by Tony Healy | Jun 23, 2018 | Miscellaneous
On occasion, employees seek to withdraw their resignation.
The facts of the case were, in the main, common cause.
The employee had an altercation with her manager in a store, after which she submitted a letter of resignation giving her employer 24 hours notice that “I will be resigning”. The employee was required to give two weeks notice, but had in fact only given the employer twenty four hours notice in her letter of resignation.
However, the employee then reconsidered her position and withdrew her resignation stating that her letter of resignation had not been officially accepted by the employer, and that it had never been her intention to resign.
The employer did not accept the employee’s retraction of her resignation, after which the employee referred a claim of unfair dismissal to the CCMA by virtue of the fact that the employer would not permit her to resume her duties after withdrawing her resignation.
The employer referred the matter to the CCMA on two grounds (1) she had withdrawn her resignation within her notice period when she was still an employee and (2) that the employer was obliged to formally accept or reject her resignation, and because the employer had not done so, she was entitled to withdraw such notice.
The Commissioner held that the employee was not unfairly dismissed and that the employer was indeed entitled to accept or decline the employee’s withdrawal of her resignation.
With specific reference to an employment contract, it was held that “either party to a contract may resile from the contract” and that “withdrawal from a contract by one party is a unilateral action which does not require the consent of the other party”. As such, the employer was not required to accept the employee’s resignation in order for the resignation to be or remain valid.
Or as the Commissioner noted further “The employer is not required to confirm whether in fact it accepts the employee’s notice of termination. The notice itself is a fait accompli. It does not, in my view, require acceptance”.
The employee’s revocation of her written resignation was held therefore not to have been binding on the employer. It follows that the employer’s refusal to permit the employee to resume her duties after withdrawing her resignation, did not constitute a dismissal, let alone an unfair dismissal.
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by Tony Healy | Jun 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 | Jun 23, 2018 | Miscellaneous
Our firm is frequently required to guide clients in the drafting of employment contracts.
As is to be expected, the wording and structure of an employment contract is extremely important. All too often, employers and employees regret not having paid enough attention to the provisions of an employment contract.
Certain basic content is important. For example, the starting date and hours of work; if overtime is compulsory, it must be confirmed in the employment contract.
The employee’s title and responsibilities should be clearly stated.
Employers have a statutory obligation to include all information relevant to the various categories of leave, including annual leave, sick leave, family responsibility and maternity leave.
The inclusion of a clause confirming that the employee is required to complete an initial probationary period is advisable. Probationary periods are recognized in law, and should be of a period long enough for the employer to determine whether the employee is capable of meeting all requirements of the job.
The duration of a probation period can be as long as is reasonable necessary to determine a new recruits suitability, although the standard norm presently is a six-month probation period. The probationary employee’s performance should be regularly assessed, and feedback on performance provided, throughout the probation period.
In addition, probationary employee’s, as is in fact the case with post-probation employees, should be provided reasonable training, guidance, support and counseling in the performance of their duties.
Probationary employees may be dismissed on grounds of poor work performance during, or at the end of the probationary period; a performance hearing is however required to be held prior to any such dismissal.
Probation periods may be extended if the employer is uncertain whether the probationary employee has met all of the job requirements to their satisfaction.
It is important to note that probation is a new employee concept, and does not apply to existing employees who are promoted.
It is also, on occasion, prudent to obligate employees to undergo polygraph tests and searches of their belongings and persons.
The nature of the employer may even require the employer to include a confidentiality agreement regarding ownership of all company documents and information both during, and on termination of, employment.
Provision should be made for the employee to have access to, and be educated on, company policies, rules and procedures. It may well become important at a later date, to prove that the employee had prior knowledge of a company rule if, for example, it is subsequently alleged that the employee is guilty of having breached the rule.
Finally, notice periods must be specified. Many employers simply apply a thirty day, or calendar month, notice period. The Basic Conditions of Employment Act stipulates that a minimum of one-week notice period applies during the first six months of employment, two weeks in the second month of employment, and four weeks thereafter.
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by Tony Healy | May 23, 2018 | Miscellaneous
It’s rare for a winning party to win costs in a CCMA or Bargaining Council arbitration case. Section 138(10) of the Labour Relations Act makes limited provision for costs to be awarded in favour of a party to an arbitration hearing.
In short, costs may be awarded against a party and/or their representative, in the event that either or both act frivolously (“manifestly futile”) and/or vexatiously (manifestly groundless or utterly hopeless in foundation”), which is defined as (1) proceeding with or defending a case without merit and (2) in its conduct during the proceedings.
So in short, if you initiate an arbitration case with little or no merits and/or behave badly during the arbitration hearing, a claim for costs may validly be made. In practice however, costs awards, especially against applicants who are typically employees, are rarely made.
That’s not to say on the other hand that parties costs awards are never made; they certainly are at times, even if it seldom occurs.
In the past, the CCMA has issued a Practice Note to Commissioners regarding the awarding of costs, recommending that “Parties should not be discouraged from invoking the dispute mechanisms of the LRA, which should be accessible to parties; costs should not be lightly ordered if a party acts in good faith, especially where the matter involves issues of importance to the wider IR community; a costs award should not damage an ongoing relationship, and the conduct of the parties is relevant.
In the CCMA case of Mark Jeffrey Fuhr v Momentum Agency services (GAJB20761-07) the applicant had claimed constructive dismissal. After a lengthy arbitration hearing wherein the applicant introduced hundreds of pages documentary evidence purportedly supporting his claim, the Commissioner held that his claim was indeed frivolous and vexatious, and that he did “not come to the Commission with clean hands” and that “he chose to put the Respondent to the cost of defending what I regard as a flimsy case in the hope of convincing the Commission to award him a large sum of money.” The Commissioner concluded that the applicant had “failed dismally in discharging the onus on him to prove he was constructively dismissed.”
It was held further that the applicant’s main reason for resigning was a perceived better offer from an alternative employer, and not intolerable conduct on the part of the respondent.
In Rose Ramchau v Ackermans (NP856-01) the Commissioner awarded costs to the employer on grounds that the applicant “dragged the company to the CCMA for an utterly hopeless case … the services of this statutory body should be utilised for genuine disputes and never as a playing field for petty vindictive disputes by parties bent on settling old scores”.
Similarly in Ntombela v SMT Health Solutions (KNDB10811-08)costs were awarded in favour of the employer on grounds that the applicant was “argumentative, evasive, and less than honest … and knew that his case was predicated on a lie”.
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by Tony Healy | May 23, 2018 | Miscellaneous
The CCMA has been on the receiving end of some sharp criticism of late, which it has predictably elected to respond to defensively with a degree of self-righteous indignation.
Let me say up front, the very role of the CCMA in workplace dispute resolution places it in the invidious position of invariably being unpopular with one, or another party, in a dispute. This more especially applies to arbitration hearings, which always produce a loser.
So the CCMA is, at times, subject to unfair, one-eyed and subjective criticism.
I have appeared as a representative of parties at the CCMA since its inception almost twenty years ago, and have done so in just about every CCMA branch and satellite office around the country. That qualifies me to chip in on this debate.
There are, without a shadow of doubt, many highly qualified, competent and experienced CCMA Commissioners, who are committed to objectively dispensing justice in an even-handed manner. What’s more, they do so displaying the requite respect to parties, notwithstanding the frequent tension which is evident in most disputes they conciliate or arbitrate.
That’s not true of all Commissioners. Whilst, in my view, the skill and competence levels of Commissioners are generally high or acceptable, there is a sprinkling of belligerent and ill-mannered Commissioners who know who they are, as do frequent users.
Has the CCMA responded to the recent criticism well? Nope.
To begin with, it is highly unlikely that the CCMA leadership would have responded the way it did, had the criticism emanated from organized labour.
I also don’t buy the apparent responses, which seek to deflect blame for ineffective labour dispute resolution on employers and labour; the blame mongering doesn’t stop there either.
The CCMA Director also appears to be lamenting the “moving on” of the founding fathers of the current employment law regime, into business and politics. It reminds me of the dead Month Python parrot which was apparently “pining for the fjords”.
Is it too much to expect of the CCMA that it maturely respond to criticism, without adopting a defensive stance, which simultaneously seeks to blame monger?
Surely a more measured, constructive and conciliatory response would have been more prudent? Indeed, perhaps the response which would probably have evolved had it emanated from a trade union and not an employer-linked representative?
I think that the CCMA leadership has, with its antagonistic response to recent criticism, shown the very subjective petulance, which it criticizes, CCMA users of on a daily basis. What happened to the ‘conciliation’ in CCMA?
Yes, the CCMA may well be held up as an enviable model of workplace dispute from time to time in other jurisdictions. However, before the CCMA leadership seeks to harness the plaudits for this, recognition should first and foremost be given to the core of competent CCMA Commissioners, not the defensive top floor bureaucrats.
The CCMA leadership has shot itself in the foot on this one. The proverbial “own goal”.
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by Tony Healy | May 23, 2018 | Miscellaneous
It is hard to argue with employers who frequently cynically lament that certain employees are so willing to so readily steal, or attempt to steal, from them.
There may indeed be a myriad of socio-economic reasons for this scourge. None the less, it must surely be abhorrent, with employers being quite entitled to view such gross misconduct in a very serious light.
I know from my own experience in my own practice, that theft-related and dishonesty cases are quite common in the workplace.
The Labour Court recently dealt with such a case in the 4 August 2015 judgment in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].
The facts were quite straight forward. The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry. During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.
This charger was on sale at the store in question, and the employee had no proof of purchase.
The employee subsequently failed a polygraph test.
The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.
The employee referred an unfair dismissal claim to the CCMA. At the arbitration hearing. The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation.
The employer took the matter on review to the Labour Court.
The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.
This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger.
The employee had also admitted this during the original disciplinary hearing.
The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.
The Court set side the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.
On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal. Dismissal for a first instance of such misconduct was fair ..”
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