by Tony Healy | Mar 23, 2018 | Miscellaneous
One of the most fundamental of employee common law employment obligations is, at all times in all circumstances, to further, protect and guard the interest of one’s employer at all times. Put differently, the employment contract is one of the utmost good faith and fidelity.
In Sappi Novaboard (Pty) Ltd v Bolleurs (LAC), this obligation was described as an implied term of a contract of employment wherein an employee is required to act in good faith towards his or her employer and that he or she will serve his or her employer honestly and faithfully.
In short, this obligation prohibits an employee, inter alia, from competing with his/her employer whilst in the employ of the employer. However, what of the conundrum whereby an employee plans to start a business to compete with the employer at a future date subsequent to resigning from the employ of the employer?
This scenario was addressed in Stey-Anet v Crown National (Pty) Ltd [CCMA Arbitration; Case No.GA124482. In her defence, the applicant, who had been dismissed, argued that her conduct did not amount to misconduct and that her actions were no different between that of an employee who had gone for a job interview with a competitor.
The commissioner was required to determine whether the applicant’s attempts to open a business, “which could have been in direct competition with the respondent amounted to gross dishonesty or breach of good faith towards her employer”.
Interestingly, the commissioner acknowledged that the applicant had an intention to open a business in competition with the respondent, but that the respondent could not have been prejudiced by such planned business venture without such intention on the part of the applicant having been implemented.
As such, the commissioner held that no actual competition took place therefore no conflict of interests arose. Furthermore, it was held that “one cannot be dismissed for having an intention to commit an act ….. unless that intention has manifested itself into the actual act”.
This award appears to have been harsh. It is wholly inappropriate for an employee to clandestinely plan to prejudice the employer at a future date whilst being beyond reproach until s/he resigns from which date the employer’s recourse all but disappears.
Such circumstances may be addressed by way of a restraint of trade agreement wherein the employee agrees not to directly or indirectly approach clients of the employer to canvass for business for a specified period of time.
Conflict of interests policies focus on a non-competition undertaking wherein the employee confirms that s/he will not compete with the employer during the course of the employment relationship or act in any manner in which the employee’s conduct places the interests of the employer at risk and the employee’s allegiance to the employer is in question.
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by Tony Healy | Mar 23, 2018 | Miscellaneous
Labour and employment law leaves many employers with the mistaken belief that they have very few rights in the face of increasing trade union power and influence which is not only felt at the workplace, but also seen in strong alliances between trade union federations and the ruling political party.
There are of course employers who do know their rights in the most minute of detail, and exercise them accordingly, occasionally in a way which is unscrupulous and only serves to prompt conflict and rancour.
But on the whole, very many employers are totally unaware of their rights and are consumed by a sense of helplessness when dealing with labour and employment matters. It is not uncommon to hearing employers make claims like “you can’t discipline let alone dismiss anyone these days”.
Is it a true perception? Are employers at a disadvantage in the employment/labour relationship?
By and large, employers believe they are at a disadvantage in labour/employment matters because they do not know or understand their rights, not because they don’t exist. Furthermore, employers often incorrectly assume that good or bad industrial relations is a function of legislation and the rights which do or don’t exist in these laws. This is understandable given the regrettably high focus that law is given in labour matters. The essence of good industrial relations never has been and never will be a function of good or bad law, or good or bad lawyers; good battles maybe, but not good industrial relations.
Employers and managers need to become acquainted with, or obtain professional industrial relations advice and expertise on, their rights in the arena of labour and employment matters.
It is equally unacceptable to have workplace justice undermined by unknowledgeable employers as it is to be undermined by unknowledgeable employees.
Close scrutiny of the LRA clearly shows that employers enjoy very many rights, and have access to equal levels of protection as employees. This may not necessarily, for example, be the opinion of those critics of the LRA who quote the fact that temporary replacement labour cannot be used in the case of offensive lockouts. Legally this may be true, but practically, employers virtually never institute offensive lockouts anyway.
Employers and managers need to recognise the fact that they do have substantial rights, and that the evolving cluster of labour laws does and will continue to reflect this, whilst attempting to address past discrimination against employees.
At the end of the day, it is a lack of awareness of employer rights that often leads employers to perceive that they are in a position of weakness. Armed with the correct knowledge and advice, employers can ensure that their interests and rights are protected in ways which promote fairness to employers and not only employees and trade unions.
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by Tony Healy | Mar 23, 2018 | Law of Evidence
Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his or her own eyes or senses, but heard from someone else. Hearsay evidence is, ordinarily, considered to be unreliable and problematic as the source of the evidence is not available for cross-examination.
Further concerns regarding hearsay evidence are that it is often faulty as the witness may have mistakenly made an error in the interpretation of that communicated to him/her by the source of the information.
It is therefore evidence which under normal circumstances, is to be handled with caution. That’s not to say however that hearsay evidence should be discarded at all times.
Section 3 of the Law of Evidence Act (Act 45 of 1988) prescribes the manner in which hearsay evidence should be dealt with, and provides the exceptions to the normal rule that hearsay evidence is ordinarily inadmissible.
The Labour Appeal Court in Naraindath v CCMA & others (2000) reiterated that CCMA arbitrators should not be required “to resolve unfair dismissal disputes … in slavish imitation of the procedures which are adopted in a court of law and subject to the technical rules of evidence which apply in those courts”.
In the Labour Court case of POPCRU obo Maseko v Dept. Of Correctional Services (JR2134/08, handed down on 30 August 2010) the admissibility of hearsay evidence in arbitration hearings was comprehensively addressed.
Amongst other things, the Judge held that case law objecting to a slavish imitation of court of law hearsay admissibility principles, “does not amount to an open invitation to ignore those principles”. The Judge continues that “Rather, it suggests that deviations from those principles must be justified by the particular circumstances of the arbitration in question”.
When all is said and done, the admissibility of hearsay evidence at arbitration hearings will be assessed on whether, or not, the arbitrator applied the provisions of section 3 of the Law of Evidence Act, in the knowledge that “arbitration proceedings are not the same as civil or criminal proceedings”.
In POPCRU obo Maseko v Dept. Of Correctional Services, it was submitted that the arbitrator had erred in admitting hearsay evidence on grounds that reliance had been placed on witness statements when the deponent of the statements were not available to be cross examined. What’s more, it was common cause that the statements in question were the only direct evidence of the misconduct which had led to the applicant’s dismissal.
The Court held that “the cumulative consideration of the factors set out in section 3 of the Law of Evidence Act by the arbitrator which resulted in her admitting the (hearsay) evidence was not unreasonable”. This was due to a number of factors including the fact that the witnesses had been released from custody and provide false addresses, the applicant’s “the bald denial of all the relevant facts”, the reliability of the evidence, the nature of the surrounding evidence and the fact that the statements were cross-examined at the original disciplinary hearing.
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by Tony Healy | Mar 23, 2018 | Discipline & dismissal
Every once in a while, employers are tempted to hold a second disciplinary enquiry on the same issue forming the basis of a prior enquiry. Although this is not a common practice, there are a number of reasons why an employer would consider re-hearing a disciplinary enquiry.
Firstly, the employer may have established that there were important procedural defects during the initial enquiry, thereby justifying the complete re-hearing of the case. A second reason why an employer may wish to re-hear a case occasionally relates to some form of management dissatisfaction with the manner in which the initial enquiry was conducted; more often than not, this relates to upper management wishing to impose a more severe penalty than that imposed in the first enquiry.
One of the first reported decisions addressing this issue was the Industrial Court (IC) matter between Amalgamated Engineering Union of SA v Carlton Paper of SA (Pty) Ltd. The circumstances of this case were that three employees received final written warnings for fighting; two months later, the employer cancelled the original hearings (and final written warnings), re-heard the cases and changed the sanction to one of dismissal.
The IC was required to determine whether or not the managing director’s decision to cancel the original proceedings and findings and to reconstitute the enquiry constituted an unfair labour practice, and to assess whether or not the original investigation and enquiries were open to review.
The IC found that “This court considers that it is unfair for senior management two months after a decision has been made by a properly constituted tribunal set up in terms of the company’s disciplinary procedure to set it aside and to subject the employees concerned to a new enquiry, at least where the facts had been adequately canvassed and the procedures in the company’s own code ..”.
More recently, the Labour Appeal Court in Johannesburg published a judgement in the matter between BMW (SA) (Pty) Ltd and L. van der Walt (Case No. JA 10/99 – dated 18 November 1999) which addressed the same subject.
This judgement submitted that “Whether or not a second disciplinary enquiry may be opened against an employee would … depend upon whether it is, in all, the circumstances, fair to do so”.
Commenting on the validity of an employer subjecting an employee to a second disciplinary enquiry, Judge Zondo listed what he considered to be advantages and disadvantages of employers being permitted to subject employees to a second disciplinary enquiry. The advantages of not permitting employers to re-hear cases included, in the opinion of Zondo;
1. it would encourage employers to conduct thorough investigations first time around and promote efficiency;
2. it would promote certainty;
3. it is unlikely to create instability and labour unrest;
4. it would be cost-effective;
The disadvantages of this approach were considered to be that:
1. new evidence acquired subsequent to the first hearing would not be able to be admitted;
2. a miscarriage of justice could arise;
3. an employment relationship may have to endure which is problematic due to new evidence having been acquired but not admitted.
In the final analysis, the re-hearing of disciplinary enquiries should be addressed with extreme caution. That is not to say that this practice does not warrant consideration from time to time. It would however be more acceptable if the practice was provided for in the company’s Disciplinary Procedure.
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by Tony Healy | Mar 23, 2018 | Discipline & dismissal
From time to time, employees apply to be legally represented in disciplinary hearings. The standard approach adopted by employers, and indeed indirectly supported by the provisions of the Labour Relations Act, is that employees are only entitled to be represented by a fellow consenting colleague, or on occasion, by a shop steward.
In the Labour Court case of Volschenk & another v Morero & others (J2247/10) this issue was addressed with specific reference to the applicant’s urgent application wherein an interdict was sought to suspend the applicant’s disciplinary hearing pending a review of a ruling by the chairperson denying him the right to be legally represented at the disciplinary hearing.
In short, the applicants wished to be legally represented at his disciplinary hearing, and the chairperson ruled that he was not entitled to legal representation.
The Court confirmed that employers are duty bound to hear applications for legal representation at disciplinary hearings, regardless of content of the employer’s disciplinary procedure which may in fact prohibit employees being legally represented in hearings.
The Court continued that “The essential requirement by which the need to permit legal representation is evaluated is whether fairness necessitates it”.
The applicant’s submissions were quite simple. It was argued that the chairperson ought to have exercised his discretion to permit legal representation in this instance due to the fact that the respondent had appointed a legal professional to act as complainant in the hearing, and there would therefore be disparity in the relative competence of the complainant and the applicants who were not legally trained.
In addition, it was added that the allegations involved issues of a complex nature which justify legal representation, and that criminal charges initially initiated against the applicants and subsequently withdrawn, could be reinstituted.
In this case, the Court held that the applicant was not entitled to legal representation even though the respondent was using an admitted attorney, within its employ, to represent the respondent.
This was due to the fact that the Court was of the view that the applicants would not “suffer irreparable harm in the conduct of their case if they cannot be represented by a legal representative as opposed to a trade union official”, as had been provided for in the respondent’s disciplinary procedure.
What’s more, the Court concluded that the even though the charges related to alleged fraud, “such charges against employees are common-place and in my view is also not an issue necessitating legal expertise to address it”. The Court also held that the case was not so complex that the applicants would be incapable of competently addressing the factual allegations, in regard alleged fraud, given that “the applicants have been employed for several years in the billing department of the respondent”.
Finally, the held that the potential of criminal charges could be dealt with by the applicants by them declining to make incriminating statements at the disciplinary hearing.
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