by Tony Healy | Jul 9, 2019 | Discipline & dismissal
Our courts have rendered contradictory judgments regarding whether, or not, employers are allowed to schedule disciplinary hearings after an employee has resigned. In the Public sector, due to a prevailing collective agreement, the position is quite clear, an employee may resign at any time prior to a disciplinary hearing being finalised, at which time the disciplinary hearing stops. This enables, wrongly in our view, employees to avoid possible sanction for misconduct, serious or not.
But that’s the Public sector. The position in the private sector has been less clear. On 24 May 2019, the Labour Court, in Tristyn Naidoo & Sedayshum Naidu v Standard Bank SA (Ltd) & 1 other (Case number J1177/19) was once again required to answer this question.
In this instance, the applicant’s challenged the jurisdiction of the respondent “to continue with the disciplinary hearing post their resignation” and to interdict the respondent from proceeding with their scheduled disciplinary hearing post their resignation.
Both applicants had been employed as equities traders up until their resignation. On 4 March 2019, the applicants were issued with notices of precautionary suspension, which noted that “the nature of the allegations against the applicants was serious and that if proven, could impact on the trust relationship between them” and the respondent. After having attended various meetings with forensic investigators, the applicants were issued with notices to attend a disciplinary hearing on 16 and 22 May 2019. Two allegations of “gross misconduct”, and one of “dishonesty” were levelled against the two applicants. The applicants tendered their letters of resignation the same day “with immediate effect”.
Later that day, the applicants received identical correspondence from the employer’s Head of Human Resources, amongst other things, stated that “the Bank is not amenable to accepting your immediate resignation and will still hold you to your 28 days’ notice period as contractually obligated and will be continuing with our internal process. The disciplinary enquiry will therefore proceed as scheduled ..”.
The applicants replied to this by stating that “it is trite in law that my resignation is a unilateral termination of the employment contract and is therefore not subject to Standard Bank’s acceptance or approval. In light of the fact that this is an effective termination of the employment relationship, Standard Bank cannot proceed against any person who is no longer an employee of the company”.
The applicants then approached the Labour Court, which was required to determine whether “the applicant’s immediate resignation had the effect of immediately terminating the employment relationship and whether Standard Bank has the right to hold the applicants to their notice periods and if so, whether it can proceed with the disciplinary enquiries against them despite their resignation with immediate effect”.
In reviewing the effect of resignation in case law, the Court began by referring to Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC), which held that resignation is a unilateral termination of a contract of employment by the employee. This view was reiterated in Toyota SA Motors (Pty) Ltd v CCMA & others (2016) 37 ILJ 313 (CC), which held that “Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee any more”.
The Labour Court held that Standard Bank “has no power to discipline the first and second applicant’s subsequent to their resignation with immediate effect, and Standard Bank was interdicted from continuing with the disciplinary enquiries.
The Court acknowledged that the applicants were in breach of their contracts of employment. However, the remedy available to the ‘employer’ is to either “hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may accept the employee’s repudiation, cancel the contract and claim damages”.
The judgment noted, in essence, that holding disciplinary hearings after an immediate resignation, was a form of employer “self-help .. and this Court can’t sanction” such self-help.
So, there we have it, in cases of immediate resignation, an employee does not work out their notice period, and the resignation takes effect immediately.
by Tony Healy | Jul 1, 2019 | Case Law
Over time, there has, to some degree, been conflicting law regarding the extent of the admissibility of polygraph test results in disciplinary hearings. More especially, this has related to whether an employer can rely solely on a failed polygraph test to prove the guilt of an employee on the balance of probabilities.
Employers are all too frequently of the mistaken impression that a failed polygraph test is quite enough to prove guilt; not so say our courts.
The recent Labour Court matter of Mustek v Tsabadi and others (case no. JR 2732/2010: Judgment day 2 March 2013) reiterates and reconfirms the extent to which polygraph test results may be utilised to prove guilt in disciplinary hearings.
In this case, eight laptop computers went missing from the employer’s premises. The employer elected to administer polygraph tests in regards all employees who had access to the area from which the laptop computers had gone missing. Four of the sixty-seven employees tested failed for the polygraph test, and were dismissed based on this evidence alone.
Judgment in this case emphasised certain important factors to be taken into consideration regarding the admissibility and extent to which polygraph test results may be utilised in disciplinary hearings. The Court held that “our Courts have approached the use of polygraph tests with much circumspection, and it is now accepted that the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities”.
It became apparent that in a separate arbitration hearing at the CCMA, another commissioner had in fact condoned the admissibility of the polygraph tests alone, and admitted this as sufficient evidence to prove guilt on the balance of probabilities. In the Labour Court judgment, the judge however noted that commissioners are not bound to follow awards of fellow commissioners, even if two separate arbitration hearings are faced with the same facts.
More especially, it was held that “it is factious to suggest that one commissioner should complacently endorse the finding of another commissioner were the two matters have their origins in the same incident. The rationale for the first commissioner’s decision has to be analysed. There can be any number of reasons why that commissioner arrived at the conclusion he did. To argue that a commissioner is bound by the findings of another commissioner is repugnant to the rules of precedent”.
The judgment continued that in essence, polygraph test results are indeed admissible, in disciplinary hearings, only insofar as they corroborate or support more direct evidence. It is quite clear that our law has established a now well established precedent that if the only evidence leveled against an employee is a failed polygraph test, it will never be sufficient proof in its own right to prove that the employee is guilty on the balance of probability. That is not to say of course that polygraph test results are inadmissible. On the contrary, they are. However, insofar as polygraph tests ought to be admitted in a disciplinary hearing, and indeed an arbitration hearing, such failed polygraph test results are only of value to the extent that, and insofar as they do, support more direct evidence introduced during the disciplinary or arbitration hearing.
When all is said, and done, polygraph test results have value as corroborating evidence only, and will never be sufficient as free standing evidence, to prove a case on a balance of probabilities.
by Tony Healy | Jul 1, 2019 | Discipline & dismissal
‘Jobs for cash’ is not a new phenomenon. We observe this with clients on a quite frequent basis. It’s quite simple. Someone within the company, with influence over recruitment and selection decisions, accepts cash to ensure a job applicant’s employment. It can occur with human resources staff, and line management alike.
One such case on this issue was that of Mphela Zebulon Matlou v Exxaro [CCMA arbitration: case number LP5338-14]. In this case, “the boyfriend to her younger sister had paid another man the money as he promised that he would get the jobs for them. They had recorded their conversation with him”.
The arbitration awarded noted that “The applicant told him that he knows one Wiseman who can arrange a job for him. But this Wiseman will need R5000-00. In the presence of his parents he gave the applicant R5000.00 and his CV. His girlfriend’s sister was also looking for a job so he gave the applicant another R5000.00 and her CV. In total, he gave the applicant R10000-00”.
This all too familiar scenario continued as “Time went by and the applicant started avoiding his calls. He sent the applicant sms. He even confronted the applicant several times to repay the money even if it was in instalments”.
Yet a further witness testified that “She went to Lephalale to give Piet R5000-00 to give it to the applicant. Piet provided her with the contact details of the applicant. Within a week she contacted the applicant who indeed confirmed receipt of the money and the CV. They contacted each other and she would even ask the applicant how far he was. The applicant advised her to be patient. After Easter week-end they met in Polokwane. The applicant promised her that after July things would be fine. After July, she started calling the applicant who was ignoring her calls. The applicant knew her two numbers and when she called on a different number she would respond. She told her that July had passed and that she then demanded her money. She met the applicant at the Steers in Lephalale. She was in the company of her boyfriend. She bugged their conversation.
She further contacted the applicant around November and December he promised to repay her in February. Later the applicant reneged on the agreement saying they did not sign and there was nothing she could do to him”.
Needless to say, no jobs were forthcoming. The dismissal of the employee for “selling jobs” was upheld by the CCMA.
In the further case of ITU obo Monica Zulu v Tiger Brands Albany Bakery (Pty) Ltd [CCMA arbitration: Case number GAJB26681-14], the employee was dismissed for “soliciting payment in return for a permanent job”. In this case, the evidence was that the dismissed employee informed job applicants that they were required to pay a R50,00 “joining fee” and an additional R500,00 payment “was to make sure he secured a permanent position with the” employer.
In Paul Maboya v Setloblox (Pty) Ltd [CCMA arbitration: Case number 10305-17], the dismissed employee had informed two job applicants that “they had to pay him R2 000.00 each in order for them to secure employment”. Two job applicants “borrowed it (the money) from their relatives as they were desperate for employment”.
The arbitration award continued that “The 2 witnesses became anxious when the applicant stopped communicating with them and they were still unemployed in January as promised. They lodged a complaint with the respondent about their apparent swindling at the hand of the applicant”.
The Commissioner rightly held that “the applicant took advantage of their anxiety to earn income by extorting money that they did not have to benefit himself. The applicant knew that his conduct was wrong because he covertly arranged to meet with the 2 witnesses in places payment from the destitute and vulnerable job seekers, where the exchange of monies would not be obvious to his employers …. (the employee received) payment from the destitute and vulnerable job seekers”.
This is a somewhat difficult, clandestine, activity which is difficult to uncover in the absence of whistle blowers. Vigilance in recruitment and selection goes some way in deterring and identifying this uncouth practice.
by Tony Healy | Jun 18, 2019 | Discipline & dismissal
Racism, in all its forms, is abhorrent, and if proved, is quite clearly grounds for dismissal. That said, it is equally unpalatable for employees to level untrue allegations of racism. This was a central theme in the recent CCMA arbitration award in NUMSA obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).
This circumstances which led up to this case were that, on the day in question, the employees were playing cards outside of the employer’s premises during their tea break. The Chief Executive Officer (CEO) of the employer stopped, with his vehicle at the gate, called at the employees, got out of his car and walked towards the employees angrily, allegedly using the f-word whilst addressing them.
On the evidence, the employees then attempted to talk to the CEO after the incident in his office, but he refused to give them a hearing.
The employees were subsequently issued with a notice to attend a disciplinary hearing.
On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the Human Resource manager wherein they alleged that the CEO called them “Kaffirs” whilst admonishing them for playing cards outside the employer’s premises. This was in response to them having been charged with insubordination in that they did not adhere to an instruction that they should not play cards outside the employer’s gate. The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.
The employees were then issued disciplinary hearings notices for making false allegations of racism against the CEO; they were found guilty and dismissed.
In the arbitration award, the Commissioner noted that “I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that (the CEO) could not have called them in a racial derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words was utilized during this altercation. They argued that (the CEO) cannot speak Afrikaans but that he is English speaking. The applicants, on the other hand, stood by their claim that such racial terminology was used”.
The Commissioner continued that “The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K…..s), idiots and other swear words”, and that “It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants”.
The CEO, whilst acknowledging that he was angry, and used the f-word, stringently denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. (The Commissioner) requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’”.
The CEO had not used the k-word, concluded the Commissioner, who held that “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word. There was no racial or discriminatory language used towards the applicants when addressed by the CEO on 7 October 2018. It is clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day”.
Quite rightly, the Commissioner, in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career at O-Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable”.
by Tony Healy | Jun 11, 2019 | Discipline & dismissal
A job applicant who confirms, on employment, that they do not have a criminal record, better be telling the truth. If it is subsequently found that they were fibbing, and that they did in fact have a criminal conviction, they run the very real risk of dismissal.
The recent (7 May 2019) Labour Court judgment in Pamela Nomawethu Njikelana v Werner Kruger, the CCMA & the SA Civil Aviation Authority (Case number JR1834/17), dealt with this and related issues.
The employee had originally been employed as Human Resources generalist, on a fixed term contract of employment, from 1 August 2015, to 31 July 2016. Thereafter, her contract was renewed on two consecutive occasions; the first from 1 August 2016 to 31 December 2016, and the second from 1 January 2017 to 31 March 2017.
Importantly, it was not disputed that prior to commencing employment with the employer, the employee had been required to undergo various pre-employment verification exercises to verify her qualifications, credit rating and criminal record. During the course of her employment, in or about July 2016, the employer conducted a further criminal record check on the employee, which established that she in fact had a criminal record. On 10 October 2016, the employee was invited to a meeting by the employer’s internal audit unit “during which she was requested to complete a forensic interview information sheet”, which she did, confirming once again that she had no past, or pending, criminal record against her name.
When the employer informed the employee of the fact that they had recently established that there was a criminal record against her name, she denied any knowledge of any criminal record, and undertook to approach the Pretoria Criminal Record Centre to check her criminal record status, where it was confirmed that she did indeed have a criminal record. The “criminal record arose from an incident in 1990 when she was arrested and fined R150.00 for stealing sweets, chocolate and biltong”.
The employee then approached the Department of Justice to apply for the expungement of her criminal record.
The next key development in this case arose when the employee subsequently applied for a permanent Human Resources positon, which the employer had advertised. She was interviewed and requested to complete a declaration form, in which she disclosed her criminal record, which she corroborated in a separate affidavit.
Needless to say, the employer notified the employee that her application was unsuccessful, and furthermore, that her contract would not be renewed. The employee was aggrieved by this, and lodged an unfair dismissal claim with the CCMA, on the basis that she had a reasonable expectation of renewal or permanent employment.
In his award, the CCMA commissioner held that the employee had no valid claim of unfair dismissal on grounds of a reasonable expectation of renewal, as she “was appointed in a temporary position and this position no longer existed”. When dealing with the employee’s dishonesty, the “commissioner rejected the applicant’s submission that during her interview, she had forgotten that she had a criminal record” as “it is highly improbable that the applicant did not remember during the interview the fact that she was arrested. In all likelihood this would have been a traumatic experience and it is difficult to see how she could forget it”.
The arbitration award continued that “she kept quiet and only informed the respondent of the incident on 23 March, some five months after the first interview”.
The commissioner dismissed her claim that she had reasonable expectation of renewal of her fixed term contract, or to permanent employment.
Aggrieved by the arbitration award, the employee took it on review to the Labour Court arguing, in that he “had arrived at an award that no reasonable decision-maker could have arrived at”.
The Labour Court agreed with the CCMA commissioner that “the applicant’s argument that she harboured a reasonable expectation to be appointed on a permanent position is .. not sustainable”. The judgment noted that “Section 186(1)(b) of the LRA covers instances where the employee alleges a reasonable expectation of renewal of a fixed term contract that has expired … it does not cover reasonable expectation of appointment in a permanent position subsequent to several renewals of a fixed-term contract”.
In conclusion, the judgment held that “in failing to come clean and to admit that there was a criminal record against her name, the applicant was dishonest” and for this reason “she could not have harboured an objectively reasonable expectation of the renewal of her fixed term contract, or permanent employment”.
by Tony Healy | May 28, 2019 | Case Law
Circumstantial evidence is used to prove guilt when there were no eye witnesses. No-one observed the misconduct, yet there are facts regarding the circumstances in which the misconduct occurred, which points to a most probable guilty person.
If you like, circumstantial evidence is indirect evidence, which can be distinguished from direct, eye witness evidence. In Principles of Evidence (Schwikkard and van der Merwe: 2005), circumstantial evidence is said to furnish “indirect proof”, with the court, which in disciplinary hearings would include chairpersons, being “required to draw inferences” which “must comply with certain rules of logic. Schwikkard and van der Merwe also tell us that “In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts”.
Circumstantial evidence can, and often is, used fairly in disciplinary hearings, to prove guilt on a balance of probabilities, as is required. It follows that circumstantial evidence is also entirely admissible in arbitration hearings. This is typically, amongst other things, premised on section 138(1) of the Labour Relations Act, which states that “The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”.
That’s not to say that circumstantial evidence is unquestionably admissible. Our case law provides ample evidence of the manner in which circumstantial evidence will be admitted, and considered to be compelling in proving an employee’s guilt on grounds of misconduct.
Quite how circumstantial evidence is to be assessed in cases, was summarised in S v Reddy and Others 1996 (2) SACR, which held that ““In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft quoted dictum in R v Blom 1939 AD 188 at 202-203, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such “that they exclude every reasonable inference from them save the one sought to be drawn”.
The approach to be adopted when an inference is sought to be drawn from other facts was summarised in Cooper and Another NNO v Merchant Trade Finance Ltd [2000 (3) SA 1009 (SCA)]. Zulman JA observed that “It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the “two cardinal rules of logic” referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct. This rule is not applicable in a civil case. If the facts permit of more than one inference, the Court must select the most “plausible” or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”
Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) reminds us that “The danger with circumstantial evidence on the other hand, is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation …….. thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it”.
by Tony Healy | May 22, 2019 | Case Law
Chairpersons in disciplinary hearings are frequently faced with conflicting evidence or testimonies from two witnesses describing the same event. For example, an employee may testify that they were not sleeping on duty, whilst a manager may testify that they were. Both witnesses testify with zeal and conviction, but one is telling the truth, and the other isn’t. But how can this be determined?
This conundrum is faced by chairpersons in workplace disciplinary and appeal hearing, by Commissioners in CCMA and Bargaining Council arbitrations, and by judges in the labour courts.
Case law has much to say about resolving this dilemma in arbitration awards and labour courts judgments, invariably being referred to as the challenge faced by adjudicators of hearings, when faced with conflicting versions.
The point of departure is the understanding that, in disciplinary hearings, the employer has the burden of proof, which simply means that the employer has the obligation to prove, on a balance of probabilities, that the employee is guilty of the allegation in question. It can also be described as the employer’s duty to prove that the employee is “probably’ guilty. This principle is also important when faced with conflicting versions, or evidence.
The bottom line is that the adjudicator, or chairperson, must decide which of the two conflicting versions of the same event or observation, is most probable.
Our courts have addressed how one is to deal with cases in which there are two irreconcilable versions. In Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the test is formulated as one in which “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candor and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.”
In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) it was stated that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version”.
Yet further guidance was provided in Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC), in which it was held that “The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses, nor did he have regard to the inherent probabilities of the competing versions before him. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings”
To put it plainly, when a disciplinary hearing chairperson is faced with two conflicting versions, it is important to weigh the evidence that is tendered, with a view to arriving at a version that is most probable.
So there you have it. When it’s one person’s word against another, one version can be preferred over the other, when there are sound reasons to do so.
by Tony Healy | May 3, 2019 | Case Law
Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case. This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months. The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.
A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work. It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk. It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months. Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.
This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act. It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly. In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”. In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.
As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.
By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable. Indeed, “all parties conceded to this”. This meant of course that the client was deemed to be the employer. The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client. The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects. The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”. The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”. For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”. For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.
“In respect of the acceptance clerk, no comparator was placed before me. It was established as common cause that Swissport does not employ any other acceptance clerks. A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work. In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.
The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work. Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required. This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only. For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.
by Tony Healy | Apr 22, 2019 | Discipline & dismissal
The Constitutional Court may have recently declared the private use of cannabis legal, but what is the impact of this on the workplace, and how does the private consumption of Cannabis, and alcohol for that matter, impact on employer rights?
The CCMA has however held, in Mthembu & others v NCT Durban Wood Chips (Case number KNDB4091-18), that employers are none the less entitled to discipline employees who are under the influence of cannabis during working hours.
The employer conducted business in the wood and chip industry, which involved the use of large machinery and “extremely dangerous vehicles coming in and out of the premises throughout the day”. So, it’s quite clear that safety was of paramount importance to the employer, given the nature of the working environment. This was all the more the case, given that large timber logs, weighing between 30 and 100 kilograms, were handled in the workplace, further emphasising the focus on safety.
There were sixty to eighty heavy duty truck deliveries into the mill daily
Evidence was led that the employees were informed of, and had signed, the company substance abuse policy in 2016. In addition, frequent tool-box talks had reiterated the employer’s stance on substance abuse.
In mid-2017, an employee had resigned during his disciplinary hearing, after his urine sample tested positive for cannabis. Further cannabis tests conducted at a laboratory, confirmed that four more employees had tested positive.
The employer testified that heavy-duty machinery is utilised the workplace, including a clipper which spins at five thousand revolutions, and takes approximately ten to fifteen minutes to stop, in case of an emergency. The ongoing delivery of timber into the mill by locomotive, poses further ongoing danger.
The employee’s themselves, were employed in dangerous positions. One of the employees worked as a weigh bridge clerk, receiving trucks which he weighs, after inspecting them and testing the timber they are delivering.
A second employee sharpened and polished one meter long knives, three at a time. A third employee was a log deck assistant, whose job it was to ensure that logs land on the log deck without being obstructed, and to manually clear any log obstructions.
The employees challenged the substantive fairness of their dismissals, uniformly claiming that they smoked Cannabis in their private time.
The arbitrator noted that the Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development has “pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution. However, turning to the workplace, the Arbitrator noted that “Like alcohol where there is an inkling that intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence”.
The arbitration award goes onto recognise and confirm that “it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances” in workplaces with dangerous heavy machinery and equipment. Quite clearly, workplaces of this nature pose a high degree of danger.
Tellingly, the employees, according to the arbitrator, “showed no real remorse”.
The dismissals were held to have been substantively fair, and that, importantly, “It was for (the employees) to make sure that when they smoke for private use it must not result in them reporting to work under the influence thereof. This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day, placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”, which could be pursued by the Department of Labour, for example.
The dangerous nature of the working environment was an important factor in this award. In an environment which is less dangerous, or not at all dangerous, such as an office environment, a sanction of dismissal would have been harder to defend; in such cases, a final written warning would more likely be appropriate in the eyes of the CCMA or a Bargaining Council.
This case also highlights the importance of addressing substance abuse by way of a company policy. It follows that company disciplinary codes should also include substance abuse, and intoxication, with recommended sanctions if an employee is found guilty in such cases.
by Tony Healy | Apr 15, 2019 | Case Law
Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case. This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months. The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.
A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work. It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk. It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months. Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.
This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act. It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly. In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”. In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.
As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.
By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable. Indeed, “all parties conceded to this”. This meant of course that the client was deemed to be the employer. The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client. The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects. The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”. The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”. For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”. For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.
“In respect of the acceptance clerk, no comparator was placed before me. It was established as common cause that Swissport does not employ any other acceptance clerks. A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work. In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.
The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work. Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required. This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only. For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.
