by Tony Healy | Apr 3, 2018 | Miscellaneous
The courts, CCMA and Bargaining Councils are, on occasion, faced with cases which deal with the question of whether, or not, an employee has resigned, and if so, whether the employee was entitled to withdraw his or her resignation.
It can occur that an employee resigns, and thereafter attempts to withdraw the resignation, on grounds that they resigned unthinkingly, or that they have changed their mind, and no longer wish to do so.
This begs the question, may an employee change his or her mind, and if so, is the employer obligated to accept the employee’s change of heart?
To begin with, one must establish whether an employer is required to accept, or reject a resignation, or whether an employer has no obligation to do so? Put differently, does a resignation become effective without acceptance by the employer, or is employer acceptance necessary to confirm the resignation?
In CEPPWAWU v Glass & Aluminium (2002) 23 ILJ 895 (LAC) and NUMSA obo Williams v Southern Shipyard (2003) 12 MENT 1774, the principle that resignation was an offer that gives an employer an election to accept the employee’s resignation, was accepted. However, the most commonly held stance on this issue was upheld in the Labour Court judgment in Uthingo Management (Pty) Ltd v Shear NO & others (2009) JR2007, which held that it is not in fact necessary for an employer to formally accept an employee’s resignation.
The recent CCMA arbitration award in Dr. Lucky Ehimatie Asuelime v University of Zululand (Case number KNRB598-17) reiterated the principle that “resignation is a unilateral decision of the employee which does not require any formal acceptance from the employer”, continuing that “ … if our courts hold a view that the employer must accept and approve the resignation and keep the employee against his will for an indefinite period for whatever reason, that is a bad decision at law and it must be rejected”. This sentiment has been paraphrased on occasion to mean that it would amount to a form of indentured labour if resignations were only ratified by the acceptance of the employer on every occasion.
Another take on this issue is whether an employer can be said to have dismissed an employee, after the employer refuses to accept the retraction of an employee’s resignation? This question was addressed in the arbitration hearing at the Metal and Engineering Industries Bargaining Council of NUMSA obo Kau, Phillip v Scaw Metals (Case number MEGA45988).
In this case, the employee handed his written resignation to the employer; two days prior to submitting his resignation in writing, the employee had sent the employer an SMS stating “I have just tendered my resignation. I hope you receive it as I am experiencing problems with my PC”. Two days after having submitted the employer his written resignation, the employee informed the employer that he was ‘remorseful’ and had decided to retract his resignation.
His retraction was not accepted by the employer. In essence, the employee was arguing that he had resigned “on the spur of a heated moment, and that the employer’s refusal to accept the retraction of his resignation, amounted to an unfair dismissal.
In this case, the Commissioner held that the employer was under no obligation to accept the employee’s retraction of his resignation, and that the refusal to do so did not result in the dismissal of the employee; on the contrary, the employee had simply resigned. The Commissioner emphasised that case law supports the contention that, the test for resignation is that “an employee has to either by words or conduct, evidence a clear and unambiguous intention not to go on with his contract of employment” and that “to resign he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract”.
A further consideration is whether, or not, resignation per, for example an SMS, qualifies as a valid mode of communicating a resignation? This was dealt with in the Labour Court matter of Mafika v SABC Ltd (2010), wherein the employee submitted his resignation per SMS, after which he sought to retract this resignation some weeks later, on grounds including the fact that his SMS did not constitute a valid resignation at it was not in writing.
The court disagreed, citing that a communication by SMS is a communication in writing in terms of section 12 of the Electronic Communications and Transactions Act 25 of 2002.
Our law has evolved to hold that resignation is a unilateral act, which does not require acceptance by the employer, and that once resignation has been communicated by the employee, it cannot be withdrawn without the consent of the employer.
So, what does this mean for employees? Well, it’s quite simple. Employee decisions to resign must be carefully thought through, in the knowledge that a change of mind will, in all likelihood, only be possible with the employer’s agreement.
by Tony Healy | Apr 1, 2018 | Discipline & dismissal
Disciplinary procedures and codes, amongst other things, clarify the validity periods of varying degrees of disciplinary warnings (sometimes referred to as sanctions).
Validity periods vary from company to company; but typically verbal warnings are valid for three months, written warnings for six months, and final written warnings for twelve months.
The principle of progressive warnings is also long established, in the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired, valid warning, the subsequent sanction will be progressively more severe.
All things being equal, warnings are no longer valid after the expiry date, and therefore cannot be referred to as an aggravating factor at a later date.
Put differently, if I am found guilty of late coming today, and a prior final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.
That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction, in certain circumstances; caution must however be exercised.
There is case law which support the fact expired warnings may be taken into consideration in certain circumstances.
The Labour Appeal Court case of NUM obo Selemela v Northam Platinum Ltd [JA25.11] held that “ … even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so she committed an irregularity”.
The judgment more especially noted that “Indeed, the employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings”.
This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others [DA7/04] which held that “It must also be recalled that there was in existence a written warning dating from March the previous year with a twelve month duration. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. The employer is always entitled to take into account the cumulative effect of these acts (of misconduct) … to hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings”.
This suggests that warnings should be retained once they have expired.
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by Tony Healy | Mar 23, 2018 | Unfair Labour Practices
The changing of an employee’s job content is frequently a highly sensitive and troublesome process which often has the potential to spawn individual labour disputes, and at times, collective conflict. It is not uncommon for employers to hear the refrain, “ .. but that’s not in my job description !” or “I’m the TEA lady, make your own COFFEE!”.
Quite clearly, employers are not entitled to fundamentally unilaterally change or vary an employee’s work obligations in a manner which imposes obligations on an employee for which they are not trained or qualified, or perhaps may move them into a higher job evaluation grade without a commensurate increase in remuneration.
However, the dynamic nature of the present-day workplace is such that very few jobs remain static in content.
Job content invariably evolves as organisations grow and vary strategies to maintain a competitive advantage in the market place. The conundrum faced by employers and employees relates to the point at which a change to job content, particularly when it takes the form of additional tasks and duties to be performed, amounts to a unilateral (and therefore ‘unfair’) change in an employee’s terms and conditions of employment. In the event that an employer were to be deemed to have unilaterally changed terms and conditions of employment, the remedy sought would ordinarily include additional compensation or a restoration of the status quo prior to the change.
So, to what extent can employers vary job content without running the risk of being subjected to section 64(4) of the Labour Relations Act?
In SA Chemical Workers Union obo Mhlongo v. Silicon Technology (Pty) Ltd [Case No.KN6500-02] the commissioner drew an important distinction in the arbitration award between ‘terms and conditions of employment’ and ‘work practices’. “Terms and conditions of employment” were defined as “the core rights and duties of employees under their employment contracts”, whilst ‘work practices’ were defined as to the manner “the contracted work is to be done”.
Of particular significance in the award was the point made by the commissioner that “The practical significance of the distinction between ‘terms and conditions of employment’ and ‘work practices’ is that it is now widely recognised that changes to work practices can be introduced unilaterally without prior negotiation – they fall within the management prerogative”.
However, the commissioner conceded that it may be difficult to distinguish between the two categories at times, and that it would be prudent in such circumstances to treat such changes “as subjects for negotiation with the aim of reaching consensus, if possible.”
In conclusion, the commissioner referred to the matter of A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC) in which the court observed that “employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work”.
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by Tony Healy | Mar 23, 2018 | Unfair Labour Practices
Prolonged employee absenteeism due to ill health presents employers with a conundrum as lengthy or habitual absenteeism impacts on productivity. One thing is certain, employers may not simply dismiss employees who are absent for a lengthy period, or have a pattern of habitual absenteeism. Our courts have developed an empathetic approach to employees suffering from ill health. On the other hand, it is understood that employer’s interests are similarly legitimate and employers cannot be required to preserve the employment of long-absent employees indefinitely ad infinitum.
Schedule 8 of the LRA makes it quite clear that prior to taking any steps against an employee absent on grounds of ill-health the employer must conduct an investigation into nature and extent of the employee’s illness, and whether the resultant absenteeism expected to be prolonged or not. In addition, the employer must seek to establish whether the employee’s job can be adapted to accommodate the employee’s condition.
That’s not to say of course that employees themselves don’t have a duty to communicate with their employers in such circumstances as they clearly do; but our law, rightfully, contemplates circumstances where the employee’s illness may render him or her incapable of communicating at all or lucidly (such as cases of extreme trauma or mental illness).
Investigations of this nature ordinarily include contact with the employee if possible, medical staff and family.
This would address the so-called substantive fairness aspect of any subsequent dismissal, and would include the employee being warned that their ongoing employment relationship with the employer is in jeopardy.
From a procedural fairness perspective, the employee must also be afforded an opportunity to make representations to the employer prior to any dismissal decision being finalised, ensuring that any decision to dismiss is not made hastily.
Employers would differ in their ability to condone ill health absenteeism as well as their ability to seek alternative positions for the employee or adapt their duties. For example, a municipality employing many thousands of employees would be expected to be more capable of doing so than a small or medium sized enterprise.
In NEHAWU & another v SA Institute for Medical Research [1997] 2 BLLR 146 (IC) the employee had taken 475 days sick leave during her six years of employment prior to being dismissed on grounds of absenteeism due to her ill health. It was held that the dismissal of the employee was fair as the employer had consulted with her on three occasions, warning her each time that continued absences would jeopardise her employment.
In the final analysis, a methodical investigation by the employer into the nature and extent employee’s illness, followed by a hearing to assess whether the employee is capable of returning to work timeously is required. Add to this an exploration of alternative positions or altered duties, if possible, and a hearing to assess each of these aspects of the case. Dismissal may then be justified albeit reluctantly given the employee’s predicament.
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by Tony Healy | Mar 23, 2018 | Training
Regardless of the raft of imminent labour law amendments and the introduction of yet further regulation in workplace law, one thing will remain constant. Discipline and dismissal will continue to account for in excess of all labour disputes country-wide. This should come as no surprise.
Ask any supervisor or line manager how which aspect of shop floor labour relations has the greatest impact on them day-to-day; the answer is uniformly ‘disciplinary action’. Yes, trade union management can be time-consuming and prickly, and unfair labour practice cases rear their head from time to time. But it’s the management of discipline at work which typically makes demands of supervisors and management, when it comes to workplace labour relations.
Indeed, in excess of 80% of all labour disputes account for alleged unfair dismissal claims alone.
That said, it follows that when contemplating, or more importantly, prioritising, line management training, special attention should be paid to the conducting of disciplinary hearings and the general management of workplace discipline and employee performance.
Employers continue to lose almost 50% of all unfair dismissal arbitration hearing cases. SETA accredited discipline training goes a long way to reducing discipline and dismissal risk, and significantly increases the prospects of a dismissal being upheld at the arbitration hearing stage.
Discipline training is targeted at all line managers and supervisors who are tasked with the responsibility of ensuring workplace discipline to ensure a safe and orderly working environment.
SETA accredited training ensures that discipline training material, content and incorporated practical exercises, meet strict quality requirements.
SETA disciplinary hearing accreditation is a rigorous process which accredits successful training providers as a Provider of Education & Training for disciplinary hearing training. A sound Quality Management System is a pre-requisite for SETA accreditation, to ensure that the training material and methodology meets stringent quality requirements.
SAQA unit standard number 10985 (NQF Level 5) is the specifically designated Unit Standard for the Conducting Disciplinary Hearings SETA accredited training programme.
The specified learning outcomes in the SETA accredited discipline workshop include (1) Conduct and manage a hearing, (2) Procedural fairness, (3) Handling non-dismissible offences, (4) Understanding the employer’s burden of proof, (5) Summarising of evidence and (6) Sanction selection.
Course content includes (1) what is misconduct and how is it proved?, (2) What procedures must be followed in a disciplinary hearing?, (3) What are an employee’s rights in a disciplinary hearing?, (4) What are an employer’s rights in a disciplinary hearing?, (5) What role does mitigation play in a disciplinary hearing?, (6) How should a sanction be selected which will meet the requirements of fairness and withstand scrutiny at an arbitration hearing?. Material also includes time-keeping and attendance offences.
SETA accredited discipline workshops also include role-plays to enable delegates to practice the skills acquired, as well as case studies, self-tests and practical exercises to assess and ensure the transfer of knowledge to delegates.
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