by Tony Healy | Jul 1, 2019 | Discipline & dismissal
‘Jobs for cash’ is not a new phenomenon. We observe this with clients on a quite frequent basis. It’s quite simple. Someone within the company, with influence over recruitment and selection decisions, accepts cash to ensure a job applicant’s employment. It can occur with human resources staff, and line management alike.
One such case on this issue was that of Mphela Zebulon Matlou v Exxaro [CCMA arbitration: case number LP5338-14]. In this case, “the boyfriend to her younger sister had paid another man the money as he promised that he would get the jobs for them. They had recorded their conversation with him”.
The arbitration awarded noted that “The applicant told him that he knows one Wiseman who can arrange a job for him. But this Wiseman will need R5000-00. In the presence of his parents he gave the applicant R5000.00 and his CV. His girlfriend’s sister was also looking for a job so he gave the applicant another R5000.00 and her CV. In total, he gave the applicant R10000-00”.
This all too familiar scenario continued as “Time went by and the applicant started avoiding his calls. He sent the applicant sms. He even confronted the applicant several times to repay the money even if it was in instalments”.
Yet a further witness testified that “She went to Lephalale to give Piet R5000-00 to give it to the applicant. Piet provided her with the contact details of the applicant. Within a week she contacted the applicant who indeed confirmed receipt of the money and the CV. They contacted each other and she would even ask the applicant how far he was. The applicant advised her to be patient. After Easter week-end they met in Polokwane. The applicant promised her that after July things would be fine. After July, she started calling the applicant who was ignoring her calls. The applicant knew her two numbers and when she called on a different number she would respond. She told her that July had passed and that she then demanded her money. She met the applicant at the Steers in Lephalale. She was in the company of her boyfriend. She bugged their conversation.
She further contacted the applicant around November and December he promised to repay her in February. Later the applicant reneged on the agreement saying they did not sign and there was nothing she could do to him”.
Needless to say, no jobs were forthcoming. The dismissal of the employee for “selling jobs” was upheld by the CCMA.
In the further case of ITU obo Monica Zulu v Tiger Brands Albany Bakery (Pty) Ltd [CCMA arbitration: Case number GAJB26681-14], the employee was dismissed for “soliciting payment in return for a permanent job”. In this case, the evidence was that the dismissed employee informed job applicants that they were required to pay a R50,00 “joining fee” and an additional R500,00 payment “was to make sure he secured a permanent position with the” employer.
In Paul Maboya v Setloblox (Pty) Ltd [CCMA arbitration: Case number 10305-17], the dismissed employee had informed two job applicants that “they had to pay him R2 000.00 each in order for them to secure employment”. Two job applicants “borrowed it (the money) from their relatives as they were desperate for employment”.
The arbitration award continued that “The 2 witnesses became anxious when the applicant stopped communicating with them and they were still unemployed in January as promised. They lodged a complaint with the respondent about their apparent swindling at the hand of the applicant”.
The Commissioner rightly held that “the applicant took advantage of their anxiety to earn income by extorting money that they did not have to benefit himself. The applicant knew that his conduct was wrong because he covertly arranged to meet with the 2 witnesses in places payment from the destitute and vulnerable job seekers, where the exchange of monies would not be obvious to his employers …. (the employee received) payment from the destitute and vulnerable job seekers”.
This is a somewhat difficult, clandestine, activity which is difficult to uncover in the absence of whistle blowers. Vigilance in recruitment and selection goes some way in deterring and identifying this uncouth practice.
by Tony Healy | Jun 18, 2019 | Discipline & dismissal
Racism, in all its forms, is abhorrent, and if proved, is quite clearly grounds for dismissal. That said, it is equally unpalatable for employees to level untrue allegations of racism. This was a central theme in the recent CCMA arbitration award in NUMSA obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).
This circumstances which led up to this case were that, on the day in question, the employees were playing cards outside of the employer’s premises during their tea break. The Chief Executive Officer (CEO) of the employer stopped, with his vehicle at the gate, called at the employees, got out of his car and walked towards the employees angrily, allegedly using the f-word whilst addressing them.
On the evidence, the employees then attempted to talk to the CEO after the incident in his office, but he refused to give them a hearing.
The employees were subsequently issued with a notice to attend a disciplinary hearing.
On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the Human Resource manager wherein they alleged that the CEO called them “Kaffirs” whilst admonishing them for playing cards outside the employer’s premises. This was in response to them having been charged with insubordination in that they did not adhere to an instruction that they should not play cards outside the employer’s gate. The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.
The employees were then issued disciplinary hearings notices for making false allegations of racism against the CEO; they were found guilty and dismissed.
In the arbitration award, the Commissioner noted that “I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that (the CEO) could not have called them in a racial derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words was utilized during this altercation. They argued that (the CEO) cannot speak Afrikaans but that he is English speaking. The applicants, on the other hand, stood by their claim that such racial terminology was used”.
The Commissioner continued that “The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K…..s), idiots and other swear words”, and that “It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants”.
The CEO, whilst acknowledging that he was angry, and used the f-word, stringently denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. (The Commissioner) requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’”.
The CEO had not used the k-word, concluded the Commissioner, who held that “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word. There was no racial or discriminatory language used towards the applicants when addressed by the CEO on 7 October 2018. It is clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day”.
Quite rightly, the Commissioner, in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career at O-Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable”.
by Tony Healy | Jun 11, 2019 | Discipline & dismissal
A job applicant who confirms, on employment, that they do not have a criminal record, better be telling the truth. If it is subsequently found that they were fibbing, and that they did in fact have a criminal conviction, they run the very real risk of dismissal.
The recent (7 May 2019) Labour Court judgment in Pamela Nomawethu Njikelana v Werner Kruger, the CCMA & the SA Civil Aviation Authority (Case number JR1834/17), dealt with this and related issues.
The employee had originally been employed as Human Resources generalist, on a fixed term contract of employment, from 1 August 2015, to 31 July 2016. Thereafter, her contract was renewed on two consecutive occasions; the first from 1 August 2016 to 31 December 2016, and the second from 1 January 2017 to 31 March 2017.
Importantly, it was not disputed that prior to commencing employment with the employer, the employee had been required to undergo various pre-employment verification exercises to verify her qualifications, credit rating and criminal record. During the course of her employment, in or about July 2016, the employer conducted a further criminal record check on the employee, which established that she in fact had a criminal record. On 10 October 2016, the employee was invited to a meeting by the employer’s internal audit unit “during which she was requested to complete a forensic interview information sheet”, which she did, confirming once again that she had no past, or pending, criminal record against her name.
When the employer informed the employee of the fact that they had recently established that there was a criminal record against her name, she denied any knowledge of any criminal record, and undertook to approach the Pretoria Criminal Record Centre to check her criminal record status, where it was confirmed that she did indeed have a criminal record. The “criminal record arose from an incident in 1990 when she was arrested and fined R150.00 for stealing sweets, chocolate and biltong”.
The employee then approached the Department of Justice to apply for the expungement of her criminal record.
The next key development in this case arose when the employee subsequently applied for a permanent Human Resources positon, which the employer had advertised. She was interviewed and requested to complete a declaration form, in which she disclosed her criminal record, which she corroborated in a separate affidavit.
Needless to say, the employer notified the employee that her application was unsuccessful, and furthermore, that her contract would not be renewed. The employee was aggrieved by this, and lodged an unfair dismissal claim with the CCMA, on the basis that she had a reasonable expectation of renewal or permanent employment.
In his award, the CCMA commissioner held that the employee had no valid claim of unfair dismissal on grounds of a reasonable expectation of renewal, as she “was appointed in a temporary position and this position no longer existed”. When dealing with the employee’s dishonesty, the “commissioner rejected the applicant’s submission that during her interview, she had forgotten that she had a criminal record” as “it is highly improbable that the applicant did not remember during the interview the fact that she was arrested. In all likelihood this would have been a traumatic experience and it is difficult to see how she could forget it”.
The arbitration award continued that “she kept quiet and only informed the respondent of the incident on 23 March, some five months after the first interview”.
The commissioner dismissed her claim that she had reasonable expectation of renewal of her fixed term contract, or to permanent employment.
Aggrieved by the arbitration award, the employee took it on review to the Labour Court arguing, in that he “had arrived at an award that no reasonable decision-maker could have arrived at”.
The Labour Court agreed with the CCMA commissioner that “the applicant’s argument that she harboured a reasonable expectation to be appointed on a permanent position is .. not sustainable”. The judgment noted that “Section 186(1)(b) of the LRA covers instances where the employee alleges a reasonable expectation of renewal of a fixed term contract that has expired … it does not cover reasonable expectation of appointment in a permanent position subsequent to several renewals of a fixed-term contract”.
In conclusion, the judgment held that “in failing to come clean and to admit that there was a criminal record against her name, the applicant was dishonest” and for this reason “she could not have harboured an objectively reasonable expectation of the renewal of her fixed term contract, or permanent employment”.
by Tony Healy | Apr 22, 2019 | Discipline & dismissal
The Constitutional Court may have recently declared the private use of cannabis legal, but what is the impact of this on the workplace, and how does the private consumption of Cannabis, and alcohol for that matter, impact on employer rights?
The CCMA has however held, in Mthembu & others v NCT Durban Wood Chips (Case number KNDB4091-18), that employers are none the less entitled to discipline employees who are under the influence of cannabis during working hours.
The employer conducted business in the wood and chip industry, which involved the use of large machinery and “extremely dangerous vehicles coming in and out of the premises throughout the day”. So, it’s quite clear that safety was of paramount importance to the employer, given the nature of the working environment. This was all the more the case, given that large timber logs, weighing between 30 and 100 kilograms, were handled in the workplace, further emphasising the focus on safety.
There were sixty to eighty heavy duty truck deliveries into the mill daily
Evidence was led that the employees were informed of, and had signed, the company substance abuse policy in 2016. In addition, frequent tool-box talks had reiterated the employer’s stance on substance abuse.
In mid-2017, an employee had resigned during his disciplinary hearing, after his urine sample tested positive for cannabis. Further cannabis tests conducted at a laboratory, confirmed that four more employees had tested positive.
The employer testified that heavy-duty machinery is utilised the workplace, including a clipper which spins at five thousand revolutions, and takes approximately ten to fifteen minutes to stop, in case of an emergency. The ongoing delivery of timber into the mill by locomotive, poses further ongoing danger.
The employee’s themselves, were employed in dangerous positions. One of the employees worked as a weigh bridge clerk, receiving trucks which he weighs, after inspecting them and testing the timber they are delivering.
A second employee sharpened and polished one meter long knives, three at a time. A third employee was a log deck assistant, whose job it was to ensure that logs land on the log deck without being obstructed, and to manually clear any log obstructions.
The employees challenged the substantive fairness of their dismissals, uniformly claiming that they smoked Cannabis in their private time.
The arbitrator noted that the Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development has “pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution. However, turning to the workplace, the Arbitrator noted that “Like alcohol where there is an inkling that intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence”.
The arbitration award goes onto recognise and confirm that “it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances” in workplaces with dangerous heavy machinery and equipment. Quite clearly, workplaces of this nature pose a high degree of danger.
Tellingly, the employees, according to the arbitrator, “showed no real remorse”.
The dismissals were held to have been substantively fair, and that, importantly, “It was for (the employees) to make sure that when they smoke for private use it must not result in them reporting to work under the influence thereof. This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day, placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”, which could be pursued by the Department of Labour, for example.
The dangerous nature of the working environment was an important factor in this award. In an environment which is less dangerous, or not at all dangerous, such as an office environment, a sanction of dismissal would have been harder to defend; in such cases, a final written warning would more likely be appropriate in the eyes of the CCMA or a Bargaining Council.
This case also highlights the importance of addressing substance abuse by way of a company policy. It follows that company disciplinary codes should also include substance abuse, and intoxication, with recommended sanctions if an employee is found guilty in such cases.
by Tony Healy | Apr 8, 2019 | Discipline & dismissal
So, what do you do when a client you are delivering goods to, using foreign drivers, informs you that they will no longer permit foreign nationals on their premises, and you have no alternative employment for them?
This was the scenario faced by the Labour Court in Francis Kanko & 2 others v Grindrod Fuelogic [Case number C602/14].
The facts of the case are pretty straight forward. The employer had three fuel tanker drivers in their employ, who were foreign nationals, employed to deliver fuel to an Eskom power station. At a point in time, Eskom informed the employer that it would, as a matter of national security, no longer allow foreign drivers on its sites. The services of the three foreign drivers were then terminated by the employer, and it was a matter of dispute as to how the employment relationship ended.
According to the employer, the three drivers were not dismissed per se, as they had agreed to be retrenched by signing voluntary retrenchment agreements. The drivers, on the other hand, contested this, arguing that they were, without prior warning, abruptly summonsed to a meeting with management. At this meeting, they were shown the Eskom correspondence prohibiting foreign nationals from entering its power stations, and informed that they therefore had no choice but to accept their retrenchment. The drivers submitted that they then signed the retrenchment agreements, drafted by the human resources department, under duress. None of them received any retrenchment pay.
More precisely, the drivers submitted that they had, according to the judgment “signed the agreement under duress and they were, in fact, dismissed without any consultation as contemplated by section 189 of the Labour Relations Act. The only reason for their dismissal was their nationality; hence, it was automatically unfair as envisaged by section 187(1)(f)” of the Labour Relations Act.
The drivers, although foreign nationals, had valid South African heavy duty licenses and work permits.
Let’s have a look at the evidence led.
The employer’s primary witness, the regional manager, testified that if the employer had refused to comply with the new rule from Eskom that no foreign drivers would henceforth be allowed to enter its premises, the employer would have lost the contract. He continued that the employer had no choice. He led no evidence that the employer had attempted to persuade Eskom otherwise.
The three drivers were called into a meeting individually, they each signed retrenchment agreements, without duress. Each meeting lasted for about thirty minutes, and the drivers were paid the balance of their salaries for the remainder of the month. He conceded that the drivers were not paid any severance pay.
The drivers testified, in essence, that they were, without prior notice, asked to attend a meeting with management, at which they were shown a copy of the e-mail from Eskom, after which the regional manager informed them that the employer had no choice but to retrench them as there were no vacancies. They were told to sign the retrenchment as there was no alternative.
The judgment posed the question “Did the employees in this case sign the agreements voluntarily, ie: without duress or coercion, unequivocal and with full knowledge of its terms and implications as a full and final settlement of all the issues?”
On this issue, the Court concluded that “On the facts and on the evidence before me, and on the probabilities, I am not persuaded that (the employer) has discharged that onus. All three drivers were called in out of the blue, with no prior warning and without the benefit of a notice that is required by law in section 189(3) of the LRA. They were presented with a fait accompli”.
All three drivers had consistently testified that the regional manager had insisted that, on leaving the meetings with signed agreements. The judgment in Corns v Adelkloof Drankwinkel cc t/a Cellars Drankwinkel (2002) 23 ILJ 2047 (LC) was quoted as being relevant in this case – “The main objective of that meeting was to procure the applicant’s signature on the agreement, and to circumvent the requirements of section 189 of the Act … In my view, an agreement obtained in such unfair circumstances amounts to a nullity”.
Having found that the three drivers had been dismissed, the question then became whether, or not, their dismissals were automatically unfair.
The Court held that “the only reason for the driver’s dismissals were their nationality” and that “there can be no doubt that nationality as a reason for dismissal is discriminatory” and the dismissals were therefore automatically unfair.
The Court ordered the retrospective reinstatement of the drivers.
by Tony Healy | Mar 29, 2019 | Discipline & dismissal
Make no mistake, a sizeable percentage of medical certificates, colloquially known as sick notes, presented to employers daily, are fraudulent.
Many employers will relate to the scourge of Monday and Friday “sick leave-itis”, which is a major contributor to sick leave typically being in excess of 15% on a daily basis. This is a significant labour cost for employers.
It has been estimated by Occupational Care South Africa that approximately 40% of all employees claiming sick leave, are not physically ill, and that South African businesses are losing as much as 17% of their payroll every year due to absenteeism. This punishes already cash-flow strapped employers unfairly.
In the Labour Court case of BP Southern Africa v The National Council for the Chemical Industry & others (Case number JR2000.12), the employee had been dismissed for unauthorised absence from work and the submission of fraudulent medical certificates to the company. After a period of absence from work, the employee reported for duty and presented three copies of medical certificates issued by three different practitioners.
The first medical certificate, covering the first few days of the employee’s absence from work, declared the employee unfit to perform his duties due to cystitis. The second period of absence was supported by a medical certificate from another medical practitioner, who booked the employee off work for migraines and depression. The third leg of period of absence was supported by a medical certificate from a third medical practitioner, who booked the employee off sick for bronchitis.
The Judgment noted that on presenting the three medical certificates from three different medical practitioners covering the period of absence “an Occupational Health Consultant for the company also testified that he had assessed the copies of medical certificates submitted by (the employee), and had thereafter contacted the practitioners that had issued them. Dr Matjekane’s rooms had no evidence of (the employee’s) attendance at all, whilst Dr Bikitsha became abusive when contacted. Dr Adam on the other hand indicated that (the employee) had problems with alcohol abuse. Dr Manjra had concluded that (the employee) had an alcohol problem and that HR should intervene. (The employee) was then referred to a Psychiatrist who after consultations on 7 February 2012, concluded that he was not mentally ill and was fit to resume work”.
At the CCMA arbitration hearing, the Commissioner held that “It was clear that the three medical certificates submitted by (the employee) did not reflect his true medical condition and the real reason for his absence between 9 and 20 January 2012, and accordingly his absence was unauthorised”, and that the employee “presented false medical certificates to BP well knowing that they were false and therefore did so with fraudulent intent, causing potential prejudice to BP”.
It was however apparent that the employee had an alcohol dependency problem.
The CCMA arbitration award held that, notwithstanding the identified fraudulent medical certificates “the sanction of dismissal was unfair as it gave BP an opportunity to get rid of (the employee) instead of following the more cumbersome route of rehabilitation”.
The employer sought to review this finding at the Labour Court.
The Labour Court held that “there is no hesitation in concluding that the Commissioner went on a frolic of his own, and completely misconstrued the nature of the enquiry before him based on the reason for the dismissal and evidence led in that regard. On his own, he had raised the issue whether the core of the dispute was not a matter of incapacity due to alcohol abuse and whether (the employee) should not undergo rehabilitation treatment for alcohol abuse. This was indeed irregular, in that, 25.5.1 It was never BP’s case nor that of (the employee) that the dismissal was related to alcohol abuse and incapacity, and that BP used the two charges that led to a dismissal as a smokescreen. Any such conclusions could only have been reached if pleaded by (the employee), and also if ultimately proven on the facts; 25.5.2 There was no evidence led by (the employee) that his alcohol problems had led to his alleged incapacity, or the reason for his absence, until probed and prompted by the Commissioner; 25.5.3 Only after being prompted by the Commissioner did (the employee) indicate that he was a heavy drinker, which revelation was not only opportunistic, but also evidence BP had not been aware of, or which it was afforded an opportunity to rebut; 25.5.4 There was evidence that (the employee) had been counselled before in regard to his absenteeism and bad attendance record; 25.5.5 The copies of fraudulent medical certificates submitted by (the employee), even if they were to be accepted, had not indicated that he had alcohol problems or was incapacitated, and the Commissioner had accepted that they were fraudulent.
25.5.6 (The employee) was not decisive as to whether he sought assistance or not in relation to his alleged alcohol abuse problems. On his version, he had not signed the consent forms to volunteer for rehabilitation, and even if it had dawned on him that he should have volunteered for rehabilitation, BP had already decided to take steps against him on the basis of his dishonest conduct; 25.5.7 The Commissioner ultimately during the course of the proceedings had realised that the details surrounding alcohol abuse and alleged incapacity were not placed before him, and he had nevertheless continued to make his ultimate findings on those issues.
25.5.8 Despite having concluded that copies of the medical certificates were fraudulent, and thus (the employee) was on unauthorised absence, the Commissioner nevertheless continued to conclude, and without any basis, that his absence was due to being incapacitated to do his work due to alcohol abuse”.
