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.
by Tony Healy | Sep 1, 2018 | Miscellaneous
There are many misconceptions about the role and effect of probationary periods in employment contracts. It’s not surprising to hear employers conclude that probation periods pretty much give them carte blanche to dismiss probationers in the formative phase of an employment relationship.
The Labour Relations Act does provides that “Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
Make no mistake, the Labour Relations Act does indulge employers to some extent during probationary periods, but this relates to dismissal on grounds of poor work performance only when less compelling reasons for such dismissals are required than would be the case after probation.
This indulgence does not however extend to acts of misconduct during probationary period, be they suspected or proved.
It is important to remember that whilst the Labour Relations Act provides for dismissal on grounds of poor work performance on less compelling grounds than would be the case after probation, this only applies to poor work performance, and not misconduct.
In the Labour Court case of the South African Football Association v Ramabulana & others [JR2175/09], this very subject was central theme.
SAFA had applied to the Labour Court to have an earlier CCMA award in favour of the erstwhile employee, awarding him twelve months compensation due to his dismissal which was held to have been unfair, reviewed.
This applicant had been employed as head on a fixed-term employment contract for a period of two years, on a three months probationary period.
According to the applicant, during his third month of probation, he was called to a meeting with senior SAFA management and informed of criminal charges against him regarding the purported theft of money during a COSAFA tournament. The applicant denied any knowledge of this, where after he was presented with two options, resign immediately in which case SAFA would not press charges ahead with the criminal charges, or face the consequences of criminal charges being laid against him.
The applicant indicated he would not resign.
The applicant’s probation period was extended to a month. The applicant was arrested during the extended probation period, and released on bail after which he returned to work.
The applicant was dismissed at the end of the extended probation period on grounds of incompatibility (incapacity). This was promised on submissions that the preservation of the applicant’s employment was, in the circumstances, entirely intolerable given that the applicant was custodian of security with the respondent, and the public perceptions which would flow should his permanent employment have been confirmed, would have drawn considerably adverse attention to the respondent.
The Court did not buy this argument, and confirmed that ‘”the reasoning and the conclusion of the commissioner in the arbitration award cannot be faulted”. The court went further and derided SAFA for dismissing the applicant “based on suspicion which was never investigated by it nor did they even have the decency of affording the employee an opportunity of presenting his side of the story”.
by Tony Healy | Aug 23, 2018 | Miscellaneous
It has become a common site to see employees huddled on balconies, and secluded corners puffing away whilst their non-smoking colleagues have their shoulder to the grindstone. Some employers even have designated smoking rooms for the nicotine-addicted. How fair is this, and what impact does it have on productivity?
Employers have no statutory obligation to permit smokers to light up at their whim, or even at all. Smokers are however quite entitled to smoke before and after work, during rest intervals as well as meal intervals (lunch time) outside of the employer’s premises or in a designated smoking room.
Employees who take smoke breaks during working hours (outside of tea-breaks) have a distinct advantage over their colleagues who don’t smoke. This can lead to overt and covert discontent which can impact negatively on morale and productivity, as well as interruptions to work flows.
It is arguable that smokers are often over-indulged when it comes to smoke breaks, and unnecessarily so. Employers are quite entitled to expect full productivity for the duration of working time, and are what’s more entitled to be legitimately aggrieved when productive time for which employees are paid, is squandered.
For example, three smoke breaks per day (which is conservative in many circumstances) amounts to thirty minutes of unproductive time per day. This equates to in excess of 118 hours of down time per annum, once annual and sick leave has been provided for, or put differently, the employer is paying the smoker to smoke for three weeks per annum during working hours. Where’s the sense in this?
Smoking policies have become increasingly important to address both statutory prohibitions on smoking in the workplace, and to promote a healthy working environment for all staff, a prerogative which flows first and foremost from section 24 of the Constitution which provides that “Every person has the right to an environment which is not harmful to their health and well-being”.
There should be no reason why smokers can’t limit smoke breaks to before and after work, lunch times and tea breaks.
When all is said and done, staff who cannot work without smoke breaks outside of normal tea and lunch times is incapable of meeting their employment obligations; this could place their ongoing employment in jeopardy.
Smokers are invariably over-indulged in smoking policies. There is nothing preventing employers from adopting a stricter stance to smoke breaks taken during working hours. This could include an outright ban or a reduction in pay for time taken to smoke during working hours at the absolute expense of the employer.
Employers have the final say on this issue.
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by Tony Healy | Aug 23, 2018 | Miscellaneous
As you would expect, an arbitrator is required to adjudicate an arbitration hearing fairly and impartially.
The CCMA’s Guidelines on Misconduct Arbitration (most recently amended in a 17 March 2015 Government Gazette) state in section 16 that “An arbitrator must conduct the arbitration impartially. This means that an arbitrator must act in a manner that is fair to both parties and not engage in conduct that is biased or that might reasonably give rise to a party forming a perception that the arbitrator is biased”.
What’s more, the Code of Conduct for Commissioners of the CCMA, whichalso applies to Bargaining Council Commissioners, stipulates that Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of impartiality.
This is where the term ‘recuse’ enters the discussion. If an arbitrator, or one of the parties at an arbitration hearing, believes that the arbitrator is unsuitable to arbitrate the case, due to the fact that they may not be able to apply their minds impartially, s/he must recuse him or herself. It is also quite possible that one of the parties asks the arbitrator to recuse themselves.
Most definitions of the term ‘recuse’ define it to mean that the arbitrator must excuse or disqualify themselves as the arbitrator in the arbitration hearing, to be replaced by another arbitrator.
When dealing with cases in which an arbitrator should recuse themselves without being requested to do so by either of the parties, I can refer to an example close to home.
On occasion, I conduct training and conferences together with Bargaining Council and CCMA Commissioners. If I were to represent a party at an arbitration hearing, as I frequently do, and an arbitrator has been appointed to my case with whom I have worked in the past, the Commissioner would, as they always rightfully do, declare their prior relationship with me, and recuse themselves, to be replaced by another Commissioner with whom I have no prior professional relationship.
Another example of such circumstances was dealt with in the Labour Appeal Court case of Daniel v National Bargaining Council for the Chemical Industry & 1 other (LAC JA58/12), in which the court chastised the arbitrator for not having recused herself from the arbitration, when she knew full well that she ought to have done, due to the fact that she was a 50% shareholder, co-owner and a director of a company which was a preferred service provider to the employer. Furthermore, the arbitrator’s consulting practice shared offices with the service provider.
The Judge noted that “the arbitrator’s interest (in the employer’s service provider) cannot be said to be small or trivial, but even if it was, it still required disclosure.
In the matter of Mutual & Federal Insurance Company Limited vs CCMA and Other 1997 12 BLLR [1610] LC, theLabour Court noted that actual bias was not necessary to be proven, an application of bias can be brought where a reasonable suspicion, or a perception of biasexisted.
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by Tony Healy | Jul 23, 2018 | Miscellaneous
Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.
Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Predictably, the Commission for Conciliation, Mediation and Arbitration has been required to conciliate and adjudicate disputes relating to post retirement-age dismissals.
The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se, but is deemed to be a termination of the contract of employment due to the effluxion of time, which is fair.
A retirement date may be agreed. However, there may be no agreement on the normal retirement date. In such circumstances, sixty five is normally deemed to amount to a generic normal retirement date.
In the CCMA arbitration case of SASBO versus Khayalethu (Case Number FS822) the 70 year-old employee argued that she was dismissed and pensioned by the company because of age, and that this constituted age discrimination as provided for in section 187(1)(C) of the LRA.
She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.
The Commissioner disagreed with the employee stating in the arbitration award that section 187 of the LRA provided for post retirement-age dismissal.
This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz versus Pepps Mokopane Primary School (Case Number NP6559).
The employee was challenging the fact that she was compelled to retire on the date on which she reached normal retirement date.
The employee had in fact wanted to work beyond this date, as is often the case.
The commissioner found that the dismissal was fair stating that a contract of employment may be terminated where the employee has reached his/her normal retirement age (see Harris versus Bakker & Steyger 1993 14 ILJ 1553).
“Although I accept that in terms of section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote section 187(2)(b) of the LRA.
The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.
Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.
A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent. Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.
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by Tony Healy | Jul 23, 2018 | Miscellaneous
A Labour Appeal Court judgment caused quite a stir in addressing leave applications to attend Sangoma training, with many commentators erroneously reporting that the judgment confirmed that it created new law compelling employer’s to accept unregistered Sangoma, or traditional healer, certificates, for BCEA sick leave purposes.
The case in question was that of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & 2 others (JA78/10).
The employee was a Chef. She approached her superior and informed him that she was attending a ‘traditional healer’s course’, and for this reason, requested that she be permitted to work morning shifts only to enable her to attend the course without adversely affecting her employment obligations.
It was agreed that the employee’s request could be accommodated, and the employee commenced working morning shifts.
The employee re-approached her superior, informing him that she was about to complete her Sangoma training course, and now needed to complete the course full time for the final month. She therefore requested unpaid leave for one month to do so.
The employer granted the employee permission to use her accumulated annual leave; on closer examination, it was established that she had no accumulated annual leave. It was therefore decided to offer her one week’s unpaid leave; this was insufficient leave as the employee was required to attend the final one month of the course on a full time basis.
The employee then submitted correspondence from her Traditional Healer Association requesting to give her permission to attend her final month of full time training, as well as her graduation ceremony, and advising that she had “permissions of ancestors”. The employee duly absented herself for the month in question.’
On her return, the employee was subjected to a disciplinary hearing, and charged with absence without leave and “gross insubordination/challenge of employer’s authority”.
Importantly, the disciplinary hearing chairperson concluded that the employee had no medical certificate from a medical practitioner as required by the Basic Conditions of Employment Act.
The employee was found guilty of all allegations, and dismissed.
The employer was of the view that it would have done the same thing if the employee had requested unpaid leave for a karate course.
The CCMA held that it was clear that the parties had conflicting interests, and that the employer had acted with a lack of empathy and understanding of cultural diversity in the workplace, continuing that the employee, faced with two evils, had chosen the lesser evil. It was also noted that the employer had not suffered irreparable harm, and that the employee’s absence was beyond her control.
The Courts agreed with this, noting importantly that the employee was not in fact seeking sick leave.
In conclusion, the judgment noted that “what is required is reasonable accommodation of each other to ensure harmony and to achieve a united society”.
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