by Tony Healy | Jan 29, 2019 | Miscellaneous
How far can employers go in banning employees from wearing t-shirts which the employer considers inappropriate, and can such a ban ever infringe upon a union member’s right to freedom of association? This was the question posed in the Labour Court case NUMSA obo members v Transnet Soc Ltd (case number JS427/15).
At the commencement of this judgment, the dispute was succinctly stated to be, “Is it legitimate for an employer to prohibit the wearing of union t-shirts in the workplace? The applicant (NUMSA) contends that such a prohibition would breach the rights of expression and freedom of association of its members. The respondent (Transnet) contends that there is no substantive right to wear a union t-shirt in the workplace as an element of the exercise of the right of expression or freedom of association, or on any other basis, except with its consent”.
In October 2014, the employer introduced a corporate and protective clothing policy which prohibited the wearing of ‘political party clothing or non-recognised union regalia’ during working hours.
Of particular importance in this case was the policy wording that “It is prohibited to wear clothing of any political party or union that has no organisational rights within the workplace…”. This of course meant, inter alia, that members of the two recognised trade unions, SATAWU and UTATU, could wear union t-shirts, but unrecognised trade unions, such as NUMSA, could not.
Thereafter, with effect from 1 June 2015, this policy was revised to broaden the prohibition to the wearing of clothing “or any regalia of any sort of any political party or trade union…”.
The employer argued that the blanket ban on the wearing of union t-shirts was, in essence, to avoid union rivalry which had the potential to spawn conflict, or as recorded in the judgment, “The new policy, introduced in 2015, prohibits all employees, regardless of union affiliation, from wearing union t-shirts on account of its intent to maintain and ensure a peaceful environment in the workplace. The rationale for the t-shirt ban, he (the employer) said, was one related to risk management”.
The court contended that “There are two issues to be decided. The first is whether the workplace rule banning employees from wearing ‘clothing or any other regalia of any sort of any political party or trade union …during working hours’ is constitutional, lawful, reasonable and valid. Put another way, the issue is whether through its conduct in prohibiting the wearing of union t-shirts in its workplace, Transnet has infringed the protections accorded by the right to freedom of association enshrined in Chapter II of the Labour Relations Act, 66 of 1995, (LRA). The second is whether Transnet has applied the rule selectively by not taking disciplinary action against members of other unions who despite the policy, continue to wear union t-shirts to work and if so, whether this differentiation amounts to an act of unfair discrimination against NUMSA’s members”.
The Court held “having regard to the interpretation of s 5 (2) (c) (iii) adopted by the Constitutional Court, in my view, the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5 (2) (c) (iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice proscribed by that provision. In short, the t-shirt ban is unlawful and invalid with reference to s 5 (2) (c) (iii)” and “the wearing of union t-shirts constitutes a lawful activity”.
The judgment continued, however, that the right to wear union t-shirts is not unlimited – “This is not to say that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is unlimited. One can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. Indeed, Matlou gave the example in his evidence of employees engaged in work on tracks being prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion that may arise.”
That is not to say that the prohibition on the wearing of union t-shirts will always be unlawful. The judgment continued that “I have no doubt that in appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia (or even its prohibition in extreme cases)”.
But for now, the blanket banning of union regalia, under normal circumstances, is prohibited.
by Tony Healy | Jan 29, 2019 | Trade Unions
Managing strikes is a topical subject, with the current bus drivers strike and the prospects of a teachers, police and nurse public sector strike, also over wages and conditions of service.
Section 213 of the Labour Relations Act defines a ‘strike’ as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.”
Section 68(5) of the Act provides that “Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not a dismissal is fair, the Code of Good Conduct: dismissal in Schedule 8 must be taken into account.”
Item 6 (1) of this Code deals with the substantive fairness of strike dismissals as follows, “Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of a dismissal in these circumstances must be determined in the light of the facts of the case, including:
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.”
To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences. Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.
In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike. Amendments to the Labour Relations Act are expected to be Gazetted before year-end, which will compel unions to hold secret strike ballot before commencing strike action.
Voting to strike in a strike ballot is one thing, sustaining the strike is quite another. It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.
Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves. There is the added consideration of the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.
In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth. There is a process that must be followed.
Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.
Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action. Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].
The remedies available to employers faced with unprotected strike action are interdicts, restraining orders, and an application to the Labour Court for compensation for any losses attributable to the unprotected strike action. In addition, employers are entitled to contemplate the dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.
Primary considerations should be (1) was the unprotected strike spawned by unjustified conduct on the part of the employer? (2) the employer must promptly engage the union, outlining its intended course of action, (3) prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”, and (4) “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.
Strike related misconduct is, unfortunately, frequently evident during bot protected and unprotected strikes. On this subject, the Labour Appeal Court has confirmed that the right to strike is not a licence to engage in misconduct.
by Tony Healy | Jan 29, 2019 | Discipline & dismissal
Employers are quite rightly entitled to view employee dishonesty in a very serious light. Regretfully, theft-related and dishonesty cases are quite common in the workplace. In our experience, for example, half of the disciplinary cases in the hospitality industry ate theft-related.
In the Labour Appeal Court case in Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC), the Court warned that ‘dishonesty’ is not a loose term that could just be thrown at employees in any circumstances. The Labour Appeal Court held that dishonesty entails ‘a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.
In another case, the Labour Court dealt with employee dishonesty in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].
The facts were quite straight forward. The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry. During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.
This charger was on sale at the store in question, and the employee had no proof of purchase. The employee subsequently failed a polygraph test.
The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.
The employee referred an unfair dismissal claim to the CCMA. At the arbitration hearing. The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation. The employer took the matter on review to the Labour Court.
The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.
This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger. The employee had also admitted this during the original disciplinary hearing.
The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.
The Court set aside the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.
On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal. Dismissal for a first instance of such misconduct was fair ..”.
In the matter between ABSA Bank Ltd v Naidu DA14/12 24/10/2014 (LAC), it was held that “dishonesty has a corroding effect to the trust which the employer is entitled is entitled to expect from its employees in its various operations”.
The Labour Appeal Court had the following to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) – “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee”.
It follows that dismissal is generally considered justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer.
In Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, the Labour Court stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The Court continued that the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship, will entitle the employer to bring it to an end, is a long established one.
In Toyota SA Motors (Pty) Ltd v Radebe and others [2000] 3 BLLR 243 (LAC), it was held that “Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind, one such clear act of misconduct is dishonesty”.
by Tony Healy | Jan 14, 2019 | Miscellaneous
2019 is going to be an interesting year in the South African labour relations environment. There are a number of reasons for this. To begin with, the evolution of the South African Confederation of Trade Unions (SAFTU) will continue to influence the labour relations environment by increasing union rivalry.
SAFTU is by no means in the same league as COSATU in either breadth of influence, or membership, but what it does do, and has done, is duplicate union presence within sectors.
Prior to the break-away of SAFTU from COSATU, there was, pretty much. One union per sector, and that was typically a COSATU union. Things have changed. SAFTU is now seeking to compete with COSATU in every sector, and that results in union duplication. This has been particularly evident in the transport sector where the splintering of COSATU’s South African Transport and Allied Workers Union (SATAWU) has been quite significant, both in term of the SATAWU equivalent, and other new independent transports sector trade unions, all vying for a sector which was, up until quite recently, dominated by SATAWU.
The proliferation of trade unions in industry sectors breeds union rivalry. It is already evident, and will continue to grow in 2019. The old COSATU slogan of ‘one union one industry” is under severe strain, given the emergence of SAFTU, and the growing influence of FEDUSA.
This is not good news for employers. Union rivalry is a challenge for employers in that it promotes a multi-union workplaces, which requires duplication of, for example, organizational rights agreement san collective bargaining, if unions elect not act in unison.
It can, as it has in the past, lead to workplace violence and worse, as unions compete for membership in the same workplace.
Unions are all too aware union rivalry, and this has led to an increase in demands for closed shop agreements to shut out competing unions. This is made all the more challenging by relatively recent amendments to the Labour Relations Act which gives organizational rights previously reserved for majority unions, to minority unions. This includes the deduction of union subscriptions, workplace access, and the appointment of shop stewards. It is now quite possible, for example, for more than one trade union to have statutory shop stewards appointed in a single workplace.
New labour legislation, and amendments to key pieces of existing labour laws will also add complexity to the South African labour relations environment in 2019.
Let’s start with the Minimum Wage Act, and its’ Regulations. Approximately six and a half million workers will benefit from the introduction of the R20.00 per hour minimum wage, with a lesser sum being applicable to agricultural and domestic workers, at least for now.
The CCMA will be largely responsible for resolving disputes relating to the failure by an employer to pay the prescribed minimum wages. It remains to be seen how the CCMA will manage this increased burden on its case load, when its resources are already severely stretched.
It is furthermore highly likely that there will be a multitude of applications lodged by employers to be exempted from paying the prescribed minimum wages. The regulations governing the Minimum Wage Act appear to set out provisions for employers to be exempted from paying the prescribed minimum wages, which could spawn widespread minimum wage exemptions. This has already caused disquiet amongst labour federations, although minimum wage exemptions are capped at no less than ninety percent of the applicable minimum wage, and are for a maximum period of twelve months.
Other new labour law developments include paternity leave and secret strike ballots, both of which are very significant.
In simple terms, men will now qualify for two week’s paternity leave, and adoptive parents are included in this benefit, although only applicable to one of the parents.
The introduction of secret strike ballots is to be welcomed. This enables union members themselves to vote for, or against, embarking upon protected strike action, without fear of intimidation. It also removes the almost carte blanche decision making which union officials had to prompt strike action.
A further component of the evolution of new labour legislation is the well-intended extension of advisory arbitration awards in labour disputes which warrant dispute resolution intervention when it is the public interest for such intervention. The shortcoming however is that the efficacy of advisory arbitration awards is minimal, as they are not binding on the parties to the dispute.
So 2019 is expected to be another year of labour strife with increased turmoil. For example, we expect the number of disputes referred to the CCMA to exceed one thousand a day before year-end, including minimum wage disputes.
Fasten your seat belt.
by Tony Healy | Jan 10, 2019 | Miscellaneous
There are a whole host of reasons why employers retrench. Whilst the most common reason will be some form of financial stress, the reason for retrenchment could be entirely unrelated to financial difficulty.
It could be said that employers either retrench to lose less money, or retrench to make more money. Other grounds warranting retrenchment include automation, which replaces manual jobs, and simple organizational restructuring whereby the employer concludes that the business could continue to function, and even flourish.
It’s also important to remember that retrenchment, referred to as an operational requirements dismissal in the Labour Relations Act, is one of the three categories of dismissal in our law, with the other two being misconduct and incapacity.
It is helpful to understand there are, essentially, three steps to be followed in order to ensure compliance with the procedure to be followed, as outlined in sections 189 and 189A in the Labour Relations Act.
In short the three steps are (1) notify the employee the proposed retrenchment in writing, (2) consult with the employee before finalising any retrenchment decision, and (3) finalise the procedure by deciding if the retrenchment will be confirmed as proposed.
So when must the requirements of section 189 of the Labour Relations Act commence? Well, quite simply, an employer must issue a potential retrenchee a notice of proposed retrenchment once the retrenchment is contemplated by the employer. In practice, this means that the process must commence once the retrenchment is the most likely, or most preferred, employer option.
Employees are entitled to be represented during the consultation process by any registered trade union whose members are likely to be affected by the proposed retrenchments, a committee appointed to represent potential retrenchees, or a colleague.
Both the employer and the potential retrenchee are equally obligated to participate in the consultation process with a view to attempting to seek consensus on possible ways of avoiding the proposed retrenchment, delay the timing of the proposed retrenchment, or ways to mitigate the adverse effects of the retrenchment.
In addition, and importantly, the employer and the employee must also attempt to seek consensus on the selection criteria to be adopted in the selection of the employees to be dismissed. If no agreement is reached on the selection criteria, fair and objective criteria should be adopted. This means, for example, that subjective criteria such as the employee’s disciplinary records, cannot be used to select employees for retrenchment. This is an important compliance issue, as was held in Singh v Mondi Paper (2000) 4 BLLR 446 “the selection process must rank as the most fundamental issue for scrutiny in order to determine whether the dismissal was fair or not”.
‘Last in first out’ is the most widely recognised fair and objective selection criterion in retrenchment. However, selection may be based on the need for skills retention, in which case last in first out not a consideration.
The severance pay to be paid to potential retrenchees is also a matter for consultation. Employers are required to pay no less than one week’s remuneration for each completed year of service, to a retrenched employee. You can pay more, but you can’t pay less, without an exemption to do so.
It is not uncommon for employers to agree to pay retrenchees in excess of the one week’s remuneration for each completed year of service; however, an employer would typically not do so without ensuring, in return, that the employee agrees to sign a retrenchment agreement, thereby ensuring that the employee cannot subsequently claim unfair retrenchment.
Another factor to consider in most retrenchment scenarios, is the prospect of voluntary retrenchment. Prior to selecting employees for potential retrenchment, an employer may open a window period within which employees may volunteer to be retrenched. It may sound unlikely that an employee would volunteer to be retrenched. However, it does occur. For example, an employee may have been planning to resign, or has been saving to start their own business venture, in which case the severance pay will come in handy.
When such a window period for voluntary retrenchments is opened, the employer would always reserve their right to accept, or reject, applications, based on operational requirements, and the need to retain certain skills.
Finally, section 189A of the Labour Relations Act is to be complied with in the case of more large scale retrenchments, and becomes applicable, in certain circumstances, in retrenchments with employers with more than fifty employees.
by Tony Healy | Jan 9, 2019 | Discipline & dismissal
A common refrain from employers is that dismissal is difficult, as our legislation, and CCMA (and Bargaining Council) Commissioners, count against employers in unfair dismissal disputes. The fact is that dismissal is entirely appropriate, and therefore fair, as long as it is affected for a fair reason, and following a fair procedure in which there is evidence that the employee is probably guilty. This of course presupposes that there has been a repetition of offences, or one single act of misconduct which is so gross in nature that, on its own, it justifies dismissal.
We see in our practice, on a daily basis, that adherence to these principles invariably results in dismissals being upheld at the CCMA and Bargaining Councils.
Part of the problem is that employers often don’t know what they don’t know.
Discipline needs to be applied consistently, meaning that (1) an employer can’t suddenly discipline or dismiss an employee for misconduct they have overlooked in the past, (2) all employees, in respect of whom an employer has sufficient proof of misconduct, should be disciplined, and (3) all things being equal, employees found guilty of the same offence should receive the same sanction.
Two types of fairness must be evident in all disciplinary cases, including dismissals, namely substantive and procedural fairness; these are the yardsticks used to assess whether, or not, a dismissal, or lesser disciplinary action for that matter, was fair.
Substantive fairness has four elements. Firstly, there must be a fair reason for the disciplinary action, or dismissal, and secondly, discipline must be applied consistently. The third important factor is that if the employer has sufficient proof of guilt, prior to selecting a sanction, the employer is required to give careful consideration to mitigating and aggravating circumstances.
Mitigating circumstances are factors presented by the employee, in an attempt to persuade the disciplinary hearing chairperson to show leniency in their selection of a sanction. Mitigating factors would include length of service, whether the employee has a clean disciplinary record, age, and any other personal circumstances which may have a bearing on the sanction choice (such as the employee being a sole breadwinner).
Aggravating circumstances are factors presented by the employer complainant, and are the employers sentiments on which sanction should be selected, and why. For example, an employer may submit in aggravation that (1) the employee has short service, (2) the employee has a poor disciplinary record, (3) the employee has shown no remorse, and (4) importantly in potential dismissal cases, the trust relationship has not merely been damaged by the employee having been found guilty of the misconduct, but has in fact been broken beyond repair, thereby rendering the ongoing employment relationship intolerable.
In the event that an employer seeks dismissal on grounds that the trust relationship has been damaged beyond repair, this employer view must be justified, as the CCMA will not merely agree that a trust relationship has bene broken beyond repair, simply on the ‘say-so’ of the employer. An investigation will be conducted to establish whether, or not, the presumption of an irreparable breakdown in trust is reasonable in the circumstances.
Item 7 in Section 8 of the Labour Relations Act (Code of Good Practice: Dismissal) sets out guidelines for employers as far as substantive fairness is concerned, and in so doing, focuses on the fact that the employer is required to also show (1) that the employee contravened a rule, (2) that the rule or standard was valid and reasonable, (4) that the employee knew, or should have known, the rule or standard, and (5) that dismissal was a fair and appropriate sanction.
Put differently, when it comes to the selection of an appropriate sanction, it is frequently said that “if the employer’s choice of sanction makes the court whistle, it is too harsh”.
In addition to being substantively fair, disciplinary action must also be procedurally fair. Quite simply, employers are obliged to adhere to their internal disciplinary procedures, which set out the manner in which disciplinary processes will be implemented in the company. This would include, the notice period to be applied prior to disciplinary hearings being convened, and the employee’s right to representation (typically internal representation only). Additionally, the misconduct allegations must be clear communicated to the employee, and an interpreter should be sourced should the employee elect to defend themselves in their mother tongue.
Remember too that the amount of proof required to prove an employee guilty of misconduct is proof of probable guilt (proof on a balance of probabilities) often explained on the basis that the probabilities that the employee is guilty must be greater than (not equal to) the probabilities that the employee is not guilty.
Finally, disciplinary hearings were never intended to be conducted in a complicated, criminal procedure-like manner. It is understood that laypersons oversee disciplinary processes. Fairness and reasonableness are key.
by Tony Healy | Jan 7, 2019 | Labour Legislation
Two pieces of legislation are relevant to the new minimum wage law effective from 1 January 2019, namely the National Minimum Wage Act (2018) and the Regulations to the National Minimum Wage Act (2018). It has been estimated that approximately six and a half million employees will benefit from this legislation.
The minimum wage legislation coincides with a raft of amendments to many other labour laws including the introduction of paternity and adoptive parent leave, and strike secret ballots.
The purpose of the National Minimum Wage Act is “to advance economic development and social justice by, amongst other things “improving the wages of lowest paid workers”, “protecting workers from unreasonably low wages” and “preserving the value of the national minimum wage”.
The Act “applies to all workers and their employers, except members of the South African Defence Force, the National Intelligence Agency and the South African Secret Service”. Volunteers are excluded from the Act and need not, of course be paid any wage.
The applicable national minimum wage is R20.00 per hour, except for farm workers who have a minimum wage of R18.00 per hour, and domestic workers whose minimum wage is R15.00 per hour. “Workers employed on an expanded public works programme are entitled to a minimum wage of R11.00 per hour.
The minimum wages for farm and domestic workers will be reviewed and amended by 1 January 2021, whilst the general minimum wage is to be reviewed annually.
Importantly, an employer will commit an unfair labour practice if they “unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage.
In calculating wages when applying the National Minimum Wage Act, “the calculation of a wage for the purposes of (the Act) is the amount payable in money for ordinary hours of work”. However, payment of the minimum wage excludes any payment for employee transport, equipment, tools, food and accommodation. It also excludes all gratuities including tips and bonuses.
Regulations to the National Minimum Wage Act (2018), on the other hand, primarily addresses all matters relating to employer applications to be exempted from paying the prescribed minimum wages. To begin with, the regulations stipulate that “an exemption may only be granted if the delegated authority (the Director-General of Labour) is satisfied that (a) the employer cannot afford to pay the minimum wage, and (b) every representative trade union representing one or more of the affected workers has been meaningfully consulted or, if there is no such trade union, the affected workers have been meaningfully consulted”.
If an employer is granted an exemption to pay the national minimum wage, will be for a maximum period of twelve months, and may not be less than ninety percent of the applicable minimum wage. Exemptions can be withdrawn if it is established that the employer “has provided false or incorrect information that has led to the granting” of the exemption, or “the employer is not complying with the exemption notice”.
The affordability test to be applied in assessing exemption applications the elements of profitability, liquidity and solvency. So-called ‘audit triggers’ have been identified in the regulations, include “discrepancies in depreciation”, “out of proportion net losses”, “discrepancies in reported revenue and reported total expenditure” and “discrepancies in total liabilities”.
Our firm has already received numerous enquiries from employers who are contemplating widespread retrenchments in response to the impact of the implementation of the new minimum wage.
You don’t need to look far to find highly charged sentiments on this legislation, both in favour of, and against its implementation.
Organised labour has already expressed its concern that the exemption process will enable many employers, in the manufacturing and construction industries for example, to successfully apply for exemption from payment of the minimum wage, given the parlous sate of the economy. Time will tell if this proves to be true. There is little doubt that the Director General of Labour will be inundated of exemption applications from employers.
The CCMA anticipates that disputes relating to the payment of minimum wages will increase its caseload by about fifteen percent. We think this is a conservative estimate, with a twenty percent case load increase being more likely.
by Tony Healy | Jan 7, 2019 | Discipline & dismissal
One of the biggest employment sectors in the country is that of domestic workers. There is specific minimum wage legislation relating to domestic workers, and as is to be expected, domestic workers have the same rights as their fellow workers in more formal sectors.
Domestic work differs from more formal employments sectors by virtue of the fact that the employment relationship takes place in private residences. This quite clearly already places great importance on issues of trust and honesty. Many domestic employment relationships last for many years, but not all do so.
Like any other employment relationship, the CCMA takes a dim view of unfair dismissal in the domestic sector. This was the case in the arbitration hearing between Sindisiwe Victoria Nala v Fiona Huma-Siripa (Case Number: GAJB5275-17).
In this case, the employee was a so-called live-in domestic worker, who had been employed by the employer since 7 January 2016, prior to the termination of the employment relationship on 8 March 2017.
According to the employer, the employee would, from time to time, “get a few days off, and then travel to the north coast of Kwa-Zulu Natal in Empangeni”. On one such occasion, the employee took one of her monthly trips to visit her family in Empangeni, however she failed to return to work on the agreed date.
The employer then phoned the employee, but her phone was off, after which she sent her a short message (sms), and followed this up with a further sms the following day. The security guards at the access gate of the complex in which the employer reside, called to confirm that the employee was at the gate at 4pm, the day after she had agreed to return to work. The employer then took the employee’s belongings to the gate, confirming “Siyabonga, thank you”, we no longer wanted her.
According to the domestic worker, she did indeed return from visiting her family in Empangeni, in Kwa Zulu Natal, on the day after she had agreed to do so, but she had lost her mobile phone, and could therefore not communicate with the employer.
She continued that when she reported to the entrance gate of her employer, the husband of the household arrived at the gate and instructed her to get into his car, after which he drove her to the local Shoprite Centre. At the shopping Centre, he informed her that her belongings were in the boot, and that “it was over with them” and they no longer needed her services.
The employee continued that “she was dismissed in a callous manner”.
The Commissioner agreed. The arbitration award began by noting that the employee “was not granted an opportunity to state her case”. It continued that what’s more “there was no consultative meeting at all”. To make matters worse, the employee “was not charged with misconduct or found guilty of any misconduct”. The dismissal was held to have been callous and demeaning to the employee’s personhood. Furthermore, the dismissal was without a valid and legitimate reason.
The procedurally and substantively unfair dismissal warranted six months compensation to the employee in the eyes of the Commissioner.
Sectoral determination 7: The Domestic Worker Sector, makes provision for minimum wages and conditions of service in this sector, including all forms of leave, and notice periods.
It is also important to remember that any domestic worker, or indeed any person for that matter, that works for in excess of twenty-four hour per month, must be registered with the Department of Labour for the unemployment insurance fund.
by Tony Healy | Dec 12, 2018 | Discipline & dismissal
The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ cases.
Put simply, this primarily involves cases in which employees insult and/or offend their employer and/or its management on social media platforms such as, for example Facebook, Twitter, LinkedIn and WhatsApp groups.
This clearly has reputational consequences for employers, which is linked to the universal right to dignity.
The employment law cases which have thus far dealt with the apparent, at face value, conflict between the right to freedom of expression, and the right to protection of one’s reputation and dignity, have trended in favour of curbing the right of freedom of expression when it undermines reputational rights.
Key to the right of employer’s to take disciplinary steps against employees in such cases is the fact that after hours employee conduct does indeed fall within the ambit of an employer’s disciplinary code if such after hours, off duty, misconduct, is work related.
In Radebe v JD Group (Pty) Ltd [GAJB12297-14], the employee was dismissed for having posted insulting statements on his Facebook page after having been confronted by management regarding his poor time keeping and tardiness.
The Commissioner noted that “The applicant had submitted no formal grievance, against anyone, for the company to deal with but chose to vent himself on the social media”, and that “the employee constituted the face and voice of the company and his conduct on social media showed no regard for possible risks he exposed the company to with his comments”.
The dismissal of the employee was upheld.
Similarly, in Motloung v The Market Theatre Foundation [GAJB4458-11], the employee had been dismissed for what the Commissioner described as “a hate speech statement on Facebook” which “impacted negatively on the employer”. As far as the employee’s purported right to freedom of speech was concerned, the Commissioner noted that “I do not accept the argument that the employee’s Constitutional right to free speech entitled him to act as he did”.
Numerous CCMA and Bargaining Council arbitration awards and Labour Court judgments concur that employees may not slander their employees on social media platforms, and that should they do so, they commit a dismissible act of misconduct.
In the Motor Industry Bargaining Council arbitration case of Arthur Leach v Suzuki Johannesburg South [MIBCO DRC 44570D], it was held that “the DRC accepts that the CCMA had held in recent cases that employees may be dismissed for having posted false derogatory remarks about their employers or even the employer’s clients on Facebook, Twitter and other social networks or blogs, as these posts may have had the effect of harming the ongoing employment relationship, or have brought the employer’s name into disrepute”.
Continuing, the arbitration award added that “In aforesaid regard, there had been recent cases where employees had been dismissed for social media misconduct. Cases such as Sedick & another / Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); Fredericks / Jo Barkett Fashions (2012) 1 BALR 28 (CCMA) and Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) … are examples where the cause of dismissal/disciplinary sanction had been related to social media misconduct.”
Of importance in such cases is whether, or not, the employees had restricted their Facebook privacy settings, as this talks to the right of employers to access employee Facebook pages.
In a recent KZN CCMA Arbitration Award in BEMAWU obo Thulani Msimang (KNDB 14983-16), it was held that “In two cases heard at the CCMA where the employees had not restricted their Facebook privacy settings, namely, (Sedick and another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the Commission took the view that the employer was entitled to intercept the posts in terms of the Regulation of interception of communications and provision of communication related information Act 70 of 2002 (RICA).”
In a recent UK social media related case, it was held that the employee “was aware of the (social media) policy and one assumes she read it, she must have been aware what was and what was not allowed …. It may be seen as harsh but the (employer’s) taking into account of the (employee’s) long service and clean record nevertheless dismissed for a clear breach of the policy and that would fall within the range of reasonable responses open to an employer”.
So what can we learn from this?
What is becoming abundantly clear is that employers would do well to establish social media policies designating it an offence to post content which brings the good name and reputation of the employer into disrepute, and to supplement this with reference to such misconduct in the employer’s disciplinary code. What’s more, this policy should be a key component of an employer’s induction process.
Employer social media policies should remind employees not to rely on Facebook’s privacy settings, as comments can be copied and forwarded on to others without permission.
Employees would do well to exert considerable care when tempted to slander their employer on social media.
by Tony Healy | Dec 12, 2018 | Discipline & dismissal
It is not unusual for employer’s to designate so-called ‘zero tolerance’ policies for certain acts of misconduct. For example, an employer will often adopt a ‘zero tolerance’ policy towards theft related cases and alcohol related offences.
The upshot of this is that any employee found guilty of an act of misconduct which falls within a zero tolerance policy framework, will invariably result in the dismissal of the employee, regardless of the fact that the employee may, for example, have an otherwise clean disciplinary record.
At face value, these zero tolerance tendencies are quite understandable in certain circumstances. The question is however, whether dispute resolution bodies, such as the CCMA, will recognize such zero tolerance regimes regarding certain offences.
Case law directs us on this vexed question, and the answer is not as straight forward as many employers would believe.
Our Courts have had much to say about “a slavish imposition of the dismissal penalty” in the event of a breach of a company zero tolerance policy [Labour Court: Pick ‘n Pay Retailers (Pty) Ltd v CCMA & others – C1083-14].
It was further held in this case that “It is also necessary to make some further remarks as regards dismissal for a first offence ie: a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach”.
In another retailer case before the Labour Appeal Court, that of [Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement – JA49-14], it was held that “the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a no go area for commissioners. A zero-tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin.”
That’s not to say that zero-tolerance policies cannot be upheld in certain circumstances. Safety is of critical importance in many workplaces, such as a mining environment. In the Labour Court judgment in Superstone Mining (Pty) Ltd v CCMA & 2 others [Case no. C959/11), it was held that “given the employer’s zero tolerance policy with regard to alcohol-related misconduct of which the employee was aware, dismissal was clearly a fair sanction”.
In Assmang Ltd v CCMA & 2 others [JR911/13], the Labour Court once more upheld the notion of zero-tolerance policies relating to alcohol and safety in finding that “Being a mine, however, the Applicant is bound by the provisions of the Mine Health and Safety Act, which prohibits an employee from entering the mine premises whilst under the influence of alcohol …. the Second Respondent ought to have taken into account, the importance of the safety rule concerned, the reasons for their existence, and the seriousness and potentially life threatening consequences of a breach of such rule”.
In the final analysis, employers should be cautious in implementing zero tolerance policies; dispute resolution bodies such as the CCMA, Bargaining Councils and the Labour Courts, may frown upon such a policy. To a large degree, this criticism relates to such zero tolerance policies ignoring progressive discipline options such as final written warnings. Foreign jurisprudence has dealt with this issue, on occasion, by noting that a zero-tolerance policy in dismissal cases may not necessarily be upheld if the employer’s disciplinary code provides for discretion in the imposing of a dismissal sanction when misconduct is committed in respect of which there is ‘zero tolerance’. For example, does the disciplinary code state that the misconduct will lead to dismissal, or ‘may’ lead to dismissal?
In the final analysis, reasonable and justifiable zero-tolerance policies will be upheld in regard certain acts of misconduct, and each case will be examined on it’s own merits
Another bugbear of our Courts is frequent inconsistency in the application of such policies.
Employers may indeed emphasize the gravity of certain acts of gross misconduct in disciplinary codes, but be open to the fact that there will be, in exceptional circumstances, circumstances in which dismissal will deemed to be too harsh a sanction.
