by Tony Healy | Mar 23, 2018 | Miscellaneous
The CCMA, on occasion, has been required to determine when an employment relationship has actually commenced.
For some time there has been little clarity on whether employment commences on date of signature of an employment contract or offer of employment, or indeed only when the person actually commences employment. This issue was clarified in a Labour Appeal Court Judgment in the matter of Wyeth SA (Pty) Ltd v Manqele & others [JA50/03].
The key factors of this case were as follows. An offer of employment was made per an employment contract which was accepted and signed by the successful appointee. However, prior to commencing employment on the due date to do so, the employer deemed the appointee to have acted dishonestly in relation to the purchasing of a vehicle, being part of his remuneration. As a consequence thereof, the employer terminated the contract of employment with the employee prior to him starting employment on the due date. Notwithstanding this termination the employee reported for duty at which time he was advised that he should go home as he would not be employed by the employer.
The employee deemed this to be an unfair dismissal. The matter was ultimately heard at arbitration where the employer argued, inter alia, that the CCMA had no jurisdiction as the employment relationship had not come into existence at the time of the termination of the employment contract. The commissioner held otherwise in ruling that the person in question became an employee “the moment he accepted an offer of employment”.
The employee took this on review to the Labour Court who upheld the Commissioner’s ruling on grounds that the person in question was a party to a valid and binding contract of employment and was therefore an ‘employee’ as contemplated in the LRA.
The LAC held that it is entitled to extend the definition of ‘employee’ to include “a person who has concluded a contract of employment which is to commence at a future date”. The LAC judgment later draws comparison with the legal position of unborn children who, in law, are endowed with legal rights “by way of a fiction”.
The Court furthermore, quite rightly, referred to section 213 of the LRA which furnishes a definition of ‘employee’ which includes “is entitled to receive any remuneration”; it follows that a person who has signed an employment contract to commence employment at a future date is indeed entitled to receive remuneration, albeit at a later date.
Simply put, this case highlights that a person becomes an employee as early as the date on which they sign an offer of employment, notwithstanding that this may pre-date the actual date on which the person commences their duties in terms of such acceptance. It follows therefore that any dismissal from date of signature ought to comply with the pre-dismissal procedures of the LRA and be substantively fair.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Mar 23, 2018 | Miscellaneous
As we head into what will, in all likelihood, be yet another challenging labour relations year, what with a raft of new labour laws and expected heightened industrial action, it is worth re-familiarising oneself with certain of the jargon and terms which are so often used in the labour relations environment.
The CCMA and Bargaining Councils, on occasion, schedule so-called In limine hearings which are described as “a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction” (Source: CCMA web site). A common example of a CCMA In limine hearing would relate to an application by an applicant for the CCMA to condone the late referral of a dispute. The In limine hearing would first be heard so that a Ruling can be made on whether, or not, the late referral is to be ‘condoned’ prior to the hearing proper proceeding.
Sufficient representation is the term used in the LRA to describe the amount of union representation, which is equal to or in excess of 30% of the legible union members, but less than majority membership. Trade unions which acquire sufficient representation, qualify for controlled access onto the employer’s premises, and the employer is obligated to deduct union membership fees on behalf of the union. Sufficient representation does not entitle a union to the appointment of statutory shop stewards, and neither does it typically entitle a union to collective bargaining rights (both of which do become a feature of majority representation).
Follow Tony on Twitter at @tony_healy
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.
Follow Tony on Twitter at @tony_healy
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.
Follow Tony on Twitter at @tony_healy
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.
Follow Tony on Twitter at @tony_healy
