GET THE @#&*!!€» OUT OF MY FACE!

GET THE @#&*!!€» OUT OF MY FACE!

When an employer temporarily requires an employee to vacate its premises and
to stop performing his/her duties this is called ‘suspension. The effect of a
suspension is that the employee is not allowed to return to work until the
employer instructs that he/she may do so. Such suspensions normally occur:
 While the employer is investigating misconduct/poor performance allegations
against the employee
 While the employer and/or employee are preparing for a disciplinary hearing
 After the employer has decided that the employee is guilty of misconduct/poor
performance.
In our experience the reasons that motivate employers to suspend employees
include:
 To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
poor performance
 To prevent the employee from interfering with the investigation instituted
against the employee
 To avoid disharmony at the workplace that could be caused due to the
employee’s awareness that he/she is being investigated
 As a result of the employer’s anger. That is, the employer is so furious with
the employee due to his/her alleged actions that the employer wants the
employee ‘out of my sight!’
 As a means of retribution. The employer wishes to humiliate or demean the
employee or otherwise punish him/her for the alleged offence.
Often, especially when the employer evicts the employee in a fit of anger, it is
unclear whether the employee has been suspended (evicted temporarily) or
whether the employee has been fired. This is because the employer shouts at
the employee to ‘get the @#&*!!€» out of my face!’
Regardless of whether such evictions are meant as suspensions or dismissals
the affected employees more often than not go to the CCMA or bargaining
council claiming unfair dismissal and/or unfair suspension. Especially where the

eviction takes place while the employer is in a fit of anger the employer loses the
case.
Labour law does not prohibit employers from suspending employees but does
allow employees to challenge the fairness of suspensions. Section 186(2)(b) of
the Labour Relations Act (LRA) defines as a type of unfair labour practice “the
unfair suspension of an employee”. Section 191(1) allows an employee to refer
an alleged unfair labour practice to the CCMA or to a bargaining council. Where
the employer has suspended the employee for an unfair reason or in an unfair
manner the employer can be forced to pay the employee compensation or lost
wages or to lift the suspension.
In the case of CEIWU obo Khumalo vs SHM Engineering cc (2005, 10 BALR
1009) the employee, a boilermaker was accused of failing to obey an instruction
from his superior and was therefore suspended for six weeks. The employee’s
excuse for defying his superior was that his superior had screamed at him. The
arbitrator found that this was not a sufficient reason for disobeying a reasonable
and lawful instruction and that the employee’s behaviour constituted gross
insubordination. However, the arbitrator found the suspension to be unfair and
ordered the employer to pay the employee for the full period of the suspension.
The arbitrator’s rationale for this was that, while the suspension might have
started out as a “holding” measure, it became punitive due to its unreasonably
long duration.
In the case of Sajid vs Mohammed NO & others (1999, 11 BLLR 1175) the
employee, who worked as an Imam for a mosque, was suspended from duty.
The charges against him included removal of copies of notices, persuading
congregants to make false statements and failure to attend prayers. The Labour
Court found that there was no evidence to prove that there had been a
breakdown in the employment relationship and that the suspension had been
unfair. The Court ordered the employer to lift the suspension.
In the case of MEC for Tourism and Environmental Affairs Free State vs
Nondumo & others (2005, 10 BLLR 974) the employee was suspended after
being charged with several counts of misconduct. The Labour Court found that
the suspension was unfair and ordered the employer to pay the employee
compensation and lost pay amounting to R840 000.
In the light of the above employers are advised to avoid suspending employees
unnecessarily or due to anger and to obtain expert advice before acting against
employees.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top
menu.

HEARING CHAIRPERSONS MUST BE IMPARTIAL

HEARING CHAIRPERSONS MUST BE IMPARTIAL

Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include:
 The employer dislikes the employee for reasons unrelated to the workplace.
 The owner wants a more attractive secretary
 The employee is unwilling to grant her superior sexual favours
 The employee has clashed with a key executive who has threatened to resign
 The employee has reported the employer to SARS, the Department of Labour
or Department of Health for violating the law
 The manager is under pressure to perform and uses the dismissed employee
as the scapegoat for performance problems
 The employer feels that it is time that it shows the workers who is boss and
picks on the first employee who makes a mistake
 The shop steward stands up for the employee’s rights and is labelled as a
trouble maker.
Employers then conspire to get rid of such undesirables through the use of a
number of tricks including:
 Firing the employee orally and then pretending that the employee absconded
 Framing the employee for poor performance or misconduct
 Provoking the employee into committing misconduct
 Setting up a disciplinary hearing where the presiding officer has been primed
in advance to fire the employee.
This latter trick clearly renders the presiding officer biased. This constitutes a
serious breach of the employee’s right to fair procedure. Where the employer is
caught out using such a biased presiding officer the CCMA has no mercy. The

employee is likely to be reinstated with full back pay or to be granted heavy
compensation to be paid by the employer.
Such bias on the part of a disciplinary hearing chairperson can be discovered in
a number of ways including:
 The chairperson grants the complainant (person bringing the case for the
employer) the opportunity to obtain more evidence, take adjournments or
interrupt the employee; but does not grant the employee similar rights.
 The presiding officer ignores evidence brought by the employee
 The chairperson is chosen to hear the matter despite having been the one
who caught the employee breaking the rule.
 The chairperson says things early in the hearing that indicate that he/she has
decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs
Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for
attempting to remove several frozen chickens that he had hidden in a bucket.
The arbitrator accepted that the employee was guilty of the offence but still found
the dismissal to be unfair. This was primarily because the chairperson of the
disciplinary hearing had revealed his bias by asking the employee at the
beginning of the hearing “do you have an excuse for stealing the chickens?”
In South African Policing Union obo Moorcroft vs South African Police Service
[2018] 11 BALR 1192 (SSSBC) the employee, who had been dismissed for
calling a colleague a “dom apie”, was reinstated. This was partially due to the fact
that the arbitrator found that there was a reasonable apprehension of bias of the
presiding officer because of his historical relationship with the accused.
The fact that arbitrators do not hesitate to punish biased or inept presiding
officers means that employers should:
 resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
 avoid misusing disciplinary processes to pursue private agendas
 ensure that only impartial and properly trained persons chair disciplinary
hearings.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top

ARBITRATION FEES ADD INSULT TO INJURY

ARBITRATION FEES ADD INSULT TO INJURY

It is extremely dangerous for any employer to dismiss an employee unfairly. This is because South African labour law strongly protects employees. The forums provided by the Labour Relations Act (LRA) to carry out labour dispute resolution include:

 

  • The Centres for Dispute Resolution attached to the numerous bargaining councils established in South Africa

 

  • The Commission for Conciliation, Mediation and Arbitration (CCMA)

 

  • The Labour Court

 

  • The Labour Appeal Court.

 

Many employers, via bitter experience, will already be aware that going to any of these forums can be extremely costly. Such employers will be aware that, should things go wrong with a dismissal, they may have to pay the following:

 

  • A settlement amount in order to avoid having to go to court or arbitration

 

  • Legal fees to be represented at arbitration or court

 

  • The legal fees of the employee

 

  • Retrospective back pay to employees who the courts or arbitrators have reinstated

 

  • Compensation to employees who they have been found to have dismissed unfairly.

 

Most employers will however be unaware that, in addition to the hugely expensive costs listed above, they may also have to pay arbitration fees to the CDR or CCMA).

 

I will deal with each of these in more detail:

 

OUT OF COURT SETTLEMENTS

The first stage of labour dispute resolution is conciliation. Here a CDR or CCMA commissioner attempts to mediate an out of court settlement between the employee and employer. Especially where the employer comes to realise that it messed up the dismissal it lands up agreeing to pay a substantial settlement amount to make the problem go away. Due to the fact that such settlements are made by agreement there is no legally prescribed maximum limit to the amount thereof.

 

LEGAL FEES AND THE EMPLOYEE’S LEGAL COSTS

Should the employer’s case be found to be frivolous and/or vexatious it may have to pay, in addition to its own legal fees, a significant portion of the employee’s legal fees. This may occur when the court/arbitrator finds that the employer was clearly in the wrong and/or defended the case unreasonably.

 

RETROSPECTIVE BACK PAY

Where the arbitrator or court finds that the dismissal was unfair it may require the employer to take the employee back and to pay the employee remuneration lost between the date of dismissal and the date of the reinstatement order. (Such back pay is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)

 

COMPENSATION

Even where reinstatement is not ordered the employer may be required to pay the employee compensation in recompense for unfairly depriving him/her of his/her job. (Such compensation is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)

 

ARBITRATION FEES

In terms of the little known section 140(2) of the LRA the arbitrator may charge the employer an arbitration fee where it is found that a dismissal for misconduct or incapacity was procedurally unfair. For example, in the case of Martini and others vs Galata Eksport Chain cc (2006, 8 BALR 836) the employees were dismissed after 20 oriental carpets worth R 800 000 went missing. The arbitrator found that the employer had good reason to dismiss the employees but that, because the employer had failed to give the employees a fair hearing, the dismissal had been procedurally unfair. He/she therefore ordered the employer to pay the CCMA an arbitration fee in terms of section 140(2) of the LRA. It is uncertain what the intension of this fee is. Perhaps it is for wasting the CCMA’s time by failing to follow procedures that every employer ought to be aware of.

 

In the light of the above employers are advised to:

 

  • Make sure that they know and fully understand all aspects of labour law

 

  • Use that knowledge to comply with the law when dealing with employees. 

 

To register for our 16 July webinar on Investigating in the Covid Environment please contact Ronni on [email protected] or 0845217492.

EMPLOYEE DEFIANCE AGGRAVATED BY THE LOCKDOWN

EMPLOYEE DEFIANCE AGGRAVATED BY THE LOCKDOWN

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, instructing employees to adhere to heath and safety requirements would, in most cases, be both legal and reasonable.
In Mogano vs St Mary’s Children’s Home [2021] 2 BALR 181 (CCMA) the employee was dismissed for disobeying a rule to remain on the work premises
during the lockdown. The arbitrator noted that a key aim of the lockdown was to protect vulnerable people from contracting Covid. The children at the home
were vulnerable, and the care workers had been allocated a cottage in which they could stay while off duty. The arbitrator found that the applicant had
unreasonably defied management’s authority and imperilled the children at the home. The applicant’s dismissal was upheld as fair.

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.

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 book for our 16 July 2021 webinar on CONDUCTING INVESTIGATIONS IN THE COVID ENVIRONMENT please go to
https://www.labourlawadvice.co.za/seminar/ or contact Ronni at [email protected] or on 0845217492.

HEARING CHAIRPERSONS MUST BE IMPARTIAL

UPDATE YOUR WORKPLACE RULES AND EMPLOYMENT CONDITIONS

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
[email protected] or on 0845217492 or (011) 782-3066.

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