by Tony Healy | Sep 1, 2018 | Miscellaneous
There are many misconceptions about the role and effect of probationary periods in employment contracts. It’s not surprising to hear employers conclude that probation periods pretty much give them carte blanche to dismiss probationers in the formative phase of an employment relationship.
The Labour Relations Act does provides that “Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
Make no mistake, the Labour Relations Act does indulge employers to some extent during probationary periods, but this relates to dismissal on grounds of poor work performance only when less compelling reasons for such dismissals are required than would be the case after probation.
This indulgence does not however extend to acts of misconduct during probationary period, be they suspected or proved.
It is important to remember that whilst the Labour Relations Act provides for dismissal on grounds of poor work performance on less compelling grounds than would be the case after probation, this only applies to poor work performance, and not misconduct.
In the Labour Court case of the South African Football Association v Ramabulana & others [JR2175/09], this very subject was central theme.
SAFA had applied to the Labour Court to have an earlier CCMA award in favour of the erstwhile employee, awarding him twelve months compensation due to his dismissal which was held to have been unfair, reviewed.
This applicant had been employed as head on a fixed-term employment contract for a period of two years, on a three months probationary period.
According to the applicant, during his third month of probation, he was called to a meeting with senior SAFA management and informed of criminal charges against him regarding the purported theft of money during a COSAFA tournament. The applicant denied any knowledge of this, where after he was presented with two options, resign immediately in which case SAFA would not press charges ahead with the criminal charges, or face the consequences of criminal charges being laid against him.
The applicant indicated he would not resign.
The applicant’s probation period was extended to a month. The applicant was arrested during the extended probation period, and released on bail after which he returned to work.
The applicant was dismissed at the end of the extended probation period on grounds of incompatibility (incapacity). This was promised on submissions that the preservation of the applicant’s employment was, in the circumstances, entirely intolerable given that the applicant was custodian of security with the respondent, and the public perceptions which would flow should his permanent employment have been confirmed, would have drawn considerably adverse attention to the respondent.
The Court did not buy this argument, and confirmed that ‘”the reasoning and the conclusion of the commissioner in the arbitration award cannot be faulted”. The court went further and derided SAFA for dismissing the applicant “based on suspicion which was never investigated by it nor did they even have the decency of affording the employee an opportunity of presenting his side of the story”.
by Tony Healy | Aug 23, 2018 | Trade Unions
Closed shop agreements are provided for in section 26 of the Labour Relations Act (“LRA”), and are perhaps one of the the most thorny provisions of the LRA, and the most controversial in so far as the constitutionality of such agreements I concerned.
Put differently, the employer agrees to only hire union members.
In short, a closed shop agreement is a collective agreement whereby a majority trade union, and an employer, agree that it is a condition of employment that all employees must be members of the majority trade union.
Belonging to the union that they have signed the closed shop agreement with.
Such agreements attract attention for a host of reasons, and in some quarters are considered to contravene the freedom of association provisions of the LRA, and section 18 of the Consitution, which addresses the right to join or leave groups of a person’s own choosing.
Closed shop agreements were not included in the initial draft of the current LRA in the early 1990’s. They were however subsequently included under pressure from union federations, notwithstanding the fact that they have been outlawed in many other western democracies.
The closed shop agreement provisions of the LRA do however build in certain, at best, safeguards, when an employer and a majority trade union are contemplating entering into a closed shop agreement.
For example, a closed shop agreement may only be concluded with a majority trade union. Furthermore, employee’s who are not members of the union when the agreement is signed, need not become union members, although all new employees thereafter are required to join the union in order to secure employment with the employer.
A two-thirds majority of existing union members, supporting the closed shop agreement, is required.
It’s quite clear why an employer would elect not to enter into such an agreement. Most employers view closed shop agreements, perhaps correctly, to be reprehensible. Why should we give one union the right to have all our employees become members their members they ask; furthermore, why should we agree to this what’s more becoming a condition of employment?
This is precisely why closed shop agreements are so rare in South Africa, and indeed elsewhere.
On the other hand, they do in fact have virtues. This is why we have recently seen something of a revival in closed shop agreements locally of late. Why is this you may ask?
Well, it has to do with our increasing levels of union rivalry.
Some established trade unions who fear the entrance and influence of newer trade unions, have been seeking to enter into closed shop agreements in order to frustrate the entry of newer trade unions, think AMCU and LAMUSA, into their historical strong holds.
The only, and to some degree compelling, reason why an employer may agree to, and possibly welcome closed shop agreement, is to limit on site union rivalry, as the incumbent union, in essence, monopolises the employer’s employee’s union membership, via the closed shop agreement.
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by Tony Healy | Aug 23, 2018 | Miscellaneous
It has become a common site to see employees huddled on balconies, and secluded corners puffing away whilst their non-smoking colleagues have their shoulder to the grindstone. Some employers even have designated smoking rooms for the nicotine-addicted. How fair is this, and what impact does it have on productivity?
Employers have no statutory obligation to permit smokers to light up at their whim, or even at all. Smokers are however quite entitled to smoke before and after work, during rest intervals as well as meal intervals (lunch time) outside of the employer’s premises or in a designated smoking room.
Employees who take smoke breaks during working hours (outside of tea-breaks) have a distinct advantage over their colleagues who don’t smoke. This can lead to overt and covert discontent which can impact negatively on morale and productivity, as well as interruptions to work flows.
It is arguable that smokers are often over-indulged when it comes to smoke breaks, and unnecessarily so. Employers are quite entitled to expect full productivity for the duration of working time, and are what’s more entitled to be legitimately aggrieved when productive time for which employees are paid, is squandered.
For example, three smoke breaks per day (which is conservative in many circumstances) amounts to thirty minutes of unproductive time per day. This equates to in excess of 118 hours of down time per annum, once annual and sick leave has been provided for, or put differently, the employer is paying the smoker to smoke for three weeks per annum during working hours. Where’s the sense in this?
Smoking policies have become increasingly important to address both statutory prohibitions on smoking in the workplace, and to promote a healthy working environment for all staff, a prerogative which flows first and foremost from section 24 of the Constitution which provides that “Every person has the right to an environment which is not harmful to their health and well-being”.
There should be no reason why smokers can’t limit smoke breaks to before and after work, lunch times and tea breaks.
When all is said and done, staff who cannot work without smoke breaks outside of normal tea and lunch times is incapable of meeting their employment obligations; this could place their ongoing employment in jeopardy.
Smokers are invariably over-indulged in smoking policies. There is nothing preventing employers from adopting a stricter stance to smoke breaks taken during working hours. This could include an outright ban or a reduction in pay for time taken to smoke during working hours at the absolute expense of the employer.
Employers have the final say on this issue.
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by Tony Healy | Aug 23, 2018 | Miscellaneous
As you would expect, an arbitrator is required to adjudicate an arbitration hearing fairly and impartially.
The CCMA’s Guidelines on Misconduct Arbitration (most recently amended in a 17 March 2015 Government Gazette) state in section 16 that “An arbitrator must conduct the arbitration impartially. This means that an arbitrator must act in a manner that is fair to both parties and not engage in conduct that is biased or that might reasonably give rise to a party forming a perception that the arbitrator is biased”.
What’s more, the Code of Conduct for Commissioners of the CCMA, whichalso applies to Bargaining Council Commissioners, stipulates that Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of impartiality.
This is where the term ‘recuse’ enters the discussion. If an arbitrator, or one of the parties at an arbitration hearing, believes that the arbitrator is unsuitable to arbitrate the case, due to the fact that they may not be able to apply their minds impartially, s/he must recuse him or herself. It is also quite possible that one of the parties asks the arbitrator to recuse themselves.
Most definitions of the term ‘recuse’ define it to mean that the arbitrator must excuse or disqualify themselves as the arbitrator in the arbitration hearing, to be replaced by another arbitrator.
When dealing with cases in which an arbitrator should recuse themselves without being requested to do so by either of the parties, I can refer to an example close to home.
On occasion, I conduct training and conferences together with Bargaining Council and CCMA Commissioners. If I were to represent a party at an arbitration hearing, as I frequently do, and an arbitrator has been appointed to my case with whom I have worked in the past, the Commissioner would, as they always rightfully do, declare their prior relationship with me, and recuse themselves, to be replaced by another Commissioner with whom I have no prior professional relationship.
Another example of such circumstances was dealt with in the Labour Appeal Court case of Daniel v National Bargaining Council for the Chemical Industry & 1 other (LAC JA58/12), in which the court chastised the arbitrator for not having recused herself from the arbitration, when she knew full well that she ought to have done, due to the fact that she was a 50% shareholder, co-owner and a director of a company which was a preferred service provider to the employer. Furthermore, the arbitrator’s consulting practice shared offices with the service provider.
The Judge noted that “the arbitrator’s interest (in the employer’s service provider) cannot be said to be small or trivial, but even if it was, it still required disclosure.
In the matter of Mutual & Federal Insurance Company Limited vs CCMA and Other 1997 12 BLLR [1610] LC, theLabour Court noted that actual bias was not necessary to be proven, an application of bias can be brought where a reasonable suspicion, or a perception of biasexisted.
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by Tony Healy | Aug 23, 2018 | Law of Evidence
Most disciplinary cases arise out of an employer suspecting an employee of being guilty of one or more acts of misconduct. This typically spawns an investigation to establish whether, or not, there is sufficient proof to prove guilt on the balance of probabilities.
However, on occasion, disciplinary hearings are occasionally initiated with little more than a suspicion, which may indeed be compelling, that the employee is guilty of the alleged misconduct. Indeed, the suspicions may even be correct and entirely warranted.
None the less, no matter how legitimate a suspicion of misconduct may be, it is insufficient to prove guilt on the balance of probabilities. Put differently, it’s not good enough to simply, even rightfully, suspect an employee of misconduct; the fairness of any adverse finding against an employee is a function of the existence of proof of probable guilt, not the existence of legitimate suspicion of guilt.
The Labour Court judgment in Mondi Ltd v CEPPWAWU & others (Case no. D622/2002, it was held that “It is not enough to say that there is a reasonable suspicion that an offence may have been committed.”
In a similar case it was held in yet another Labour Court judgment Freshmark v SACCAWU & others (Case no. D550/2006) that “Despite the lingering suspicion there is no proof that the employee acted dishonestly”.
In the Labour Appeal court judgment in Senzeni Mbanjwa v Shoprite Checkers & others (Case no. DA4/11), it was further held that “The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship.”
This Labour Appeal Court judgment provides important guidelines when dealing with suspicion in disciplinary cases.
In this case, a till operator had been accused, and found guilty, of attempting to under-ring items to the value of R27.97.
This judgment held further that “Where the employer is suspicious that the employee, through the latter’s’ movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that’s suspicion as a ground to dismiss the employee for misconduct because suspicion, however strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question”.
It continued that “Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship.
This implies that cases of alleged, or suspected, dishonesty for example, can only be proved on the required balance of probabilities, with relevant and admissible eye witness and/or circumstantial evidence.
It will simply not be sufficient to lead evidence of strong or reasonable suspicion. This is in spite of the fact that such reasonable suspicion may indeed be justified.
In the final analysis, it should be borne in mind that what an employer knows to be true, or may justifiable suspect is true, is irrelevant in a disciplinary hearing. All that matters is what can, or cannot, be proved on the balance of probabilities.
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