by Tony Healy | Aug 23, 2018 | Discipline & dismissal
The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ misconduct.
Put simply, this primarily involves cases in which employees insult and/or offend their employer and/or its management on social media platforms such as Facebook, Twitter and WhatsApp.
This clearly has reputational consequences for employers, which is linked to the universal right to dignity.
The employment law cases which have thus far dealt with the apparent, at face value, conflict between the right to freedom of expression, and the right to protection of one’s reputation and dignity, have trended in favour of curbing the right of freedom of expression when it undermines reputational rights.
For example, my own firm was recently involved in a disciplinary hearing in which the employee had been summoned to a disciplinary hearing for having a WhatsApp status which read “F….. ……………. (company name), and the whole of …………. (company name) sucks …”.
Key to the right of employer’s to take disciplinary steps against employees in such cases is the fact that after hours employee conduct does indeed fall within the ambit of an employer’s disciplinary code if such after hours, off duty, misconduct, is work related.
In Radebe v JD Group (Pty) Ltd [GAJB12297-14], the employee was dismissed for having posted insulting statements on his Facebook page after having been confronted by management regarding his poor time keeping and tardiness.
The Commissioner noted that “The applicant had submitted no formal grievance, against anyone, for the company to deal with but chose to vent himself on the social media”, and that “the employee constituted the face and voice of the company and his conduct on social media showed no regard for possible risks he exposed the company to with his comments”.
The dismissal of the employee was upheld.
Similarly, in Motloung v The Market Theatre Foundation [GAJB4458-11], the employee had been dismissed for what the Commissioner described as “a hate speech statement on Facebook” which “impacted negatively on the employer”. As far as the employee’s purported right to freedom of speech was concerned, the Commissioner noted that “I do not accept the argument that the employee’s Constitutional right to free speech entitled him to act as he did”.
So what can we learn from this?
What is becoming abundantly clear is that employers would do well to establish social media policies designating it an offence to post content which brings the good name and reputation of the employer into disrepute, and to supplement this with reference to such misconduct in the employer’s disciplinary code. What’s more, this policy should be a key component of an employer’s induction process.
So, employees, exert considerable care when tempted to slag-off your employer on social media
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
On occasion, employers dismiss an employee instantly; such dismissal is referred to as a summary dismissal, the net effect of which is that such employee is dismissed without notice pay. The fairness of such a summary dismissal will hinge on whether the employer was justified in dismissing the employee summarily and withholding payment of the otherwise contractual notice period.
In essence, the payment of notice pay on termination is a function of whether the employer deems the employee to have committed a fundamental breach of his/her employment contract. Such fundamental breach would arise when, for example, an employee commits an act of gross misconduct. The test therefore is, as would be required in common law, “has the employee disregarded a fundamental term of his/her employment contract”.
Ordinarily, gross misconduct will be evident when an employee is dishonest, insubordinate, or acts violently. Acts of gross misconduct could also be specified in a company disciplinary code to address industry specific misconduct which would amount to gross misconduct. For example, the failure by an employee to maintain personal hygiene standards may constitute gross misconduct in a food manufacturing plant even though this would not be the case on a construction site.
A series of minor offences also has the potential to coalesce into a sufficient reason for summary dismissal. In the English case of Pepper v Webb [1969] a gardener, who was being reprimanded for his history of inefficiency and insolence, remonstrated by informing his superior that “I couldn’t care less about your bloody greenhouse and your sodding garden”; the English Court of Appeal upheld the summary dismissal of the gardener.
Grogan in Workplace Law (7th Edition) holds that summary dismissal occurs when an employer declares that it is no longer bound by the contract of employment from the date of dismissal, and that the effect of such summary dismissal is to preclude the employee from continuing to work in terms of the employment contract from the moment the dismissal takes place.
In Ngongoma v Education & culture & others (1992) it was held that under common law, an employee may be dismissed summarily only on the grounds of some misconduct justifying such summary dismissal and that it is only misconduct of such a nature that constitutes a breach of the contract of employment so material that it goes to the root of the contract.
If on the other and employee is found guilty of misconduct which is not gross in nature and does not amount to a fundamental breach of contract, the employer would be entitled to dismiss the employee (if appropriate in the circumstances) and pay the contractual notice pay.
In the final analysis, whilst summary dismissal is indeed an option available to employers from time to time, it remains an exceptional step rather than the norm.
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
The Labour Appeal Court passed judgment in the matter of Afrox Healthcare Ltd v the CCMA & others (Case No. JA37/09) on key dismissal decision considerations.
This case focused on the manner in which CCMA awards are to be reviewed in terms of the constitutional standard of reasonableness to be applied when determining whether, or not, a decision to dismiss is reasonable.
In this case, the applicant, together with another employee, had been charged with negligence relating to the care of a patient who had passed away whilst in their care. The specific charge against the applicant related to him having failed to supervise untrained staff, and failed to act in a reasonable manner when a suspicion of deterioration in the condition of the patient was reported.
The applicant was found guilty and dismissed. The applicant subsequently referred a claim of unfair dismissal to the CCMA.
The Commissioner at the arbitration hearing held that the dismissal of the applicant was unfair due to the fact that the employer had failed to substantiate its case of lack of supervision and unreasonable conduct leading to the death of the patient, for reasons relating primarily to the fact that the employer had not called the applicants colleague to testify at the arbitration hearing. The applicant was reinstated with 12 months compensation.
The employer sought to review the finding of the Commissioner at the arbitration that the dismissal of the employee was unfair on grounds that there was no rational connection between evidence placed before the Commissioner, and his conclusion.
The Labour Court was now required to review the Commissioners award.
The Court conceded that the employer had relied mainly on documentary evidence during the arbitration proceedings, and confirmed that it was the task of the Labour Court to “consider the award in accordance with the reasonable decision maker standard propounded by the Constitutional Court.”
The Labour Court held that the Commissioner clearly did not take proper account of the material placed before him and that he failed to conduct a proper appraisal of some critical portions of the evidence presented.
The Court concluded that the Commissioner indeed omitted to consider evidence placed at his disposal, showing that the applicant had been remiss in his supervisor responsibilities.
The Court noted that an award may be set aside if it is one that a reasonable decision maker could not reach; the reasonable decision maker yardstick crafted by the Constitutional Court is “none other than that in the absence of a rational objective basis between the decision arrived at and the material placed before the decision maker”, the relevant decision is clearly not one which a reasonable decision maker would have arrived at.
The award of the commissioner was reviewed and set aside, and the dismissal of the applicant confirmed as having being fair.
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees.
The Labour Appeal Court (LAC) in SAMANCOR Tubatse Ferrochrome v MEIBC & others (Case No.JA57/08) addressed this conundrum providing some clarity.
In this particular case, the employee was arrested on suspicion of having committed an armed robbery. He informed his employer of this development and remained in custody, and was therefore absent from work, for approximately 150 days. The employer then dismissed the employee on grounds of incapacity in that “he was physically unable to tender his services”.
He was informed of his dismissal in writing by the employer, which was delivered to the employee at the Police station where he was being held.
On being released from custody, the employer held a post-dismissal hearing whereat it was held that the employer could not have been expected to put in place a temporary arrangement for such a lengthy period of time which would have enabled the employee’s position to have been kept open for him.
This was motivated by the fact that the employee held a key position (a furnace operator) and that the criminal case against the employee was still pending against the employee at the time of the post dismissal hearing. In addition, this was the second instance in which the employee had been arrested and thus been absent from work.
At a subsequent arbitration hearing, it was held that the dismissal of the employee had been substantively unfair in that the employer had not taken proper account of the fact that the employee had no control over his incarceration and its duration. In addition, the employee had not been afforded an opportunity to present his case prior to being dismissed.
The employer was then reinstated.
This finding was upheld on review at the Labour Court.
The LAC however adopted a different view to both the CCMA and the Labour Court. The LAC held that the concept of ‘incapacity’ may indeed have application in cases of incarceration. In such circumstances, an employer would be required to address the matter via an incapacity procedure.
This would entail assessing the extent of the incapacity including the temporary or permanent nature thereof and explore alternatives to dismissal.
Prolonged absence and the skilled nature of the employee’s position, as was the case in the LAC matter, would be compelling reasons warranting dismissal. The LAC went so far as to confirm that it cannot be the case that “incapacity which is outside the control of the employee cannot be a cause of dismissal”.
However, incarcerated employees must be afforded an opportunity to state their case prior to, not after, being dismissed. This could take the form of the incarcerated employee being invited to make submissions, if not in person, in writing, or via an appointed third party such as a family member or colleague.
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by Tony Healy | Jul 23, 2018 | Miscellaneous
Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.
Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Predictably, the Commission for Conciliation, Mediation and Arbitration has been required to conciliate and adjudicate disputes relating to post retirement-age dismissals.
The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se, but is deemed to be a termination of the contract of employment due to the effluxion of time, which is fair.
A retirement date may be agreed. However, there may be no agreement on the normal retirement date. In such circumstances, sixty five is normally deemed to amount to a generic normal retirement date.
In the CCMA arbitration case of SASBO versus Khayalethu (Case Number FS822) the 70 year-old employee argued that she was dismissed and pensioned by the company because of age, and that this constituted age discrimination as provided for in section 187(1)(C) of the LRA.
She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.
The Commissioner disagreed with the employee stating in the arbitration award that section 187 of the LRA provided for post retirement-age dismissal.
This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz versus Pepps Mokopane Primary School (Case Number NP6559).
The employee was challenging the fact that she was compelled to retire on the date on which she reached normal retirement date.
The employee had in fact wanted to work beyond this date, as is often the case.
The commissioner found that the dismissal was fair stating that a contract of employment may be terminated where the employee has reached his/her normal retirement age (see Harris versus Bakker & Steyger 1993 14 ILJ 1553).
“Although I accept that in terms of section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote section 187(2)(b) of the LRA.
The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.
Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.
A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent. Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.
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by Tony Healy | Jul 23, 2018 | Miscellaneous
A Labour Appeal Court judgment caused quite a stir in addressing leave applications to attend Sangoma training, with many commentators erroneously reporting that the judgment confirmed that it created new law compelling employer’s to accept unregistered Sangoma, or traditional healer, certificates, for BCEA sick leave purposes.
The case in question was that of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & 2 others (JA78/10).
The employee was a Chef. She approached her superior and informed him that she was attending a ‘traditional healer’s course’, and for this reason, requested that she be permitted to work morning shifts only to enable her to attend the course without adversely affecting her employment obligations.
It was agreed that the employee’s request could be accommodated, and the employee commenced working morning shifts.
The employee re-approached her superior, informing him that she was about to complete her Sangoma training course, and now needed to complete the course full time for the final month. She therefore requested unpaid leave for one month to do so.
The employer granted the employee permission to use her accumulated annual leave; on closer examination, it was established that she had no accumulated annual leave. It was therefore decided to offer her one week’s unpaid leave; this was insufficient leave as the employee was required to attend the final one month of the course on a full time basis.
The employee then submitted correspondence from her Traditional Healer Association requesting to give her permission to attend her final month of full time training, as well as her graduation ceremony, and advising that she had “permissions of ancestors”. The employee duly absented herself for the month in question.’
On her return, the employee was subjected to a disciplinary hearing, and charged with absence without leave and “gross insubordination/challenge of employer’s authority”.
Importantly, the disciplinary hearing chairperson concluded that the employee had no medical certificate from a medical practitioner as required by the Basic Conditions of Employment Act.
The employee was found guilty of all allegations, and dismissed.
The employer was of the view that it would have done the same thing if the employee had requested unpaid leave for a karate course.
The CCMA held that it was clear that the parties had conflicting interests, and that the employer had acted with a lack of empathy and understanding of cultural diversity in the workplace, continuing that the employee, faced with two evils, had chosen the lesser evil. It was also noted that the employer had not suffered irreparable harm, and that the employee’s absence was beyond her control.
The Courts agreed with this, noting importantly that the employee was not in fact seeking sick leave.
In conclusion, the judgment noted that “what is required is reasonable accommodation of each other to ensure harmony and to achieve a united society”.
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by Tony Healy | Jul 23, 2018 | Industrial Action
Various myths and facts are associated with strike activity, especially given the heightened emotions and tension which accompanies strike action.
To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences. Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.
In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike.
Voting to strike in a strike ballot is one thing, sustaining the strike is quite another. It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.
Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves. There is the added consideration of the the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.
In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth.
Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.
Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action. Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].
The remedies available to employers faced with unprotected strike action are:
1. Interdicts or Restraining Order
2. An application to the Labour Court for compensation for any losses attributable to the unprotected strike action
3. Dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.
Primary considerations should be:
1. Was the unprotected strike spawned by unjustified conduct on the part of the employer?
2. The employer must promptly engage the union, outlining its intended course of action.
3. Prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”.
4. “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.
Finally, regarded must be had for recent amendments to the Labour Relations Act which quite significantly change striker picketing rights, especially in the event that the employer is a tenant of a landlord who may disapprove of picketing taking place on their property.
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by Tony Healy | Jul 23, 2018 | Industrial Action
Section 69 of the LRA deals with the rights of strikers, and their supporters, to picket, which is further dealt with in the LRA Code of Good Practice on Picketing.
This right to picket can be traced back to section 17 of the Constitution which provides that everyone (strikers and their supporters) have the right to assemble, demonstrate, picket and present petitions in a peaceful, unarmed manner.
More precisely, the purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike, .. to encourage employees not to work during the strike or lock-out, .. to dissuade replacement labour from working, and to persuade members of the public or other employers and their employees not to do business with the employer”.
The LRA gives effect to this right as a legitimate right associated with strike action.
Importantly, this right to picket is limited to protected industrial action (ie: a protected strike or protected lock-out), and does not apply in cases of, for example, unprotected (so-called ‘wild-cat’) strike action.
Pickets may only be authorised by a registered trade union, and may only be held in a public place “but outside the premises of an employer”, or with the permission of the employer, inside the employer’s premises. Importantly, the employer may not unreasonably withhold permission for a picket on its premises.
Section 69 of the LRA also makes provision for the trade union or employer to approach the CCMA to facilitate picketing rules, and in the absence of agreement on the rules, to “establish picketing rules, and to provide for picketing on the employer’s premises if the Commission is of the view that the employer’s refusal to permit onsite picketing is unreasonable”.
Procedural or recognition agreements frequently include picketing rules for implementation during protected industrial action, as it is invariably difficult to reach agreement on picketing rules during the normally tension-filled pre-industrial action period.
Picketing rules would typically be drafted according to the following structure:
Conduct during a picket can become troublesome. The LRA Code of Good Practice on Picketing states, at section 6, that “picketers must conduct themselves in a peaceful and lawful manner, and must be unarmed”. In addition picketers “may not physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employer’s premises”. In so far as they do, they would be subject to the employer’s disciplinary procedure and could render themselves liable for dismissal given the gravity of the picketing-related misconduct.
Finally, picketing rules should also include a clear prohibition of violent and threatening conduct.
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by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Employers will frequently consider it necessary to suspend an employee, on full pay, pending the outcome of an investigation into suspected misconduct on the part of the employee, and/or to similarly suspend an employee pending the outcome of a disciplinary hearing.
This is ordinarily referred to as ‘precautionary suspension’, and is resorted to when an employer is of the reasonable opinion that its’ business interests are potentially at risk due to the employee continuing to be present during an investigation into suspected misconduct, and/or prior to the concluding of a disciplinary hearing.
At the crux of this initiative to suspend, is a belief that the continued presence of the employee during these periods, has the potential to compromise the employer.
Such precautionary suspension should not be confused with suspension without pay, which is a form of disciplinary sanction.
As held in Mabilo v Mpumalanga Government & others (Labour Court case no. J4158/98), in cases of precautionary suspension “the employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process. The investigation must be concluded within a reasonable time taking all the relevant factors into consideration and the employee must be informed without undue delay about the process steps that the employer is initiating. This may take the form of allowing the employee to return to his or her work or alternatively furnish this individual with a charge sheet summoning the individual to a properly constituted disciplinary hearing’.
The Labour Court added that “The disciplinary hearing must be initiated within a reasonable time of the individual being suspended”, further noting that “The objects underlying the right to a speedy investigation, without unreasonable delay, can be stated to be the following (1) To prevent the unnecessary disruption in the life of the employee, (2) To minimize the anxiety and concern of the employee, and (3) To limit the possibility that the employee will not be allowed a fair hearing”.
Although there is no need to convene a formal ‘pre-suspension’ hearing before suspending an employee on precautionary grounds, the weight of authority does suggest that employers should afford employees an opportunity to make representations to the employer, prior to the precautionary suspension being confirmed.
Put simply, the employee should be informed why the employer believes that precautionary suspension is warranted, and the employee should be afforded an opportunity to have his or her say on this proposal, before the suspension is confirmed.
Precautionary suspension could constitute an unfair labour practice in certain circumstances, such as (1) it is unpaid, (2) endures for an unduly long period of time, (3) inadequate reasons are tendered by the employer.
Precautionary suspension should not be confused with suspension without pay, which is a disciplinary sanction typically reserved for occasions when dismissal would ordinarily have been justified, but compelling mitigating factors suggest that a lesser sanction may be warranted.
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by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Employers have still not universally grasped the meaning of a bona fide consultation process when undertaking a consultation process pursuant to a proposed retrenchment. I still, in my own firm, still come across employers who are of the understanding that a retrenchment consultation process can be completed in a single sitting. This amounts to an employee going to work on any given day full of the joys of Spring, and going home retrenched.
The applicable retrenchment law, principally section 189 of the Labour Relations Act and the Code of Good Practice” Operational Requirements , places a much more procedural burdensome process on employers contemplating retrenchment. It is a process which requires thoughtful contemplation and consultation, in a manner which, on subsequent scrutiny, will show that the consultation process was a genuine consensus seeking process. Seeking consensus on what?
Well, to begin with, consensus on ways of avoiding or delaying the proposed retrenchment, and if this is not possible, ways of mitigating the adverse effects of any pending retrenchment. Furthermore, the minutes of consultation meetings must show that a wide range of issues were consulted over, including selection criteria and the severance pay to be paid.
It is typically, but not only, the retrenchment consultation meeting minutes which are relied upon to determine the true nature of a consultation process. Put differently, do the consultation minutes reflect a robust consultation process, or do they show that minimal time was spent consulting with little if any give and take on the part of the employer?
The Labour Court judgment in Jenkin v Khumbula Media Connexion (Pty) Ltd (Case No. D914/08) addressed the question of what may be referred to as ‘microwave retrenchment’.
The applicant had been retrenched after one consultation meeting which, the Court held, left much to be desired. The Court criticised the respondent employer for having retrenched the applicant “after only one meeting had taken place”. The Court quoted the Labour Appeal court which had, in Johnson & Johnson (Pty) Ltd v CWU (1999) held that “… a mechanical check list kind of approach to determine whether s189 has been complied with is inappropriate”.
Returning to the Khumbula Media Connexion case, the Labour Court added that “the meeting held with the applicant was not sufficient to constitute consultations as required by section 189”.
Employers, in the main, lose retrenchment cases due to either inadequate consultation and/or the adoption of subjective (rather than objective) selection criteria. The procedural requirements to ensure a procedurally fair retrenchment are not overly burdensome. There is very little reason why a retrenchment process cannot, with careful consideration of the retrenchment provisions of the Labour Relations Act, be implemented in both a substantively and procedurally fair manner.
In short, a process which seeks to give a veneer of legal compliance will be viewed as precisely that, a hurried, and ultimately procedurally unfair, hit and run rush job
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