by Tony Healy | Nov 2, 2018 | Discipline & dismissal
Unfortunately, but not unsurprisingly, employee postings on social media platforms which put the good name of their employer into disrepute, are becoming increasingly common.
More often than not, the social media postings are of such a nature that the dismissal of the employee is warranted.
In the Labour Court judgment in Juda Phonynogo Dagane v SSBC and Others (Case number: JR2219/14) delivered on 16 March 2018, the employee sought to review a CCMA arbitration hearing finding that his dismissal for having made racist remarks about his employer, SAPS, on Facebook, was unfair.
As was stated in the judgment “the facts are fairly straightforward”. The allegations levelled against the employee at the disciplinary hearing comprised of him “prejudicing the discipline and efficiency of the SAPS and contravened the SAPS regulations, code of conduct and code of ethics by unfairly and openly discriminating against others (whites) on the basis; 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 Facebook postings were described as “vitriolic racist comments” in the judgment and contained profanities threatening genocide and hatred of a racial grouping”.
The employee submitted that the Commissioner in the arbitration hearing had not applied her mind to the evidence before her, and had come to a conclusion that another reasonable arbitrator could not have arrived at. In addressing this, the court noted that it had perused a transcript of the Commissioners findings and when considering whether the dismissal was for a fair reason, the court concluded that the Commissioner had applied her mind reasonably in concluding that the remarks made by the employee on Facebook were contrary to the Constitution of the Republic of South Africa, the SAPS code of ethics and the SAPS code of conduct “all of which prohibit discrimination and exhort the citizens of our democracy to treat everyone with equal respect and to create a safe and secure environment for all South Africans”.
The employer also argued that the employer had no policy regarding social media within the workplace.
The court noted that the arbitrator had “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. The court held that “this too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee also submitted that someone had created a Facebook account using his details, or that “someone had hacked into his account and made these postings”.
This submission was held to be improbable as access to the employee’s Facebook account “would need his password and that he had not given anyone his password”.
Notably, the court also held that if indeed someone had hacked into his account “the applicant would have distanced himself from making the remarks, which he did not do”.
The court further held that the arbitrator had reasonably concluded, in relation to the totality of evidence that was before her, that “on a balance of probabilities the employee was the author of the offensive and racists 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”.
Turning to the question of the severity of the sanction of dismissal, the court held that the dismissal of the employee was an appropriate sanction, as the arbitrator had “considered that the applicant was employed as a police officer with a mandate to protect its citizens irrespective of the race, colour and creed of such citizens. She considered that to threaten the safety of another sector of the community was wrong and that the conduct of the applicant did have the effect of bringing the SAPS into disrepute”.
More recently, in Hotz v UCT (SCA:2016) racial slurs were denounced in the judgment which held that “The issue of the content of the slogans, whether painted on the War Memorial and the bus stop or worn on a T-shirt, as well as statements, such as those made by the third appellant in the confrontation with a student, is a delicate one. Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard. It was rightly said in Mamabolo that ‘freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections 15 – 19 of the Bill of Rights.’ But in guaranteeing freedom of speech the Constitution also places limits upon its exercise. Where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constituting incitement to cause harm, it oversteps those limits and loses its constitutional protection.”
by Tony Healy | Nov 1, 2018 | Discipline & dismissal
From time to time, disciplinary cases evolve in which there is only one employer witness, whose evidence is, invariably, contested by the employee. It’s the “one person’s word against another case”. In more legal parlance, the chairperson, or Commissioner, is faced with two so-called mutually destructive versions. The question is, can one be preferred over another, and if so, in what circumstances?
One guiding principle is that the demeanour of witnesses should closely monitored when determining witness credibility.
As one would expect, there are legal principles which address this conundrum. The arbitration hearing in Bheki Innocent Ngobese v Water Weights Natal CC (Case number MEKN7225) presented the Commissioner with one such conundrum. In analyzing the evidence, the Commissioner lent on various prior judgments which give guidance on how to treat cases with mutually destructive evidence.
To begin with, the Commissioner referred to the case of S v Kelly 1980 (3) SA, in which the court said “there can be little profit in comparing the demeanor only of one witness with that of another when seeking the truth. In any event, demeanour is, at best, a tricky horse to ride”. Demeanour, as a factor determining witness credibility, should not approached with caution, and not be exaggerated as a key factor in determining witness credibility. This was alluded to in S v Mgengwana 1964 (2) SA in which the court noted the challenge faced with assessing the demanour of a witness who wear masks.
The Labour Court, in Masilela v Leonard Dingler (Pty) Ltd [2004] 25 ILJ stated that when faced with two mutually destructive versions, or one person’s word against another case, “This court is faced with two mutually destructive versions, only one of which is correct. I deciding which version to accept and which one to reject, I am obliged to consider inter alia, the issue on a balance of probabilities. The onus is on the respondent (the employer) to prove that its version is the truth. The onus is discharged if the respondent can show by credible evidence that its version is te more probable version”.
A further tool utilised to determine witness credibility, is how the witnesses perform under cross-examination.
The critical factors to be considered when seeking to make a credibility judgment when confronted with to irreconcilable versions, were outlined in the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others [2003 (1) SA 11 (SCA)] – “To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’
This emphasises the point that it is not the quantity of the evidence presented by the employer and the employee, but rather the probabilities which flow from all the evidence, which in certain circumstances, may be one, single witness. Relying on a sole witness will always, none the less, place a greater burden on an employer.
by Tony Healy | Oct 10, 2018 | Discipline & dismissal
Disciplinary hearing verdicts depend on whether the employer can prove, on a balance of probabilities, that the employee is guilty of the misconduct alleged. Put differently, the probabilities that the employee is guilty must be greater than the probabilities that the employee is not guilty.
The CCMA arbitration award in L. Naidoo v Lever Ponds [Case number KN22081], the Commissioner cautioned that “When deciding on a balance of probabilities, the ultimate question remains whether contentions of the party bearing the onus are more probable than not ……….. what is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case ………… if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
Proving probable guilt becomes more difficult when the employer only has one witness, and gives rise to the “one person’s word against another” conundrum. Other types of evidence such as documentary evidence may help to tilt the scales in favour of the employer, but a case which pits one version of an employer against a conflicting version from an employee, will always present the employer with a challenge which differs from a case in which there are two, or more, witnesses.
Traditionally, the evidence of a single witness was required to be treated with caution. The practical problem faced by a disciplinary hearing chairperson in such circumstances is to know which of the two opposing versions should be preferred, and why? For example, there is no reason why the employer’s version should always be preferred over that of the employee, or vice versa.
It was confirmed in Northam Platinum Mines v Shai NO & Others (2012) 33 ILJ 942 (LC) that whilst one should not reject the applicability of the cautionary rule when faced with a single witness, the current approach to single witness evidence is less stringent than has been the case in the past. Put differently, one need not simply conclude that the evidence of a single witness in a disciplinary hearing will always be insufficient to prove guilt on a balance of probabilities.
On the contrary, the probabilities of the respective versions should be evaluated the credibility of the respective witnesses should be assessed.
Important authority on single witness evidence is found in the S v Carolus 2008 (2) SACR 207 SCA Supreme court of Appeal judgment, in which it was held that “There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court (disciplinary hearing chairperson) should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence”.
Also of importance is the unreported case of Minister of Correctional Services v A M Baloyi & others [JR46/09] which held that the single witness cautionary rule is not applicable to civil or arbitration proceedings.
In the final analysis, an employer may rely on the evidence of a single witness to prove misconduct, but should do so with caution, ensuring that there are justifiable grounds on which to prefer the evidence of the employer witness over that of the employee.
by Tony Healy | Oct 8, 2018 | Case Law
There are times when employers seek to prove that an employee is guilty of misconduct. When in fact, there were no eye witnesses. Such cases, rather than relying on direct evidence, rely upon circumstantial evidence.
Section 192(2) of the Labour Relations Act provides that “if the existence of the dismissal (at arbitration) is established, the employer must prove that the dismissal was fair”. As such, in arbitration hearings, it is rebuttably presumed that a dismissal was unfair until the employer proves that it was fair. The burden of proof is that of proof on a balance of probabilities, rather than the greater burden of proof in criminal proceedings, which is proof beyond reasonable doubt.
The arbitration award in SASBO obo Richard Thabelo Sera & 1 other v SBV Services (Pty) Ltd [Case number NWRB536-15], reference was made to the judgment in Govan v Skidmore 1952 (1) SA 732in which the court held “that it was trite that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be a more natural, or plausible conclusion from amongst severable conceivable ones, even though that may not be the only reasonable one”.
More recently, in the CCMA Arbitration Case in L. Naidoo v Lever Ponds, [Case number KN22081], it was noted that “When deciding on a balance of probabilities, the ultimate question remains whether contentions of the party bearing the onus are more probable than not ……….. what is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case ………… if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
Circumstantial evidence is the opposite of ‘direct evidence’ (ie: the kind of evidence which comes from witnesses) and can therefore be described as ‘indirect evidence’ in that certain ‘assumptions’ are made. It is admissible under certain circumstances. Can only be used to support a substantial fact. The Chairperson of an enquiry should listen to circumstantial evidence first and then decide how much weight they are going to give it (in other words, how fair it would be to admit it either entirely or in part).”
When seeking to prove guilt utilising circumstantial evidence alone, the complainant relies upon proving facts which, when taken as a whole, lead to only one, reasonable, inference, namely that the employee is probably guilty.
The SASBO arbitration award further discussed the use and application of circumstantial evidence, when quoting Duncan Manufacturing v MEIBC & others (2010) ZALC “where the court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her in assessing the inference to be drawn from the facts. The commissioner should look at the totality of evidence and weigh it on a balance of probabilities”.
The Labour Court judgment in Distell Ltd V CCMA 7 others (Case number C343/2012), interestingly, and quite correctly, noted that “The use of circumstantial evidence is a powerful tool in proving the existence of an issue in dispute. Hoffmann & Zeffert note the distinction between direct evidence and circumstantial evidence. Direct evidence is provided by a witness who testifies directly on the issue in dispute. So, for instance, in a murder trial, a witness who testifies that he saw the accused stab the deceased with a knife, provides direct evidence as to the stabbing. On the other hand, a witness who testifies that he saw the accused emerge from a room in which the deceased was subsequently discovered, bearing a knife dripping with blood, provides only indirect or circumstantial evidence to support the fact that the accused had stabbed the deceased”, and continued that “circumstantial evidence is thus evidence of a fact from which an inference can be drawn as to the existence of a fact in dispute”. This of course relates to criminal matters.
The court in Smith v Arthurs 1976 (3) SA 378, when dealing with circumstantial evidence the court held, “All the relevant facts must necessary go into the melting pot and the essence must finally be extracted there from”.
Perhaps the final word should go to a landmark English case in which Lord Wright in Caswell v Powell Duffy Collieries Ltd [1939] 3 All ER 722 (HL) said “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had actually been observed. In other, cases the inference does not go beyond reasonable probability. But is there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjuncture.”
by Tony Healy | Oct 7, 2018 | Case Law
Collective guilt arises when an employer deems it appropriate/necessary to hold one or more individuals liable for the acts of others within a group. The doctrine of common purpose was originally sourced from the field of criminal law the essence of which, as defined in SACCAWU obo Madika & 4 others v Pep Stores [Case No.NP1848-01] is “that each member of the group is held individually liable for his or her own actions as a member of the group acting in furtherance of a common purpose”.
Grogan (2002) submits that in the event that employees “are found to have actively associated themselves with the result and shared the perpetrators ….. frame of mind …. the guilt of the perpetrator extends to them”.
A number of collective guilt cases were referred to the Industrial Court in the past, and similar cases have been adjudicated by both the CCMA and the Labour Court.
One such Industrial Court matter which drew much attention at the time, was NUM vs Amcoal Collieries Ltd t/a New Denmark Collieries (1989) 10 ILJ 733. In this matter, the court took a particularly dim view of the concept of collective guilt. The court disapproved of collective guilt in the strongest terms by stating in the judgement that:
“In passing, the court wishes to observe that the concept of collective guilt is wholly repugnant to our law. Any policy in terms of which all the employees of any group or persons must bear collective punishment for the wrongdoings of some of the members is unacceptable to this court.”
“It runs counter to the tenets of natural justice and is a violation of the well-known principle that the person is presumed to be innocent until proven guilty.” “There is a failure of justice even if a single innocent person is presumed to be guilty and made to suffer with the rest.”
Subsequent cases have however indicated that collective guilt is indeed a concept which cannot be rejected outright.
One such case was Saccawu and Pep Stores (CCMA Arbitration: Case No.EC3035) in which the employer dismissed the entire staff complement of it’s Lady Frere branch (which amounted to five employees) for poor work performance arising from stock losses.
In this case however, the stock losses experienced at the branch were, according to the commission “so glaring that it could not possibly have escaped the attention and knowledge of every member of the staff”.
The commissioner referred to the above Industrial Court case (NUM vs Amcoal), but nonetheless found the dismissal of the entire staff complement to have been fair in the circumstances. There is little doubt that all employees who omit to bring an act of misconduct, of which they are aware, to the attention of an employer, may themselves be liable for dismissal.
As noted in NUMSA obo Reginald Chuene & 5 others v Irene Village Fuel Station t/a BP Irene (MIPT16735), “in NSGAWU v Coin Security (1997) 1 BLLR 85 (IC), the court warned that the doctrine of common purpose is not to be used as an excuse for imposing collective punishment, or to be confused with the concept of collective guilt. Common purpose must still be proved. There must be evidence to show that all the applicants associated themselves with the conduct of the principal offenders.”
In SACCAWU obo 93 others v Massmart T/a Jumbo Cash & Carry (Pty) Ltd (GAJB29113-14), it was noted that “In Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of SA on behalf of Khanyile and Others, Gush J dealt with an instance where the bulk of the striking employees simply remained silent, with a defence being presented by individual employees who in turn simply denied and misconduct, breach of picketing rules or an interdict. The learned Judge held It is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on the industrial action. This is particularly so in circumstances where the employer has not only entered into a picketing rules agreement with the representative trade union regulating the conduct of striking employees but has as a result of the conduct of the employees been forced to obtain an interdict restraining the striking employees from committing misconduct. That strikes are often visited with violence and misconduct does not justify such acts. Despite the fact that tension often runs high during industrial action the level of misconduct and violence and the duration thereof in this matter reinforces the necessity for employers to be able on to rely on the duty of good faith towards the employer and that the employee breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. This duty must extend to the opportunity to exonerate oneself.”
by Tony Healy | Oct 5, 2018 | Case Law
On 26 July 2018, the Constitutional Court handed down a landmark judgment in the application against a judgment of the Labour Appeal Court, to determine the correct interpretation of section 198A(3)(b) of the Labour Relations Act. This Concourt judgment has caused quite an uproar, and spawned a raft of written opinions on its implications, especially from, unsurprisingly, and predictably, the TES (temporary employment service) industry and its promoters.
The lack of flexibility in our labour law regime is, in our view, a significant deterrent to economic growth and unemployment. Our firm overwhelmingly supports the overhauling, and reduced regulation, of labour legislation to enhance economic growth and to promote growth in employment, in tandem with other initiatives. However, one must be realistic and accept that regardless of these world views, role players are obliged to do business in accordance with prevailing legislation. Understanding the interpretation of Statutes, and authoritative case law, must be undertaken dispassionately, without blinkered, self-interest motivated, glasses.
The TES, colloquially known as labour broker, industry, has been given a severe bloody nose in this Concourt judgment. That it has swiftly engineered a widespread avalanche of communication is unsurprising. After all, TES profits are heavily bolstered by permanently, rather than temporarily placed, employees with clients.
So what are we to make of the judgment?
The judgment must be understood in the context of the introduction of section 198A of the Labour Relations Act, which came into operation on 1 January 2015, and regulates ‘temporary employment service’ employment to a period not exceeding three months. It’s worth highlighting that this amendment to the LRA therefore, quite clearly, sought to reverse a growing trend of TES employee usage on a permanent basis. Put differently, temporary employment service usage was intended to be temporary, not permanent.
In the Assign Concourt case, the Concourt was required to answer the question – does section 198A(3)(b) of the LRA give rise to the client becoming the sole employer for the purposes of the LRA after three months, in respect of employees earning below the BCEA threshold (R17 000.00 per month), or are the client and the TES dual employers thereafter?
The Concourt held that, to begin with, for the first three months of the placement of a TES employee with a client, it’s business as usual. In terms of section 198(2) of the LRA, the TES is the designated employer of the placed employee, although the client is jointly and severally liable for, inter alia, BCEA and sectoral determination breaches.
However, the Concourt importantly held that after three months, the TES client becomes the sole employer of the placed employee, for the purposes of the LRA, and let’s not forget, the LRA is the dominant employment statute. The judgment held, at paragraph 54, that “A plain reading of section 198(3)(b) [of the LRA] clearly distinguished between employees employed by the TES for temporary work and those deemed to be employed by the TES’s client where work is not temporary”. This is important, and focuses on the growing reliance on the permanent usage of ‘temporary’ employment service employees for labour flexibility purposes.
In addition to becoming the sole employer of the placed employee after three months, for the purposes of the LRA, the TES client is required to furthermore ensure that the placed worker is also, per section 198A (5) of the LRA, “treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is justifiable reason for different treatment”. This implies that the erstwhile TES employees must be remunerated at a level similar to that of their new permanent colleagues, after three months of having been placed with the client, and be granted any other permanent employment benefits, such as a provident fund and medical aid membership.
Fixed term contracts of employment are also transferred after three months, but only remain in force for the duration of the remainder of the fixed-term period.
Much has been made of paragraph seventy-five of the judgment by labour brokers and their promoters which provides, inter alia, that after three months “the triangular relationship then continues for as long as the commercial contract between the TES and the client remains in force and requires the TES to remunerate the workers”.
After three months, assuming an ongoing client/TES commercial relationship, the TES does have, for example, BCEA responsibility, but why would a client need, or even want, to maintain this relationship, especially when wages and conditions of service must now be placed on par, with the invariably huge contingent liabilities with which clients will be burdened? The cost-savings and flexibility historically associated with TES usage vanished I any event, even before this Concourt judgment.
The judgment addresses this in holding that, at paragraph sixty-four “A TES’s liability only lasts as long as its relationship with the client and while it (rather than the client) continues to remunerate the worker. Nothing in law prevents the client and the TES from terminating their contractual relationship upon the triggering of section 198A(3)(b), with the client opting to remunerate the placed employees directly …. if this happens … the TES will then fall out of the relationship entirely”. This is precisely why the TES community is currently pressing their clients to sign new SLA’s.
The TES industry undoubtedly provides a valuable service, but this has all but been curtailed to include genuine ‘temporary’ employment services. It’s a TES after all, not a PES (permanent employment service).
Many employers will, in our view, rightly conclude that this judgment renders TES usage beyond three months, uneconomical. Going forward, in the main, the premium paid to a TES will be for the limited benefits of payroll administration and a finders fee for placed workers.
Finally, this judgment has effect from 1 January 2015, namely the implementation date of the LRA amendments the Concourt was called upon to interpret.
This judgment does unfortunately yet further curtail labour flexibility. It cannot however be wished away; it is what it is.
by Tony Healy | Oct 5, 2018 | Discipline & dismissal
On occasion, employers are faced with circumstances in which an employee resigns to avoid disciplinary action. In fact, some collective agreements in the Public sector, specifically allow for employees to resign at any time prior to a finding being made, after which the disciplinary hearing is stopped.
The dilemma has been that it has been arguable that an employee can, in fact, summarily resign, meaning that the employment relationship terminates immediately. The upshot of this is that the employer faced a conundrum, namely, is it possible to discipline an employee if the employment relationship has already been terminated by the employee’s summary resignation?
The recent Labour Court case of Mark Michael Coetzee v The Zeitz Museum of Contemporary Art Africa Foundation Trust & others (Case number C517/2018), handed down on 14 June 2018, dealt with this precise issue.
The employee “was handed (an) invitation to make written representations and given a document entitled ‘precautionary suspension from employment’. The following day, the employee informed the employer that “he wanted to tender his immediate resignation since (he didn’t) want to hurt anyone or (the employer)”. A statement was released to the press that “an enquiry into (the employee’s) professional conduct has been initiated by the trustees … (the employee) has tendered his resignation.
In correspondence to the employee’s attorneys, the employer’s attorneys recorded that “As matters presently stand … our client regards your client as having resigned with effect from 16 May 2018, subject to four week’s notice as provided for in terms of the law”. The employer argued that it had never agreed with the employer that his resignation would have immediate effect, or waive the employee’s notice period.
The Labour Court judgment noted that the employer argued that “The material issue in dispute in this application is whether the (employer) in fact accepted the immediate resignation of the (employee) ..”.
The Labour Court held that “the Court is bound to find that the tender of notice was not accepted as an immediate resignation”. The upshot of this is that employer’s are entitled to elect whether, or not, to accept an employee’s resignation, and to hold an employee to their statutory and, or, contractual notice period, and to continue with any disciplinary process it wishes to initiate against an employee. It follows that any disciplinary hearing would need to be concluded before the end of the applicable notice period.
This principle was confirmed in Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ (LC), in which it was stated that an employee breaches the employment contract when they leave their employment without giving the required period of notice. Employees have a contractual obligation to render their services for the duration of their contractually binding notice period. As such, the employment relationship terminates at the end of the notice period, not on date of resignation. There is however nothing prohibiting the employer from agreeing to waive the whole, or part of, a notice period, but a n employee has no right to unilaterally do so.
In circumstances where an employer conducts a disciplinary hearing prior to the end of a notice period, any subsequent dismissal would be the true nature of the termination of employment, not the employee’s resignation.
In similar, but different, circumstances, employees may be offered an opportunity to resign, as an alternative to facing disciplinary action. It would however be deemed unfair for an employee to be offered an option to resign to avoid dismissal; this would amount to constructive dismissal.
Many employers take no action against employees who resign in the face of disciplinary action, as they are quite willing to resolve the matter at hand in that fashion. Other employers are not quite so flexible, and are of the view that, in principle, it is important to pursue all employees for misconduct, regardless of whether the employee has resigned, or not.
by Tony Healy | Oct 4, 2018 | Miscellaneous
The CCMA has been a part of the employment law landscape for approximately twenty three years and, as are Bargaining Councils, it is tasked with the adjudication of many employment disputes if and when conciliation fails, the vast majority of which are related to alleged unfair dismissal. Approximately eighty percent of all labour disputes are resolved by way of conciliation, with the majority of unresolved labour disputes being referred to arbitration.
Arbitration hearings are conducted around the country on a daily basis in a growing number of CCMA offices countrywide. It’s a win/lose process.
As much as labour arbitration is not conducted with quite the same degree of legality as is the case in Magistrate and High Courts, users will tell you that it is still a process which requires a keen understanding of such subjects as the law of evidence, the burden of proof, and even protocols, to a degree. This has been the experience of our firm in representing parties in arbitration across the country, over many years.
Certain basic principles must be fully understood.
To begin with, arbitration cases are hearings de novo. This means that the arbitration hearing hears the case afresh, and is not a review of the employer’s original decision. Employers are not required to ensure that dismissal decisions are perfect, but they must be fair and reasonable.
Arbitrators are entitled to conduct arbitration hearings “in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly”. As such, commissioners may, for example, depart from the normal rules of evidence (such as the admission of hearsay evidence).
In practice, Commissioners vary markedly in style; some will say very little, whilst others will assume a far more inquisitorial role.
Cases must be proved on the balance of probabilities which, put simply, means that it must be proved that the employee is probably guilty, versus the burden of proof in a criminal court, which is proof beyond reasonable doubt. This means that the brden of proof in disciplinary an arbitration hearings is less than that in criminal cases. Anotehr way to describe the burden of proof in disciplinary and arbitration hearings is that the probabilities that the employee is guilty must be grater than the probabilities that the employee is not guilty
The relationship between proof and evidence must be grasped. Cases are proved utilising evidence such as eye witnesses, documents, photographs and CCTV footage. Add to this the so-called argument (persuasive closing summary statements and submissions), and the ‘proof’ (evidence and argument) is complete.
All cases are, at least potentially, assessed on the basis of two types of fairness. To begin with, the employer must prove that an employee was dismissed in a procedurally fair manner. In short, this obligates the employer to comply, at the very least, with the Labour Relations Act’s Code of Good Practice: Misconduct & Incapacity (LRA Schedule 8), or the employer’ disciplinary procedure and code where applicable.
This includes granting the employee sufficient time to prepare for a disciplinary hearing normally no less than 48 hours) and granting the employee the right to an interpreter, the right to be represented and the right to call witnesses, in the course of presenting a defence.
Dismissals must also be substantively fair – fair reason, sufficient proof, consistently applied and an appropriate (ie: not unduly harsh) sanction.
Substantive fairness is invariably assessed by Commissioners in accordance with a factual inquiry into whether or not the employee contravened rule, was the rule in question valid/reasonable and was the employee aware of the rule, or could they be expected to have reasonably had knowledge of the rule?
Witnesses are subjected to an evidence-in-chief, cross-examination, re-examination line of questioning.
by Tony Healy | Oct 3, 2018 | Discipline & dismissal
Earlier this month, the Labour Court passed judgment in a review application regarding a constructive dismissal case, between Agricultural Research Council v Silas Ramashowana and Others (Case number: JR1432/15). Constructive dismissal cases are interesting for a number of reasons, and are specifically addressed in Section 186(1)(e) of the Labour Relations Act, which states that “dismissal means that an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”.
In this particular Labour Court case, the employee had been employed as a Divisional Human Resource Manager. On commencing employment with the employer, he was issued a company laptop, and signed a Due Care Agreement, in which he undertook to exercise due care in safeguarding the laptop which had been placed in his possession. In addition thereto, this agreement also made provision for the employee being liable for the monetary value of the replacement of the laptop, in the event that it was lost due to his negligence.
On 21 December 2012, the laptop allocated to him was stolen from his motor vehicle. The insurer refused to pay a claim for the replacement of the laptop, as its investigations revealed no forced entry into the vehicle of the employee.
The employer, after having conducted its own investigation, held the employee liable for the loss of the laptop, as its investigation had led them to conclude that the employee had been negligent in regards the theft of the laptop from his motor vehicle. As a result, the employer deducted the replacement cost of the laptop in three equal payments in October, November, and December 2013.
The employee was aggrieved by these deductions, as he was of the view that he had not been afforded an opportunity to state his side of the story. The employee was of the view that he had simply been an unfortunate victim of crime, which was common in the area in which the laptop had been stolen from his motor vehicle. It was further the view of the employee that criminals had jammed his vehicle’s car lock system, and had thereby gained access to his vehicle to steal certain of his personal belongings, as well as the company laptop. The employee had reported this to the South African Police Services.
Subsequent thereto, the employee refused to attend an enquiry into the loss of the laptop, as he was of the view that the employer simply wanted to rubberstamp its deductions from his salary. The employee then resigned on 1 March 2015, stating that “I hereby resign as a Divisional Human Resource Manager… albeit under duress because of the amount of R11 567.00 which was unlawfully deducted from my salary”.
The CCMA held that the employee was constructively dismissed, and the employer made application to the Labour Court in terms of Section 145 of the Labour Relations Act, seeking an order reviewing and setting aside the arbitration award made in favour of the employee.
The employer’s review was premised on its claim that the Commissioner had committed a material error in law, was that “the Commissioner had committed a material error in law when he wrongly applied the principles relating to constructive dismissal”.
The Labour Court judgment highlighted the three requirements in order for constructive dismissal to be established. Authority was quoted confirming that “…the first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who had made continued employment intolerable. All these three requirements must be present if it is to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established”.
This principle was put differently in the Labour Appeal Court case of National Health Laboratory Service v Yon and Others (Case Number…), in which it was held that “… a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employee”.
The Labour Court judgment went on to quote the Constitutional Court finding in Strategic Liquor Services v Mvumbi and Others (Case number…) by noting that that in this case it was held that “the test for constructive dismissal does not require that the employee should have no choice but to resign, but only that the employer should have made continued employment intolerable. Ultimately, the test remains whether it was reasonable to resign in order to escape the intolerable working environment”. In the Labour Court judgment regarding the employee who resigned due to the employer having allegedly unlawfully deducted the replacement cost of the laptop from his salary, the court held otherwise.
The Labour Court in this case emphasized the fact that the employee had resigned some 15 months after the deductions he was complaining of were effected. The Labour Court continued “also, as a senior Human Resources Manager with access to legal advice, he knew what recourse was available in a case of unlawful deduction”. The Labour Court also reiterated that “the employer may recover loss incurred due to the fault or negligence of an employee in terms of Section 34(2) of the Basic Conditions of Employment Act”.
The Labour Court found it “very opportunistic” of the employee “to use the incident that took place 15 months prior to the date of his resignation to support a case of constructive dismissal”. Unsurprisingly, the Labour Court held that there was no constructive dismissal, and that the employee had failed to prove that the employer had made his continued employment intolerable. Furthermore “the Commissioner evidently misconstrued the nature of the enquiry”.
by Tony Healy | Oct 2, 2018 | Miscellaneous
Given the pressing economic times we live in, it’s not surprising that the so-called gig economy is evolving at the pace it is. It is a gig economy in which many choose to hire themselves out on a project basis, from gig to gig.
Another way of making ends meet is to simply take on more than one job, in order to keep the family finances in shape. But when does this become ‘moonlighting’, and is this even OK? The notion of moonlighting was first coined as a phrase in the early 1950’s, and was used to refer to someone holding a second job, especially at night, “working by the light of the moon”.
The question arises as to whether, or not, an employer has any right to object to an employee holding down a second, and even a third, job, whilst being employed by them.
As a point of departure, it is important to understand that all employees have a duty of serve their employer in good faith. This means a number of things, including an obligation to protect, further and enhance the interests of the employer. It follows that, for example, an employee cannot do so if they work for employer A by day, and employer B at night. Both employers would be faced with an employee who is exhausted. It is for this reason that many employers forbid moonlighting, which, by and large, is conducted clandestinely by an employee.
In the Labour Appeal Court case of SAPPI Novoboard (Pty) ltd v Bolleurs (1998 – 19 ILJ 784), it was held that “If an employee does anything incompatible with the due or faithful discharge of his duty to his master, the latter has the right to dismiss him …”.
In the main, it is prudent for employers to prohibit moonlighting, unless of course the employee is not employed, and only working part-time (for example mornings only) or on certain days of the week. If the employer elects to forbid moonlighting, it should be clearly incorporated in the employee’s contract of employment and, better still, reinforced in a company policy.
According to the Labour Court judgment in the Martin East judgment, the dismissal of the employee was fair.
An employment contract could include such a clause, declaring that “The employee undertakes during the period of his, or her, employment not to be directly or indirectly engaged in, or employed by, or otherwise associated with, either or on a full-time or part-time basis, any business or organisation or company or corporation or person, whether such activity is of the same or similar business interest as that of …………… (Pty) Ltd, or not”. Such a clause in an employment contract would be valid, and enforceable, in the event that the employee is fully employed.
The Labour Court case of Martin East v Bullbring & others (Case number C1051.14) dealt with the question of moonlighting, amongst other things.
The employer had a clear rule prohibiting moonlighting, yet the employee had facilitated a training workshop for five days, for his own account, without having sought, or obtained, authorisation from the employer to do so. To make matters worse, he had been on duty for his employer for at least part of the time he had facilitated the workshop for his own personal benefit.
So there you have it. Moonlighting cases in our courts are relatively few in number. However, it is undoubtedly clearly understood that employees have a duty of good faith to their employers, and as such, must ensure that they do not act in a manner which undermines the interest of their employer.
On the other hand, if employers object to their staff moonlighting, it is of prime importance that this be recorded in a contract of employment, together with a policy on this prohibition. In addition, there must be proof that the employee has prior knowledge of the rule prohibiting moonlighting.
Moonlighting will not always necessarily justify dismissal, and each case would need to be judged on its own merits.
