by Site Admin | Mar 2, 2020 | Trade Unions
Section 96 of the Labour Relations Act outlines the steps to be followed when a trade union or employer’s organisation wishes to register with the Department of Labour. This process is relatively straightforward and includes the completion of a prescribed form, the submission of, for example, the trade union’s Constitution, and “any other information that may assist the registrar to determine whether or not the trade union or employer’s organisation meets the requirements for registration”. Once registered, there are various ongoing requirements to remain registered, including the keeping of accounting records and the conducting of annual audits. In addition, unions have a duty to keep certain records, including a list of all its members, the minutes of meetings as well as ballot papers, for a period of three years from the date of every ballot.
Provision is made in Section 101 of the Labour Relations Act for the changing of a trade union’s Constitution or its name. This again is a relatively simple process, and may include circumstances in which the trade union wishes to change or replace its Constitution.
One of the key components of any trade union’s Constitution is a description of its scope. A trade union’s scope describes, in simple terms, the industries in which the trade union seeks to operate, and this is typically listed in an annexure to a trade unions constitution. It follows that when a trade union drafts a Constitution that specifies the industries and sectors in which its scope of operations is to operate, it is obligated to limit its activities to those specific sectors and industries, and not stray into other, non-specified sectors.
One would expect a trade union, and indeed and employer’s organisation for that matter, to stay in its lane when it comes to conducting its day to day activities in the industries and sectors which it identifies as its jurisdiction, in its Constitution. For example, trade union registered to be active in the hairdressing industry should not seek to represent members in the mining industry.
The fact of the matter is however, that quite frequently, trade unions operate in industries and sectors outside the list of industries and sectors listed as their scope in their Constitution.
This very issue was addressed in a Labour Appeal Court judgment handed down in mid-2019 in the case of Lufil Packaging (Isithebe) (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & 2 Others (Case number DA8/2018).
In this case, it was held that “a trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so, they act in excess of their powers and the act has no validity”. A purported decision by a union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision which is immune from attack by an affected employer. Such a decision is ultra vires and invalid and as such, susceptible to challenge by the employer from whom organisational rights, based on the membership concerned, is sought.
So, what we saw in this case was the employer challenging the union’s scope in that it was successfully argued by them that the printing and packaging sector in which it operates does not form part of the union’s scope.
NUMSA (National Union of Metalworkers of South Africa) approached the employer “asking it to provide stop-orders for the deduction of union fees for its (alleged) members who were employees” of the employer. The employer refused to recognise NUMSA by virtue of the fact that NUMSA had registered scope (“metal and related industries), specified in its constitution, which fell outside of the employer’s scope of business. More specifically, the employer operated in the printing and packaging sector, not in metal and related industries.
The Lufil Labour Appeal court judgment held that “trade unions at common law have only those powers and capacities that are conferred on them by their constitutions. The LRA required unions to determine in their constitutions which employees are eligible to join them and by necessary implication precludes them from admitting as members employees who are not eligible to be admitted in terms of the trade union’s registered constitution. If it is shown that the persons concerned are precluded by the union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires the union’s constitution and invalid”.
For this reason, it was held that “the employees on which (NUMSA) relied in alleging it was sufficiently representative could not be and thus were not, in law members of NUMSA, as they did not fall within the scope of the union in terms of NUMSA’s constitution”. Put differently, Lufil operated in the printing and packaging sector, not the metal and related industries sector.
by Site Admin | Feb 20, 2020 | Discipline & dismissal
A recent 13 February 2020 Labour Appeal Court judgment in Autozone v Dispute Resolution Centre of Motor Industry & 2 others (Case number JA52/2015), it was confirmed that the attempted theft of R30.00 by an employee, does indeed amount to misconduct if such a severe nature as to conclude that the trust relationship is thereby broken beyond repair, justifying the dismissal of the employee.
This is not the only judgment which confirms that dishonesty involving relatively small sums of money, or items of relatively small monetary value still, frequently justify dismissal.
Over time, there has been much debate about whether, or not, the value of money or good stolen by an employee, has any bearing on the sanction to be imposed.
The Autozone Labour Appeal Court judgment, by and large, reinforces the judgment in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at para 16 – 17, where the judge found that in relation to the consumption of one 250 ml bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”.
A similar approach was adopted in the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 at paras 38 – 41 where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”
The Autozone Labour Appeal Court judgment addressed the same issue, and the rights of employers faced with employees who display “a stratagem of dishonesty or deceit”.
The facts of the case were quite simple. The employee in question had been employed by the employer as a driver for approximately six and a half years. On a given day, he was instructed to employ casual labour to “clean up waste and rubble at the of the store”. The employee then did so, after which the Regional Operations Manager, in the presence of the employee, informed the three casual labourers that they would each be paid R50.00 for the task. Once the task was completed, the Regional Operations Manager, in the presence of the Branch Manager of the store, instructed the employee to obtain R150.00 from the cashier to pay the three casual labourers.
However, the employee approached the cashier and requested R180.00, not R150.00. The three casual labourers were unhappy with only receiving R50.00 each for the task and approached the Branch Manager to complain of this.
The Branch Manager then confronted the employee, and asked him why he had requested R180.00 from the cashier, but only paid R150.00 over to the casual labourers. The employee then took the remaining R30.00 out of his pocket, “but did not provide an explanation at that point”. He later explained that “he had acted on his own initiative” to withhold the additional R30.00, until the work was complete; according to the employee, two “things” had apparently not been emptied to his satisfaction. The three casual labourers were then given the additional R10.00 each by the employee.
The employer dismissed the employee, after convening a disciplinary hearing. At arbitration, the CCMA upheld the fairness of the dismissal. However, on review, the Labour Court held that “there is no evidence that shows that the conduct for which the employee was found guilty of impacted on the relationship of trust between the parties”, and that “because there was no proof that the trust relationship between the parties had broken down”, the dismissal was substantively unfair, and the employee was reinstated on review, with a written warning.
The Labour Appeal Court disagreed, and quite rightly held that “Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee”.
And perhaps most tellingly, the judgment continued that “the operational requirements of the employer alone, therefore, may very well justify dismissal … the nature of the offence and the manner of its commission support a conclusion that the continuation of the (employment) relationship had become intolerable”.
The employer appeal was upheld, and the dismissal of the employee was declared substantively fair.
by Site Admin | Feb 13, 2020 | Miscellaneous
Make no mistake, whilst dismissals on grounds of ill health can be fair in our law, as with all cases of dismissal, there are very specific procedures to be followed. What makes these kinds of cases all the more challenging, is that there is no fault on the part of the employee; they are simply, and most unfortunately, the victims of ill health over which they have no control.
Be that is it may, our law deals with precisely these scenarios. When considering the fairness of a dismissal on grounds of ill health, our courts, the CCMA, and Bargaining Councils, must “consider the provisions of Items 10-11 of the Code of Good Practice: Dismissal, which are binding on all commissioners as dictated by the provisions of section 188 (2) of the Labour Relations Act”, as noted in the Labour Court judgment in National Bargaining Council for the Road Freight Logistics Industry v the CCMA 7 2 others Case number 875/15.
When reading items ten and eleven of the Code, you will find an explanation of how employees should be treated in cases of temporary and permanent ill health or injury. They are precisely the steps any one of us would want our employer to follow if we were the employee afflicted with ill health or injury.
For example, “the employer should investigate the extent of the incapacity or the injury”; “the employer should investigate all the possible alternatives short of dismissal”; “the possibility of securing a temporary replacement for the ill or injured employee” and in cases of permanent incapacity “the employer should ascertain the possibility of securing alternative employment, or adapting the duties or wok circumstances of the employee to accommodate the employee’s disability”.
The schedule goes onto say that “Any person determining whether a dismissal arising from ill health or injury is unfair, should consider (1) whether or not, the employee is capable of performing the work; and (2) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this I not possible, the extent to which the employee’s duties might be adapted; and, (3) the availability of any suitable alternative work”.
In our experience of such cases over many years, when the incapacity (ill health or injury) is first identified, the cards are, quite understandably, stacked in favour of the employee. The employer must show reasonable accommodation, investigate the incapacity, and monitor the situation.
As time goes by however, the pendulum swings towards the interests of the employer, which are, after all, also legitimate. It should come as no surprise that ill health can be of both a physical and mental health, nature.
In “ IMATU obo Strydom v Witzenburg Municipality & others (Labour Appeal Court: 2012) 7 BLLR 660, it was noted in the judgment that “My reading of item 10 and 11 gives me the impression that an incapacity enquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the enquiry or in any suitable alternative position. I am of the view that the conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there, the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity, or adapt the employee’s duties, or provide him with alternative work if same is available.
I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognised as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal”.
Finally, in short, extra special attention should be given to employees injured at work, as evident in item 10(4) of the Schedule, which informs us that “particular consideration should be given to employees who are injured at work, or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
by Site Admin | Feb 4, 2020 | Case Law
Many employers have experience of strike action, protected or otherwise, which results in unacceptable striker behaviour, such as intimidation and malicious damage to property. The employer then trundles off to the Labour court to obtain an interdict to restrain the strikers and, on occasion, their picketing rights.
One question which arises, is whether, or not, an employer is entitled to discipline, and ultimately dismiss, a striker for apparently acting in breach of the Court interdict? This precise question was answered in a 21 January 2020 Labour Court judgment in Panorama Park Retirement Village v Commission for Conciliation Mediation & Arbitration & 1 other (Case number JR2472/2015).
At the outset, the judgment informs us that “The question that arises in this review application is whether it is substantively fair to dismiss an employee on allegations of being in contempt of a Court order”.
The background to this case was one which many employers will be familiar with. The union embarked on a protected strike, after which the parties agreed picketing rules at the CCMA. As is all too common, the strikers misbehaved, and the employer approached the Labour Court and obtained an interim Order “Interdicting and restraining the first Respondent as union and the second to 49th Respondents from striking and/or picketing closer than 100 meters from each side, left or right, and within fifty meters in front of each entrance of the entrances (Green and Reg gates) in Best street, Klerksdorp to the Applicant’s property”. Except it did not have the desired effect.
However, management observed one of the strikers who, at approximately 4pm, after the interdict had been obtained “cycling from town on his way home in Best Street close to the Employer’s premises in contravention of the terms of the Court order”.
The employer was of the opinion that it had the authority to discipline the striker in question, for his contravention of the Court Order interdicting the strikers from picketing within one hundred meters of the entrances of the employer’s premises. The employee had also allegedly come across, and spoken with, two replacement workers.
The employer then initiated a disciplinary process, charging the employee with “Contempt of Court: On Thursday 23rd July 2015 at approximately 16h00 you were observed by the assistant manager of Panorama Aftree Dorp, riding up and down Best Street, Oudorp, passing the Red gate, which is one of the entrances to Panorama Park Aftree Dorp. Your actions … is contravention of the ruling of the honourable Justice Whitcher’s Court order on 2nd July 2015, Case No. J1309/15, paragraphs 2.2 and 2.3, in that you harassed and threatened replacement labour and striking closer than 100 meters from each side left or right and within fifty meters in front of each gate of the entrances (Green and red gates)…. Your behaviour amounts to contempt of a Labour Court order”.
Once the disciplinary hearing, the employer abandoned the charges related to allegations of intimidation and threatening violence, and only focused on the contempt of Court misconduct allegation. The employee was found guilty and dismissed.
Unsurprisingly, he appealed the fairness of his dismissal at the CCMA. The Commissioner held that the dismissal of the employee was unfair, noting that “(1) Only the Courts were empowered to determine whether there was contempt of its orders and if so, what sanction to impose. A court order however could not be said to be an instruction issued by an employer and that disobedience of a court order cannot amount to insubordination within the employment context. (2) The Employer failed to prove on a balance of probabilities that a workplace rule existed in respect of which it had the power to discipline and dismiss the Employee. In the absence of such a rule related to contempt of court, it could not be said that the Employee was guilty of a breach of a rule. (3) Even if such a rule existed, it could not be said that the Employee had breached that rule since the Court order did not restrain or prohibit employees from being in the area when they were not picketing and on strike. The Employee as observed in the area was not ‘striking or picketing’, but was on his way home from town, which was his usual route. He had stopped to speak to the two other employees at the end of their shift, and there was nothing wrong with what he did”.
The Labour Court agreed – “The Commissioner in this case had regard to the essence of the charge of contempt of Court and correctly concluded that it is only the Court that could pronounce on whether there was contempt of its orders or not”.
by Site Admin | Jan 24, 2020 | Case Law
Strong suspicion that an employee has committed misconduct, is a persuasive thing. So persuasive, in fact, that employers are frequently lulled into concluding that the suspicion is so compelling, that it proves employee guilt, of misconduct. Nothing could be further from the truth.
The fact of the matter is that alleged misconduct must be provable, with evidence, which proves that the employee is guilty /on a balance of probabilities’. In simple terms, this means that the employer must lead enough evidence to prove that the probabilities that the employee is guilty, are greater than the probabilities that the employee is not guilty. Put differently, proving guilt in disciplinary hearings requires employers to have proof that the employee probably committed a blameworthy act, or on occasion, omitted to act in circumstances where the omission to act can be held to be blameworthy.
Proof of suspicion fails to meet this requirement, and our courts have been quick to confirm this, as was the case as far back as 1988 when, in Moahlodi v East Rand Gold & Uranium Co Ltd (Industrial Court: 1988), it was held that “mere suspicion does not satisfy the test of proof on a balance of probabilities”.
The landmark, and most often quoted case law on this subject is the Labour Appeal Court judgment in Mbanjwaand Senzeni v Shoprite Checkers (Pty) Ltd & 2 others (Case number DA4/11). The case involved an allegation that the employee had attempted to under-ring items being purchased by a customer who appeared to be an accomplice of the employee”.
To begin with, a key employer witness acknowledged, under dross-examination, that “the whole case against the appellant was based on her suspicion in relation to what she had seen the appellant doing”, continuing that “Without the contravention of any rule and without any reprehensible conduct by Senzeni on 27 April and 28 April 2006, we are left with Vino’s substance of her suspicion on which she subjectively concluded that Senzeni attempted to under-ring the items brought to her till by Lindiwe”.
The judgment critically further noted that “It is my opinion that whereas, there might have been grounds to suspect Lindiwe’s conduct on 28 April 2006, but to suspect that Senzeni was implicated in the attempt to under-ring the respondent’s items was based on Vino’s figment of imagination”
In analysing and evaluating the evidence led, the Labour Appeal Court held that “It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question”.
The Labour Appeal court judgment in Dion Discount Centres v Rantlo (LAC: 1995) was quoted as having held that “It was argued by appellant’s counsel with reference to Moletsane v Ascot Diamonds (Pty) Ltd (1993) 6 LLC 15 (IC) and EATWCSA v The Productions Casting Co (Pty) Ltd (1988) 9 ILJ 702 (IC) that the termination of respondent’s employment was fair as there was a strong suspicion that respondent had participated in the 4 transactions. The presiding officer in the Moletsane matter relied on the judgment in EATWCSA v The Production Casting Co (Pty) Ltd as authority for the finding that ‘it was not unfair for the respondent to dismiss the applicant in the particular circumstances of this case on a strong suspicion of diamond swopping’. I do not find support for this view in the latter judgment. The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship”.
Perhaps the most damning crushing remark made by the judge in the Shoprite Checkers case was that “The high-water mark in this case is nothing but mere suspicion on the part of Pillay that the appellant committed the misconduct charged. There was simply no shred of evidence to buttress or lend any credence to the allegation of the misconduct. It is beyond my comprehension why the appellant was charged for misconduct at all”.
So, there you have it. Employers rely in suspicion alone, to prove guilt in misconduct cases, at their peril.
by Site Admin | Jan 14, 2020 | Case Law
Sections 193(1) and (2) of the Labour Relations Act, lists a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings. Retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal. On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.
Sections 193(1) and (2) of the Labour Relations Act reads that “Remedies for unfair dismissal and unfair labour practice. – (1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may – (a) order the employer to re-instate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless—(a) the employee does not wish to be re-instated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure”.
However, not every employee who is held to have been substantively unfairly dismissed, is granted retrospective reinstatement, even though that is precisely the remedy they sought.
We know that section 193(2) leaves little dispute that retrospective reinstatement ‘must’ be applied in cases of substantively unfair dismissal, yet exceptions are none the less made for cases in which the unfairly dismissed employee themselves do not seek reinstatement, or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee”
In the recent Labour Court judgment in Sinenhlanhla Precious Mthetwa v the CCMA & 2 others (Case number JR1806/18), the Acting Judge was required to pass judgement on whether an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed, and when the employee sought reinstatement.
The employee had pleaded guilty at a disciplinary hearing, to various allegations of serious misconduct, including assault, intimidation and harassment. She was the dismissed. She the challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have procedurally and substantively unfair.
After having that she sought the remedy of compensation in the pre-arbitration minutes, she altered her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.
When all was said and done, the Commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she sought. The employee then took the judgment on review to the Labour Court, arguing that the Commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the Applicant sought ..”.
Not so, said the Judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the Commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision-maker could not have arrived at”.
So why did the Commissioner and the Judge conclude that the primary remedy of retrospective reinstatement should not apply in this case? Various reasons were articulated. To begin with, the employee was already on a final warning for misconduct, and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.
The Commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion which the Judge noted “is not explained”.
Be that as it may, this judgment aligns with prior case law which gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement, in cases of substantively unfair dismissals.
by Site Admin | Jan 9, 2020 | Miscellaneous
Our labour courts still frequently hear cases in which employers have prematurely retired employees. In the main, this has to do with employers either retiring employees prior to the correct normal retirement date, or imposing a retirement age when none otherwise exists.
This emphasises the importance of employers ensuring that they have a prescribed, normal retirement age. Provision for a company prescribed normal retirement age is most often found in the contract of employment, which confirms, for example, that an employee will retire when he, or she, reaches the age of sixty-five.
Section 187(2)(b) of the Labour Relations Act confirms 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”.
This must be contrasted with section 187(1)(f) which provides 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 …. age”.
However, many employers do not make confirm their applicable normal retirement age anywhere what so ever. It’s not confirmed in any contracts of employment, and there is no policy on the company retirement age. If this is so, clues need to be sought on what the applicable retirement age is. From time to time, the clue can be found in the rules of a benefit fund, such as a pension or provident fund. This was the case is the recent Labour Court matter in NTM obo Israel Mothapo v Interwaste (Pty) Ltd [Case number J791/16] in a judgment passed on 13 November 2019.
In this case, the employer had retired the employee two and a half months after he had reached the age of sixty. He was the offered a 12-month fixed-term contract of employment. The employee objected to this, claiming that this was a “forced retirement”, as his benefit statement confirmed his normal retirement date was recorded as being 30 June 2020, when he would turn sixty-five.
The employer replied that the “retirement age is 60 as per the normal practice in our business… While the benefit statement makes provision for retired at 65, it does not (and cannot) enforce the company to retire its employees at that age – it is a company prerogative”. The employer’s representative argued that the employer’s reliance was placed on the norm as opposed to an agreement.
The Labour Court was underwhelmed by this argument, holding that “As pointed out, the respondent relies on the norm and not an agreement. The LAC in Rubin Sportswear v SACTWU and Others4 made it clear that an employer may not just wake up and say a particular age is a norm. The Court specifically stated the following: “A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period – so long that it can be said that the norm for employees in that workplace or for employees in a particular category is to retire at a particular age. An example would be where, without any formal agreement, employees in a particular category have over 20 years been retiring at a particular age without fail. The period must be sufficiently long and the number of the employees in the particular category who have retired at that age must be sufficiently large to justify that it is a norm for employees in that category to retire at that age. If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. And if the period is very long but the number of employees in the particular category who have retired at that age is not large enough, it might be difficult to prove that a norm has been established.”
The judgment went on to bluntly note that “It is apparent to me that this defence of 60 years being a norm is nothing but an afterthought”.
In this case, it was ultimately held in the judgment that “Accordingly, this Court is not satisfied that the respondent succeeded in showing that 60 years is a normal retirement age. On the probabilities, account taken of the benefit statement, the agreed retirement age between the applicant and the respondent is age 65. It being common cause that the applicant had not reached the agreed age at the time of termination, his dismissal is automatically unfair”.
The employee was awarded twenty-four months’ remuneration in compensation.
by Site Admin | Nov 25, 2019 | Miscellaneous
The 2005 Amended Code of sexual harassment talks of “…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: 4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; 4.2 whether the sexual conduct was unwelcome; 4.3 the nature and extent of the sexual conduct; and 4.4, the impact of the sexual conduct on the employee.”
But what if an allegation of sexual harassment is false? In such circumstances, is an employer entitled to take disciplinary action against the apparent wrongful accuser?
In the Labour Court judgment in the case of NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee had been found guilty and dismissed for “falsely and/or maliciously accused (her manager) of sexual harassment” during a disciplinary hearing which she did not participate in. At the CCMA arbitration hearing, her dismissal was held to have been procedurally and substantively fair. She took this finding on review to the Labour Court.
The back ground to this case was that the employee had been charged with three acts of alleged misconduct. It was however the third allegation that stood out. It was namely “failing to comply with the (employer’s) conditions of service, procedures and directives in that on 24 February 2014 (you) had falsely and/or maliciously accused (her manager) of sexual harassment”.
Her version was that “On 24 February 2014 (she) went to see (her manager) about her request for a car allowance which had not been finalised. She alleges that at that meeting he had told her that if she slept with him he would grant the car allowance. (her manager) denies such discussion. The following day she lodged a grievance in that regard demanding a written apology. The first grievance hearing found the complaint unproved”.
The employer’s first witness testified that “some time before the incident of 24 February 2014 the Applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager). (Her manager) gave evidence about the events of 24 February 2014 and his demand that the matter be further investigated thereafter”.
It was submitted that the employer “took allegations of sexual harassment very seriously and once it had been found that the allegations were without proof it was harmful to an ongoing employment relationship. Essentially, the Applicant was found to have falsely laid a complaint of sexual harassment. Such conduct is detrimental to any ongoing employment relationship”.
For various reasons highlighted in the judgment, the Labour Court upheld the dismissal of the employee on grounds that she had falsely and maliciously accused the manager of sexual harassment.
Whilst there were various allegations of procedural unfairness, none of them were held to have been so serious as to have prejudiced the employee.
Whilst employers are duty bound to robustly investigate and address allegations of sexual harassment, and indeed any form of harassment, it is equally arguable that false and malicious allegations of sexual harassment equally warrant thorough investigation.
It is precisely for this reason that employers should sensitise all employees on the nature and implications of sexual harassment, to ensure that cases of this nature are kept to a minimum.
by Site Admin | Nov 15, 2019 | Case Law
In the Labour Court case of EOH Abantu v (Pty) Ltd [Case No. JA4/18], the employee had been found guilty of a charge that was not specified in the employer’s charge sheet. In short, the employee had been found guilty of gross negligence, when gross negligence was not specifically included in the charge sheet. On the contrary, the charge sheet included allegations of, amongst other things, dishonesty, theft and fraud. The employee was the dismissed.
What makes this case particularly interesting is the fact that he employee was found guilty of, and dismissed, for misconduct which did not appear anywhere on his charge sheet. Put differently, the employee “was found to have committed the offences although it was not established that he had acted intentionally”.
The employee lodged an unfair dismissal claim at the CCMA. At the arbitration, the Commissioner held that the employee’s dismissal was substantively unfair, as the employee “had been found guilty of the offence of gross negligence with which he had not been charged”.
The arbitration award continued that “It is common cause that the chairperson of the disciplinary enquiry could not find any dishonesty on the (employee’s) part but instead he found the (employee’s) actions grossly negligent” and “I find that the (employer) is bound by the choices it made at the time of charging the (employee)”.
The employer took the arbitration award on review at the Labour Court, and lost. The Labour Court upheld “the arbitrator had correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged. That is why the dismissal was unfair”.
As also held by the Labour Court, the employee was charged with dishonesty, “that is the case he went to meet and that is the case that the employer could not prove”.
On appeal, the Labour Appeal Court had an entirely different view on this issue, in essence posing the question – had the Commissioner acted unreasonably “in concluding that a finding of negligence was not a competent verdict under the charge”?
In its judgment, the Labour Appeal court acknowledged that “it is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation … however by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance”.
This view was further supported in the judgment which further held that “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unathorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed”.
This is an entirely sensible judgment, and essentially deals with circumstances in which the alleged act of misconduct is proved on a balance of probabilities, but the employer mistakenly attributes blameworthiness to intent, rather than negligence.
The judgment went further to add that “ .. the is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced.
Make no mistake, care must be taken when drafting allegations of misconduct in disciplinary cases.
by Site Admin | Nov 1, 2019 | Case Law
CCMA and Bargaining Council Commissioners must conduct arbitration impartially, and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct.
This is precisely what occurred in the recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others [Case no: JR135/16]. As noted in the judgment, “The main grounds for this review is that it is contended that the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
It was further contended by the applicant that “the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
In supporting these assertions, it was further argued that “In support of these grounds, (the applicant contended) that the Commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the Commissioner’s interventions were such that he failed to afford the parties a fair hearing, and that his conduct gave rise to a reasonable apprehension of bias.”
Apprehensions of bias occur frequently at the CCMA and bargaining Councils. Let’s face it, in every arbitration hearing there is a winner and a loser; the losers can be prone to blaming a one-eyed Commissioner for the loss, rather than facing up to the fact that they may have simply lost on the merits, or demerits, of their case.
The judgment noted that “in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and others as follows, ‘What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity. …” [2014 (35) ILJ 1528 (LC).
So, had the Commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”? Not so held the Court.
On the contrary, it was held that “The Commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.”
“(The applicant) had the onus to show that the Commissioner acted mala fide and in breach of his duties so as to afford City of JHB an unfair advantage. She failed to do.”
The judgment continued that “I believe that the Commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.
