by Tony Healy | Jul 16, 2019 | Miscellaneous
Our labour relations consultancy is in its 25th year, and this has inclined our team to reminisce over our journey, and prompted me to recall the trends and developments over time. Labour relations is seldom viewed dispassionately. It is a field which spans a multitude of collective and individual workplace interactions and experiences, from constructive relationship building initiatives to often sizzling adversarialism.
My graduation from UCT in the early 1980’s coincided almost exactly with the dawn of the present-day employment law, and labour relations regime which prevails today. This itself may sound strange, especially if one recalls that apartheid was still at its height, and the release of nelson Mandela, and the dawn of a new democratic South Africa was over a decade away. Even so, as early as the mid 1980’s, the concept of fairness in discipline and dismissal was already becoming prominent, as espoused by UNISA’s Professor Nic Wiehahn, a colourful character who was also renowned from his colourful neckties at the time.
It was also the time at which the so-called emerging Black unions began to increase in prominence, and display competent and powerful leadership, with Cyril Ramaphosa’s National Union of Mineworkers leading the way. Organised labour was still none the less highly oppressed by the P W Botha Nationalist government. At the time, and quite understandably, organised labour would put employers under enormous pressure to send a ‘telegram’ to the Minister of Police, to demand the release of union officials who had been detained without prosecution, for simply being union officials.
Over time, the then ‘Personnel Department’ morphed into being referred to in various ways, including the ‘Human Resources Department’, the ‘Human Capital Department’ and more recently, “People and Culture’, all of which are labels to describe the team within an organisation charged with various responsibilities including staff administration, training and development, recruitment and selection, employee wellness, and of course, labour relations.
In our view, the trade union landscape his significantly changed over time. There is no doubt that the evolution of COSATU in the mid-1990’s brought greater cohesion to the realm of organised labour. Alignment with the ANC added impetus to COSATU’s breadth of influence. But it didn’t last. Even though union membership in the Public sector remains high, the split within COSATU, resulting in the formation of rival union federation SAFTU, it has negated the role of trade unions in the Private sector, which currently has about one in eight employees being union members. Overall, only about twenty five percent of employees are union members.
Another consequence of the split in COSATU is the increase in numbers of trade unions, of a lesser size. This in turn has led to an increase in union rivalry, and by and large, generally less effective trade unionism.
Trade unions have, from the very beginning, suffered from a glut in competent leadership, due primarily to the fact that competent trade union leaders are frequently fast-tracked into governmental positions.
No analysis of the SA labour relations landscape would be complete without a look at the CCMA, and bargaining Council dispute resolution centres.
The CCMA is probably approaching nine hundred labour disputes being referred to it every working day. About seventy five percent of those cases are ‘resolved’ or ‘conciliated’, either because one or both parties are fearful of losing at arbitration, or the employer is willing to pay the ex-employee a settlement sum so as to avoid the nuisance factor associated with arbitration.
The introduction of minimum wage legislation and the recent appointment of the CCMA to address the non-payment of salaries, will probably see one thousand labour disputes being referred every working day, in the not too distant future.
Employers still lose nearly fifty percent of all arbitration hearings. This percentage is almost certainly skewed by the SMME sector who fare far more poorly than larger, more sophisticated employers. We remain of the sincere view that there is no reason why employers should have poor outcomes at the CCMA, if they apply the fundamentals of our discipline and dismissal protocols.
Perhaps the biggest challenge facing employers in the labour relations space is that they frequently don’t know what they don’t know. This results in often fatal flaws being made in, for example discipline cases, which cannot then subsequently be reversed. It must still be borne in mind that approximately eighty percent of all labour disputes are discipline related, and competence in managing discipline, misconduct cases, requires close attention and training.
And finally, increasing employment law continues to decrease labour flexibility. Some would also argue that our employment law regime is over regulated, and too job security, than job creation focussed; you can go ahead and put our firm in that camp.
by Tony Healy | Jul 9, 2019 | Discipline & dismissal
Our courts have rendered contradictory judgments regarding whether, or not, employers are allowed to schedule disciplinary hearings after an employee has resigned. In the Public sector, due to a prevailing collective agreement, the position is quite clear, an employee may resign at any time prior to a disciplinary hearing being finalised, at which time the disciplinary hearing stops. This enables, wrongly in our view, employees to avoid possible sanction for misconduct, serious or not.
But that’s the Public sector. The position in the private sector has been less clear. On 24 May 2019, the Labour Court, in Tristyn Naidoo & Sedayshum Naidu v Standard Bank SA (Ltd) & 1 other (Case number J1177/19) was once again required to answer this question.
In this instance, the applicant’s challenged the jurisdiction of the respondent “to continue with the disciplinary hearing post their resignation” and to interdict the respondent from proceeding with their scheduled disciplinary hearing post their resignation.
Both applicants had been employed as equities traders up until their resignation. On 4 March 2019, the applicants were issued with notices of precautionary suspension, which noted that “the nature of the allegations against the applicants was serious and that if proven, could impact on the trust relationship between them” and the respondent. After having attended various meetings with forensic investigators, the applicants were issued with notices to attend a disciplinary hearing on 16 and 22 May 2019. Two allegations of “gross misconduct”, and one of “dishonesty” were levelled against the two applicants. The applicants tendered their letters of resignation the same day “with immediate effect”.
Later that day, the applicants received identical correspondence from the employer’s Head of Human Resources, amongst other things, stated that “the Bank is not amenable to accepting your immediate resignation and will still hold you to your 28 days’ notice period as contractually obligated and will be continuing with our internal process. The disciplinary enquiry will therefore proceed as scheduled ..”.
The applicants replied to this by stating that “it is trite in law that my resignation is a unilateral termination of the employment contract and is therefore not subject to Standard Bank’s acceptance or approval. In light of the fact that this is an effective termination of the employment relationship, Standard Bank cannot proceed against any person who is no longer an employee of the company”.
The applicants then approached the Labour Court, which was required to determine whether “the applicant’s immediate resignation had the effect of immediately terminating the employment relationship and whether Standard Bank has the right to hold the applicants to their notice periods and if so, whether it can proceed with the disciplinary enquiries against them despite their resignation with immediate effect”.
In reviewing the effect of resignation in case law, the Court began by referring to Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC), which held that resignation is a unilateral termination of a contract of employment by the employee. This view was reiterated in Toyota SA Motors (Pty) Ltd v CCMA & others (2016) 37 ILJ 313 (CC), which held that “Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee any more”.
The Labour Court held that Standard Bank “has no power to discipline the first and second applicant’s subsequent to their resignation with immediate effect, and Standard Bank was interdicted from continuing with the disciplinary enquiries.
The Court acknowledged that the applicants were in breach of their contracts of employment. However, the remedy available to the ‘employer’ is to either “hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may accept the employee’s repudiation, cancel the contract and claim damages”.
The judgment noted, in essence, that holding disciplinary hearings after an immediate resignation, was a form of employer “self-help .. and this Court can’t sanction” such self-help.
So, there we have it, in cases of immediate resignation, an employee does not work out their notice period, and the resignation takes effect immediately.
by Tony Healy | Jul 1, 2019 | Case Law
Over time, there has, to some degree, been conflicting law regarding the extent of the admissibility of polygraph test results in disciplinary hearings. More especially, this has related to whether an employer can rely solely on a failed polygraph test to prove the guilt of an employee on the balance of probabilities.
Employers are all too frequently of the mistaken impression that a failed polygraph test is quite enough to prove guilt; not so say our courts.
The recent Labour Court matter of Mustek v Tsabadi and others (case no. JR 2732/2010: Judgment day 2 March 2013) reiterates and reconfirms the extent to which polygraph test results may be utilised to prove guilt in disciplinary hearings.
In this case, eight laptop computers went missing from the employer’s premises. The employer elected to administer polygraph tests in regards all employees who had access to the area from which the laptop computers had gone missing. Four of the sixty-seven employees tested failed for the polygraph test, and were dismissed based on this evidence alone.
Judgment in this case emphasised certain important factors to be taken into consideration regarding the admissibility and extent to which polygraph test results may be utilised in disciplinary hearings. The Court held that “our Courts have approached the use of polygraph tests with much circumspection, and it is now accepted that the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities”.
It became apparent that in a separate arbitration hearing at the CCMA, another commissioner had in fact condoned the admissibility of the polygraph tests alone, and admitted this as sufficient evidence to prove guilt on the balance of probabilities. In the Labour Court judgment, the judge however noted that commissioners are not bound to follow awards of fellow commissioners, even if two separate arbitration hearings are faced with the same facts.
More especially, it was held that “it is factious to suggest that one commissioner should complacently endorse the finding of another commissioner were the two matters have their origins in the same incident. The rationale for the first commissioner’s decision has to be analysed. There can be any number of reasons why that commissioner arrived at the conclusion he did. To argue that a commissioner is bound by the findings of another commissioner is repugnant to the rules of precedent”.
The judgment continued that in essence, polygraph test results are indeed admissible, in disciplinary hearings, only insofar as they corroborate or support more direct evidence. It is quite clear that our law has established a now well established precedent that if the only evidence leveled against an employee is a failed polygraph test, it will never be sufficient proof in its own right to prove that the employee is guilty on the balance of probability. That is not to say of course that polygraph test results are inadmissible. On the contrary, they are. However, insofar as polygraph tests ought to be admitted in a disciplinary hearing, and indeed an arbitration hearing, such failed polygraph test results are only of value to the extent that, and insofar as they do, support more direct evidence introduced during the disciplinary or arbitration hearing.
When all is said, and done, polygraph test results have value as corroborating evidence only, and will never be sufficient as free standing evidence, to prove a case on a balance of probabilities.
by Tony Healy | Jul 1, 2019 | Discipline & dismissal
‘Jobs for cash’ is not a new phenomenon. We observe this with clients on a quite frequent basis. It’s quite simple. Someone within the company, with influence over recruitment and selection decisions, accepts cash to ensure a job applicant’s employment. It can occur with human resources staff, and line management alike.
One such case on this issue was that of Mphela Zebulon Matlou v Exxaro [CCMA arbitration: case number LP5338-14]. In this case, “the boyfriend to her younger sister had paid another man the money as he promised that he would get the jobs for them. They had recorded their conversation with him”.
The arbitration awarded noted that “The applicant told him that he knows one Wiseman who can arrange a job for him. But this Wiseman will need R5000-00. In the presence of his parents he gave the applicant R5000.00 and his CV. His girlfriend’s sister was also looking for a job so he gave the applicant another R5000.00 and her CV. In total, he gave the applicant R10000-00”.
This all too familiar scenario continued as “Time went by and the applicant started avoiding his calls. He sent the applicant sms. He even confronted the applicant several times to repay the money even if it was in instalments”.
Yet a further witness testified that “She went to Lephalale to give Piet R5000-00 to give it to the applicant. Piet provided her with the contact details of the applicant. Within a week she contacted the applicant who indeed confirmed receipt of the money and the CV. They contacted each other and she would even ask the applicant how far he was. The applicant advised her to be patient. After Easter week-end they met in Polokwane. The applicant promised her that after July things would be fine. After July, she started calling the applicant who was ignoring her calls. The applicant knew her two numbers and when she called on a different number she would respond. She told her that July had passed and that she then demanded her money. She met the applicant at the Steers in Lephalale. She was in the company of her boyfriend. She bugged their conversation.
She further contacted the applicant around November and December he promised to repay her in February. Later the applicant reneged on the agreement saying they did not sign and there was nothing she could do to him”.
Needless to say, no jobs were forthcoming. The dismissal of the employee for “selling jobs” was upheld by the CCMA.
In the further case of ITU obo Monica Zulu v Tiger Brands Albany Bakery (Pty) Ltd [CCMA arbitration: Case number GAJB26681-14], the employee was dismissed for “soliciting payment in return for a permanent job”. In this case, the evidence was that the dismissed employee informed job applicants that they were required to pay a R50,00 “joining fee” and an additional R500,00 payment “was to make sure he secured a permanent position with the” employer.
In Paul Maboya v Setloblox (Pty) Ltd [CCMA arbitration: Case number 10305-17], the dismissed employee had informed two job applicants that “they had to pay him R2 000.00 each in order for them to secure employment”. Two job applicants “borrowed it (the money) from their relatives as they were desperate for employment”.
The arbitration award continued that “The 2 witnesses became anxious when the applicant stopped communicating with them and they were still unemployed in January as promised. They lodged a complaint with the respondent about their apparent swindling at the hand of the applicant”.
The Commissioner rightly held that “the applicant took advantage of their anxiety to earn income by extorting money that they did not have to benefit himself. The applicant knew that his conduct was wrong because he covertly arranged to meet with the 2 witnesses in places payment from the destitute and vulnerable job seekers, where the exchange of monies would not be obvious to his employers …. (the employee received) payment from the destitute and vulnerable job seekers”.
This is a somewhat difficult, clandestine, activity which is difficult to uncover in the absence of whistle blowers. Vigilance in recruitment and selection goes some way in deterring and identifying this uncouth practice.
by Tony Healy | Jun 18, 2019 | Discipline & dismissal
Racism, in all its forms, is abhorrent, and if proved, is quite clearly grounds for dismissal. That said, it is equally unpalatable for employees to level untrue allegations of racism. This was a central theme in the recent CCMA arbitration award in NUMSA obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).
This circumstances which led up to this case were that, on the day in question, the employees were playing cards outside of the employer’s premises during their tea break. The Chief Executive Officer (CEO) of the employer stopped, with his vehicle at the gate, called at the employees, got out of his car and walked towards the employees angrily, allegedly using the f-word whilst addressing them.
On the evidence, the employees then attempted to talk to the CEO after the incident in his office, but he refused to give them a hearing.
The employees were subsequently issued with a notice to attend a disciplinary hearing.
On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the Human Resource manager wherein they alleged that the CEO called them “Kaffirs” whilst admonishing them for playing cards outside the employer’s premises. This was in response to them having been charged with insubordination in that they did not adhere to an instruction that they should not play cards outside the employer’s gate. The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.
The employees were then issued disciplinary hearings notices for making false allegations of racism against the CEO; they were found guilty and dismissed.
In the arbitration award, the Commissioner noted that “I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that (the CEO) could not have called them in a racial derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words was utilized during this altercation. They argued that (the CEO) cannot speak Afrikaans but that he is English speaking. The applicants, on the other hand, stood by their claim that such racial terminology was used”.
The Commissioner continued that “The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K…..s), idiots and other swear words”, and that “It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants”.
The CEO, whilst acknowledging that he was angry, and used the f-word, stringently denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. (The Commissioner) requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’”.
The CEO had not used the k-word, concluded the Commissioner, who held that “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word. There was no racial or discriminatory language used towards the applicants when addressed by the CEO on 7 October 2018. It is clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day”.
Quite rightly, the Commissioner, in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career at O-Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable”.
