by Tony Healy | Apr 23, 2018 | Discipline & dismissal
Accidents with employees at the wheel of company vehicles do arise from time to time. However, in the Labour Appeal Court case of Edcon Ltd v Pillemer, the CCMA & 1 other (DA4/06), the court had to deal with a circumstance in which an employee’s son had an accident in a company vehicle. The primary issue in question however, was the burden placed on employers to prove an alleged breakdown in trust which warrants dismissal.
It was common cause that the employee knew that within twenty four hours of an accident, she was required to (1) report an accident to the police, (2) obtain a case number, (3) report the accident to her employer and the insurance company and (4) complete and sign an accident claim form. Furthermore, the employee was aware of the fact that in the event of an accident in her company vehicle, no repairs could be undertaken on the vehicle without the approval of the insurance company.
The employee’s husband repaired the vehicle in his panel beating workshop at his own cost. The employee did not report the accident, and initiated the repairs by her husband in the erroneous understanding that her son was not covered by the insurance policy, when in fact he was.
The employer got wind of the accident some six months later. The employee initially denied any knowledge of the accident when confronted by the employer, but subsequently confirmed it to be true. The employee had seventeen years service and was two years away from retirement.
The employee was charged with impacting on the trust relationship by not reporting the accident; she pleaded guilty and was found guilty, after which she was dismissed.
The employee successfully challenged the fairness of her dismissal at the CCMA which found the dismissal to have been substantively unfair as the employer had led no evidence that the employment relationship had broken down. The Labour Court dismissed the employers review of this award.
The Court was required to apply its mind to the employee’s contention that the sanction of dismissal, especially in light of her prevailing mitigating circumstances. It was further argued that there had been inconsistency in the application of the sanction in relation to similar offences in the past. The primary enquiry in the Appeal was however whether the Labour Court was wrong not to interfere with the award of the commissioner (ie: to vary the sanction).
The LAC judgment concluded that the employer had not proved the alleged irreparable breakdown in trust, not attached sufficient importance to the employee’s unblemished seventeen year record and imminent retirement.
The appeal was dismissed.
This case highlights the need for employers to substantiate an alleged irreparable breakdown in trust when raising trust as a factor justifying dismissal, or any other such severe sanction, is argued in aggravation.
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by Tony Healy | Apr 23, 2018 | Discipline & dismissal
Approximately 50% of all arbitrated alleged unfair dismissal cases resulting in it being held that the dismissals were indeed unfair, thereby begging the question – what blocks must be ticked to render a dismissal fair?
The ten requirements for a fair dismissal are:
1. Does the employer having sufficient proof of misconduct? Simply put, an employer is required to be able to prove that the employee is ‘probably’ guilty of the alleged misconduct.
2. The employer must prove the employee can be held blameworthy for, and committed, the act/omission. Employers frequently overlook the fact that it is not merely the alleged act or omission that must be proved. In order for misconduct to be proved, it must be proved that the alleged act or omission occurred, and that the employee can rightfully be held blameworthy for the act or omission alleged. For example, an employee can never be held blameworthy (or guilty) for having contravened a company policy if it cannot be proved that the employee had knowledge of that policy.
3. Are witnesses available and agreeable to testifying, and is other evidence available? An employee can only be found guilty on that proved at the hearing; this may or may not correlate with what the employer knows to be true. Documentary evidence should be handed to the employee prior to the hearing for their perusal.
4. The allegation(s) must be furnished to the employee clearly. The misconduct allegation(s) must be communicated to the employee in a form and language that the employee can reasonable understand.
5. Reasonable prior notice of the hearing. The employee must be afforded reasonable time to prepare for a disciplinary hearing. In practice, no less than 2 working days notice is considered reasonable.
6. Employees have a right to an interpreter and representation. The employer must afford the employee the right to an interpreter when they deem this necessary, and the right to an internal representative.
7. Right to submit a defence and cross-examine. All employees have the right to reply to the allegation(s), and challenge employer evidence, normally by way of cross-examination.
8. Mitigating factors. Employees found guilty have the right to submit factors in mitigation, prior to a sanction being imposed, and the right to have these submissions carefully considered by the chairperson.
9. Appropriate sanction. Sanctions must be appropriate. Put differently, the punishment must fit the crime, taking “the totality of circumstances” into consideration. The Labour Court occasionally refers to this aspect of sanction selection by imploring employers not to select a sanction which makes the court “whistle”.
10. Reason for dismissal & the right to refer to the CCMA or a Bargaining Council. Employees should be provided with the reasons for their dismissal, and informed of their right to refer then dismissal to the CCMA or a Bargaining Council with jurisdiction, within 30 days of the dismissal.
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by Tony Healy | Apr 20, 2018 | Miscellaneous
The hospitality industry is one of the fastest growing sectors in the South African economy. Most of the excess hotel room capacity built in anticipation of the 2010 soccer World Cup has since been absorbed by an impressive growth in tourism, fueled in large part by international visitors.
It’s a sector which employs approximately 700 000 employees, and contributes almost 10% to GDP.
Prospects for the sector remain very positive, after foreign visitor numbers and room revenue per night both increased by in excess of 12% in 2016, in comparison to 2015.
It is an industry further enhanced by the Federated Hospitality Association of South Africa (FEDHASA) which, since its establishment in 1949, continues to be an active representative of hotels, guest houses, restaurants and caterers. So much so, that FEDHASA is recognised by government as the official trade association for the industry. The Tourism Business Council of SA also plays a significant role in lobbying on behalf of the hospitality industry, within the context of its tourism brief.
Last month, Deputy Tourism Minister Elizabeth Thabethe noted that South Africa has 118 869 graded rooms spread across approximately 5 354 establishments in the hospitality sector, adding that South African tourism is “poised for growth”.
It is, however, also an industry with all the ingredients for challenging labour relations. There are a number of reasons for this. To begin with, it’s labour intensive. On the positive side, being labour intensive, it has the capacity to be a significant source of job creation and employment; this is especially significant if one has regard for the fact that the real unemployment rate is in the region of 35%. However, on the flip side, not all job opportunities in the industry are full-time permanent positions.
Outside of peak seasons, it is well-nigh impossible for the industry to forecast, for example, room-occupancy, banqueting and conferencing bookings. It is precisely for this reason that the industry needs job flexibility, and seeks to achieve this by adopting various categories of employment, such as permanent, scheduled and ‘casual’ staff, a model which trade unions typically object to.
However, there are additional employment factors which exacerbate hospitality industry labour relations, such as shift and night work, both of which invariably complicate all sectors which operate such continuous-shift systems.
Whilst the industry is labour intensive, many of the job opportunities are entry-level jobs, with associated entry-level wages. It was for this reason that Government promulgated Wage Determination 14 ten years ago, to make provision, amongst other things, for minimum wages in the industry.
Various such Wage Determinations have been promulgated in recent years relating specifically to industry sectors which are considered to employ vulnerable employees. These other sectors, such as retail and security services, tend to have similar employment characteristics to the hospitality industry, namely many entry-level jobs, and shift work. It is interesting to note that the most recent Wage Determination minimum wage, effective from 1 July 2017, is only fractionally higher than the R3 500.00 per month national minimum wage to be introduced in April 2018.
A further factor increasing the complexity of hospitality industry labour relations is the proliferation of trade unions in the sector. Whilst SACCAWU, and to a lesser extent, HOTELLICA are the dominant trade unions in the sector, our firm has identified a further twenty trade unions also operating in the sector throughout the country. This can, and occasionally does, lead to union rivalry, when identifying majority representation, within single and multiple-bargaining units within each establishment, becomes contested.
Collective Bargaining agenda items in the hospitality sector, by and large mirror the hot-button agenda items in other sectors. These include the quantum of annual wage increases, improved benefits such as employer pension and provident fund contributions, as well as travel and night shift allowances.
There is however one collective bargaining agenda item which is more common in the hospitality sector than all other industry sectors. This relates specifically to how employees are rewarded for the premium wages associated with overtime, Sunday and Public Holiday work. For example, the normal overtime rate of pay is 1.5 times the normal rate of pay. The employer is obligated to pay the employee their full wage for the normal time portion of the overtime hours worked.
However, Sectoral Determination 14, as does the Basic Conditions of Employment Act, makes provision for employers to reach an agreement with employees that the premium for the overtime hours worked (ie: an additional 0.5 hours for each overtime hour worked) may be addressed by crediting the employee with additional leave for this additional premium due, rather than pay the employee cash.
This is a common practice in the hospitality industry for good reason. Given the increasingly inflexible labour market, and ongoing increased regulation in employment models, hospitality industry employers have an opportunity to make some provision for employment flexibility by, in essence, banking the days accumulated by employees in lieu of pay for overtime, Sunday and Public Holiday work, and granting employees this time off work during quiet periods.
By and large, employers reach agreements to proceed on this basis in the employment contracts which employees sign on commencing employment.
Finally, the hospitality industry, at least in the experience of our firm, has the highest incidence of employee theft-related cases than any other industry, when contrasted with other categories of misconduct. Furthermore, our experience is that theft-related misconduct is frequently the single biggest specie of misconduct spawning dismissals in the sector. This obligates the sector to, on an ongoing basis, invest in costly and time-consuming security vigilance and labour disputes.
by Tony Healy | Apr 6, 2018 | Discipline & dismissal
Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees. This also relates to the procedure employers should follow when an employee is arrested or detained by the South African Police Services for a lenghty period, after which they are released or fail to make bail.
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.
It must be remembered that all employees must be afforded an opportunity to make representations to their employer, prior to any dismissal.
In the final analysis, as confirmed in the arbitration award in van Schalkwyk v Swissport South Africa (Pty) Ltd (case number WEGE1008-17), “In light of (case law) should a key employee be incarcerated for a lengthy period the employer should consider either retrenchment or dismissal for incapacity.”
This award also noted that “It was stated in Trident Steel (Pty) Ltd v CCMA and others (2005) ILJ 1519 LC that dismissal for absenteeism while the employee was incarcerated for an offence not related to the workplace was unfair. It was further stated in Maloma v Stemmett NO [2010] ZALAC 7 the employee held a key position as furnace operator and was held in custody for 150 days. He was eventually dismissed. When the employee referred his case to the CCMA the arbitrator found the employee had been unfairly dismissed as the employee had no control over his circumstances. On review the court found that the incarceration of the employee was a factor beyond his control and that he was not the author of his own misfortune.”
So its clear, addressing arrested and incarcerated employees requires employers to proceed with extreme caution. Dismissal is possible, but due process must be followed.
by Tony Healy | Apr 3, 2018 | Miscellaneous
The courts, CCMA and Bargaining Councils are, on occasion, faced with cases which deal with the question of whether, or not, an employee has resigned, and if so, whether the employee was entitled to withdraw his or her resignation.
It can occur that an employee resigns, and thereafter attempts to withdraw the resignation, on grounds that they resigned unthinkingly, or that they have changed their mind, and no longer wish to do so.
This begs the question, may an employee change his or her mind, and if so, is the employer obligated to accept the employee’s change of heart?
To begin with, one must establish whether an employer is required to accept, or reject a resignation, or whether an employer has no obligation to do so? Put differently, does a resignation become effective without acceptance by the employer, or is employer acceptance necessary to confirm the resignation?
In CEPPWAWU v Glass & Aluminium (2002) 23 ILJ 895 (LAC) and NUMSA obo Williams v Southern Shipyard (2003) 12 MENT 1774, the principle that resignation was an offer that gives an employer an election to accept the employee’s resignation, was accepted. However, the most commonly held stance on this issue was upheld in the Labour Court judgment in Uthingo Management (Pty) Ltd v Shear NO & others (2009) JR2007, which held that it is not in fact necessary for an employer to formally accept an employee’s resignation.
The recent CCMA arbitration award in Dr. Lucky Ehimatie Asuelime v University of Zululand (Case number KNRB598-17) reiterated the principle that “resignation is a unilateral decision of the employee which does not require any formal acceptance from the employer”, continuing that “ … if our courts hold a view that the employer must accept and approve the resignation and keep the employee against his will for an indefinite period for whatever reason, that is a bad decision at law and it must be rejected”. This sentiment has been paraphrased on occasion to mean that it would amount to a form of indentured labour if resignations were only ratified by the acceptance of the employer on every occasion.
Another take on this issue is whether an employer can be said to have dismissed an employee, after the employer refuses to accept the retraction of an employee’s resignation? This question was addressed in the arbitration hearing at the Metal and Engineering Industries Bargaining Council of NUMSA obo Kau, Phillip v Scaw Metals (Case number MEGA45988).
In this case, the employee handed his written resignation to the employer; two days prior to submitting his resignation in writing, the employee had sent the employer an SMS stating “I have just tendered my resignation. I hope you receive it as I am experiencing problems with my PC”. Two days after having submitted the employer his written resignation, the employee informed the employer that he was ‘remorseful’ and had decided to retract his resignation.
His retraction was not accepted by the employer. In essence, the employee was arguing that he had resigned “on the spur of a heated moment, and that the employer’s refusal to accept the retraction of his resignation, amounted to an unfair dismissal.
In this case, the Commissioner held that the employer was under no obligation to accept the employee’s retraction of his resignation, and that the refusal to do so did not result in the dismissal of the employee; on the contrary, the employee had simply resigned. The Commissioner emphasised that case law supports the contention that, the test for resignation is that “an employee has to either by words or conduct, evidence a clear and unambiguous intention not to go on with his contract of employment” and that “to resign he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract”.
A further consideration is whether, or not, resignation per, for example an SMS, qualifies as a valid mode of communicating a resignation? This was dealt with in the Labour Court matter of Mafika v SABC Ltd (2010), wherein the employee submitted his resignation per SMS, after which he sought to retract this resignation some weeks later, on grounds including the fact that his SMS did not constitute a valid resignation at it was not in writing.
The court disagreed, citing that a communication by SMS is a communication in writing in terms of section 12 of the Electronic Communications and Transactions Act 25 of 2002.
Our law has evolved to hold that resignation is a unilateral act, which does not require acceptance by the employer, and that once resignation has been communicated by the employee, it cannot be withdrawn without the consent of the employer.
So, what does this mean for employees? Well, it’s quite simple. Employee decisions to resign must be carefully thought through, in the knowledge that a change of mind will, in all likelihood, only be possible with the employer’s agreement.
by Tony Healy | Apr 1, 2018 | Discipline & dismissal
Disciplinary procedures and codes, amongst other things, clarify the validity periods of varying degrees of disciplinary warnings (sometimes referred to as sanctions).
Validity periods vary from company to company; but typically verbal warnings are valid for three months, written warnings for six months, and final written warnings for twelve months.
The principle of progressive warnings is also long established, in the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired, valid warning, the subsequent sanction will be progressively more severe.
All things being equal, warnings are no longer valid after the expiry date, and therefore cannot be referred to as an aggravating factor at a later date.
Put differently, if I am found guilty of late coming today, and a prior final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.
That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction, in certain circumstances; caution must however be exercised.
There is case law which support the fact expired warnings may be taken into consideration in certain circumstances.
The Labour Appeal Court case of NUM obo Selemela v Northam Platinum Ltd [JA25.11] held that “ … even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so she committed an irregularity”.
The judgment more especially noted that “Indeed, the employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings”.
This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others [DA7/04] which held that “It must also be recalled that there was in existence a written warning dating from March the previous year with a twelve month duration. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. The employer is always entitled to take into account the cumulative effect of these acts (of misconduct) … to hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings”.
This suggests that warnings should be retained once they have expired.
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by Tony Healy | Mar 23, 2018 | Unfair Labour Practices
The changing of an employee’s job content is frequently a highly sensitive and troublesome process which often has the potential to spawn individual labour disputes, and at times, collective conflict. It is not uncommon for employers to hear the refrain, “ .. but that’s not in my job description !” or “I’m the TEA lady, make your own COFFEE!”.
Quite clearly, employers are not entitled to fundamentally unilaterally change or vary an employee’s work obligations in a manner which imposes obligations on an employee for which they are not trained or qualified, or perhaps may move them into a higher job evaluation grade without a commensurate increase in remuneration.
However, the dynamic nature of the present-day workplace is such that very few jobs remain static in content.
Job content invariably evolves as organisations grow and vary strategies to maintain a competitive advantage in the market place. The conundrum faced by employers and employees relates to the point at which a change to job content, particularly when it takes the form of additional tasks and duties to be performed, amounts to a unilateral (and therefore ‘unfair’) change in an employee’s terms and conditions of employment. In the event that an employer were to be deemed to have unilaterally changed terms and conditions of employment, the remedy sought would ordinarily include additional compensation or a restoration of the status quo prior to the change.
So, to what extent can employers vary job content without running the risk of being subjected to section 64(4) of the Labour Relations Act?
In SA Chemical Workers Union obo Mhlongo v. Silicon Technology (Pty) Ltd [Case No.KN6500-02] the commissioner drew an important distinction in the arbitration award between ‘terms and conditions of employment’ and ‘work practices’. “Terms and conditions of employment” were defined as “the core rights and duties of employees under their employment contracts”, whilst ‘work practices’ were defined as to the manner “the contracted work is to be done”.
Of particular significance in the award was the point made by the commissioner that “The practical significance of the distinction between ‘terms and conditions of employment’ and ‘work practices’ is that it is now widely recognised that changes to work practices can be introduced unilaterally without prior negotiation – they fall within the management prerogative”.
However, the commissioner conceded that it may be difficult to distinguish between the two categories at times, and that it would be prudent in such circumstances to treat such changes “as subjects for negotiation with the aim of reaching consensus, if possible.”
In conclusion, the commissioner referred to the matter of A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC) in which the court observed that “employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work”.
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by Tony Healy | Mar 23, 2018 | Unfair Labour Practices
Prolonged employee absenteeism due to ill health presents employers with a conundrum as lengthy or habitual absenteeism impacts on productivity. One thing is certain, employers may not simply dismiss employees who are absent for a lengthy period, or have a pattern of habitual absenteeism. Our courts have developed an empathetic approach to employees suffering from ill health. On the other hand, it is understood that employer’s interests are similarly legitimate and employers cannot be required to preserve the employment of long-absent employees indefinitely ad infinitum.
Schedule 8 of the LRA makes it quite clear that prior to taking any steps against an employee absent on grounds of ill-health the employer must conduct an investigation into nature and extent of the employee’s illness, and whether the resultant absenteeism expected to be prolonged or not. In addition, the employer must seek to establish whether the employee’s job can be adapted to accommodate the employee’s condition.
That’s not to say of course that employees themselves don’t have a duty to communicate with their employers in such circumstances as they clearly do; but our law, rightfully, contemplates circumstances where the employee’s illness may render him or her incapable of communicating at all or lucidly (such as cases of extreme trauma or mental illness).
Investigations of this nature ordinarily include contact with the employee if possible, medical staff and family.
This would address the so-called substantive fairness aspect of any subsequent dismissal, and would include the employee being warned that their ongoing employment relationship with the employer is in jeopardy.
From a procedural fairness perspective, the employee must also be afforded an opportunity to make representations to the employer prior to any dismissal decision being finalised, ensuring that any decision to dismiss is not made hastily.
Employers would differ in their ability to condone ill health absenteeism as well as their ability to seek alternative positions for the employee or adapt their duties. For example, a municipality employing many thousands of employees would be expected to be more capable of doing so than a small or medium sized enterprise.
In NEHAWU & another v SA Institute for Medical Research [1997] 2 BLLR 146 (IC) the employee had taken 475 days sick leave during her six years of employment prior to being dismissed on grounds of absenteeism due to her ill health. It was held that the dismissal of the employee was fair as the employer had consulted with her on three occasions, warning her each time that continued absences would jeopardise her employment.
In the final analysis, a methodical investigation by the employer into the nature and extent employee’s illness, followed by a hearing to assess whether the employee is capable of returning to work timeously is required. Add to this an exploration of alternative positions or altered duties, if possible, and a hearing to assess each of these aspects of the case. Dismissal may then be justified albeit reluctantly given the employee’s predicament.
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by Tony Healy | Mar 23, 2018 | Training
Regardless of the raft of imminent labour law amendments and the introduction of yet further regulation in workplace law, one thing will remain constant. Discipline and dismissal will continue to account for in excess of all labour disputes country-wide. This should come as no surprise.
Ask any supervisor or line manager how which aspect of shop floor labour relations has the greatest impact on them day-to-day; the answer is uniformly ‘disciplinary action’. Yes, trade union management can be time-consuming and prickly, and unfair labour practice cases rear their head from time to time. But it’s the management of discipline at work which typically makes demands of supervisors and management, when it comes to workplace labour relations.
Indeed, in excess of 80% of all labour disputes account for alleged unfair dismissal claims alone.
That said, it follows that when contemplating, or more importantly, prioritising, line management training, special attention should be paid to the conducting of disciplinary hearings and the general management of workplace discipline and employee performance.
Employers continue to lose almost 50% of all unfair dismissal arbitration hearing cases. SETA accredited discipline training goes a long way to reducing discipline and dismissal risk, and significantly increases the prospects of a dismissal being upheld at the arbitration hearing stage.
Discipline training is targeted at all line managers and supervisors who are tasked with the responsibility of ensuring workplace discipline to ensure a safe and orderly working environment.
SETA accredited training ensures that discipline training material, content and incorporated practical exercises, meet strict quality requirements.
SETA disciplinary hearing accreditation is a rigorous process which accredits successful training providers as a Provider of Education & Training for disciplinary hearing training. A sound Quality Management System is a pre-requisite for SETA accreditation, to ensure that the training material and methodology meets stringent quality requirements.
SAQA unit standard number 10985 (NQF Level 5) is the specifically designated Unit Standard for the Conducting Disciplinary Hearings SETA accredited training programme.
The specified learning outcomes in the SETA accredited discipline workshop include (1) Conduct and manage a hearing, (2) Procedural fairness, (3) Handling non-dismissible offences, (4) Understanding the employer’s burden of proof, (5) Summarising of evidence and (6) Sanction selection.
Course content includes (1) what is misconduct and how is it proved?, (2) What procedures must be followed in a disciplinary hearing?, (3) What are an employee’s rights in a disciplinary hearing?, (4) What are an employer’s rights in a disciplinary hearing?, (5) What role does mitigation play in a disciplinary hearing?, (6) How should a sanction be selected which will meet the requirements of fairness and withstand scrutiny at an arbitration hearing?. Material also includes time-keeping and attendance offences.
SETA accredited discipline workshops also include role-plays to enable delegates to practice the skills acquired, as well as case studies, self-tests and practical exercises to assess and ensure the transfer of knowledge to delegates.
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by Tony Healy | Mar 23, 2018 | Miscellaneous
The CCMA, on occasion, has been required to determine when an employment relationship has actually commenced.
For some time there has been little clarity on whether employment commences on date of signature of an employment contract or offer of employment, or indeed only when the person actually commences employment. This issue was clarified in a Labour Appeal Court Judgment in the matter of Wyeth SA (Pty) Ltd v Manqele & others [JA50/03].
The key factors of this case were as follows. An offer of employment was made per an employment contract which was accepted and signed by the successful appointee. However, prior to commencing employment on the due date to do so, the employer deemed the appointee to have acted dishonestly in relation to the purchasing of a vehicle, being part of his remuneration. As a consequence thereof, the employer terminated the contract of employment with the employee prior to him starting employment on the due date. Notwithstanding this termination the employee reported for duty at which time he was advised that he should go home as he would not be employed by the employer.
The employee deemed this to be an unfair dismissal. The matter was ultimately heard at arbitration where the employer argued, inter alia, that the CCMA had no jurisdiction as the employment relationship had not come into existence at the time of the termination of the employment contract. The commissioner held otherwise in ruling that the person in question became an employee “the moment he accepted an offer of employment”.
The employee took this on review to the Labour Court who upheld the Commissioner’s ruling on grounds that the person in question was a party to a valid and binding contract of employment and was therefore an ‘employee’ as contemplated in the LRA.
The LAC held that it is entitled to extend the definition of ‘employee’ to include “a person who has concluded a contract of employment which is to commence at a future date”. The LAC judgment later draws comparison with the legal position of unborn children who, in law, are endowed with legal rights “by way of a fiction”.
The Court furthermore, quite rightly, referred to section 213 of the LRA which furnishes a definition of ‘employee’ which includes “is entitled to receive any remuneration”; it follows that a person who has signed an employment contract to commence employment at a future date is indeed entitled to receive remuneration, albeit at a later date.
Simply put, this case highlights that a person becomes an employee as early as the date on which they sign an offer of employment, notwithstanding that this may pre-date the actual date on which the person commences their duties in terms of such acceptance. It follows therefore that any dismissal from date of signature ought to comply with the pre-dismissal procedures of the LRA and be substantively fair.
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