by angelique | Feb 8, 2021 | Employers
This is the first in a series of articles on changes and dangers in labour law.
During 2014 and 2015 the Department of Labour introduced a spate of new legislation with far reaching significance for employers. These major amendments have increased the already powerful stranglehold that legislation had on productive business management and employment creation.
The new Labour Relations Act (LRA) effective from 1996 together with the numerous statutory amendments and innovations that followed have drastically increased the legal obligations of employers, increased the rights of employees and severely hampered business flexibility. These changes made over the past years included, amongst others, the following:
- It is now very much easier for unions to achieve recognition by employers
- Employees, even if not unionised, are entitled in certain circumstances to go on strike in protest against retrenchments and to insist that a CCMA facilitator participate in retrenchment processes
- The delay period between the date that retrenchment becomes necessary and the date when the employer is allowed to implement retrenchment has been extended in certain circumstances
- It is an automatically unfair dismissal for an employer to terminate the employment of any employee for any reason related to the transfer of a business (or any part/service of a business) as a going concern
- Where the employee has a reasonable expectation of renewal of a fixed-term contract the employer’s failure to renew it can be seen as an unfair dismissal
- Where the employee alleges unfair dismissal the employer has the legal onus of proving that the dismissal was fair. That is, once the employee has proved that the dismissal occurred, the employer is considered guilty of unfair dismissal until it proves itself innocent
- Even where the employer is not aware as to what specifically the employee is alleging was unfair about the dismissal the employer is required to present its case first at arbitration and in Labour Court
- It is the company and not the actual perpetrator of sexual harassment who gets sued in the Labour Court.
In addition to the above and other draconian legislation implemented by statute in recent years labour law has and is still in the process of being changed via case law. That is, the courts and arbitrators are constantly making decisions that have the effect of moving the goalposts and this is more often than not to the detriment of the employer. That is, these decisions too frequently conflict with each other so causing major confusion amongst employers who have become all the more unsure as to what they are and are not allowed to do. In addition, case law too often produces decisions that further erode the already minimal rights held by employers. Such case law includes, for example:
- Findings that employees are not always restricted to being represented at disciplinary hearings by fellow employees and can be entitled to bring external representatives such as trade union officials and lawyers into internal disciplinary hearings
- The Constitutional Court has given the CCMA license to reinstate employees with long service who have committed gross misconduct
- Some judges/arbitrators believe that employees are entitled to a hearing before being placed on a precautionary suspension pending an disciplinary hearing
- A person attains the legal status of an employee even before the scheduled start date of his/her employment where the conclusion of the employment agreement pre-dates the appointment date.
As if the above was not enough to scare potential employers off from starting up businesses or expanding their workforces the Department of Labour further tightened the legislation allowing the use of labour brokers, fixed-term contracts and the use of external contractors.
Employers also need to be aware of the highly significant code of practice for Commissioners who preside over misconduct hearings.
Several years after introduction of the latest statutory amendments, employers are acting as if the changes do not exist and are paying a heavy price for this at the CCMA. Therefore, this series of articles will deal with many of these changes and dangers with the hope that employers who are forewarned will be forearmed.
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
by angelique | Jan 25, 2021 | Employers
2020 was a year of terror at workplaces because of the physical and financial dangers posed by Covid19. Due to the fact that the roll out of the vaccine will be slow we can expect 2021 to be as terrifying as was 2020, if not even more so.
This is because Covid is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy is still weakening very seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does inspire confidence that it will be able to rescue the economy. And, to make matters even worse, money for state aid of businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far.
The only light at the end of the long, dark tunnel is the vaccine, but its expected slow roll out dulls that light very significantly. As a result, when the long awaited vaccine is actually made available, business managers will want to ensure that it is administered optimally. Included in that is the need to ensure that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in very tight economic circumstances and will be operating on a very lean staff compliment.
Should, say 10% of the staff refuse the vaccine and several of those get ill, that will increase the pressure on management and will make it more difficult to run the company effectively due to high numbers of employees being off work on sick leave or isolation leave.
In addition, the business’ clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.
For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. This is largely because section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Thus, forcing an employee on pain of discipline to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution.
However, employers that are determined to enforce compulsory vaccination will counter this argument by quoting sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As Covid has been a very prolific taker of lives those people who have to come in contact with the objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act very stringently obligates employers to ensure a safe workplace.
Due to these potentially conflicting constitutional provisions the question of whether employees can be forced to be vaccinated is highly contentious, with the bulk of advice on this issue tending towards the cautious approach.
Employers should be aware of section 36 of the Constitution which provides that, under certain circumstances, the constitutional rights of people may be limited taking into account factors such as the nature of the right and the importance of the purpose of the limitation.
In addition, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over ones body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.
Clearly, the challenge is to be able to convince a court that, under the circumstances, the rights of the individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such a the provision of a safe workplace. Due to the fact that the enforcement of the taking of the Covid vaccine is such a new issue there are as yet no court findings that can provide a precedent.
In the end, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step. In order to consider taking such a step there would at least need to be a very clear and present danger of severe consequences to the workplace community of employees not being vaccinated.
For legal and employee relations reasons, it would be much more prudent for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails and where it is viable, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced, and also enforcing the normal safety restrictions we have come to know so well.
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
by angelique | Jan 18, 2021 | Employers
The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for a right to be heard in the statute. That is, section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Important elements of this include:
- The employee’s right to be heard emanates directly from the Constitution of South Africa and is the employee’s primary right
- The employee must be told what case he has to meet
- The employee must be given a proper opportunity to prepare and present his case
- The Code Of Good Practice: Dismissal in the LRA does not require the process at which the employee is heard to be a formal one.
Many employers lose cases at the CCMA and bargaining councils because they take too seriously the provision that the disciplinary process does “not need to be a formal one”. That is, in practice it is all but impossible to comply with the other provisions of the law of dismissal without making the disciplinary hearing process a formal one.
That is, the employer is forced, in order to avoid an unfair dismissal decision, to prove that the employee’s procedural rights were complied with. Let us look at these procedural rights born out of the LRA and case law and examine just how, in practice, the employer would need to go about proving that these rights have been complied with:
- The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the accused employee
- The right to a proper opportunity to prepare – Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the accused employee well in advance of the hearing date.
- The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
- The right to be fairly judged – proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.
I admit that, in certain cases, proof of the above mentioned compliance could be provided by means other than signed notices and minutes of proceedings. Such other proof could include, for example, oral evidence from witnesses. However, between the disciplinary process and the arbitration hearing at CCMA a great many months may elapse. As a result the memories of witnesses fade and witnesses themselves disappear. Therefore, there is no effective replacement for written records. Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. This conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.
In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled hearing essential.
The officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to.
Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its 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
by angelique | Jan 8, 2021 | Employers
Feelings of spite arise at work for a great variety of reasons such as:
- Resentment due to the lodging of grievances
- Power struggles between managers
- Racial and other prejudices
- Scapegoating
- Managers feeling threatened by other managers or senior staff
- Sexual affairs
- Favouritism and victimisation
- Nepotism
- Change in management and the development of factions
- Personal clashes between people in power
Feelings of spite occur across the spectrum of private businesses, government departments, statutory bodies, academic institutions, welfare organisations and NGOs. While these smouldering, subtle conflicts affect all levels of employees they tend to become much bigger, much more intense and much more damaging when employees lodge grievances against their superiors.
For example, in the case of Kanemeyer vs Workforce Group (2005 8 BALR 824) the employee resigned and claimed constructive dismissal on the grounds that she had been disciplined for lodging a grievance against the reduction of her commission structure. She said this, together with the fact that she, as a commission earner, had been office bound, constituted victimisation. The employer argued that the employee resigned in response to having been disciplined for poor work performance. The employer however, failed to bring any evidence to rebut the employee’s claim that she was being disciplined out of spite for having lodged a grievance. The arbitrator therefore found that constructive dismissal had been proved and ordered the employer to pay the employee eight months’ remuneration in compensation.
In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. I more serious consequence can be negative publicity. On the other hand the employee is in trouble because he/she is without a job. But negative consequences of private hostilities and unresolved conflicts can go even further than this. This is because such conflicts tend to permeate throughout the organisation with people taking sides and forming factions. The fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation. It is therefore crucial that the employer:
- Identifies personal hostilities early
- Accepts that it needs to be dealt with urgently
- Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.
The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.
However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.
Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached labour law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence.
On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.
Workplace animosity is here to stay but employers and employees can, by acting timeously and sensibly, prevent it from causing irreparable harm.
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.
by angelique | Jan 7, 2021 | Employers
Schedule 8 of the Labour Relations Act (LRA) says that dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful 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.
Another type of justification for dismissal is where the conduct goes against the basic sensibilities of a society. 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. The arbitrator noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd vs Kapp & others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out.” The Court had found that such behaviour was “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question.” The Court had also said that “ …..courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced by reasonable people in a society against racism.”
Due largely to South Africa’s history the offence of racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did perpetrate the offence and that the act itself was serious enough to merit dismissal. Also, where the offending employee argues mitigating circumstances the employer must give consideration thereto.
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
