by Tony Healy | May 23, 2018 | Miscellaneous
It’s rare for a winning party to win costs in a CCMA or Bargaining Council arbitration case. Section 138(10) of the Labour Relations Act makes limited provision for costs to be awarded in favour of a party to an arbitration hearing.
In short, costs may be awarded against a party and/or their representative, in the event that either or both act frivolously (“manifestly futile”) and/or vexatiously (manifestly groundless or utterly hopeless in foundation”), which is defined as (1) proceeding with or defending a case without merit and (2) in its conduct during the proceedings.
So in short, if you initiate an arbitration case with little or no merits and/or behave badly during the arbitration hearing, a claim for costs may validly be made. In practice however, costs awards, especially against applicants who are typically employees, are rarely made.
That’s not to say on the other hand that parties costs awards are never made; they certainly are at times, even if it seldom occurs.
In the past, the CCMA has issued a Practice Note to Commissioners regarding the awarding of costs, recommending that “Parties should not be discouraged from invoking the dispute mechanisms of the LRA, which should be accessible to parties; costs should not be lightly ordered if a party acts in good faith, especially where the matter involves issues of importance to the wider IR community; a costs award should not damage an ongoing relationship, and the conduct of the parties is relevant.
In the CCMA case of Mark Jeffrey Fuhr v Momentum Agency services (GAJB20761-07) the applicant had claimed constructive dismissal. After a lengthy arbitration hearing wherein the applicant introduced hundreds of pages documentary evidence purportedly supporting his claim, the Commissioner held that his claim was indeed frivolous and vexatious, and that he did “not come to the Commission with clean hands” and that “he chose to put the Respondent to the cost of defending what I regard as a flimsy case in the hope of convincing the Commission to award him a large sum of money.” The Commissioner concluded that the applicant had “failed dismally in discharging the onus on him to prove he was constructively dismissed.”
It was held further that the applicant’s main reason for resigning was a perceived better offer from an alternative employer, and not intolerable conduct on the part of the respondent.
In Rose Ramchau v Ackermans (NP856-01) the Commissioner awarded costs to the employer on grounds that the applicant “dragged the company to the CCMA for an utterly hopeless case … the services of this statutory body should be utilised for genuine disputes and never as a playing field for petty vindictive disputes by parties bent on settling old scores”.
Similarly in Ntombela v SMT Health Solutions (KNDB10811-08)costs were awarded in favour of the employer on grounds that the applicant was “argumentative, evasive, and less than honest … and knew that his case was predicated on a lie”.
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by Tony Healy | May 23, 2018 | Miscellaneous
The CCMA has been on the receiving end of some sharp criticism of late, which it has predictably elected to respond to defensively with a degree of self-righteous indignation.
Let me say up front, the very role of the CCMA in workplace dispute resolution places it in the invidious position of invariably being unpopular with one, or another party, in a dispute. This more especially applies to arbitration hearings, which always produce a loser.
So the CCMA is, at times, subject to unfair, one-eyed and subjective criticism.
I have appeared as a representative of parties at the CCMA since its inception almost twenty years ago, and have done so in just about every CCMA branch and satellite office around the country. That qualifies me to chip in on this debate.
There are, without a shadow of doubt, many highly qualified, competent and experienced CCMA Commissioners, who are committed to objectively dispensing justice in an even-handed manner. What’s more, they do so displaying the requite respect to parties, notwithstanding the frequent tension which is evident in most disputes they conciliate or arbitrate.
That’s not true of all Commissioners. Whilst, in my view, the skill and competence levels of Commissioners are generally high or acceptable, there is a sprinkling of belligerent and ill-mannered Commissioners who know who they are, as do frequent users.
Has the CCMA responded to the recent criticism well? Nope.
To begin with, it is highly unlikely that the CCMA leadership would have responded the way it did, had the criticism emanated from organized labour.
I also don’t buy the apparent responses, which seek to deflect blame for ineffective labour dispute resolution on employers and labour; the blame mongering doesn’t stop there either.
The CCMA Director also appears to be lamenting the “moving on” of the founding fathers of the current employment law regime, into business and politics. It reminds me of the dead Month Python parrot which was apparently “pining for the fjords”.
Is it too much to expect of the CCMA that it maturely respond to criticism, without adopting a defensive stance, which simultaneously seeks to blame monger?
Surely a more measured, constructive and conciliatory response would have been more prudent? Indeed, perhaps the response which would probably have evolved had it emanated from a trade union and not an employer-linked representative?
I think that the CCMA leadership has, with its antagonistic response to recent criticism, shown the very subjective petulance, which it criticizes, CCMA users of on a daily basis. What happened to the ‘conciliation’ in CCMA?
Yes, the CCMA may well be held up as an enviable model of workplace dispute from time to time in other jurisdictions. However, before the CCMA leadership seeks to harness the plaudits for this, recognition should first and foremost be given to the core of competent CCMA Commissioners, not the defensive top floor bureaucrats.
The CCMA leadership has shot itself in the foot on this one. The proverbial “own goal”.
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by Tony Healy | May 23, 2018 | Miscellaneous
It is hard to argue with employers who frequently cynically lament that certain employees are so willing to so readily steal, or attempt to steal, from them.
There may indeed be a myriad of socio-economic reasons for this scourge. None the less, it must surely be abhorrent, with employers being quite entitled to view such gross misconduct in a very serious light.
I know from my own experience in my own practice, that theft-related and dishonesty cases are quite common in the workplace.
The Labour Court recently dealt with such a case in the 4 August 2015 judgment in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].
The facts were quite straight forward. The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry. During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.
This charger was on sale at the store in question, and the employee had no proof of purchase.
The employee subsequently failed a polygraph test.
The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.
The employee referred an unfair dismissal claim to the CCMA. At the arbitration hearing. The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation.
The employer took the matter on review to the Labour Court.
The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.
This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger.
The employee had also admitted this during the original disciplinary hearing.
The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.
The Court set side the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.
On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal. Dismissal for a first instance of such misconduct was fair ..”
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by Tony Healy | May 23, 2018 | Miscellaneous
It’s that time of year again when office parties are in full swing. Whilst most office parties are incident free, some can be notoriously memorable for all the wrong reasons.
Let’s face it, with spirits running high and alcohol flowing, you frequently have the ingredients for office parties to bring out the very worst in behavior.
I have been involved in a case where such a year-end function deteriorated into a fight between colleagues which quite literally resulted in blood on the walls.
Take the arbitration case of SACTWU v H D Lee [KN2505]. The employer booked a venue for its three hundred employees. Transport was provided to the venue, and food and alcohol were gladly provided. The arbitration award highlights the mayhem – “It is common cause that Mr. Gounden pushed Mr. Naidoo to the ground. The reason tendered for this was that Mr. Naidoo had, some days previously, attached a condom to the backside of another employee, a friend of Mr. Gounden’s. Mr. Bikhod admitted that he joined the fray, hitting Mr. Naidoo in the face. Mr. Naidoo retaliated and punched Mr. Bikhod on the nose, causing it to bleed … Mr. Bikhod then approached Mr. Naidoo and kicked him between the legs”.
Just for good measure, a manager was called a “f………. white pig” and the police were called.
No Christmas cheer here me thinks.
The recent arbitration case of Leonard Delon Naidoo v Masscash (Pty Ltd [KNDB1963-15] also sheds light on an end of year function gone wrong.
This case involves an employee who conceded that he had behaved “inappropriately” due to him having “consumed a cocktail of alcohol and medication”, and therefore “could not recall his behavior”.
According to the evidence led, the employee in question, a senior manager, had allegedly assaulted colleague, sexually harassed another, and been grossly intoxicated.
Employer witness, Ms. X, testified that she had “done a belly dance” at a previous party; at the yearend function the employee “who was intoxicated, had approached her and shaken his hips in a suggestive sexual manner to her, and asked if she would be giving a repeat performance”.
Another female employee testified that “she was sitting at a table together with about nine or ten people when the applicant, standing behind her, rubbed his hand up and down her arm and said how nice her arms were and kissed her on the neck”.
Yet another employee testified that the employee had hit him “on the head unexpectedly”.
So there you have it. A glimpse into the world of year-end functions that don’t go entirely to plan.
You can be sure that in the months to come, there will be various arbitration hearing conducted about wayward shinanigans and behavior at company do’s, with heeps of morning after regret.
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by Tony Healy | May 23, 2018 | Law of Evidence
Circumstantial evidence is indeed admissible in disciplinary and arbitration hearings; that much we already know. However, certain important factors relating to the introduction of circumstantial evidence, and the manner in which it is to be dealt with, must be borne in mind.
So what is circumstantial evidence?
Circumstantial evidence is the opposite of ‘direct evidence’ (ie: the kind of evidence which comes from witnesses) and can therefore be described as ‘indirect evidence’ in that certain ‘assumptions’ are made. It is admissible under certain circumstances, and may only be used to support a substantial fact.
The Chairperson of an enquiry should listen to circumstantial evidence first and then decide how much weight they are going to give it (in other words, how fair it would be to admit it either entirely or in part).
Case law abounds with guidelines for the use of circumstantial evidence.
The leading case authority is R v Blom (1939 AD) wherein it was held that “The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn”.
This judgment continues that “The true facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct”.
More recent landmark case law has also addressed circumstantial evidence.
In Atherstone v Lewis stores (Pty) Ltd [CCMA KNDB13032-11) it was noted that “The textbooks on evidence say that circumstantial evidence is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible inference. It need not be the only inference”.
In practice, circumstantial evidence is used by way of proving certain facts, and thereafter seeking to persuade the chairperson/arbitrator, that the guilt of the employee is the most plausible inference that can be drawn from the proven facts.
In Komape v Spoornet (Pty) Ltd & others (labour Court: 2008) the Court held that in assessing circumstantial evidence, an arbitrator must always consider the cumulative effect of all the items of evidence before him or her, and that the onus in civil cases is discharged if the inference advanced is the mist readily apparent and acceptable from a number of other possible inferences.
The somewhat dated, but none the less still pertinent English case of Caswell v Powell Duffy Collieries Ltd [1939] held that “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish … but if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
In short, circumstantial evidence must be based on proven facts which themselves lead to guilt being the most reasonable inference or assumption.
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by Tony Healy | May 23, 2018 | Discipline & dismissal
Case law has, for some time now, established laid down procedures and requirements which must be followed when an employee absconds and the employer knows the whereabouts of the absent employee.
In circumstances where an employee absconds, deserts or sis simply absent without leave, employers frequently erroneously conclude that the missing employee has dismissed him or herself; nothing could be further from the truth. It is not possible for an employee to dismiss themselves; only employers can initiate dismissal.
To begin with, it is precisely for these kinds of cases, amongst many other good reasons, why an employer should know and maintain an employee’s personal information including their residential and/or postal address. There are times of course when employees move residence and do not inform their employer of this fact, but it is the employee not the employer who is negatively affected by this, as the employer is only ever expected to communicate with an employee at the address given to them by the employee.
So, if the employer corresponds with the employee at an outdated address, the employer cannot be held liable.
The primary case relied upon in directing employers as to how to address a scenario wherein an employee absconds is South African Broadcasting Authority v CCMA (2002), quoted recently in a Labour Court judgment addressing the question of, inter alai, dismissal on grounds of absence – Jammin Retail (Pty) Ltd v Mokwane & others (JR 2784/09).
The Jammin Retail Labour Court judgment unsurprisingly made reference to the SABC case in outlining the obligations employers have when contemplating the dismissal of deserters. This judgment quoted the SABC which held that “Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the Audi alteram partem rule (always afford the other party an opportunity to defend themselves) before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty”.
Put simply, this means that when an employee goes absent, and especially when the employee fails to communicate with the employer, the employer must attempt to find the employee. This is normally undertaken by corresponding with them at the address they have provided the employer; there is a presumption that this is the correct address and that registered mail to this address will be received by the employee.
A written notice to attend a disciplinary inquiry for the absence ion question should be posted registered mail to the employee inviting them to the inquiry.
If they do not attend, the inquiry may ordinarily be held in the employee’s absence as the employer has afforded the employee to state his or her case, but they have waived their right to do so by not attending.
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by Tony Healy | May 23, 2018 | Discipline & dismissal
I was posed a genuinely interesting question by a colleague last week. The scenario was as follows; if in a disciplinary hearing chairperson X, after delivering a verdict, becomes incapacitated, or even dies, prior to hearing mitigating and aggravating factors and selecting a sanction, can a new chairman (chairman Y) take over and address the question of sanction selection?
To begin with, it may not be too problematic to hear the case afresh if it is a relatively short matter with few complexities. But what if the verdict was the culmination of many days of evidence wherein the merits of the case are somewhat complex?
In such circumstances, the complete rehearing of the case could be unpalatable for either or both parties. This may be complicated by the challenge in recalling witnesses, especially if they are not employed by the employer. In addition, in the event of an external chairman, it is quite possible that chairman X was paid a handsome fee for his/her services, prior to their incapacitation. The notion of incurring a duplication of fees for an external chair may challenge the most liberal of employers.
So what does one do in these circumstances? At face value, there appears to be two distinct options. Either rehear the case afresh, or appoint a new chairman Y to complete the hearing from mitigation to sanction selection.
Rehearing the case has additional risks. What if chairman Y arrives at a different verdict to chairman X? Yes, the labour dispute resolution channels (CCMA etc) are available to bring the case to a head, but differing verdicts would none the less throw a spanner in the works in all likelihood, especially if chairman X found the employee not guilty and chairman Y found the employee guilty.
Would that entitle the employee to one more hearing (with chairman Z) to make it the best of three?(!)
After pontificating over this for some time, including mulling over it with two chums, a Senior CCMA Commissioner and a respected member of the Bar, we three wise men concluded that in the case of a chairman being required to abandon a lengthy case post guilty verdict and pre-sanction, there is no reason why a new chair cannot be appointed, with certain provisos.
To begin with, the new chairman (Y) should review the disciplinary hearing transcript to assess the merits of the original verdict. If s/he concludes that the guilty verdict seems unjust, the case should be reheard afresh.
If however the newly appointed chairman (Y) concurs with the original guilty verdict of chairman X, the original guilty verdict should be confirmed, and the new chairman (Y) should proceed to hear mitigating and aggravating factors as per normal and select an appropriate sanction in accordance with the normal sanction selection guidelines and principles.
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by Tony Healy | May 23, 2018 | Case Law
The Labour Relations Act (LRA) makes it perfectly clear in section 187(1)(f) that a dismissal is automatically unfair if the reason for the dismissal is “that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including but not limited to … gender, sex (and) sexual orientation”.
Automatically unfair dismissals are the workplace equivalent of a heinous crime; very unfair dismissals if you like. Automatically unfair dismissals are considered to be so deplorable that they have a maximum compensation threshold of twenty four months remuneration versus 12 months compensation for ordinary unfair dismissals.
In Quinton Atkins v Datacentrix (Pty) Ltd [JS02/07], the Labour Court was called upon to review a dismissal by an employer of an employee who had informed the employer that he wanted to undergo a gender re-assignment process (sex change).
After an offer of employment had been made to the employee, which he accepted, he informed his new employer of his sex change plans. The employer was less than pleased with this news, and deemed the employee to have committed an act of gross misconduct in advising the employer of his sex change intentions during his employment interview. The employee was dismissed 24 hours prior to commencing his employment with the Respondent.
More precisely, the employer decided that the employee’s non-disclosure amounted to a repudiation of the employment contract, which it accepted as they no longer required his services.
Fortunately for the employee, he had not resigned from his previous place of work at the time, and therefore continued his employment with that employer.
However, he did refer his dismissal on grounds of his planned sex change to the CCMA and ultimately the Labour Court on grounds that, inter alia, his dismissal was automatically unfair and amounted to unfair discrimination as provided for in the Employment Equity Act.
The Respondent argued that the employee did not divulge that he intended undergoing a gender re-classification process, when he had an opportunity to do so during his interview, and that this omission constituted a serious case of misrepresentation which amounted to dishonesty.
The Court held that the employer had not defended the case on the basis that it had discriminated against the employee fairly, but rather, that the employee had a duty to disclose his intentions to undergo a gender-reclassification process during his interview.
The Court concluded that the only inference that can be drawn from the facts is that the employer would not have employed the employee if he had disclosed his true intentions during the interview process. Continuing, the court held that “There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process.”
The employee was awarded compensation equivalent to five months remuneration as he had seamlessly continued employment with his previous employer.
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by Tony Healy | Apr 23, 2018 | Miscellaneous
Almost a month ago, it was announced that Anglo American Platinum was taking the unprecedented step of suing a trade union (AMCU) for a minimum of R591 million damages for costs associated with protection services overtime, lost production due to non-strikers being prevented from going to work, and damage to property. The case was filed in the Pretoria High Court.
Much has been said and written about this initiative.
Firstly, Amplats is clearly not suing AMCU for the initiation of a protected strike; it is roundly understood that AMCU has met the pre-requisite provisions of the Labour Relations Act, entitling AMCU to proceed on such a protected strike in support of its wage demands.
On the contrary, Amplats has deemed it necessary, and indeed prudent, to seek damages from AMCU for the costs incurred associated with protection services overtime expenses, lost production due to non-strikers being prevented from going to work, and damage to property.
Amplats is perfectly entitled in law to lodge such a claim.
In so doing, it has been surmised in certain quarters, this is merely a bargaining tactic being adopted by Amplats; I think not. An initiative of this nature is of such significance that it is unlikely to have been adopted as a simple negotiating ploy. Besides, Amplats in all likelihood, does not need to resort to a measure of this nature to gain an advantage in the bargaining arena.
Amplats need only continue to reject AMCU wage demands and make compromises as it deems fit, to meet its own bargaining objectives.
My sense is that this initiative on the part of Amplats is a simple, and entirely justified, move to seek legitimate damages for offences allegedly committed by AMCU members, which infringe on the rights of employers, and indeed citizens in general, to the extent that genuine losses are incurred in the course of offences being committed.
Trade unions have, for too long, been immune to the damages inflicted by their members during industrial action.
To draw a comparison, if a passer-by damages one’s motor vehicle or throws a brick through our front window, we may turn a blind eye on the first, or even second, occasion, but when it occurs day in and day out, one has every right to say enough is enough.
Will damages incurred be difficult to prove? Probably. But that doesn’t, and shouldn’t, mean that one need simply “suck it up”.
It’s high time that trade unions fall in line with civilized norms, and ensure that members behave within the bounds of the law.
Picketing rules are frequently ignored, strike marshals are frequently absent or incompetent, strikers committing acts of strike-related misconduct are seldom, if ever, disciplined by unions.
In fact, by and large, striking workers are very often a lawless and thuggish mob.
History tells us that union officials cannot always be relied upon to exercise control over their members during strike activity, and resort to brazen denial of any wrongdoing on cue.
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by Tony Healy | Apr 23, 2018 | Law of Evidence, Miscellaneous
Our firm is frequently asked by clients, whether it is permissible to ‘lay a trap’ for staff suspected of, for example, dishonesty.
Let’s for example, use the example of an employer suspecting that a receiving clerk is a member of a syndicate, which includes the driver of a supplier. In this case, as is indeed unfortunately, quite a common practice, the driver of the supplier and the receiving clerk of the customer, agree that the clerk will sign receipt of a quantity of goods which is higher than the quantity actually delivered; the driver then sells the undelivered goods, and shares the proceeds with the clerk.
This is but one of the many scams performed by syndicates every day, which include willing participant employees in companies across the country.
The crisp question is this; when does a trap placed by an employer become unlawful entrapment?
Entrapment is a somewhat controversial subject, with most decided cases being found in the sphere of criminal law. Key labour judgments do however exist which cast light on the manner in which entrapment cases are to be dealt with in the realm of dismissal law.
The distinction between the approach to entrapment adopted in criminal (lawfulness) and labour (fairness) cases is important.
The Labour Court Judgment in Cape Town City Council v SAMWU & 2 others [C367/98] is considered to have been a landmark Judgment in workplace entrapment cases.
The Judgment refers to the Oxford Dictionary of Law (4th Edition, 1997) as defining ‘entrapment’ to mean “deliberately trapping a person into committing a crime in order to secure their prosecution”. Perhaps most significantly, this points to, in employment terms, an employee being lured into committing an act of misconduct, thereby introducing the concept of ‘inducement’.
Section 252A of the Criminal Procedure Act specifically addresses “traps and undercover operations and the admissibility of evidence so obtained”. The principle factors, paraphrased, are (1) entrapment evidence is admissible if it does not go beyond providing an opportunity to commit misconduct, (2) when considering whether the employer’ conduct goes beyond providing an opportunity to commit misconduct, the prevalence of the misconduct and its seriousness, the availability of other techniques of detection, the degree of persistence and degree of deceit or trickery, will be factors considered.
Further factors which will be assessed are whether, or not, the employer’s conduct included threats, implied or expressed, during the ‘entrapment’ process, and whether there were grounds for reasonable suspicion prior to the trap being set.
In this Judgment, the Court held that “guidelines and parameters no less rigid or strict than those set out in section 252A of the CPA should be applied in the context of the employment relationship”.
This is a rare comparison being drawn between disciplinary procedures and the CPA.
It’s telling that the Judgment does open the door for traps to be set by employers, in specific instances; the Judgment continues “I would be reluctant if not unlikely to hold that a system of trapping (obviously properly constrained) may never be fair in the employment context”.
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