Who defines unfairness?

Who defines unfairness?

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

In criminal law an accused may be found guilty of and punished for wrongful behaviour only if that behaviour contravenes a law written into a statute. That is, punishable behaviour is confined to that behaviour specifically prohibited in black and white in one or other act of parliament.

In labour law the identification of what is unacceptable behaviour is not quite so straightforward. The Labour Relations Act (LRA) does identify behaviour for which employees might be dismissed and employer behaviour that might be found to be unfair. However, the person presiding over the hearing in question still has a great deal of leeway in deciding whether the conduct of the employee or employer is truly unacceptable or unfair.

Therefore, what is or is not unfair is seldom absolutely clear cut, especially since there is no definition of the concept of unfairness in the LRA. The result of this is that the decision as to what is believed to be “unfair” has to be made by trade unions, employees, employers, judges, arbitrators, and legal practitioners in each individual case where unfairness is being alleged. For these reason the CCMA receives tens of thousands of referrals each year from employees claiming unfair treatment at the hands of their employers.

While the legal meaning of the term ‘unfair’ is extremely illusive every employer needs to have a proper grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees. The Collins concise Dictionary defines “unfair” as “characterized by inequality or injustice. Dishonest or unethical”. Again the concept of inequality plays a role in defining what is unfair.

However, inequality or one-sidedness do not fully explain the concept of unfairness in labour law because there are many examples of one-sidedness that are not seen in labour law as unfair. For example, giving company cars to mangers and not to lower level staff is one-sided but is not per se unfair. On the other hand, it is hard to find an example of unfairness that does not have an element of one-sidedness.

Section 23(1) of the Constitution of South Africa states that “everyone has the right to fair labour practices.” The word “right” in this legal provision is useful because infringing the rights of an employee is likely to be seen as unfair in labour law.

The Labour Relations Act (LRA), born from the Constitution, provides that “every employee has the right not to be-

  1. unfairly dismissed; and
  2. subjected to unfair labour practice.

Section 187 of the LRA provides that a dismissal is automatically unfair if it has an unfair reason. The section then lists the reasons for dismissal that would be unfair. For example, if the employee was fired because he/she had exercised his right to take action against the employer in terms of the LRA, this retaliatory dismissal would be automatically unfair. Again, we have an example of the employer’s interference with an employee’s right being defined as “unfair”.

Section 188 of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove-

  1. that the reason for the dismissal is a fair reason; and
  2. that the dismissal was effected in accordance with a fair procedure.

This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is. However, common law has established guidelines in these regards and these guidelines have been codified in Schedule 8 of the LRA. For example, item 7(b) includes a requirement that any person deciding whether a misconduct dismissal was fair must, amongst other things determine whether the dismissal was an appropriate sanction for the contravention of the rule that was contravened by the employee.

The word “appropriate” here again gives us a clue to what is “unfair”. That is, if the employer’s decision or action is inappropriate it could be unfair in labour law. The word “appropriate” in a labour law context implies that the employer’s action must be appropriate in the context of the specific situation in which the action was taken. Another way of putting this is that ‘the punishment must fit the crime’. If the employee is fired for a minor infringement or where circumstances reduce his/her liability a dismissal would usually be inappropriate and therefore unfair.

In summary, the act of an employer would be seen to be unfair if it is one-sided, unnecessary and/or inappropriate under the circumstances or infringes the employee’s rights. As employees have a vast number of very strong labour law rights employers need to ensure they understand these rights. They need to avoid taking any action affecting employees before checking with their labour law expert that it would be safe to take such action and how to go about it.

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Lockdown to spur pre-arbitration meetings

Lockdown to spur pre-arbitration meetings

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

Prior to Corona the CCMA could request the parties to hold a pre-arbitration meeting. However, the lockdown regulations now require the CCMA to direct the parties to hold a pre-arbitration conference (pre-arb) to reach consensus on several issues including the following:

  • Whether the Parties are prepared to proceed with the arbitration hearing at the employer’s premises.
  • Whether the Parties are prepared to proceed with the arbitration hearing by means of a video conferencing facility.
  • Acceptance of shorter periods of notice of set-down, if required.
  • The admission of evidence remotely using the video conferencing facility.
  • Admission of evidence by affidavit
  • Any other information the CCMA or a Commissioner may require in order to exercise a discretion as to how the matter is to be dealt with and that will eliminate or limit the risk of physical proximity among the persons involved.

The CCMA and Bargaining councils strongly request that the parties hold a pre-arbitration meeting. This is because such a meeting before the arbitration hearing can substantially reduce the time taken to complete the hearing.

Even were the CCMA not to require a pre-arb it is advisable for parties to initiate such a conference. Success at an arbitration hearing requires extensive preparation. And one of the many facets of your preparation could be participation in a pre-arbitration meeting with your adversary.

Some of the matters for pre-arb other than those discussed above include:

  1. ANY MEANS BY WHICH THE DISPUTE MAY BE SETTLED:

    Here the parties discuss the possibility of ending the dispute by seeking an out of court settlement. Should this be successful the parties sign a settlement agreement and the arbitration hearing becomes unnecessary.

  2. FACTS THAT ARE COMMON CAUSE:

    This means that the parties identify those facts that they agree upon. This could include facts such as when the employee was employed, that the employee was dismissed and the reason for the dismissal. The more such facts that the parties can agree upon before the arbitration the less time the arbitrator needs to waste at the arbitration on establishing the facts.

  3. FACTS THAT ARE IN DISPUTE:

    Areas in which the parties might disagree could include those listed under the previous heading as well as what the employee’s remuneration was or whether the employer’s treatment of the employee was fair or not. They could also include whether the employee was at the workplace on the day of the alleged incident or what time the employee arrived for work.

  4. THE ISSUES THAT THE ARBITRATOR IS REQUIRED TO DECIDE:

    At this point the parties might try to agree, for example, as to whether the arbitrator is to decide whether the dismissal was only procedurally unfair or whether it was also substantively unfair.

  5. THE PRECISE RELIEF CLAIMED

    Discussion on whether the employee wants reinstatement or compensation.

  6. THE SHARING AND EXCHANGE OF RELEVANT DOCUMENTS, AND THE PREPARATION OF A BUNDLE OF DOCUMENTS:

    The parties are asked to give each other copies of the documents they plan to use in the arbitration hearing and to compile both parties’ documents into one common bundle. This could avoid a waste of time at the arbitration hearing while parties quibble about the validity or significance of specific documents.

  7. WHETHER EVIDENCE ON AFFIDAVIT WILL BE ADMITTED WITH OR WITHOUT THE RIGHT OF ANY PARTY TO CROSS-EXAMINE THE PERSON WHO MADE THE AFFIDAVIT:

    A pre-discussion on this issue may be necessary if any prospective witnesses are unable to attend the arbitration hearing.

It is important that you and your opponent record the content of the pre-arbitration meeting, the issues on which you agree and the issues on which you agree to disagree. Then, when these minutes are signed by both parties they can be submitted to the arbitrator and can be used to give him/her a clear idea of many of the key issues relevant to the case.

The danger of participating in a pre-arbitration hearing is that you might give away too much of your case and so give your opponent too much ammunition to use against you at the arbitration. You therefore need to use, at pre-arbitration, a person highly skilled in labour law, dispute resolution processes and negotiation.

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Touching colleagues a Corona NO NO

Touching colleagues a Corona NO NO

By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

The lockdown laws prohibit employees at any level from touching each other or even getting closer than 1,5 meters to each other. Where an employee is physically touched in an inappropriate manner or on his/her sexual areas this would constitute two separate offences. Firstly, the lockdown laws would have been breached and secondly, the labour law relating to unfair discrimination would have been flouted.

Section 60 of the Employment Equity Act (EEA) EEA, in effect, provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment the employer can be charged with unfair discrimination on the grounds of sexual harassment. This suggests that, wherever an employer becomes aware of sexual harassment it should take disciplinary steps without unnecessary delay.

For example, in the case of Christian vs Colliers Properties (2005, 5 BLLR 479) Ms Christian was appointed as a typist by the employer. Two days after starting work her boss asked her if she had a boyfriend and invited her to dinner. He also invited her to sit on his lap and kissed her on the neck. When she later objected to the owner’s conduct he asked her whether she was “in or out”.

When she said that she was “not in” he asked her why he should allow her employment to continue. She was dismissed with two days pay and referred a sexual harassment dispute. In a default judgement the Court decided that:

  • The employee had been dismissed for refusing her superior’s advances
  • This constituted an automatically unfair dismissal based on sexual discrimination
  • Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues

The employer had to pay the employee:

  • 24 months’ remuneration in compensation
  • Additional damages
  • Interest on the amounts to be paid
  • The employee’s legal costs

The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment. However, this is not always so. For example, in the case of SABC Ltd VS Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (amongst other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact wit her in his car.

An arbitrator later found that, while he was guilty of sexual harassment the level of seriousness of his conduct did not merit dismissal. This was largely because the alleged victim had not seemed to mind his advances very much and had said she thought he should not be dismissed. The arbitrator therefore ordered the employer to reinstate the employee. The Employer took this decision on review to Labour Court but lost again as the Court pronounced the arbitrator’s finding to have been properly thought out and justified.

The above case findings show that:

  1. Employers cannot ignore workplace sexual harassment and must act swiftly.
  2. However, this does not mean that dismissal is appropriate in every case.
  3. Employers need to use reputable labour law experts to assist with:
  • Deciding what the appropriate action should be in each individual case of sexual harassment
  • Designing a comprehensive sexual harassment policy
  • Ensuring that every owner, manager and employee knows and understands the severe consequences of committing such acts
  • Communicating to all concerned that such misconduct will result in severe penalties including possible dismissal
  • Ensuring that all employees feel entirely free to report sexual harassment.
  • Training all employees in the above listed issues as well as in what constitutes sexual harassment, how to deal with it, where to report it and the company’s supportive policy towards sexual harassment victims

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Corona forces updates of your workplace rules and employment conditions

Corona forces updates of your workplace rules and employment conditions

By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

Since 1995 the Labour Relations Act (LRA) and Basic Conditions of Employment Act have been replaced with entirely new versions. However, as large as this body of legislation is it often falls short when it comes to detail. For example, the LRA requires employers to prove that a dismissed employee’s conduct must have been so gross as to render a continued employment relationship intolerable. However, the LRA neither defines what would make an employment relationship intolerable nor what degree of behaviour can be considered gross.

Therefore, employers and employees need to look to case law for more detailed guidance as to what the law means and what would be fair in specific circumstances. In addition, the employer’s own rules and terms and conditions of employment can, within limits, play a significant role in determining what discipline is and is not fair. For example, in the case of Rubin Sportswear vs SACTWU and others (2004, 10 BLLR 986) the employer took over a business and then introduced a rule changing the age at which employees were to take retirement.

The Labour Appeal Court found that the word “normal” means “the way things are normally done” and that the employer could not unilaterally change what was normal. This principle applies unless the law itself creates a ‘new normal’. It is therefore imperative that employers have their rules reviewed in line with the latest interpretation of the law by the courts and in line with other new legislation such as the new laws combatting the spread of Corona.

The Corona pandemic has drastically changed circumstances at every workplace. For example, during the ‘old normal’ the completion of work often depended quite strongly on employees working in close proximity. Under the ‘new normal’ employees’ lives and the health of the business depend on employees keeping their social distance.

This has introduced complexities into the workplace because:

  • Employers are legally bound to implement and enforce Corona combatting workplace rules
  • However, managers and staff alike are still trying to adapt to these new rules while still trying to be efficient and productive
  • As a result the employer has to strike a delicate balance between strictly enforcing health rules while educating employees on these rules and how to implement them without sacrificing productivity
  • and all this must often be done with stretched resources in a highly stressed environment.

These complexities require management, more than ever, to;

  • Avoid disciplining employees while the manager is angry
  • Go to a quiet place, get over the anger and
  • Work out a balanced approach to correcting, for example, the risky behaviour of an employee who hugged a colleague or who did not sneeze into the crook of his elbow
  • Implementing the corrective action in a measured, calm, effective and legally compliant manner
  • Seek assistance where this balancing act becomes problematic.

The standard clauses in employers’ disciplinary codes are no longer sufficient because provision needs to be made for corrective action for Corona related misconduct. Should employers fail to update their rules, disciplinary codes and terms and conditions of employment in the light of the new normal that Corona has brought they will be caught short when it comes to implementing discipline and dismissal.

It can be a laborious and complex task for an employer to draw up a comprehensive set of rules. However, dealing with the consequences of having outdated rules can be far more onerous for employers at the CCMA, bargaining councils, Labour Court and criminal courts. If employers are not in a position to take charge of this vital task there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.

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Retrenchment ‘Epidemic’ shadows corona

Retrenchment ‘Epidemic’ shadows corona

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

The Corona virus and the economic lockdown it necessitated have upgraded the already widespread retrenchment malady to ‘epidemic’ levels. Despite the welcome drop from level 5 to a level 4 lockdown and the various economic support measures announced, retrenchments are increasing and will likely continue to do so over the next year and beyond.

Exacerbating the effect of the economic downturn and resultant retrenchments is the fact that the state’s economic support funding is not reaching businesses quickly enough. In the light of increasing workforce cut-backs it is more important now that ever before that employers become aware of the plethora of myths related to retrenchments. That is, too many employers operate erroneously and dangerously according to the following myths:

  1. Retrenchments are the only solution to the employer’s financial problems
  2. Employers are allowed to retrench merely because profits have dropped slightly or are expected to drop slightly
  3. Restructuring exercises automatically allow the employer to retrench
  4. When new technology is introduced into the workplace the employer can immediately retrench those employees who have not been trained in the use of the new technology
  5. The employer has the right to choose whatever criteria it prefers when deciding who to retrench
  6. As long as the employer has a good reasons it can go ahead and retrench whenever it likes
  7. Due to the fact that retrenchments need to be implemented urgently the employer is not obliged to follow retrenchment procedures
  8. The employer is not obliged to find out whether the employees concerned belong to a trade union before beginning retrenchment consultations
  9. Employers only have to consult on the issue of the amount of the retrenchment package
  10. When a company is bought over or two entities merge the resulting rationalisation justifies the retrenchment of superfluous employees
  11. Employers are entitled to decide to retrench employees before consulting with them on reasons why the retrenchments should not take place
  12. Retrenchment is a golden opportunity to get rid of poor performers, bad eggs, trouble makers, pregnant women, elderly employees, members of unfavoured race groups, religions or tribal origins and employees who commit misconduct.

In the case of Janse Van Rensburg vs Super Group Trading (Pty) Ltd (2009, 3 BLLR 201) the employee was retrenched after the employer found itself in financial difficulties. The employer alleged that the employee had been retrenched due to the need for restructuring. However, the Labour Court found that:

  • The employer had chosen the employee for retrenchment before consulting with him on the matter
  • The employer’s real reason for selecting the employee for retrenchment was the fact that it had received complaints from clients about his negative attitude, his lack of interpersonal skills, his disciplinary record and other allegations of misconduct
  • The retrenchment was both procedurally and substantively unfair and the employer was ordered to pay the employee the equivalent of 12 months’ remuneration in compensation.

Having been made aware of the above 12 myths and of the outcome of the Janse Van Rensburg case cited above employers need to:

  • Train their managements as to the do’s and don’ts of retrenchment
  • Use a reputable labour law expert to advise them before embarking on retrenchments and to carry out the necessary management training.

To find out about our video based Corona Response Training KIT for the Workplace please email ivan@labourlawadvice.co.za or phone Ivan on 011 888 7944 or 082 852 2973

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