LABOUR LAWS CONSTRICT EMPLOYERS

LABOUR LAWS CONSTRICT EMPLOYERS

South Africa’s labour legislation provides very heavy protection for employees. That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be dismissed. These obstacles include:

  • A plethora of procedures that must be followed before a dismissal can be considered to be fair
  • Stringent and numerous criteria for deciding whether the reason for a dismissal is fair
  • Broad discrepancy between judges and arbitrators as to the interpretation of the labour law
  • The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order (up to 24 months’ pay in some cases) on the employer 
  • The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing
  • Despite the fact that many employers do not have the expertise to defend cases at the CCMA the law makes it difficult for them to use legal experts as representatives.
  • The Labour Relations Act effectively bans the use of fixed-term contracts except in cases where the employer can prove that the job itself is temporary. 

 

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. However, this is a dangerous tactic because labour law has virtually closed this loophole. That is, if the employer gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract. 

In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed term contracts. But then it allowed the last contracts to lapse even though there was still available work for the terminated employees. The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.

In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent. When Ms Pretorius’s contract expired the employer advertised the post to be filled on a permanent basis and refused to renew Ms Pretorius’s contract. She referred an unfair dismissal dispute to the bargaining council because she claimed to have had a reasonable expectation that her contract would be renewed. The arbitrator found that:

  • The employer had a policy that required a fixed-term employee occupying a permanent post to be made permanent if management approved. 
  • The fact that management had advertised the post constituted management approval 
  • This policy gave the employee a reasonable expectation of renewal of her contract
  • The employer’s failure to give the employee the permanent post constituted an unfair dismissal and the employee was retrospectively reinstated.

 

 Another method used by employers to bypass the tough labour legislation is the use of temp. agencies and labour brokers. These agencies are referred to in the Labour Relation Act (LRA) as “temporary employment services” (TES) 

Trade unions, who find this arrangement to be a thorn in their sides, call it ‘Atypical Employment’ and have succeeded in a campaign for severely curtailing it. 

Employers are now finding it very much more difficult to use fixed-term contracts and labour brokers to evade the heavy constraints of labour legislation. All employers now, more than ever before, need to use reputable labour law experts to sharpen their skills in running productive workplaces despite the ever increasingly restrictive labour legislation.

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: [email protected]labourlawadvice.co.za. Website address: www.labourlawadvice.co.za. 

DISMISSALS UNFAIR IF EMPLOYMENT RELATIONSHIP STILL TOLERABLE

DISMISSALS UNFAIR IF EMPLOYMENT RELATIONSHIP STILL TOLERABLE

Item 92 of the CCMA’s Guidelines: Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, it should be able to show that the employee’s offence was so serious that it made “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, willful damage to the employer’s property, gross dishonesty and assault. 

While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:

  • Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
  • The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
  • Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.

In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”

However, the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness. 

The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. However, if the employer can show serious damage to the relationship caused by the misconduct then the dismissal would be likely to be seen as fair.

In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.

The employer would normally be entitled to argue that racist behavior has rendered continued employment intolerable In the case of CEPPWAWU obo Evans vs Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal.  

In Baxter v Minister of Justice and Correctional Services and others

[2020] 10 BLLR 968 (LAC) the appellant, then an area Commissioner for Kokstad, was dismissed for his alleged improper involvement in the learnership process, in which his daughter was one of the candidates. The appellant claimed that he had really been dismissed for protected disclosures he had made about a colleague’s manipulation of the selection of the five job candidates. 

The Labour Appeal Court found that the applicant’s disclosures were for the most part true and that his dismissal was automatically unfair. 

Turning to relief, the Court found that, although the appellant’s conduct relating to the non-appointment of family members did not justify dismissal, it was enough to make the continuation of an employment relationship intolerable. Reinstatement was, accordingly, not an appropriate remedy. The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. Thus, while employees should avoid making protected disclosures out of spite employers should avoid dismissing employees who make genuine protected disclosures.

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

DEBATE HOTS UP RE LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS

DEBATE HOTS UP RE LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS

Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed …… the assistance of a trade union representative or fellow employee.” 

It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings. 

In the case of NUMSA obo Thomas vs Murray and Roberts Alucast (2008, 2  BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union’s claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.

The CCMA Guidelines: Misconduct Arbitrations states that an employee is not automatically entitled to legal representation.

However, in the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA. Report by Dr Elize Strydom distributed 30 January 2005) the employee was refused the right to an external legal representative. 

The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing. 

The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer’s disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances. This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation. 

In the case of Molope vs Mbha (2005, 3 BLLR 267) an area manager was dismissed for unauthorised use of funds and was brought to a disciplinary hearing. The accused employee chose a colleague to represent her but, shortly before the disciplinary hearing this colleague decided not to represent Mbha. The employee therefore applied for a postponement in order to obtain another representative but the employer refused and the employee was dismissed. The Labour Court it found the dismissal to be procedurally unfair and said that “it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented thereat by a co-employee or a trade union official or a lawyer.” 

In Public Servants Association of South Africa obo Leiee and others / Department of Police, Roads & Transport (FS)[2015] 3 BALR 276 (PSCBC) the arbitrator found that neither employers nor employees may appoint lawyers to represent them in disciplinary hearings. However, the courts have made it plain that, while there is no such general right, applications for legal representation must be considered on their merits even if collective agreements or disciplinary codes appear to exclude legal representation absolutely.

In view of the contradictions in the case law as evidenced in the above reports employers are advised, when receiving applications for external representation to consider whether:

  • Their policies allow external representation
  • The complexity level of the case is high
  • The consequences of an adverse finding could be serious
  • There would be no significant prejudice to the employer if legal representation would be allowed
  • The employee’s ability to deal with the case is low in comparison to that of the employer.

 

The above case findings have major consequences for employers engaging in disciplinary hearings. In particular:

  • An employee’s request for legal representation can no longer be dismissed out of hand. While such requests must not always be granted, they must be given very careful consideration.
  • This in turn means that employers will need to ensure that their presiding officers are highly skilled in chairing disciplinary hearings. This is so as to be able to make the right judgement as to whether to allow legal representation or not and also to be able to deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.
  • Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.

 

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

UNFAIR SUSPENSIONS CAN PROVE COSTLY

UNFAIR SUSPENSIONS CAN PROVE COSTLY

Employees are suspended from duty for different reasons that may include:

  • One form of suspension is a temporary lay-off of employees due to operational circumstances. That is, during retrenchment consultations, either party may suggest temporary lay offs as an alternative to retrenchment. This might be implemented where the employees agree to the lay offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid but would still be employees of the employer.  
  • Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the lay offs and the employer could well be forced to pay the employees for the lay off period. Where there is a large number of workers or where the lay off period is a long one this payment could come to an extremely high amount.
  • The employer’s intention behind a suspension may be to make the employee’s working circumstances so uncomfortable that he/she resigns. This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal. However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign. Should the employee claim at arbitration that the suspension was a sham on the employer’s part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct. 
  • The employer may need to investigate serious allegations made against the employee. Where the employee is in a position of official or unofficial power the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation. This is a legitimate reason for suspension but the employee must be on full pay during the suspension period. The employer must be sure that the suspension does not have the effect of breaching a contractual right of the employee otherwise a civil suit could result. 
  • The employer may have a need to avert the danger of the employee repeating the alleged offence. For example, if the employee is suspected of assaulting a colleague, a suspension may be merited to avert the possibility of a repeat assault. Again, the employee must be on full pay during the suspension period and the danger in question must be real.
  • Punishment of the employee by the employer. Here, the employee is normally suspended without pay. However, such suspensions are often illegitimate. This is because:
  • Cutting an employee’s pay may breach the provisions of the Basic Conditions of Employment Act (BCEA)
  • The employer may have no fair reason for punishing the employee and withholding his/her pay. Such suspensions are too often implemented while the employer is in a fit of rage.

 

Suspension without pay may, in certain circumstances be legitimate. This might be, for example, where the employee already has a final warning for the same type of offence but the employer does not necessarily wish to dismiss the employee. The employer may then give the employee a choice of dismissal or an agreed suspension without pay for a limited period (preferably not more than two weeks).

In the case of American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[2021] 1 BLLR 64 (LC), after the employee was involved in an accident while driving a company vehicle, he was immediately suspended without pay. The respondent Commissioner subsequently ruled his suspension unfair and awarded the employee compensation of six months’ salary. 

The Labour Court on review upheld this decision and dismissed the employer’s review with costs.

In the case of Mabitsela vs SAPS (2004, 8 BALR 969) a policeman was suspended without pay pending a charge of murder. The police regulations do allow for such suspensions to be without pay. However, Mabitsela claimed at the bargaining council that his suspension was unfair because he had been on unpaid suspension for five months. The arbitrator found that it had been unfair to implement the suspension without pay. 

This case shows that, even where regulations allow employers to suspend employees without pay this may still be found to be unfair under the circumstances. If a suspected murderer can win such a case it would be even easier for employees who have committed lesser offences to win their cases.

The issue of when suspensions are fair and appropriate is not clear cut and employers are warned not to implement suspensions until they have obtained advice from a reputable labour law expert.

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

MAJOR CHANGES AFFECT MITIGATION LAW

MAJOR CHANGES AFFECT MITIGATION LAW

Even where it has been proved beyond any doubt at arbitration that an employee has committed an extremely serious offence, the employer will not have discharged its legal duty to prove that the employee deserved to be dismissed.

Schedule 8 indicates that an employee may be dismissed for gross offences such as assault, wilfully endangering safety, gross dishonesty or gross insubordination. 

The employer’s own disciplinary code may have other offences that merit dismissal such as, for example, gross sexual harassment, racist behaviour, gross dereliction of duty or bringing the name of the company into disrepute.

However, Schedule 8 also says that, despite the fact that such misconduct might merit dismissal, the employer’s right to dismiss the employee is subject to the condition that each case should be judged on its own merit. This means that while it might be acceptable to label an offence as gross misconduct, dismissal will only be merited if the specific circumstances of each individual case, looked at as a whole, make dismissal apt.

The person deciding whether a guilty employee deserves to be dismissed must take into account all circumstances of the case as well as circumstances such as the employee’s personal circumstances, the employee’s disciplinary record and length of service. It is important to note that Schedule 8 does not say that the employee’s personal circumstances, disciplinary history or length of service must be taken into account in the employee’s favour to mitigate the penalty. The code merely says that these factors must be taken into account; period. The wording of the Code does not stop the employer from taking such circumstances into account as aggravating circumstances. Indeed, it is accepted practice, that, should the employee’s record show previous, unexpired warnings for a similar offence, the employer can use these as circumstances to strengthen the penalty.

However, it appears that, although the Code does not specify it, arbitrators and Labour Court judges expect an employer to view an employee’s long service as a mitigating circumstance potentially strong enough to reduce an expected dismissal penalty to a lesser corrective measure. For example, in the case of Sedumo and another vs Rustenburg Platinum Mines Ltd (2008  2 BLLR 24) a key issue raised in the Constitutional Court was that of how a Chairperson should deal with mitigating circumstances. Chairpersons often have difficulty deciding how much weight to give mitigating circumstances and thus how to satisfy the CCMA and the courts. There are a number of factors contributing to this problem:

  1. Chairpersons who are not trained or not trained enough
  2. Chairpersons who lack experience
  3. Chairpersons who lack knowledge  concerning the content and spirit of the law
  4. the fact that the CCMA does not have one standard policy towards the weight to be given to mitigating circumstances. As different Commissioners have different views, it is difficult for Chairpersons to know what the standards are.

 

In the above mentioned case what Sidumo did was, at worst, dishonesty and, at best, gross dereliction of duty. He claimed not to have been trained in the specific task he was required to do. However, he had 15 years of experience as a security guard and the question arises as to what training such an experienced guard needs in order to know that he must search every person exiting the Precious Metals gate. The question also arises as to why his 15 years of service should significantly mitigate his penalty. That is, was he at the company for 15 years out of loyalty for the employer or he was unable to get another job? Why should his 15 years of service only be used in his favour? Why could it not be used against him due to the fact that his years of long service should have taught him that he is required to search employees who he has been instructed to search and should have taught him the importance of this job and the seriousness of his failure to do so.

The employer has a dilemma in such circumstances. I.e. on the one hand, the employer knows that an employee behaving in such a grossly derelict manner deserves to be dismissed and that the employer cannot possibly continue to trust the employee. On the other hand, the employer knows that the CCMA, backed up by the Constitutional Court expects the employer to give significant mitigating weight to 15 years service.

The employer thus needs to be able to give sufficient weight to length of service but, at the same time, to be able to identify reasons why the mitigating circumstances are outweighed. The danger lies in the lack of understanding of how to balance these two responsibilities.

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.labourlawadvise.co.za

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