by K-Ci Henry | Jul 12, 2021 | Legal
It is extremely dangerous for any employer to dismiss an employee unfairly. This is because South African labour law strongly protects employees. The forums provided by the Labour Relations Act (LRA) to carry out labour dispute resolution include:
- The Centres for Dispute Resolution attached to the numerous bargaining councils established in South Africa
- The Commission for Conciliation, Mediation and Arbitration (CCMA)
Many employers, via bitter experience, will already be aware that going to any of these forums can be extremely costly. Such employers will be aware that, should things go wrong with a dismissal, they may have to pay the following:
- A settlement amount in order to avoid having to go to court or arbitration
- Legal fees to be represented at arbitration or court
- The legal fees of the employee
- Retrospective back pay to employees who the courts or arbitrators have reinstated
- Compensation to employees who they have been found to have dismissed unfairly.
Most employers will however be unaware that, in addition to the hugely expensive costs listed above, they may also have to pay arbitration fees to the CDR or CCMA).
I will deal with each of these in more detail:
OUT OF COURT SETTLEMENTS
The first stage of labour dispute resolution is conciliation. Here a CDR or CCMA commissioner attempts to mediate an out of court settlement between the employee and employer. Especially where the employer comes to realise that it messed up the dismissal it lands up agreeing to pay a substantial settlement amount to make the problem go away. Due to the fact that such settlements are made by agreement there is no legally prescribed maximum limit to the amount thereof.
LEGAL FEES AND THE EMPLOYEE’S LEGAL COSTS
Should the employer’s case be found to be frivolous and/or vexatious it may have to pay, in addition to its own legal fees, a significant portion of the employee’s legal fees. This may occur when the court/arbitrator finds that the employer was clearly in the wrong and/or defended the case unreasonably.
RETROSPECTIVE BACK PAY
Where the arbitrator or court finds that the dismissal was unfair it may require the employer to take the employee back and to pay the employee remuneration lost between the date of dismissal and the date of the reinstatement order. (Such back pay is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)
COMPENSATION
Even where reinstatement is not ordered the employer may be required to pay the employee compensation in recompense for unfairly depriving him/her of his/her job. (Such compensation is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)
ARBITRATION FEES
In terms of the little known section 140(2) of the LRA the arbitrator may charge the employer an arbitration fee where it is found that a dismissal for misconduct or incapacity was procedurally unfair. For example, in the case of Martini and others vs Galata Eksport Chain cc (2006, 8 BALR 836) the employees were dismissed after 20 oriental carpets worth R 800 000 went missing. The arbitrator found that the employer had good reason to dismiss the employees but that, because the employer had failed to give the employees a fair hearing, the dismissal had been procedurally unfair. He/she therefore ordered the employer to pay the CCMA an arbitration fee in terms of section 140(2) of the LRA. It is uncertain what the intension of this fee is. Perhaps it is for wasting the CCMA’s time by failing to follow procedures that every employer ought to be aware of.
In the light of the above employers are advised to:
- Make sure that they know and fully understand all aspects of labour law
- Use that knowledge to comply with the law when dealing with employees.
To register for our 16 July webinar on Investigating in the Covid Environment please contact Ronni on [email protected] or 0845217492.
by K-Ci Henry | May 31, 2021 | Legal
South African employees are so heavily protected by the Constitution, by labour legislation, by the Labour Courts the CCMA and trade unions that they
are less often afraid to defy the employer’s instructions. For the employer the resulting insubordination is a nightmare.
This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
What insubordination really is
How it differs from disrespect
What a reasonable instruction is
When a charge of insubordination is not appropriate
How seriously the law views insubordination
How it should be dealt with
WHAT IS INSUBORDINATION?
The Collins Concise Dictionary defines “insubordinate” as “not submissive to
authority, disobedient or rebellious”. It is the refusal of an employee to bow to
the authority exercised reasonably by the employee’s superior. This could
include conduct such as:
Refusal or intentional failure to obey reasonable and lawful instructions
Comments such as “You have no authority over me”
Telling the manager to go and get what he/she wants from someone else
INSUBORDINATION VS DISRESPECT
Insubordination applies only upwards and can only be perpetrated by a junior towards a senior. Disrespect, on the other hand, can apply upwards and
downwards. For example, it would be disrespectful for a manager to shout at an employee and tell him/her to ‘get out of the office’. Disrespect is therefore
not necessarily linked to a person’s position of authority but can also be linked to one’s human dignity.
WHAT IS A REASONABLE INSTRUCTION?
In my view a reasonable instruction is one that:
The employee is capable of carrying out and
Involves a task that is not substantially beneath the employee and
Does not infringe the rules of the employer or the laws of the country and
Involves a task that truly needs to be done.
For example, if the boss tells the Human Resources Manager on a 4-day week contract to come in on the weekend to repair the faulty elevator the HR
Manager might be entitled to refuse because The HR Manager is being required to carry out a task:
That is completely outside the sphere of the HR Manager’s duties
Outside of the HRM’s capabilities
Assigned for a time that is not normally worked
That, if carried out by the HRM, could result in danger to users of the elevator.
However, instructing employees to adhere to heath and safety requirements would, in most cases, be both legal and reasonable.
In Mogano vs St Mary’s Children’s Home [2021] 2 BALR 181 (CCMA) the employee was dismissed for disobeying a rule to remain on the work premises
during the lockdown. The arbitrator noted that a key aim of the lockdown was to protect vulnerable people from contracting Covid. The children at the home
were vulnerable, and the care workers had been allocated a cottage in which they could stay while off duty. The arbitrator found that the applicant had
unreasonably defied management’s authority and imperilled the children at the home. The applicant’s dismissal was upheld as fair.
WHEN A CHARGE OF INSUBORDINATION IS NOT APPROPRIATE
Insubordination is not the same as poor work performance. That is, poor work performance relates to how badly the employee has performed work or
missed deadlines. While poor work performance can sometimes be wilful there is usually some work that is done albeit badly and the poor performance
occurs regardless of whether the employee has been given an instruction. On the other hand Insubordination means the employee’s refusal to obey a
specific instruction whether the instruction relates to work performance or not.
Also, an employee might fail to carry out an instruction because:
The equipment used is really faulty
The employee truly does not have the required skill
The employee is genuinely disabled
These examples do not amount to insubordination because the employee is not refusing to carry out the instruction.
To book for our 16 July 2021 webinar on CONDUCTING INVESTIGATIONS IN THE COVID ENVIRONMENT please go to
https://www.labourlawadvice.co.za/seminar/ or contact Ronni at [email protected] or on 0845217492.
by K-Ci Henry | May 24, 2021 | Legal
Since 1995 the Labour Relations Act (LRA) and Basic Conditions of Employment Act have been replaced with entirely new versions. In addition
new legislation in the form of the Skills Development Act and the Employment Equity Act have been born. The LRA has also been further amended more than once. Attached to these acts are numerous codes of practice that provide guidelines as to what is fair and acceptable.
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.
It is therefore imperative that employers have their rules reviewed in line with the latest interpretation of the law by the courts. Furthermore, had the new
employer, at the time of takeover, negotiated renewed employment contracts with its employees, it could have included the new retirement age in those
contracts. This would have legitimated the change in the retirement age. There are other equally important reasons that employers need to update their
rules and terms and conditions of employment. For example, employers are not allowed to suspend employees unfairly and one element of unfairness
could be the extreme length of the employee’s suspension period. That is, if the employer’s disciplinary code does not cater for protracted suspensions
then a drawn out period of suspension could be considered unfair even if the employee is being paid.
Protracted suspensions could be unfair not only on the employee but also on the employer and on the general public! This is because, where the employee
is being paid to sit at home without working, the employer bears the burden of the cost of the employee’s unearned remuneration. Thus, either the
company’s shareholders have their profits eroded or the taxpayer shoulders the burden where the employer is the state. For example, it was reported in
The Star that 11 officials of the Road Accident Fund were suspended on full salary for a period not less than 10 months at a cost of R5,3 million (The Star,
3 June 2004, page 17.
The standard clauses in employer’s disciplinary codes are no longer sufficient because provision needs to be made for exceptions as well. For example,
should the employer wish to discipline an employee twice for the same act of misconduct the employer’s disciplinary code should provide for this. In the
case of BMW (SA) (Pty Ltd vs Van der Walt (Contemporary Labour Law vol. 13 No.5 page 49) the Labour Appeal Court held that it is important, that, for a
second hearing for the same incident of misconduct to be fair, this should ideally be permitted by the employer’s disciplinary code. In addition, the
holding of a second hearing must be fair in all respects. Employers are warned that the holding of such second hearings will only be fair in
exceptional cases.
Should employers fail to keep up with such decisions of court judges and of arbitrators they will be unable to run their organisations according to law
because labour law is a constantly changing thing. Should employers fail to update their rules, disciplinary codes and terms and
conditions of employment in the light of new case law decisions they will be caught short when it comes to implementing discipline and dismissal. This is
because an employer’s rules and policies should encapsulate the latest labour laws so that, when management applies the policies, they are in line with the
law. It can be a laborious and complex task for an employer to draw up a comprehensive set of rules, but dealing with the consequences of having no
rules can be far more onerous for employers at the CCMA, bargaining councils and Labour Court. 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.
To attend our 14 May 2010 seminar in Cape Town on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at
[email protected] or on 0845217492 or (011) 782-3066.
by angelique | Apr 16, 2021 | Employers
South Africa’s labour legislation provides very heavy protection for employees. That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be dismissed. These obstacles include:
- A plethora of procedures that must be followed before a dismissal can be considered to be fair
- Stringent and numerous criteria for deciding whether the reason for a dismissal is fair
- Broad discrepancy between judges and arbitrators as to the interpretation of the labour law
- The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order (up to 24 months’ pay in some cases) on the employer
- The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing
- Despite the fact that many employers do not have the expertise to defend cases at the CCMA the law makes it difficult for them to use legal experts as representatives.
- The Labour Relations Act effectively bans the use of fixed-term contracts except in cases where the employer can prove that the job itself is temporary.
Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date. However, this is a dangerous tactic because labour law has virtually closed this loophole. That is, if the employer gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract.
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed term contracts. But then it allowed the last contracts to lapse even though there was still available work for the terminated employees. The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.
In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent. When Ms Pretorius’s contract expired the employer advertised the post to be filled on a permanent basis and refused to renew Ms Pretorius’s contract. She referred an unfair dismissal dispute to the bargaining council because she claimed to have had a reasonable expectation that her contract would be renewed. The arbitrator found that:
- The employer had a policy that required a fixed-term employee occupying a permanent post to be made permanent if management approved.
- The fact that management had advertised the post constituted management approval
- This policy gave the employee a reasonable expectation of renewal of her contract
- The employer’s failure to give the employee the permanent post constituted an unfair dismissal and the employee was retrospectively reinstated.
Another method used by employers to bypass the tough labour legislation is the use of temp. agencies and labour brokers. These agencies are referred to in the Labour Relation Act (LRA) as “temporary employment services” (TES)
Trade unions, who find this arrangement to be a thorn in their sides, call it ‘Atypical Employment’ and have succeeded in a campaign for severely curtailing it.
Employers are now finding it very much more difficult to use fixed-term contracts and labour brokers to evade the heavy constraints of labour legislation. All employers now, more than ever before, need to use reputable labour law experts to sharpen their skills in running productive workplaces despite the ever increasingly restrictive labour legislation.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawadvice.co.za.
by angelique | Apr 12, 2021 | Employers
Item 92 of the CCMA’s Guidelines: Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, it should be able to show that the employee’s offence was so serious that it made “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, willful 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.
The employer would normally be entitled to argue that racist behavior has rendered continued employment intolerable 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.
In Baxter v Minister of Justice and Correctional Services and others
[2020] 10 BLLR 968 (LAC) the appellant, then an area Commissioner for Kokstad, was dismissed for his alleged improper involvement in the learnership process, in which his daughter was one of the candidates. The appellant claimed that he had really been dismissed for protected disclosures he had made about a colleague’s manipulation of the selection of the five job candidates.
The Labour Appeal Court found that the applicant’s disclosures were for the most part true and that his dismissal was automatically unfair.
Turning to relief, the Court found that, although the appellant’s conduct relating to the non-appointment of family members did not justify dismissal, it was enough to make the continuation of an employment relationship intolerable. Reinstatement was, accordingly, not an appropriate remedy. The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. Thus, while employees should avoid making protected disclosures out of spite employers should avoid dismissing employees who make genuine protected disclosures.
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 protected]. Go to: www.labourlawadvice.co.za
