by Tony Healy | Apr 8, 2019 | Discipline & dismissal
So, what do you do when a client you are delivering goods to, using foreign drivers, informs you that they will no longer permit foreign nationals on their premises, and you have no alternative employment for them?
This was the scenario faced by the Labour Court in Francis Kanko & 2 others v Grindrod Fuelogic [Case number C602/14].
The facts of the case are pretty straight forward. The employer had three fuel tanker drivers in their employ, who were foreign nationals, employed to deliver fuel to an Eskom power station. At a point in time, Eskom informed the employer that it would, as a matter of national security, no longer allow foreign drivers on its sites. The services of the three foreign drivers were then terminated by the employer, and it was a matter of dispute as to how the employment relationship ended.
According to the employer, the three drivers were not dismissed per se, as they had agreed to be retrenched by signing voluntary retrenchment agreements. The drivers, on the other hand, contested this, arguing that they were, without prior warning, abruptly summonsed to a meeting with management. At this meeting, they were shown the Eskom correspondence prohibiting foreign nationals from entering its power stations, and informed that they therefore had no choice but to accept their retrenchment. The drivers submitted that they then signed the retrenchment agreements, drafted by the human resources department, under duress. None of them received any retrenchment pay.
More precisely, the drivers submitted that they had, according to the judgment “signed the agreement under duress and they were, in fact, dismissed without any consultation as contemplated by section 189 of the Labour Relations Act. The only reason for their dismissal was their nationality; hence, it was automatically unfair as envisaged by section 187(1)(f)” of the Labour Relations Act.
The drivers, although foreign nationals, had valid South African heavy duty licenses and work permits.
Let’s have a look at the evidence led.
The employer’s primary witness, the regional manager, testified that if the employer had refused to comply with the new rule from Eskom that no foreign drivers would henceforth be allowed to enter its premises, the employer would have lost the contract. He continued that the employer had no choice. He led no evidence that the employer had attempted to persuade Eskom otherwise.
The three drivers were called into a meeting individually, they each signed retrenchment agreements, without duress. Each meeting lasted for about thirty minutes, and the drivers were paid the balance of their salaries for the remainder of the month. He conceded that the drivers were not paid any severance pay.
The drivers testified, in essence, that they were, without prior notice, asked to attend a meeting with management, at which they were shown a copy of the e-mail from Eskom, after which the regional manager informed them that the employer had no choice but to retrench them as there were no vacancies. They were told to sign the retrenchment as there was no alternative.
The judgment posed the question “Did the employees in this case sign the agreements voluntarily, ie: without duress or coercion, unequivocal and with full knowledge of its terms and implications as a full and final settlement of all the issues?”
On this issue, the Court concluded that “On the facts and on the evidence before me, and on the probabilities, I am not persuaded that (the employer) has discharged that onus. All three drivers were called in out of the blue, with no prior warning and without the benefit of a notice that is required by law in section 189(3) of the LRA. They were presented with a fait accompli”.
All three drivers had consistently testified that the regional manager had insisted that, on leaving the meetings with signed agreements. The judgment in Corns v Adelkloof Drankwinkel cc t/a Cellars Drankwinkel (2002) 23 ILJ 2047 (LC) was quoted as being relevant in this case – “The main objective of that meeting was to procure the applicant’s signature on the agreement, and to circumvent the requirements of section 189 of the Act … In my view, an agreement obtained in such unfair circumstances amounts to a nullity”.
Having found that the three drivers had been dismissed, the question then became whether, or not, their dismissals were automatically unfair.
The Court held that “the only reason for the driver’s dismissals were their nationality” and that “there can be no doubt that nationality as a reason for dismissal is discriminatory” and the dismissals were therefore automatically unfair.
The Court ordered the retrospective reinstatement of the drivers.
by Tony Healy | Mar 29, 2019 | Discipline & dismissal
Make no mistake, a sizeable percentage of medical certificates, colloquially known as sick notes, presented to employers daily, are fraudulent.
Many employers will relate to the scourge of Monday and Friday “sick leave-itis”, which is a major contributor to sick leave typically being in excess of 15% on a daily basis. This is a significant labour cost for employers.
It has been estimated by Occupational Care South Africa that approximately 40% of all employees claiming sick leave, are not physically ill, and that South African businesses are losing as much as 17% of their payroll every year due to absenteeism. This punishes already cash-flow strapped employers unfairly.
In the Labour Court case of BP Southern Africa v The National Council for the Chemical Industry & others (Case number JR2000.12), the employee had been dismissed for unauthorised absence from work and the submission of fraudulent medical certificates to the company. After a period of absence from work, the employee reported for duty and presented three copies of medical certificates issued by three different practitioners.
The first medical certificate, covering the first few days of the employee’s absence from work, declared the employee unfit to perform his duties due to cystitis. The second period of absence was supported by a medical certificate from another medical practitioner, who booked the employee off work for migraines and depression. The third leg of period of absence was supported by a medical certificate from a third medical practitioner, who booked the employee off sick for bronchitis.
The Judgment noted that on presenting the three medical certificates from three different medical practitioners covering the period of absence “an Occupational Health Consultant for the company also testified that he had assessed the copies of medical certificates submitted by (the employee), and had thereafter contacted the practitioners that had issued them. Dr Matjekane’s rooms had no evidence of (the employee’s) attendance at all, whilst Dr Bikitsha became abusive when contacted. Dr Adam on the other hand indicated that (the employee) had problems with alcohol abuse. Dr Manjra had concluded that (the employee) had an alcohol problem and that HR should intervene. (The employee) was then referred to a Psychiatrist who after consultations on 7 February 2012, concluded that he was not mentally ill and was fit to resume work”.
At the CCMA arbitration hearing, the Commissioner held that “It was clear that the three medical certificates submitted by (the employee) did not reflect his true medical condition and the real reason for his absence between 9 and 20 January 2012, and accordingly his absence was unauthorised”, and that the employee “presented false medical certificates to BP well knowing that they were false and therefore did so with fraudulent intent, causing potential prejudice to BP”.
It was however apparent that the employee had an alcohol dependency problem.
The CCMA arbitration award held that, notwithstanding the identified fraudulent medical certificates “the sanction of dismissal was unfair as it gave BP an opportunity to get rid of (the employee) instead of following the more cumbersome route of rehabilitation”.
The employer sought to review this finding at the Labour Court.
The Labour Court held that “there is no hesitation in concluding that the Commissioner went on a frolic of his own, and completely misconstrued the nature of the enquiry before him based on the reason for the dismissal and evidence led in that regard. On his own, he had raised the issue whether the core of the dispute was not a matter of incapacity due to alcohol abuse and whether (the employee) should not undergo rehabilitation treatment for alcohol abuse. This was indeed irregular, in that, 25.5.1 It was never BP’s case nor that of (the employee) that the dismissal was related to alcohol abuse and incapacity, and that BP used the two charges that led to a dismissal as a smokescreen. Any such conclusions could only have been reached if pleaded by (the employee), and also if ultimately proven on the facts; 25.5.2 There was no evidence led by (the employee) that his alcohol problems had led to his alleged incapacity, or the reason for his absence, until probed and prompted by the Commissioner; 25.5.3 Only after being prompted by the Commissioner did (the employee) indicate that he was a heavy drinker, which revelation was not only opportunistic, but also evidence BP had not been aware of, or which it was afforded an opportunity to rebut; 25.5.4 There was evidence that (the employee) had been counselled before in regard to his absenteeism and bad attendance record; 25.5.5 The copies of fraudulent medical certificates submitted by (the employee), even if they were to be accepted, had not indicated that he had alcohol problems or was incapacitated, and the Commissioner had accepted that they were fraudulent.
25.5.6 (The employee) was not decisive as to whether he sought assistance or not in relation to his alleged alcohol abuse problems. On his version, he had not signed the consent forms to volunteer for rehabilitation, and even if it had dawned on him that he should have volunteered for rehabilitation, BP had already decided to take steps against him on the basis of his dishonest conduct; 25.5.7 The Commissioner ultimately during the course of the proceedings had realised that the details surrounding alcohol abuse and alleged incapacity were not placed before him, and he had nevertheless continued to make his ultimate findings on those issues.
25.5.8 Despite having concluded that copies of the medical certificates were fraudulent, and thus (the employee) was on unauthorised absence, the Commissioner nevertheless continued to conclude, and without any basis, that his absence was due to being incapacitated to do his work due to alcohol abuse”.
by Tony Healy | Mar 8, 2019 | Case Law
The recent Labour Appeal court judgment delivered on 26 February 2019, in Solidarity OBO Scholtz v Gijima Holdings (Pty) Ltd [Case number JA131/2017] dealt with the subject of employee loyalty incentive scheme agreements, whereby an employee agrees to remain in the employ of the employer in return for him or her being paid a retention bonus by the employer to do so.
In this case, the agreement was entitled Employment Loyalty Incentive Scheme Agreement (ELISA). It is not unusual for employers to enter into such agreements with employees from time to time, to ensure that they remain in the employ of the employer for a specified length of time. This typically ensures continuity of service by an employee, and amongst other things, gives the employer peace of mind that the employee will not leave them in the lurch by resigning before the completion of the period for which the retention bonus has been paid.
The facts of the case were, by and large, not in dispute. The ELISA entered into by the employer and the employee, incorporated a clause which read that “Where the beneficiary terminates its employ with the company after the effective date and before the expiry of the initial period of 12(twelve) months, (the “initial Period”), the beneficiary shall repay the full amount received by the beneficiary in terms of A.5.1 of annexure A”.
The Labour Appeal Court judgment noted in this regard that “Apparent from Clause 7 above is that a beneficiary of the scheme, having received a benefit in advance, before the commencement of the relevant retention cycle, would be required to remain in the employ of the respondent for a period of 12 months in respect of each retention bonus already paid.”
The judgment continued that retention bonus agreements of this nature were not a new phenomenon, and that, for example, they had been dealt with in Bonfiglioli SA (Pty) Ltd v Panaino (2015) 36 ILJ 947 (LAC), which noted that “A retention bonus, as the phrase suggests, is paid in order to retain the services of an employee for a specified period. Payment of the retention bonus is contingent upon the employee entering into an agreement with the employer to complete a specific period of service with the employer. The bonus can be paid after the expiration of the period, during the period or at the beginning of the period, depending on the agreement between the parties. The purpose of a retention bonus is, inter alia, to avoid instability caused by employees, especially senior employees, who would constantly search for greener pastures; to retain institutional memory and to promote a seamless continuity of operations.”
In another judgment, Renaissance BJM Securities (Pty) Ltd v Group (2016) 37 ILJ 646 (LAC), retention agreements were deemed to be akin to hand-cuffs – “Retention agreements are therefore hand-outs with handcuffs or cheques with chains. The employee is given money and in return, he/she must give up his/her freedom to leave the employ of the employer. It curtails the employee’s right to jump ship even when the ship is being steered straight in the direction of an iceberg.”
In this case, the employer notified the employee, and indeed other employees who had signed similar agreements, that the agreement would not be continued beyond its initial three-year term. The employee objected to this.
None the less, the employer paid the employee the third, and final, retention bonus for year three of the agreement. Approximately one month later, the employee tendered his resignation.
The employer deemed this to amount to a breach of the retention agreement, and dealt with this by deducting the Rand value of the bonus from the payments due to the employee on termination.
The Labour Court subsequently held that the employer was entitled to make this deduction, and the employee then sought to appeal this judgment at the Labour Appeal Court.
The Labour Appeal Court upheld the Labour Court judgment, finding that “Clause 7.1 of the ELISA makes it plain that where a beneficiary terminates his/her employ with the company, after the effective date and before the expiry of the retention period of 12 months, he/she shall repay the full amount received in terms of A.5.1 of the annexure A to the agreement.”
by Tony Healy | Feb 28, 2019 | Miscellaneous
Employees can be suspended from work in either of two ways. The two species of employee suspension are precautionary suspension and punitive suspension. Punitive suspension occurs when an employer offers an employee a period of suspension without pay, as an alternative to dismissal, when dismissal would ordinarily be the only logical sanction, but extraordinary mitigating factors suggest that the employee is deserving of an option to retain his or her employment.
Precautionary suspension is quite different. There are times when an employer, quite legitimately, is of the view that an investigation into suspected misconduct would benefit from the suspected offender not being at work. There are numerous reasons why an employer may come to such a conclusion. For example, the employer may have good reason to conclude that the employee in question may interfere with witnesses and evidence. It is also quite possible that the employer may not know for sure whether the employee is entirely trustworthy.
This is when the precautionary suspension option becomes available to employers. It must be borne in mind that an employee who is suspended as a precaution, must be fully paid whilst suspended, for the simple reason that they have, at that point in time, pending the outcome of an investigation, not been found guilty of any misconduct what so ever. In fact, they have not even been charged with misconduct at that time. In Sappi Forests (Pty) Ltd v CCMA & Others [2009] (LC), the Labour Court held that it was normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry. The only time this would not be the case is when there is a collective agreement permitting unpaid precautionary suspension, or it is permitted in terms of legislation, as is the case in certain areas of the Public sector.
One occasion when an employer need not pay an employee during a period of precautionary suspension is when the disciplinary hearing must be postponed due to the employee failing to attend the disciplinary, without a valid reason for not doing so, whilst on precautionary suspension.
In the case of SAEWA obo members v Aberdare Cables [2007] (MEIBC) it was held that the employer does not have to pay an employee who is on precautionary suspension from the date he or she requested for postponement. The rationale for the decision was to avoid for situations where the employee may unreasonably delay the disciplinary hearing while earning the salary.
An employer decision to invoke its right to precautionary suspension, typically does so pending the outcome of an investigation into misconduct, and/or pending the outcome if a disciplinary hearing.
There are however certain simple steps to be followed when doing so. It has become well stablished in our law that procedural fairness requires employers to afford employees an opportunity to oppose their proposed precautionary suspension, prior to it being confirmed by the employer.
It has been widely held that the suspension of employees pending disciplinary action is permissible only when reasonable grounds exist for suspecting that the employee is guilty of serious misconduct and that employee’s presence may compromise preliminary enquiry, and after the employee has been given opportunity to make representations.
The importance of complying with a fair procedure was emphasised by the Labour Appeal Court in MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) (LAC). It held that an opportunity to make written representations to show why a precautionary suspension should not be implemented is sufficient compliance with the requirement of procedural fairness.
In the Labour Appeal court case of Member of the Executive Council for Education North West Province v Gradwell (2012) (LAC) held that “The right to a hearing prior to a precautionary suspension arises therefore not from the constitution PAYA or as an applied term of the contract of employment but is a right located within the provisions of the LRA the correlative of the duty on employers not to subject employees to unfair labour practises. That being the case the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to these rights.”
So in conclusion, in the Labour Court, case of POPCRU obo Masemola and others vs Minister of Correctional Services (2010), fairness requires the following before suspending an employee pending an investigation or disciplinary action (a) the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct, (b) there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of the pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of the affects parties in jeopardy and (c) that the employee is given the opportunity to state a case before the employer makes a final decision to suspend the employee.
by Tony Healy | Feb 26, 2019 | Discipline & dismissal
So, your car breaks down and you have no replacement; is your employer obligated to accommodate your absenteeism and late-coming that follows? No, they are not.
This was he scenario in the Labour Court review application in National Nuclear Regulator v the CCMA & others (Case number JR3104/12). The employee, a Senior Assessor Nuclear Safety, was dismissed for not adhering to the employer’s normal working hours, unauthorised absence from work, and insubordination.
This genesis of this case can be traced back to the time at which the employee’s motor vehicle allegedly broke down, and could not be repaired. Faced with this dilemma, the employee did not purchase another vehicle. He in fact the relied on a borrowed vehicle from a neighbour, but could only get to work on Mondays, Wednesdays and Thursdays, from approximately 3pm. This was of course untenable for the employer.
The employer’s CEO then sent out an e-mail to all staff clarifying working hours and imploring staff to observe the company’s punctuality requirements. All employees complied with the instruction to be punctual, except the employee in this case. Management engaged the employee in an attempt to address his ongoing failure to comply with the employer’s requirement for punctuality.
The employee was eventually issued a written warning, valid for six months. The employer continued to engage the employee on the issue, including a proposal that he use public transport to get to and from work. The employee replied “Your suggestion that I catch a taxi, and by so doing might possibly put my life in danger constitutes an unfair labour practice”.
A final written warning was the issued to the employee, who was also advised that should he commit a similar offence within the twelve-month validity period of the final written warning, a much harsher sanction would be imposed.
Thereafter, the employee was frequently absent from work and continued to report late for work, resulting in the employer summonsing the employee to a disciplinary hearing to answer to four allegations, (1) Failure or refusal to comply with a lawful instruction from the superior, (2) Absenteeism for three or more consecutive working days without permission and (4) Repetition of offence for which a written warning was issued. The employee was found guilty on all four counts, and dismissed.
The employee subsequently referred an unfair dismissal claim to the CCMA. At arbitration, the Commissioner held that the dismissal of the employee was both procedurally and substantively unfair, in that, alarmingly, “the applicant had an explanation for his limited attendance at the office” and that this explanation is “reasonable”.
To rub salt into the wound, the Commissioner made a costs order against the employer “without giving any reasons for such an order”.
The employer took the adverse arbitration award on review to the Labour Court, which held, amongst other things, that had the Commissioner “applied his mind to all the .. considerations which he has ignored, he may have come to a different conclusion. Accordingly, his award is vitiated with irregularities and stands to be reviewed and set aside”.
The judgment continued that the Commissioner had “totally misconstrued the case of the (employer) and in the process committed a reviewable irregularity” adding that he also “failed to take into account material evidence before him and, furthermore, he gave undue emphasis to irrelevant evidence”.
The Labour court ordered that the arbitration award in favour of the employee be set aside, and substituted with “the dismissal of the (employee) is procedurally and substantively fair”.
There are a number of lessons to be learnt from this case. To begin with, working hours should be unambiguous and clearly communicated to staff. Late-coming should be timeously and consistently sanctioned to build a history of progressive discipline. Employees cannot be found guilty of misconduct if they have a valid explanation for absenteeism or late-coming. But if they don’t, it is misconduct.
Prudent employers will also make specific provision for absence without leave and late-coming in their disciplinary codes.
by Tony Healy | Feb 21, 2019 | Industrial Action
Strikers, all too frequently, fail to comply with picketing rules, and elect, on the contrary, to behave in a violent and unlawful manner, causing mayhem. This was the backdrop to the recent Labour Court case in Dis-Chem Pharmacies Ltd v Solly Malema and the National Union of Public Service & Allied workers Case number J4124/18, with the Court eventually starting to show some steel in dealing with unlawful and violent strike related behaviour.
The facts of the case were quite simple. The union had recruited 11% of the employer’s workforce. Regardless of its slim minority membership, it sought collective bargaining rights to negotiate wages and conditions of service on behalf of its’ members. Unsurprisingly, the employer refused to grant the union the collective bargaining rights it sought. Employers typically refuse to grant minority unions collective bargaining rights, as they run the untenable risk of union proliferation, resulting in multiple collective bargaining arrangements in the same workplace or bargaining unit.
The dispute proceeded to the CCMA, and an advisory arbitration award was issued paving the way for the union to embark upon a protected strike to compel the employer to accede to its collective bargaining demands. Picketing rules were ultimately issued by the CCMA, and made an order of Court, after which the protected strike began.
The Labour Relations Act has a Code of Good Practice relating to picketing which, at paragraph two, states that “Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.”
Needless to say, the strikers completely disregarded the picketing rules, and their obligation to picket peacefully, and “remained steadfast in their conduct of violence, intimidation and unlawful behaviour” noted the Labour Court judgment, which continued that the union “either had no control over (the strikers), or did not want to control them”.
The range of unlawful conduct on the part of the strikers included the intimidation and serious assault of non-strikers, the damage to the property (homes and vehicles) of non-striking employees, blockades of shopping malls, and the assault of members of the public. In many instances, the SAPS needed to be summonsed to restore order, “bring the striking employees under control, and protect persons and property”.
The Labour Court judgment, in its analysis, noted that “It has become an almost common place occurrence that where there is a protected strike, violence and unlawful behaviour inevitably follows. It is almost as if striking employees believe this is how things should be done. One only has to spend a week in the urgent Court in this Court to appreciate the gravity of the problem. A significant portion of the urgent roll is devoted to interdicting violence and unlawful behaviour during strikes. The situation perpetuates because it seems that there is very little consequence for transgressors, despite picketing rules and interdicts by this Court being issued”.
This steely stance adopted by the Labour Court is refreshing, and this show of back-bone on the part of the Court, whilst overdue, is to be welcomed.
It is arguable that the all too common cycle of unlawful and violent strike conduct, should rob a protected strike from its protected status? Section 69 (1) of the Labour Relations Act is clear, a picket must be “for the purposes of peacefully demonstrating”, and not, as we so often see, carte blanche license to cause public mayhem.
The Labour Court judgment continued that “It follows that it cannot be seen to constitute a violation of a fundamental right where employees are held accountable for failing to exercise their right to picket in a peaceful manner as required by way of a suspension or forfeiture of those rights …. those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose. The right to protect, picket and assemble is directly linked to it being exercised peacefully”.
The judgment suspended the picketing rules, and interdicted and restrained the union from continuing to picket, or to gather, protest or assemble at any of the employer’s premises.
by Tony Healy | Feb 20, 2019 | Case Law
The best place to start when considering workplace sexual harassment is the Labour Relation Act’s Code of Good Practice on the Handling of Sexual Harassment Cases, which was published as far back as 1998.
This Code addresses such critical aspects of sexual harassment as its definition, forms of sexual harassment, guiding principles, procedures to be followed in such cases, the allocation of additional sick leave in certain circumstances, and employer obligations to educate staff on this important subject.
To begin with, the Code defines sexual harassment as “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behavior that is welcome and mutual”.
The Code goes on to state that “sexual attention becomes sexual harassment if – (a) the behavior is persisted in, although a single incident of harassment can constitute sexual harassment; and (b) the recipient has made it clear that the behavior is considered offensive, and/or (c) the perpetrator should have known that the behavior is regarded as unacceptable.”
The Code is especially informative in listing forms of sexual harassment, and how sexual harassment can be manifested. For example, sexual harassment includes “all unwanted physical contact, ranging from touching to sexual assault and rape. Unsurprisingly, this includes “a strip search by or in the presence of the opposite sex.
But it doesn’t end there. Further forms of sexual harassment include unwelcome innuendos; sexual suggestions and hints; sexual advances; comments with sexual overtones; sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or to them; unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling at a person or group of persons.
Non-verbal forms of sexual harassment listed in the Code include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects. So-called ‘quid pro quo’ sexual harassment “occurs when an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours”.
The Code goes as far as to also state that employers should “issue a policy statement” which confirms the employer’s commitment to all employees right to be treated with dignity, the prohibition of sexual harassment, and the role played by grievance and disciplinary procedures in cases of sexual harassment. In practice, and our firm’s experience in this area, the drafting, and education of staff on, a comprehensive sexual harassment policy meets the requirements of the Code in discouraging sexual harassment and providing a channel to deal with such cases should they arise.
The definition of sexual harassment in the later amended Code in 2005 is that sexual harassment is “…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 – (1) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; (2) whether the sexual conduct was unwelcome; (3) the nature and extent of the sexual conduct; and (4) the impact of the sexual conduct on the employee.’
The Labour Appeal Court judgment in Campbell Scientific Africa (Pty) Ltd v Simmers and Others held that “The treatment of harassment as a form of unfair discrimination in s 6(3) of the Employment Equity Act 55 of 1998 (EEA) recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace”, continuing that ‘‘By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this court has characterised it as ‘the most heinous misconduct that plagues a workplace’.
In SA Broadcasting Corporation Ltd v Grogan NO and Another (2006) the Labour Court observed that sexual harassment by older men in positions of power has become a scourge in the workplace. In Gaga v Anglo Platinum Ltd and Others (2012), the Labour Court held that this Court noted similarly that rules against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinates.
by Tony Healy | Feb 14, 2019 | Discipline & dismissal
It should go without saying that racist remarks and language is abhorrent, and is treated as such in labour disputes, if proved.
This was the subject matter in the Labour Court case of Juda Phonyogo Dagane v the Safety and Security Sectoral Bargaining Council & others (JR2219/14). More especially, the racist remarks were made on Facebook, showing the continued growing phenomenon of dismissal for inappropriate employee comments in social media.
In this case, the employee had been dismissed by the employer after having been found guilty of making “vitriolic racist comments on the Facebook page of the leader of the Economic Freedom Fighters (EFF), Mr Julius Sello Malema”. The employee’s alleged comments included “F… this white racist shi..! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA” and “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”
The employee had been charged with four counts of misconduct, namely “prejudicing the discipline and efficiency of the SAPS and contravening the SAPS Regulations, Code of Conduct and Code of ethics by unfairly and openly discriminating against others (whites) on the basis of race; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The dismissal was held to have been fair at the arbitration hearing. At the Labour Court, the substantive fairness of the dismissal was challenged on review. The procedural fairness of the dismissal was also challenged on review, via inappropriate means in so far as is relevant, on grounds that the “charge sheet” [sic] was not adequate, as it did not set out the date, time and place where the misconduct occurred.”
In assessing the merits of the review application, with specific reference as to whether the arbitrator had applied her mind in finding that the dismissal of the employee had been substantively fair, the Labour Court judgment noted that “The (CCMA) Commissioner (had) also considered the applicant’s argument that there was no policy regarding social media within the workplace. She noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. This too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee argued that his Facebook account had either been hacked, or someone had, unbeknown to him, opened the Facebook account without his knowledge or permission.
In this regard, the Labour court held that “The Commissioner found on a balance of probabilities that the applicant was the author of the offensive and racist remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech. This is a reasonable conclusion in relation to the totality of evidence that was before her”.
The judgment continued that the employee “was dismissed for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatant blatantly discriminatory racial remarks; by blatantly threatening the future safety and security of white people; and by making remarks on Facebook which amounted to hate speech. It hardly needs to be reiterated that the use of racist language is despicable”.
The judgment importantly added that “Whilst there has been a plethora of cases on this most unfortunate scourge of our society, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others perhaps remains the locus classicus “The attitude of those who refer to, or call, Africans “Kaffirs” is an attitude that should have no place in any workplace in this country and should be rejected with absolute contempt by all those in our country – black and white – who are committed to the values of human dignity, equality and freedom that now form the foundation of our society. In this regard he courts must play their proper role and play it with conviction that must flow from the correctness of the values of human dignity, equality and freedom that they must promote and protect. The courts must deal with such matters in a manner that will “give expression to the legitimate feelings of outrage” and revulsion that reasonable members of our society -black and white – should have when acts of racism are perpetrated. It was never contended that the use of the racist epithets in question should not be visited by the sanction of dismissal. Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question. The Judge President has dealt comprehensively with this matter in his judgment and I wholeheartedly endorse everything that he says in this regard.”
by Tony Healy | Feb 5, 2019 | Case Law
The requirement that employers conduct pre-suspension hearings prior to confirming the precautionary suspension of an employee, has been debunked by the Constitutional Court judgement recently handed down on 19 February 2019, in Alan Long v South African Breweries (Pty) Ltd & others [Case number CCT61/180].
Up until now, our case law has obligated employers to afford employees an opportunity to be heard before their employer confirms their precautionary suspension, yet this judgement confirms that it is not necessary to do so. As a result, employers are now required to amend any in-house procedure or policy which includes a pre-suspension hearing, prior to precautionary suspension.
In this particular Constitutional Court case, the employee was making application for leave to appeal against a judgement in the Labour Court which, amongst other things, held that there is no requirement that an “employee be given an opportunity to make representations …. where a suspension is precautionary”.
On this particular issue, the employee, a District Manager in the employer’s Border Region) had been placed on precautionary suspension approximately three months prior to his disciplinary being held.
At arbitration, the arbitrator held that “there was a valid reason to suspend the applicant, but that the applicant had not been given an opportunity to make representations to show why he should not be suspended” and that this amounted to an unfair labour practice.
However, the Labour Court, on the other hand, subsequently held that “where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations” continuing that on the contrary “the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. As such, the Labour Court concluded that the failure to conduct a pre-suspension hearing prior to confirming the precautionary suspension, did not amount to an unfair labour practice.
At the Constitutional Court, the employee submitted that “the Labour Court’s finding on pre-suspension hearings goes against existing case law. The Constitutional Court upheld the Labour Court’s position that pre-suspension hearings are not required when an employer is contemplating placing an employee on precautionary suspension. The judgement, on this point, held that “… the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the (employee) was a precautionary measure, not a disciplinary one … where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.”
Emphasising the point, the judgement continued that “The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the (employee), even if there was no opportunity to for pre-suspension representations, is sound”.
Precautionary suspension should not be confused with punitive suspension, which arises when an employer imposes a sanction of dismissal, with an alternative sanction of suspension without pay, with the employee’s agreement.
This judgement is quite a significant departure from a widespread, historical understanding that failure to afford an employee an opportunity to make representations, prior to being placed on precautionary suspension, did indeed amount to an unfair labour practice.
Now that it has been clarified by the Constitutional Court that this is not the case, employers are now in a position to impose precautionary suspension in a less encumbered fashion.
It should be remembered, however, precautionary suspension will none the less amount to an unfair labour practice if it is unpaid, or punitive in nature. It could even amount to an unfair labour practice if it for an unduly lengthy period of time.
by Tony Healy | Jan 31, 2019 | Discipline & dismissal
Incompatibility between an employee and his or her colleagues can, and often does, result in fair dismissal, on grounds of either misconduct or incapacity. It is a set of circumstances in which an employee is responsible for an irretrievable breakdown in harmony which, as described in Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) “is of such a gross nature that it causes consternation and disruption in the workplace”.
In the Labour Court case of Sally-Anne Bentley v Survival Tyre Safety (Pty) Ltd (Case number JS799/16), it was noted that “A dismissal for incompatibility is more properly classified as a form of dismissal for incapacity if the employees concerned are not to blame for the conduct that renders them incompatible. On the other hand, if the employee concerned is to blame for his or her behaviour, termination of employment can be viewed as dismissal for misconduct”.
In this case, the employee had been accused of incompatibility on grounds of misconduct. None of the employer witnesses testified that they were unable to work with the employee; on the contrary, they testified that they were in fact able to do so. No employer witnesses were led who had allegedly complained about the employee’s behaviour. One of the employer witnesses testified that when asked by management to formulate written complaint about the employee, she was unwilling to do so. In fact, the employer witness continued that “the (employee) was the only female in a predominately male environment and that she had to fight harder to get what she wanted. The (employee’s) persistence made her one of the most successful sales representatives” at the company.
The judgment continued that “the employee’s conduct must be the cause of the disharmony or tension”. According to the employer, the employee was demanding and difficult to work with, and this coincided with a dispute about her commission structure, working hours and leave entitlement.
The employer also argued that the employee’s “alleged incompatibility stemmed from her inability to do her work.
The Court concluded that the employee’s dismissal on grounds of incompatibility was unfair, and that the evidence clearly points towards a unilateral change in the employee’s working conditions.
The Labour Court judgment in Watson v South African Rugby Union & others, was noted to have held that “the starting point is to treat any allegation of incompatibility as a case of incapacity. It is only once the measures put in place to address and reverse the incompatibility complained of have failed that it can be treated as misconduct. Thus, once those measures, accompanied by set norms and standards have failed to yield results and the employee continues with his or her errant ways, nothing prevents an employer from dealing with that employee’ stuffy subsequent behaviour as misconduct”.
In Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) the employer sought to review the dismissal of the employee on grounds of incapacity, which the CCMA had held had been substantively unfair, with the reinstatement of the employee with back-pay.
The employer contended that there had been several complaints from various staff members about the employee, around her work ethic her ability to work collaboratively within her team. An incapacity hearing was convened at which the employee was held to have been incompatible, and dismissed with pay in lieu of notice.
In the review, the employer, amongst other things, argued that the dismissal was not procedurally unfair, that the CCMA Commissioner had “misconceived the enquiry”, ignored the employer’s poor work performance policy, and “ignored evidence of four witnesses and concluded that two other witnesses were relevant to prove incompatibility”. The employer placed significant emphasis on its assertion that the Commissioner had also not given enough consideration to the employee’s poor work performance and insubordination.
The Court held that the employee was not in fact dismissed for poor work performance and insubordination, noting that “the reason why (the employee) was dismissed is that she was found to be incompatible”.
The judgment continued that “Incompatibility arises in a situation where there has been a breakdown in the harmony. The golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to affect an improvement in the inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory. The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony”.
The employee must then be afforded reasonable time to make amends. The employee must be warned and counselled if there is no improvement, before a hearing is held.
In this case, the review application was dismissed with costs.
