HANDLING OFF-SITE MISCONDUCT

by angelique | Mar 8, 2019 | Employers

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: [email protected].
Go to: www.labourlawadvice.co.za

While employers have very few
rights under the Labour Relations Act (LRA) they do have the right to
discipline and even to dismiss employees for work related misconduct. However,
a dismissal will only be upheld by the CCMA, bargaining council or Labour Court
where:

·        
The employer has properly followed a stringent,
complex and time consuming disciplinary procedure laid down by labour law AND

·        
The employer can prove, on balance of
probability, that it had the right to dismiss the employee in the light of the
facts of the case.

Whether the employer had the
right to dismiss the employee will depend on the employer proving a number of
things including that:

·        
The employee knew the rule that he/she allegedly
broke

·        
It was a fair rule and was consistently applied

·        
The employee was guilty of breaking the rule

·        
The breach of the rule was so serious as to
merit dismissal

·        
Dismissal was justified despite mitigating
circumstances.

In addition to the above factors
the employer will not be entitled to dismiss an employee for conduct that has
nothing to do with the employer. For example, the employer may not normally
dismiss an employee who neglects his/her children or assaults a fellow
nightclub visitor. But what if the employee was wearing his/her workplace
uniform at the time of the assault? The employer may then be able to make out a
case of bringing the name of the employer into disrepute.

Thus, despite the fact that the
alleged misconduct occurred outside the workplace, it can still occur within
the context of the work relationship. And, if it does, then the employer may,
in certain circumstances, still have the right to discipline the employee.

For example, in the case of Saal
vs De Beers Consolidated Ltd (2000, 2 BALR 171) it was alleged that the
employee who worked for the mine had assaulted and raped a woman at a mine village
and the employee was therefore dismissed. Although the rape was not proven at
CCMA the commissioner agreed that the employee was guilty of assault. The
employee claimed that his dismissal was unfair because:

·        
a criminal case had been laid against him

·        
the alleged assault had taken place outside the
workplace and

·        
the incident had occurred outside normal working
hours.

However, the CCMA decided that
the criminal case had no bearing on the labour law matter and that, despite the
time and place it happened, the employee’s misconduct still fell under the
employer’s jurisdiction because:

·        
The employment relationship and the business of
the employer had been affected by the assault AND

·        
The employer had a direct interest in the
wellbeing of the residents of the mine village AND

·        
The employee knew that even assaulting a
non-employee in the town infringed the employer’s rules

The CCMA therefore upheld the
dismissal.

In the case of CEPPWAWU obo Faku
vs Eco Tanks (2007, 11 BALR 997) the employee was dismissed for being
intoxicated, for insubordination and for verbally abusing the employer in the
presence of other employees. This incident occurred outside the workplace. The arbitrator
found that the employer had no right to dismiss the employee for intoxication
and insubordination because these incidents occurred off the employer’s
premises. However, the act of abusing the employer in front of other employees
did affect the work relationship and fell within the employer’s jurisdiction.

In this case, had the employee
been dismissed for insubordination only (outside the premises) the arbitrator
would (wrongly, I believe) have found the dismissal to be unfair because the
arbitrator had found that the insubordination was not relevant to the
employment relationship. Every case taken to CCMA or bargaining council will
potentially have a different outcome because circumstances differ as do the
viewpoints of different arbitrators. It is therefore very important for
employers, before dismissing employees for off site misconduct, to get the case
analysed by a labour law expert in order to check whether dismissal will be
acceptable or not.

To book for our 5 April Johannesburg seminar on
CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or
[email protected]

Precautionary suspension procedures explained

by angelique | Mar 7, 2019 | Employers

THE requirement that employers conduct pre-suspension hearings before they confirm the precautionary suspension of an employee was debunked by a Constitutional Court judgment handed down on February 19, 2019, in Alan Long versus South African Breweries (Pty) Ltd & others [Case number CCT61/180].

Up until now, our case law had obligated employers to give employees an opportunity to be heard before their employer confirmed their precautionary suspension, yet this judgment confirms that it is not necessary to do so. As a result, employers are now required to amend any in-house procedure or policy that includes a pre-suspension hearing before precautionary suspension.

In this Constitutional Court (Concourt) case, the employee was making application for leave to appeal against a judgment in the Labour Court which, among other things, held that there was no requirement that an “employee be given an opportunity to make representations… where a suspension is precautionary”. On that particular issue, the employee, a district manager in the employer’s Border Region, had been placed on precautionary suspension approximately three months before his disciplinary hearing was held.

At arbitration, the arbitrator held that “there was a valid reason to suspend the applicant, but that the applicant had not been given an opportunity to makerepresentations to show why he should not be suspended” and that this amounted to an unfair labour practice.
However, the Labour Court, on the other hand, subsequently held that “where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations”. It continued that on the contrary “the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process.” “As such, the Labour Court concluded that the failure to conduct a pre-suspension hearing prior to confirming the precautionary suspension, did not amount to an unfair labour practice.” At the Constitutional Court, the employee submitted that “the Labour Court’s finding on pre-suspension hearings went against existing case law.

The Constitutional Court upheld the Labour Court’s position that pre-suspension hearings are not required when an employer is contemplating placing an employee on precautionary suspension. The judgment, on this point, held that “the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted.

“As the Labour Court correctly stated, the suspension imposed on the (employee) was a precautionary measure, not a disciplinary one. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.” The judgment continued that: “The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the (employee), even if there was no opportunity for pre-suspension representations, is sound.”

Precautionary suspension should not be confused with punitive suspension, which arises when an employer imposes a sanction of dismissal, with an alternative sanction of suspension without pay, with the employee’s agreement. This judgment is quite a significant departure from a widespread, historical understanding that failure to give an employee an opportunity to make representations before being placed on precautionary suspension did indeed amount to an unfair labour practice. Now that it has been clarified by the Constitutional Court that this is not the case, employers are now in a position to impose precautionary suspension in a less encumbered fashion. However, it should be remembered that precautionary suspension will nonetheless amount to an unfair labour practice if it is unpaid or punitive in nature. It could even amount to an unfair labour practice if it is for an unduly lengthy period of time.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 countrywide. Email [email protected] or visit www.tonyhealy.co.za for back copies of all columns.

Transparency: Key to good working relationships

by angelique | Mar 7, 2019 | Employers

ALL human relationships, including those of employers and employees, involve expectations, and conflicts tend to occur when expectations are not met. When you start a new job, you should try to make sure you have a clear understanding of what your new employer expects of you.

Also, it is important to think about what you expect of your new employer.
Your new colleagues will expect you to approach the job with an open mind, so that you can quickly learn what you need in order to do your job well. They will expect you to take instructions and directions from the people training you and from your supervisor.

They will expect you to be reliable. Arrive at work on time and do not leave until your shift is over. Call in to give notice if you are sick and cannot make it in or are going to be unavoidably delayed. Your new employers will expect you to be honest, conduct yourself professionally and to dress appropriately for the position.

If you want to make an excellent impression and exceed your employer’s basic expectations, try to cultivate a cheerful and flexible attitude. Things are often more complicated in reality than they appear on paper, so the company’s official organisational chart might not be sufficient to describe everything that actually needs to get done. If you display resentment when asked to do something outside of your normal responsibilities, your boss might be disappointed.

Your employer will expect certain things of you, but you also have the right to expect some things of your employer. Employees’ expectations include the timely and accurate payment of wages or salaries, adequate training, safe working conditions, full explanation of all company policies and especially of your job responsibilities, and fair and constructive feedback from your supervisor.

If any of these expectations are not being met, you should have a conversation with your supervisor to discuss the situation. Most of these employee expectations are not only reasonable, but are also required by law. The relationship between you and your employer is likely to run into trouble if either of you feels that expectations are not being consistently met.

Some of these situations are unambiguous. For instance, if you do not get your cheque when you are supposed to, your employer is clearly not meeting a legitimate expectation.
If you leave the office an hour early every day, you are not meeting expectations.
Other expectations might not be reasonable. If your employer expects loyalty from employees, but does not extend the same loyalty to them, this may not be fair. If you expect to be promoted after you hve been working there for a year, this may not be reasonable if you have not excelled as an employee. Whenever you are dealing with employer expectations, try to assess them objectively to decide how reasonable they really are.

Expectations can be organised in many ways, but should cover aspects of work and life important to the people involved – both the explicit expectations for task performance, managerial direction and organisational resource support, and, more personal expectations each person has for respectful treatment, work environment quality, personal expression and growth.

In each description both the manager, as an individual and a representative of the employer, and the employee have expectations. Sometimes these expectations match. The problems occur when the expectations do not match.

An example of conflicting expectations might be the case where an employee expects clear direction from their manager, but the manager expects the employee to work with general guidelines in a more unstructured way.

The manager gives ideas and suggestions thinking that they are encouraging the employee’s autonomy, initiative and development. The employee is frustrated by the lack of direction and thinking the manager is unable or unwilling to make organisational commitments for employee performance and reward. At the performance review the manager feels the employee has not done as well as they should have in the job and gives the employee a mediocre review.

The employee feels the manager has not done their job and is being subjective or idiosyncratic in the review. Neither the manager nor the employee is happy or productive. Discussing these expectations and differences in preferred employer-employee style would have made both employer and employee more effective.

Lawrence Jugmohan is the head of Digital Street, Automation Engineer at Derivco

THE LONG ARM OF THE LAW

by angelique | Feb 20, 2019 | Employers

THE LONG ARM OF THE LAW
Foreign employers can’t escape South African labour law

When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil. A South African working at a South Africa based foreign embassy would therefore be subject to the labour law of that foreign country. However, a branch of a foreign company based in South Africa is not considered to be on foreign soil and is therefore subject to South African law. Our laws strongly protect South African employees and anybody employed legally in South Africa. Furthermore, our courts do not easily give up jurisdiction to foreign courts.

For example, in the case of August Lapple (SA) vs Jarrett & others (2003, 12 BLLR 1194) the dismissed employee had been the managing director of the South African subsidiary of German company. He referred his dismissal to the Bargaining Council for the Motor Industry in South Africa. However, the employer disputed the council’s jurisdiction as it claimed that it had been the company’s head office in Germany that had dismissed the employee. The arbitrator ruled that the bargaining council did indeed have jurisdiction. The employer therefore referred the jurisdiction ruling on review to the Labour Court which found that:

• Although the employee had been employed by the German parent company, the employee had also been employed by the South African subsidiary

• The bargaining council did have jurisdiction to hear the matter

• The employer was to pay the employee’s legal costs.

Even South Africans working outside South Africa can, in certain cases, refer labour disputes to the South African dispute resolution system. For example, in the case of Kleinhans vs Parmalat SA (Pty) Ltd. (2000, 9 BLLR 879) the employee was retrenched after having worked in Mozambique. The Labour Court decided that:

• An agreement by the parties as to where jurisdiction lies does not bind the Court.

• South African law was “impliedly” incorporated into in the employment contract and this gave the South African courts jurisdiction

• The contract was concluded and cancelled in South Africa

• The employee’s salary was paid in South Africa and was paid in rands

• The termination letter was written by the employer who considered the Mozambican operation as its own

• The Court therefore did have jurisdiction to hear the case.

In the case of Parry vs Astral Operations Ltd. (2005, 10 BLLR 989) the employee was retrenched after having worked in the position of general manager of the employer’s operations in Malawi. The Labour Court decided that:

• Both parties were based in South Africa

• The parties had agreed that the employer’s (South African) policies would apply

• The employer had not approved the contents of Malawian law

• Both parties had, when signing the contract, been under the impression that they were concluding it under South African law

• The Labour Court therefore had jurisdiction

• The employee was entitled to damages for breach of contract, balance of relocation costs, share options, accrued profit shares, salary, notice pay, severance pay and compensation equal to 12 months’ remuneration. In addition the employer had to pay part of the employee’s legal costs.

In the light of these cases, employers should not assume that they can hide behind foreign incorporation or foreign workplaces. That is they should not assume that they need not follow South African law merely because foreign elements exist in the working situation.  Instead, employers should first obtain expert labour law advice before taking any action against employees regardless of where the employee works or where the employer is based.

TERMINATING FIXED-TERM CONTRACTS A HEADACHE

by angelique | Feb 19, 2019 | Employers

It is very convenient to employ a worker on the basis of a fixed-term contract. However, labour law strictly curtails the use of such contracts which may only be used under special circumstances.

The employer’s need to terminate such a contract could have a number of different reasons. For example, during a retrenchment exercise, the employer may need to terminate all temporary contracts so that it may give preference to saving the jobs of the permanent employees.

There could be a variety of factors contributing to the need for operational requirement dismissals (retrenchment). These include:

• Faulty or archaic equipment or technology, ineffective management systems or underskilled/demotivated employees can reduce productivity, increase financial losses and affect jobs

• Employers may need fewer employees due to labour saving devices or technology.

• A desire to evade labour legislation might result in the contracting out of work instead of giving it to employees

• Bankruptcy or losses caused by mismanagement or misappropriation of funds

• Strikes and lockouts that weaken your company and chase customers and work away

• A drop in sales due to economic factors such as the strengthening of the Rand

• Rationalisation to shed “surplus” employees resulting from buy-outs or mergers. Beware, retrenchments for reasons related to a takeover as a going concern will be automatically unfair.

However, the above factors will not automatically render a retrenchment fair. For example, the courts have traditionally taken into account four key factors when deciding whether a retrenchment is fair. Viz:

• Was there a sufficient operational reason for the retrenchment or was the retrenchment a sham

• Was a fair criterion used for choosing the employees to be dismissed or should other employees have been retrenched instead

• Before deciding to retrench did the employer consult properly with the employees or trade union on measures to avoid or reduce the number of retrenchments as well as on numerous other issues related to the retrenchment

• Did the employer give the employees or union all the information relevant to the retrenchment and to the consulting process.

However, a fifth factor has suddenly come to the fore.

In the case of Buthelezi vs Municipal Demarcation Board (2005, 2 BLLR 115) Mr Buthelezi had a five-year fixed-term contract with the Demarcation Board but was retrenched one year after commencement. The Labour Appeal Court found that the employer did not, in these circumstances. have the right to terminate the fixed-term contract before its natural expiry date.

This decision is most surprising because, where the job of a fixed-term employee genuinely becomes redundant what is the employer required to do? After all labour law gives an employer the right to retrench for good reason. The Court’s startling decision means that:

• as regards retrenchment, a temporary employee with a fixed-term contract has stronger rights that a permanent employee
• the practice of terminating the contracts of temporary employees in a retrenchment exercise as a means of saving permanent jobs needs to be urgently reviewed
• the terms and wording of fixed-term contracts need to be radically revised
• no employer should enter into or terminate a fixed-term contract before consulting with a labour law expert.

The mere failure to renew a fixed term contract can be found to constitute an unfair dismissal. In Porter vs National Union of Metalworkers of South Africa [2017] 12 BALR 1363 (CCMA) the applicant’s fixed-term contract was not renewed. The Commissioner accepted that the applicant was appointed on a limited duration contract, even though he had not signed it. The numerous renewals and the fact that the work performed by the applicant was ongoing had created an expectation that his contracts would be renewed. The non-renewal was therefore grossly unfair and the applicant was awarded compensation equal to eight months’ salary.

The fact that even a trade union that deals with labour law issues all the time got this so wrong shows how difficult an issue fixed term contracts are.

To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or [email protected]

 Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.

THE AWARDS OF ARBITRATORS MUST BE RATIONAL

by angelique | Feb 19, 2019 | Employers

The case of the employer concerned was weak without him/her realizing it The employer’s case was strong but he/she failed to present it in an understandable and/or convincing manner The employer presented a strong case in a proper manner but the arbitrator nevertheless failed to make a decision properly based on the case put forward.

It is the third of these three reasons that is unfair to the employer. However, in such a case the disappointed party has the right to challenge the arbitrator via a review at the Labour Court on the grounds that, amongst others, the arbitrator took a bribe, was biased, ignored pertinent evidence or failed to arrive at a properly reasoned award.

Wayne Hutchinson, who has many years of experience as a CCMA arbitrator, has stated that the arbitrator is required to “… weigh up and consider all the evidence, both oral and documentary, prior to embarking upon the process of making factual findings” (May 2007, CLL page 107). In his article Hutchinson cites the decisions of senior judges that reinforce the arbitrator’s requirement to provide a properly reasoned award. Specifically he cites the cases of Crown Chickens vs Kapp and Rustenburg Platinum Mines vs CCMA.

As per Hutchinson’s report the Court, in the Crown Chickens case found that the award of an arbitrator:

• must not be arbitrary
• must be arrived at by a reasoning process as opposed to conjecture, fantasy, guesswork or hallucination
• must have applied his mind seriously to the issues at hand
• must have conclusions that are justifiable and defensible and logical.

In the Rustenburg Platinum case the Court found that “…the Promotion of Administrative Justice Act (PAJA) applied to CCMA arbitration proceedings.” and that “the PAJA was enacted in order to give effect to the right to administrative action that is lawful, reasonable and procedurally fair.”

In effect the PAJA requires the decisions of arbitrators to:

• Comply with the law
• Be rational
• Be properly explained via the giving of reasons for the decision.

Thus the arbitrator must not only have logical and legal reasons for his/her decisions but must also give these reasons at the time of rendering the decisions otherwise it may be assumed that he/she did not have good reason. The emphasis has been placed on the actual giving of good reasons because:

• The parties have the right to know why the arbitrator has found against them so they can decide whether and how to challenge the arbitrator’s decision.
• This requirement deters the making of faulty decisions by arbitrators. That is, an arbitrator who has to explain his actions will be less likely to ignore or misconstrue relevant evidence and to make bad decisions.

The comprehensive furnishing of reasons by the arbitrator enables anyone questioning the decision to better assess whether the arbitrator has:

• Considered all serious objections to and all alternatives tothe decision he/she has made
• Provided a rational connection between the facts of the case and the decision.

The significance of this for employers is that they must:

• themselves have good reason when acting against employees
• provide their good reasons clearly and comprehensively to the arbitrator when called to CCMA hearings.

This will pave the way for the arbitrator to accept the employer’s reasoning and to follow the same line of reasoning as did the employer. In this way the employer aids the arbitrator to find in its favour.

The above approach requires of employers that they insist on managerial decisions to be made unemotively, rationally and in line with the law by managers who have been trained labour law and decision making.

Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za