

Employers are reminded of the expensive consequences for the employer in the Real Security case we discussed some months ago. There the employer had to pay tens of thousands of rand in compensation to the employee who had been sexually harassed by a supervisor because the employee’s grievances were ignored by the employer.

Employees whose salaries are not paid to them and receive no satisfaction from the employer when expressing such grievances are, under specific circumstances, entitled by law to resign and take the employer to the CCMA or bargaining council for constructive dismissal (a type of forced resignation).

Some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as ‘trouble-makers’ and are told to ‘like it or take a hike’. In Sweet (James) v Namcon Logistics (Pty) Ltd[2021] 1 BLLR 104 (LC) a warehouse manager was dismissed for negligence. He claimed that his dismissal was automatically unfair because it was implemented in response to grievances he had lodged. The Court found that:

• Victimisation of an employee for lodging grievances does not breach the provisions of sections 187 or 5 of the LRA
• the employer’s reasons for justifying the misconduct dismissal were unconvincing
• While the employee had not lodged a dispute at the CCMA regarding his grievances he had indicated that he intended to take legal action in this regard
• The employee had been dismissed because of his intention to take legal action against the employer which was in breach of the LRA’s provisions according to an earlier Labour Appeal Court decision.

The applicant was awarded compensation equal to 24 months’ remuneration and the respondent was directed to pay his costs. In the light of the above it is crucial for employers who receive grievances:

• To ensure that the grievant is not mistreated in any way after having lodged the grievance
• To investigate each grievance thoroughly while keeping an open mind
• Judge the validity of the grievance based on the facts and not based on who has lodged the grievance or who has been named in the grievance.
• If there is any merit in the grievance use an industrial relations expert to help devise an appropriate solution that will not create a problematic precedent.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.