across the bar

Two cabinet ministers given the boot

by Ashley - Posted 24 October 2011

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CCMA Guidelines for Misconduct Arbitrations

by Nicci - Posted 16 October 2011

The CCMA have issued guidelines, in terms of the Labour Relations Act, which must be taken into account by Commissioners conducting arbitrations for dismissal for misconduct cases.   

The Guidelines deal with how an Arbitrator should:

-conduct arbitration proceedings

-evaluate evidence for the purpose of making an award

-assess the procedural fairness of a dismissal

-determine the remedy for an unfair dismissal

The rationale behind issuing these guidelines is to promote consistent decisions coming through from arbitrations dealing with misconduct dismissals.  The guidelines also reinforce the principle that the onus lies with the employer to prove the fairness of the dismissal.

A link to the Guidelines can be found here

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Unfair dismissals

by Nicci - Posted 09 October 2011

2 interesting unfair dismissal cases out of the Johannesburg Labour Court and CCMA were heard recently. 

Automatic termination clause:   can you contract out of the right not to be unfairly dismissed?

The first case (Mahlamu v CCMA & Others (2011) 4 BLLR 381 (LC) dealt with the validity of a contract of employment containing a clause which allowed the employer to automatically terminate the contract if he no longer needed the employee “for whatsoever reason”. The company could at any time, for any reason, simply state that his services were no longer needed.

Mr Mahlamu was employed as a guard by a security company.  When a client cancelled the contract with the company, Mahlamu was told that his services were no longer needed because there wasn’t another position for him.   The Court had to decide if contracts of the type between Mahlamu and the company were allowed by the Labour Relations Act.  It said no - this kind of clause in a contract had no legal effect because it tried to contract out of the dismissal provisions in the Labour Relations Act.  

Contracts between temporary employment services (labour brokers) and their employees often include “automatic termination” clauses which typically provide that the contract terminates automatically if the broker’s client no longer needs the services of the employee – a clause that allows a broker’s client to undermine the right not to be unfairly dismissed is against public policy.

This kind of clause must also be distinguished from “fixed term” contracts, which provides for its termination on the happening of a future specified event, eg. on completion of a project – this is not a dismissal in terms of the Labour Relations Act.

Incompatibility:

Ms Sondio was employed by the University of Fort Hare as the PA to the Dean of Law.  A number of complaints were received about her conduct, eg. fighting with a colleague and circulating derogatory emails about her head of department.  The University decided that the only way to resolve the conflict was to transfer her to another job, but no other departments would accept her.   She was given a notice to consult about retrenching her and when this failed, the University dismissed her for incompatibility.    Ms Sondio then filed a claim with the CCMA for unfair dismissal.

Incompatibility is recognized as a form of incapacity or misconduct, depending on the circumstances.  In either case though, the employer must first determine whether the employee was at fault.   The commissioner found that the University should have charged Ms Sondio with serious misconduct.  Instead, it simply accepted that the relationship between her and the Dean had broken down and decided to transfer her without properly investigating the allegations.   If the case had been treated as incapacity, then Ms Sondio should have been offered counselling.    

The University’s decision to retrench Ms Sondio showed that it did not regard her as being at fault.  The dismissal was therefore substantively and procedurally unfair and Ms Sondio was reinstated. 

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Fixed term contracts and the management of an employee’s expectations

by Ashley - Posted 06 June 2011

The recent case of Joseph v University of Limpopo heard in the Labour Appeal Court highlights the dangers of dismissing an employee who reasonably expects an employer to renew a fixed term contract of employment on the same or similar terms and the employer fails to do so.

Dr Joseph, who was originally from India, was appointed on a fixed term contract of three years as a senior lecturer at the University of Limpopo.  When his fixed term contract had come to an end in 2000 the University advertised his position. This was a formality in order to comply with the legislative requirement pertaining to his employment as a non-South African citizen.  Dr Joseph applied for and was appointed to his position for a further period of three years and once again on a fixed term contract.

Towards the end of 2003 Dr Joseph became anxious when his post was not being advertised. It had by then become a formality for his post to be advertised just before his contract would come to an end, and he would then apply for and be re-appointed to that post.

After much delay, the post for senior lecturer in English in the Faculty of Humanities was finally advertised in December 2003. Dr Joseph applied for the position as advertised however, his application was unsuccessful. A person by the name of Dr Dlamini-Sukumane was appointed and Dr Joseph was placed as the second best candidate for the position.

Very shortly after accepting the position Dr Dlamini-Sukumane resigned and the position of senior lecturer was once again vacant. Nevertheless, the university declined to appoint Dr Joseph to that position.

Prior to 2003 Dr Joseph had developed two programs, Contemporary English Language Studies and Multilingual Studies. These programs were unique and were offered and applied in English Language studies. Dr Joseph had assumed that because of his involvement in teaching these new courses his services would be needed by the university and that his contract would be renewed.

The Court held that it was reasonable for Dr Joseph to have expected that his contract with the university would be renewed. A failure to renew his contract constituted an unfair dismissal and the University of Limpopo was ordered to reinstate Dr Joseph to his position. The university was further ordered to pay to Dr Joseph back pay in an amount of R 71 355.00. 

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when crime does pay (at least 6 months salary)

by Ashley - Posted 21 May 2010

So what happens if one of your employees is arrested on suspicion of committing a crime and remains in custody for a long period of time? Does this constitute incapacity and can you then fire them?

The Labour Appeal Court was faced with this very question in the recent case of Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council (MEIBC) and Others. Mr. Maloma (not Malema) was employed by Samancor as a furnace operator. He was arrested on suspicion of having committed an armed robbery. He remained in custody and was absent from work for approximately 150 days!

10 days after his arrest, Mr. Maloma received a dear john letter from his employer advising him that he had been dismissed on the ground of incapacity, i.e. that he was physically unable to tender his services.

Previously, our law recognized two aspects of incapacity: a) poor performance - where the employee was incompetent at doing the work because of a lack of skill, knowledge, ability or efficiency; and b) ill health or injury. However, the new case law has extended these 2 categories and incapacity can now be permanent or temporary and may take other forms, for instance, imprisonment and military call-up.

The court took into account that Samancor had no idea how long Mr. Maloma's incarceration would last, and that they needed a quick replacement because of the skilled nature of his job. The court decided that the dismissal was substantively fair. Unfortunately Samancor dropped the ball by not giving Mr. Maloma a fair opportunity to present his case and so the dismissal was held to be procedurally unfair. They were ordered to pay him 6 months salary as compensation.

In other words, Mr. Maloma received paid leave from his employer for his stay in jail. Who says crime doesn't pay.   

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Affirmative action in the spotlight

by Ashley - Posted 15 March 2010

Affirmative Action is still a hotly contested topic in South Africa. In the recent case of Solidarity obo Barnard and Another v South African Police Services the Labour Court had to consider the issue of Affirmative Action and employment equity in the South African Police Service (SAPS).

Mrs. Barnard commenced service with the SAPS in 1989 as a constable. In 1997 she was promoted to the rank of Captain. After many years she was transferred to the National Inspectorate, formerly known as the National Evaluation Service (NES), at the rank of Captain.

During 2005 the SAPS created a new post of Superintendent of the NES. Mrs. Barnard applied for the position twice but was denied the promotion. Mrs. Barnard brought this application based on unfair discrimination and the allegation that she was denied the promotion solely for being white.

During the interview process for the position  Mrs. Barnard obtained the highest scores out of all the candidates and the panel agreed that the appointment of Mrs. Barnard would definitely enhance service delivery. Despite these factors, the Divisional Commissioner decided to leave the post vacant based on the sole reason that Mrs. Barnard was white and her appointment would frustrate the representivity status.

In 2006 the same post was again advertised. Mrs. Barnard applied and was short-listed. She was once again the top candidate for the position and recommended by the panel.

The National Commissioner refused to approve Mrs. Barnard's appointment on the basis that she was white and her appointment would not address representivity. The post was left vacant.

After due deliberation the Court reiterated that where a post cannot be filled by an applicant from an under- represented category because a suitable candidate from that category cannot be found, promotion to that post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group.

The Court held that the failure to promote Mrs. Barnard was a decision based on her race and was indeed discrimination. The fact that other suitable black candidates were not appointed did not make the non- appointment fair.

In light of SAPS decision not to promote a black candidate, the Court concluded that it was unfair not to appoint Mrs. Barnard, who was a member of a designated group in the Employment Equity Act and the best candidate for the job.

The Court directed the SAPS to promote Captain Barnard to the post of Superintendent with effect from 2006.

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tell me lies tell me sweet little lies

by Steve - Posted 11 February 2010

Do you remember that stint working at the Kentucky drive thru in high school which became "a high-powered customer service position" in your CV. Yes, we all tend to pad the gaps in our resumes a little from time to time. Good  marketing - isn't that what its all about? But what happens when your little white lies take on a much darker hue?  

There is a line between trying to show ourselves in the best possible light to get a job, and outright deception. The consequences of crossing the line can be severe. In a case last year in the UK, an ex-employee of a local council was sued for lying on her CV about her health. The employee had suffered from depression over a long period of time and was being treated with anti-depressant medication. However, when she filled in a job application form for the council, she stated that she was in good health.

The council sued for damages based on numerous days of sick leave it had to pay out, GBP 175 000 worth! They based their claim on the fact that the employee had lied when she filled out the job application.

Giving incorrect or untruthful information to an employer can also be grounds for disciplinary action. If the lies  dilute the whole relationship of trust between employer and employee, the employee could be fired. It will always depend on how serious the dishonesty was. Lying about professional qualifications that are essential for doing the job would be gross misconduct. Fibbing that you got an A instead of a B on your grade 1 report might just be okay.

In the current economy, the job market is saturated with people looking for work. Job applicants will be tempted to pad their CV's. If you are hiring, look out for exaggerated nose growth! 

 

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Retrenchments - getting rid of bad apples

by Steve - Posted 15 July 2009

In the recent Labour Court case of Janse Van Rensburg v Super Group Trading [2009] 3 BLLR 201 (LC), the employer, Super Group Trading, identified valid operational requirements for embarking on a retrenchment exercise. Janse Van Rensburg, a senior manager with the company, was identified as a possible candidate for retrenchment.

Janse Van Rensburg was a difficult character who was found by his co-workers to be rude and aggressive and difficult to work with. Under the auspices of allegations that he had made disparaging remarks about the company, Janse Van Rensburg was suspended.

He referred a dispute to the Labour Court claiming that he had been unfairly dismissed. The court found that although there were genuine operational requirements that warranted a downsizing exercise, the decision to retrench Janse Van Rensburg had been taken before the consultation process began and was largely premised on the fact that his colleagues did not enjoy working with him rather than on the valid selection criteria laid  down by the Labour Relations Act.   

Our R0.02:

You can’t get rid of unwanted members of your team by using operational requirements as an excuse. If you would like more information on the correct selection criteria to apply when choosing employees to be retrenched, give us a call.  

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Q & A - forced salary reductions

by Steve - Posted 12 March 2009

Question:

We’re considering some cost cutting measures and the legality of mandatory salary cuts has been brought up. Is it legal to mandate a salary cut? Can you exempt certain people? Can you vary the amount of cut (say 10% for staff and 20% for management)? What notice do you have to give? Can you do it in the middle of the month for the salary due at the end of that same month?

Answer:

The general rule is that an employer cannot unilaterally vary the terms and conditions of employment. However in adverse economic conditions or for other legitimate operational requirements, reduction of salaries can be carried out as an alternative to retrenchment. The employer must discuss this first with all affected employees and must ensure that all alternatives or issues brought to the table are properly considered.

The employer must also make sure that the reductions are implemented in a fair manner and with due regard to the operational requirements that have led to the need for the reduction. There are no hard rules as to how the reduction should be implemented.

If the employees are members of a registered trade union, the employer will need to consult with the union rather than the employees themselves.

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The problem with the "consent" provisions of RICA

by Steve - Posted 26 June 2006

Since the release of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA) many commentators have declared that the best way for companies to avoid hefty fines is to get their employees written consent before intercepting any electronic communications. This approach is short- sighted and should be viewed with caution for the following reasons:

1.For consent to be valid it must be freely given. An employee threatened with dismissal or being passed over for promotion or simply being alienated by his or her employer cannot truly be said to have given their consent freely.

2.Secondly, consent is a unilateral act and can be revoked at any time by the employee.

3. RICA must be interpreted narrowly to give effect to the constitutional right to privacy enjoyed by employees. A blanket consent to interception cannot be given and employers will be required to obtain consent each time that an interception may take place. A logistical nightmare!

4.Section 4 of RICA provides for consent to be given by one of the parties to the communication. What about the other party's privacy rights? Especially where the intercepted communication is received rather than sent by the employee who has given consent. (This section may be challenged at some stage in the future)

Bottom line - consent may be useful in terms of RICA but employers should be aware of its shortcomings. 

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