by Tony Healy | Sep 7, 2018 | Discipline & dismissal
In our law, dismissals must be fair. More precisely, they must be both procedurally and substantively fair. One of the key elements of substantive fairness is that the sanction imposed must be appropriate, ‘the punishment must fit the crime’, so to speak.
This concept of appropriate sanction, more often than not, relates to claims of substantive fairness on grounds that the sanction is inappropriate due to the choice of dismissal as a sanction being too harsh. Lesser sanctions, such as warnings and final warnings, can similarly be grounds for substantive unfairness claims.
The point of departure in sanction selection is that dismissal is a sanction of last resort, and dismissal for single acts of misconduct must be so gross as to warrant dismissal, giving due consideration to all prevailing mitigating factors.
From time to time, the Labour Court is charged with the adjudication of reviews in which, normally an employer, contends that dismissal was an appropriate sanction in certain circumstances, notwithstanding the fact that a prior arbitration award has held that dismissal was too harsh a sanction. In cases of this nature, a Commissioner at arbitration may reverse a dismissal and replace it with a lesser sanction, such as final written warning.
This is precisely what occurred in the Labour Court judgment of Top Security Pty Ltd v CCMA & others (case number JR519/09).
In this case, the employee, a security officer, was dismissed for misconduct related to hooting at a site in the early hours of the morning, thereby purportedly disturbing the peace, and insolence toward a member of the public when also threatening violence towards him.
The version of the applicant was that a resident was awoken at 3.30am by repeated and persistent hooting near his home. On investigating this, he found that the hooting was from a motor vehicle driven by an employee of a security company. There was an exchange of words between the employee and the member of the public. The employee took exception to the manner in which the member of the public was talking to him regarding the noise created by his hooting, after which he informed this person that it was “bloody well unacceptable.”
The member of the public apparently then stated to the employee “then stop behaving like one.” This was in response to the employee accusing the member of the public of talking to him like a child.
The employee continued that the member of the public asked him what he was doing, called him bloody stupid and a bloody idiot. When he apologised to the member of the public, this person continued that “you bloody black don’t deserve to be in this neighborhood.” The employee apologised a second time. Then the employee told him to stop swearing at him, and stated that if he did not do so, he would “moer you.”
The employee alleged that this member of the public continued that “your mind is black therefore you can’t think.”
The employee was then disciplined by the employer and dismissed.
At the arbitration hearing, the Commissioner held that the sanction of dismissal was too harsh by virtue of the fact that, amongst other things, there had been racial slurs directed toward the employee, and this constituted significant provocation.
In the Labour Court review, the employer sought to have the award set aside on grounds that the Arbitrating Commissioner totally disregarded the evidence led and failed to appreciate that the employee committed a serious offence.
The Court acknowledged that the arbitration award found the employee guilty of bringing the name of the employer into disrepute, and held further that the employee did use the word “moer” which was unwarranted.
The Court continued that “it is now well established in our jurisprudence that the test to apply in review is that of a reasonable decision maker. In applying the test of reasonable decision maker, the Court seating in review has to determine whether the outcome reached by the Commissioner falls within the range of acceptable and reasonable outcomes. The review court does not concern itself with the correctness of the outcome but its reasonableness.”
The Court held that the Commissioner’s award was reasonable, and the application to review the decision of the Commissioner was dismissed.
It was further noted by the Court that whilst “the Commissioner may well be wrong in his conclusion, that is not the test. The test is reasonableness, having regard to the circumstances and the totality of the matter or facts which where before the Commissioner.” The Commissioner’s decision was deemed reasonable, and therefore did not want interference by the Court.
by Tony Healy | Sep 5, 2018 | Discipline & dismissal
In essence, the preparation of a witness for a disciplinary hearing, is the same as that for an arbitration hearing. Our firm chairs disciplinary hearings across the country daily, and it has often been our experience that witnesses have either, at worst, not been prepare at all or, at best have been poorly prepared.
Witness preparation is crucial to both employers and employees. More often than not, the verdict will hinge on what testimony is given by witnesses. Other forms of evidence also play a role, but witness evidence is invariably the most important evidence. It is important to remember that evidence is led by witnesses in an attempt to influence the hearing chairperson, or arbitrator, that their testimony is credible and persuasive. If the evidence led is not led in a confident, credible and logically sequential sequence, the chairperson or arbitrator may well unimpressed by the testimony of the witness, and even confused to the extent that it is not possible to add any value to the evidence.
The preparation of witnesses need not be time consuming, and with a little planning and time, witnesses can be primed to lead cogent, relevant and most importantly, credible evidence.
To begin with, witnesses are frequently reluctant to give evidence. Disciplinary and arbitration hearing environments are understandably intimidating for witnesses. This trepidation has the potential to make them anxious to the extent that their evidence is less compelling that it needs to be. This to is a reason why witness preparation is important. As much as possible must be done to minimise witness anxiety to ensure that the value of their testimony is maximized.
So where do you begin? Well, first and foremost, one must identify which questions are going to illicit answers which best support one’s case. It’s not just question of identifying the relevant questions, but also the sequence in which they are to be asked and answered. For example, there must be a reason why question one is asked first, and the final question is asked last. It is also worth remembering that it is only a witnesses observations which are important, not their opinions.
For example, if a witness states that the employee looked to be under the influence of alcohol, this will be ruled inadmissible, as it is a witnesses observations, not opinions, which have vale as evidence.
Once all witness questions have been selected, in the sequence to be asked and answered, the asking and answering of the questions should be practiced with the witness for as long as it takes to ensure that all questions are answered in a way that ensures the anticipated answer for each question. This is critically important, as one of the most important guidelines in witness preparation is that the questioner should never ask a question that they do not already know the answer to.
Without prior knowledge of the answers to each question to be asked, the questioner is incapable of leading the evidence of the witness in a manner which best supports their case.
Next, witnesses should be informed that when they testify, they will be asked three sets of questions. To begin with, they will be asked the questions which they have been prepared to answer by the questioner; this is referred to as the witnesses evidence in chief. There is only one simple rule to remember when it comes to evidence in chief; such questions may not be asked in a leading way. This means that the question cannot be asked in a way which suggests the answer.
Thereafter, the witness is exposed to cross-examination. Cross examination is an opportunity for the witness to have his or her evidence in chief challenged. It is only during cross examination that leading questions are permitted. It is advisable to prepare one’ witness for cross examination, so that they can anticipate cross examination questions, and be prepared to deal with them during the hearing.
Finally, witnesses are re-examined. This is a second, and final. Opportunity for the questioner to put questions to his or her own witness. Again, no leading question are permitted, and importantly, re-examination questions may only relate to questions put to the witness during cross-examination.
It is simply not possible to present a case competently without the thorough preparation of witnesses
by Tony Healy | Sep 3, 2018 | Discipline & dismissal
Employees have an obligation to meet reasonable performance targets and objectives. In so far as an employees work performance is of such a nature that the actual performance is less than that which the employer can prove it can reasonably have expected from the employee, the employee will be deemed to have acted negligently.
This principle is related to an employee’s obligation to act with care, and not to perform as well as they are capable of performing. As noted in a recent arbitration award, the requirements for dismissal for a single act of negligence are (1) that the employee failed to exercise the standard of care and skill that can be reasonably expected of him or her, (2) that the lack of care and skill manifested itself in an act or omission that could have caused loss to the employer, (3) that the loss or potential loss to the employee resulted or could have resulted from the employees negligent act or omission, and (4) the negligence must be gross.
Gross negligence is a form of serious misconduct which can justify the sanction of dismissal, even on a first transgression.
Repeated acts of negligence which are not gross (ie: serious enough to warrant dismissal in its own right), could also warrant dismissal, if the employee has failed to respond positively to progressive disciplinary sanctions
When negligence is alleged by an employer, the so called reasonable person test is applied. In essence, this rule relates to an employer being reasonably entitled to expect a certain minimum level of performance from an employee, and once it has been established that the employee is capable of performing at this level, any subsequent performance which is inferior to this proven level of performance is deemed to amount to negligence on the part of the employee. Put differently, in cases of this nature, the employer seeks to prove that the employee was capable of avoiding the inferior work performance, level of production, and or quality of performance.
In Transnet Freight Rail v Transnet Bargaining Council and others (2001 6 BLLR LC), it was stated that negligence can be defined as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. This was reiterated in the arbitration case of Petrus Frederik Rautenbach v Cashbuild (Pty) Ltd [FSBF2638-17], when it was restated that “negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. Negligence can manifest in either acts or omissions”.
In the arbitration award of NUMSA obo Motsedisi Julia Tsilo v Ngwako Holdings (Pty) Ltd DRC/MINT 50247], it was emphasised that “The test for negligence was described by Driscoll C in the matter of Nkosi / Nampak (2010) 10 MEIBC at 8.14.1, as follows: The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm. The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission. To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion”.
The Supreme Court of Appeal had the following to say about gross negligence in the case of Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas & Another [2003 (2) Sa473 SCA], “it follows, I think, that to qualify as gross negligence the conduct in question ……. must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care”.
In the final analysis, negligence can be viewed as ‘blameworthy poor work performance’, as there is proof, on a balance of probabilities, that the employee has tender q quantity and/or quality of performance which is less than the employer can prove the employee is capable of.
If, on the other hand, it cannot be proven that the employee’s poor performance cannot be proved to be due to the employee performing below a level of performance they are capable of, the poor work performance may be related to incapacity, rather than misconduct.
by Tony Healy | Sep 2, 2018 | Discipline & dismissal
Who would have thought that your hairdo could lead to your dismissal? Well, the Department of Correctional Services concluded it did when dismissing a number of employees for wearing “dreadlocks”, Rasta style, and refusing to cut their hair when instructed to do so.
This matter was dealt with in the Labour Court case of Department of Correctional Services & another v POPCRU & others (Case No. CA6/2010).
A new Area Commissioner, who had been recently appointed, was of the view that discipline was lax, and that there was large scale non-compliance with departmental policies.
In particular, the Commissioner had concerns regarding poor compliance with security policies, inefficient acts of control, and compliance with the dress code in that certain employees mixed their uniforms and wore different hairstyles. A written instruction was then issued to all staff that they were required to comply with the dress code by attending to their hairstyles. Certain officers complied with the instruction, whilst others did not.
The Area Commissioner then wrote to the non-complying employees advising them that they faced suspension and granted them an opportunity to advance reasons why they should not be suspended.
The applicants then responded indicating that they had embraced Rastafarianism, and that the instruction to cut their dreadlocks “infringed their freedom of religion and constituted unfair discrimination on the grounds of their religion.” Other employees submitted that they wore dreadlocks for cultural reasons. One of the employees in particular, submitted that he wore dreadlocks because he had received a calling to become a traditional healer in accordance with his culture. Yet another of the employees submitted that his reason for wearing dreadlocks was related to him having a traditional sickness known as “Ntwasa”, and that his ancestors had instructed him to wear dreadlocks.
The employees were then suspended and charged with having contravened the Department of Correctional Services and disciplinary code and procedural resolution 1 of 2006, in that they had contravened the Department of Correctional Services dress code by wearing/keeping dreadlocks on official duty at Polsmoore management area. An alternative charge was that the applicants had failed to carry out a lawful order or routine instruction without just or reasonable cause by refusing to keep their hair in accordance with the dress code of the department of correctional services.
A disciplinary hearing was convened; the applicants were found guilty and dismissed with immediate effect.
Predictably the Labour Court held that whilst it may “accept the importance of uniforms in promoting a cultural discipline and respect for authority, we live in a constitutional order founded in a unique social and cultural diversity which because of our past history deserves to be afforded special protection. It is doubtful that the admirable purposes served by uniforms will be undermined by reasonable accommodation of that diversity by granting religious and cultural exemptions were justified.”
The Labour Appeal Court dismissed the claim and upheld the Labour Courts finding that the dismissal of the applicant was automatically unfair.
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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by Tony Healy | Aug 23, 2018 | Labour Legislation
The amended Employment Equity Amendment Act was introduced in recent months, as was the amended Basic Conditions of Employment Act. More recently, on 1 January 2015, the new Labour Relations Amendment Act came into effect.
This represents the most widespread revision of SA labour legislation in almost twenty years, and brings with it significant changes to numerous aspects of the labour law landscape, and now makes its introduction after a gestation period of about four years.
First and foremost, it must be said that many of the LRA amendments amount to general housekeeping which will have little, if any, effect on employers, trade unions and the State.
However, quite significant changes are made to key labour relations agenda items such as temporary employment, labour broker usage and practices, automatically unfair dismissals, matters of mutual interest, part-time employment, minority trade union organizational rights, picketing and the extension of Bargaining Council agreements, to name a few. Important changes have also been introduced to trade union picketing rights.
In the past, the most that a temporary employee could expect was the renewal of the temporary contract on the same or similar terms. However, the LRA amendments establish an expectation of permanent employment, if it is found that the position is in fact permanent.
The new LRA amendments also introduce a maximum period of employment of temporary employees, which may only be exceeded if the employer can show that there is justification for a longer temporary employment period on grounds of, for example, the nature of the work or assignment to be completed.
Turning to labour brokers, if it is established that the client of a employment service labour broker is jointly and severally liable in cases of alleged unfair dismissal, the employee may lodge proceedings against the labour broker, or its client, or both.
Temporary employees with more than twenty four months service will qualify for severance pay should they be retrenched.
Minority trade unions will now be entitled to certain organizational rights previously reserved for majority trade unions, unless the minority trade union resorted to industrial action to gain such rights. In short, in order to be granted such rights by Commissioner, minority trade unions will need to already have so-called sufficient representation and have otherwise substantial minority membership.
New picketing rights relate to picketing now being permissible at a place controlled by someone other than the employer (such as a shopping centre) as long as the other person has input in the picketing rules agreed.
The EE Amendment Act introduces the concept of ‘equal pay for equal work’; this compels employers to ensure that employees doing the same work receive the same pay, unless it can be shown that there are fair criteria justifying different wages.
Finally, a new Employment Services Act, amongst other things, focuses on the employment of foreign nationals.
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