Feelings of spite arise at work for a great variety of reasons such as:
- Resentment due to the lodging of grievances
- Power struggles between managers
- Racial and other prejudices
- Managers feeling threatened by other managers or senior staff
- Sexual affairs
- Favouritism and victimisation
- Change in management and the development of factions
- Personal clashes between people in power
Feelings of spite occur across the spectrum of private businesses, government departments, statutory bodies, academic institutions, welfare organisations and NGOs. While these smouldering, subtle conflicts affect all levels of employees they tend to become much bigger, much more intense and much more damaging when employees lodge grievances against their superiors.
For example, in the case of Kanemeyer vs Workforce Group (2005 8 BALR 824) the employee resigned and claimed constructive dismissal on the grounds that she had been disciplined for lodging a grievance against the reduction of her commission structure. She said this, together with the fact that she, as a commission earner, had been office bound, constituted victimisation. The employer argued that the employee resigned in response to having been disciplined for poor work performance. The employer however, failed to bring any evidence to rebut the employee’s claim that she was being disciplined out of spite for having lodged a grievance. The arbitrator therefore found that constructive dismissal had been proved and ordered the employer to pay the employee eight months’ remuneration in compensation.
In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. I more serious consequence can be negative publicity. On the other hand the employee is in trouble because he/she is without a job. But negative consequences of private hostilities and unresolved conflicts can go even further than this. This is because such conflicts tend to permeate throughout the organisation with people taking sides and forming factions. The fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation. It is therefore crucial that the employer:
- Identifies personal hostilities early
- Accepts that it needs to be dealt with urgently
- Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.
The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.
However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.
Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached labour law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence.
On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.
Workplace animosity is here to stay but employers and employees can, by acting timeously and sensibly, prevent it from causing irreparable harm.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za.
Schedule 8 of the Labour Relations Act (LRA) says that dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
- Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
- The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
- Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.
In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”
However, the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness.
The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. However, if the employer can show serious damage to the relationship caused by the misconduct then the dismissal would be likely to be seen as fair.
In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.
Another type of justification for dismissal is where the conduct goes against the basic sensibilities of a society. In the case of CEPPWAWU obo Evans vs Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal. The arbitrator noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd vs Kapp & others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out.” The Court had found that such behaviour was “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question.” The Court had also said that “ …..courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced by reasonable people in a society against racism.”
Due largely to South Africa’s history the offence of racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did perpetrate the offence and that the act itself was serious enough to merit dismissal. Also, where the offending employee argues mitigating circumstances the employer must give consideration thereto.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za
One must go far back in South African History to find a time when as many employees were losing their jobs as is happening right now. While retrenchments are at an historical high mutually agreed terminations are also on the increase. The reasons that such a package might be offered by the employer are many and varied and include, amongst others, the following:
- The employer believes that the employee and another person in the organisation are incompatible and that a mutually agreed separation would be best
- The employee is suspected of misconduct but the employer cannot prove it
- The employee has committed misconduct or has performed badly but the employer does not want the ‘hassle’ of a disciplinary hearing
- The employer’s operational needs change
- The is so incapacitated as to be unable to do his/her job
- The boss wants to create a vacancy for a family member.
Where a separation package is accepted by the employee the parties might agree that the amount of the payment will be calculated in the same or similar way to that used for calculating a retrenchment package in terms of section 41 of the Basic Conditions of Employment Act (BCEA). That is, the calculation might be based on the number of years of service of the employee.
However, this does not mean that the employee has been retrenched in terms of section 189 of the Labour Relations Act (LRA). In terms of that section, if the employer has operational requirements that might necessitate terminations, the employer is required to consult with the employees who may be affected or with their representatives. Section 189 allows the employer to retrench employees if there is a good enough basis for this and if the consultation process has been conducted properly.
In a section 189 retrenchment the employer does not have to get the agreement of the employees or employee representatives to carry out the retrenchment. Instead, it need only comply with the provisions of the LRA. On the other hand where there is a mutually agreed separation this, by definition, involves an agreement. A section 189 retrenchment is concluded by a letter from the employer giving the employees notice of termination of employment. However, a termination by mutual consent is concluded by a legal agreement.
Employers are warned that they should not get these two types of termination confused. A termination concluded by a genuine and legally binding contract is not classed as a dismissal in the LRA. Whereas a section 189 retrenchment is a type of dismissal and may, in certain cases, be viewed as an unfair dismissal.
In a case decided by the Labour Appeal Court [ABSA Investment Management Services (Pty) Ltd vs Crowhurst 2006, 2 BLLR 107] Ms Crowhurst’s employment was terminated. She went to Labour Court claiming unfair retrenchment. ABSA lost the case and, on appeal, claimed that the employee’s employment had been terminated via mutual agreement. Ms Crowhurst claimed that she had been led to believe that her position had become redundant and that she would need to be retrenched as there were no other positions available for her. However, according to Ms Crowhurst, she discovered that there were several vacancies that would have suited her qualifications.
The employer’s version was that Ms Crowhurst had been offered two alternatives to retrenchment. Confronted with these two conflicting versions the Court had to look closely at the document that implemented the termination of Ms Crowhurst’s employment. It stated that, due to the redundancy of her position, her employment was being terminated. The letter neither bore content that indicated a mutually agreed termination nor referred to the alternatives to retrenchment that the employer had claimed had been offered to her.
The Court decided that Ms Crowhurst had in fact been retrenched and that this dismissal was unfair. The employer was therefore required to pay Ms Crowhurst six months’ remuneration in compensation and also to pay her legal costs.
As the stakes are high when employment is terminated employers are warned:
- To formulate their mutual termination documents to make it clear that the termination is not a dismissal
- Record their retrenchment consultations so as to make sure that they are able to prove to the courts what really was and was not said
- Ensure that termination strategies and processes are managed by those properly versed in labour law.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to:www.labourlawadvice.co.za
The Labour Relations Act (LRA) in conjunction with the Arbitration Act gives the CCMA, bargaining councils, Labour Court, Labour Appeal Court and private arbitrators the power to take very strong action against employers who commit unfair labour practices or unfair dismissals.
The types of penalties/corrective actions that have typically been imposed include reinstatement, re-employment, interdicts, promotion of the employee, reversal of a demotion, reduction of a disciplinary penalty reinstatement of benefits, and financial compensation amongst others. We need to look at each of these remedies in detail because they can have a severe effect on the employer’s financial and/or operational circumstances.
Employers are warned that the LRA favours re-instatement as the first remedy for unfair dismissal. That is, section 193(2) provides that: “The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless:
- the employee does nor wish to be reinstated or re-employed;
- the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
- it is not reasonably practicable for an employer to reinstate or re-employ the employee; or
- the dismissal is unfair only because the employer did not follow a fair procedure.”
‘Reinstatement’ normally means that the employer must take the employee back with retrospective effect to the date of dismissal. For example, if the employee was unfairly dismissed on 1 February 2002 and the reinstatement award was made on 31 May 2004 then the employer would have to give the employee back pay for 28 months!
In the case of POPCRU & others vs Minister of Correctional Services & others (2006, 4 BLLR 385) seventy-five correctional officers were fired for refusing to work overtime. Prior to the dismissals the employer had successfully obtained an interdict prohibiting this overtime ‘rebellion’. During the year end holiday periods the employees failed to turn up for work. When asked for their reasons they all claimed to be sick. They were all dismissed on 3 January of the new year without a disciplinary hearing. The Court found that the dismissals were unfair and ordered the employer to reinstate all 75 employees.
Under a ‘re-employment’ order the employer is normally required to take the employee back, not from the date of dismissal, but with effect from the date of the award (or an earlier date). While this is not as harsh as a full reinstatement it could cause serious problems for the employer if it is unable to accommodate the employee due to relationship problems or operational circumstances.
If, for example, an employee was unfairly dismissed for discriminatory reasons the court could, in addition to reinstatement, issue an interdict (order) prohibiting the employer from continuing with its discriminatory acts.
Should it be found that the employer was guilty of unfairly failing to promote an employee the arbitrator could order the employer to promote the employee.
Likewise, if the employer demoted or disciplined the employee unfairly, the arbitrator could order the reversal of the demotion/discipline.
Should the employer have unfairly removed, reduced or refused an employee’s benefit (e.g medical aid or pension) the arbitrator could order the employer to restore or provide the benefit to the employee.
Where unfairly dismissed employees are not reinstated compensation may be awarded. Under certain circumstances compensation can be as much as 24 months’ remuneration.
In the case of CEPPWAWU obo Baloyi and Others vs Houers Co-operative (2009, 10 BALR 1028) nine employees were dismissed for misconduct during a strike. It was established that strikers had threatened the employer’s clients and had tried to set fire to a bus carrying replacement workers. However, at CCMA the employer was unable to prove that the dismissed employees had been the ones who had carried out these acts of misconduct. As a result the CCMA found the dismissals to be unfair, ordered the employer to reinstate all nine employees and required the employer to pay each employee 12 months’ remuneration in back pay plus interest.
It is clear that, regardless of the nature of the remedy, it could, in different ways, prove extremely costly to the employer. Employers therefore need to:
- Undergo intensive training as to the labour law in order to avoid breaking it
- Prepare as watertight case as possible before going to CCMA
- Learn how to manage employees effectively but without breaking the law.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za
Don’t underestimate the power of trade unions
The trade union movement in South Africa is extremely powerful. This is not only because of the high proportion of unionised employees and because of the extremely strong legislation supporting unionisation but also because of the political alliance between the biggest union confederation and the ruling party.
In view of the above trade unionism can mean problems for any employer. However, employers who understand the rights of trade unions, union officials, union office bearers and union members are most likely to be able to deal with trade unions successfully. This is especially so of employers who also know the limits of union rights because such employers will not be prone to allowing unions and unionised employees to do whatever they wish.
Due to their uncertainty as to where the rights of unions start and end many employers lose out because they unnecessarily give to unions rights that they are not legally required to give them. Just as often employers lose out because they fail to accord to unions rights that have been conferred by law.
The Labour Relations Act (LRA) gives employees the right, under certain circumstances, to elect union representatives (shop stewards) from amongst themselves. Section 14 of the (LRA) gives shop stewards a number of special rights such as the right to:
- Assist employees in disciplinary and grievance hearings.
- Monitor and report any of the employer’s contraventions of the law to the appropriate authorities.
- Take reasonable time off with pay during working hours in order to perform these duties.
Where a manager is aware of the risk of losing the contract due to union action he/she may become nervous and over react towards shop stewards. They may see shop stewards as invaders trying to ruin or take control of the business. Such managers then tend to see shop stewards as their enemies and plot to get even with or get rid of the shop stewards. Such an approach is clearly counter productive because it is very likely to cause industrial action.
Instead of becoming negative towards shop stewards, managers, supervisors and foremen need to:
- Be given a full understanding of what the shop stewards’ rights are and where those rights are limited.
- Learn to keep their tempers and act rationally in the face of pressure.
- Know when and how to take legitimate action against shop stewards who exceed their powers.
- Be empowered to keep control of the workforce regardless of the presence of shop stewards.
Managers do have the right to discipline shop stewards but this must be done for fair reasons and in a fair manner. Ignoring the legal procedures is extremely dangerous when disciplining any employee, but to do so in the case of a shop steward can cause irreparable damage.
Item 4(2) of the LRA’s Code Of Good Practice: Dismissal Code states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union.
It is thus clear that the law sees shop stewards in a different light to other employees. The question is how differently must we treat shop stewards? In Dunn vs Telkom SA (2003, 11 BALR 261) a shop steward was dismissed for insubordination. The CCMA found that the shop steward had justifiably been found guilty of serious misconduct meriting dismissal. However, the arbitrator found the dismissal to be unfair because the employer had not consulted the applicant’s union before disciplining the shop steward.
However, in an unreported CCMA case, in which the author was involved, the chief shop steward was dismissed for misconduct related to his duties as a shop steward. Despite this the CCMA found that the dismissal was fair in all respects. This was because the employer was able to convince the CCMA arbitrator that the shop steward’s status as a union representative did not exempt him from adhering to the employer’s rules. [NUMSA obo Mahlangu vs Hernic Ferrochrome (Pty) Ltd case number NW2126-01]
Because the dividing line between acceptable and unacceptable discipline of shop stewards is so thin no employer should implement such discipline without the full involvement of a reputable labour law expert. The power of unionisation in South Africa combined with our pro-union legislation means that employers need to be very careful how they treat shop stewards and other employees and should never underestimate the resolve and resources of trade unions.
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to:www.labourlawadvice.co.za