BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury.
Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances in deciding whether the potential alternatives to dismissal could realistically have been implemented as a viable solution to the problem at hand. Where this has been done it has been in the interests of balancing fairness towards employees and employers.
However, a number of unfair dismissal decisions under the new dispensation can be seen as suggesting a trend towards an imbalance favouring employees. The highly publicised Sidumo vs Rustenburg Platinum Mines epic has been described as a case in point. While space does not allow for discussion of numerous other case decisions bemoaned by employers, we will discuss one case decision reported in 2010.
In Nape vs INTCS Corporate Solutions (Pty) Ltd (2010 CLL Vol. 19 No. 11)INTCS provided employees to Nissan (Pty) Ltd on the basis of a labour broker or TES (temporary employment service) contract. Nape, one of INTCS’s employees assigned to Nissan was found guilty of distributing, via Nissan’s email system, an offensive email to another person working at Nissan. At his disciplinary hearing he was issued with a final warning. This appears to have been based on INTCS’s disciplinary guidelines or policy relating to offensive communications. However, Nissan viewed this conduct as far more serious and refused to accept Nape back on to its premises.
Being unable to place Nape at Nissan or anywhere else, Nape was retrenched on the basis that there was no job for him and that a clause in his employment contract required INTCS to withdraw Nape from the client’s premises should the client require this. The Labour Court found that:
- Such a contractual clause was against public policy and therefore invalid and unlawful
- INTCS could have and should have resisted Nissan’s refusal to take Nape back by interdicting Nissan in court to prevent Nissan from refusing to take Nape back
- It was unfair for INTCS to have retrenched Nape before having attempted to resist Nissan’s decision to refuse Nape’s return to work.
This decision is a major shock for employers because:
- The finding that the clause giving Nissan the right to bar Nape was contrary to public policy fails to take into account that any person(including a business) has the right to bar any other person from its premises particularly where the person barred has committed an offence
- Had INTCS ignored Nissan’s decision for Nape to be barred and had it ignored the relevant contractual clause Nissan could still simply have refused Nape entry to its premises and halted its payments to INTCS for Nape’s assignment
- Had INTCS then have continued to press for Nape’s return to work at Nissan by, for example, sending threatening letters to Nissan or suing this client in Court, INTCS would have incurred the serious and real risk of losing the entire Nissan contract which was one of its biggest contracts. This would have resulted in the loss of a great many jobs and serious financial losses to INTCS.
Furthermore, It would have been most unlikely that INTCS would have succeeded via an interdict application to force Nissan to take Nape back. This is especially because:
- Nissan is a large and powerful company with the resources to fight such cases robustly
- The clause in the agreement between Nissan and INTCS gave Nissan the contractual right to bar any INTCS employee
- Nape was found guilty of a serious offence committed on Nissan property
- In addition, such interdicts are normally only granted on the basis where urgency can be proved and it is highly unlikely that the High Court would accept a claim of urgency in a situation where INTCS was unable to show serious losses due to the barring of Nape and where a contract agreeing to such banishment was in place.
Thus, while INTCS could in theory have applied for such an interdict, this route was unviable in the extreme.
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