Notes-2004 Labour Law 4 LABOUR LAW - 2004 INDIVIDUAL EMPLOYMENT LAW 4. APPLICABLE LEGISLATION: Labour Relations Act 66 of 1995 (LRA), as amended Employment Equity Act 55 of 1998 (EEA) Basic Conditions of Employment Act 75 of 1997(BCEA), as amended 2. PARTIES TO THE EMPLOYMENT CONTRACT One of the fundamental issues, which arise in a labour dispute, is whether the parties are ‘employees’ and ‘employers’ as defined by the legislation. ‘An employee is defined in the LRA as ‘any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer.’ The significance of this definition is that it establishes whether the protections against unfair dismissal ought to be extended to a person. Various tests have been utilised over fime in order to establish whether a person is an independent contractor (and thereby not protected by the LRA) and include the control test, organisation test and dominant impression test The control test recognises that there must be an element of control over the employee by the employer. « The organisation test examined whether a person was part of an organisation eg complied with the Company dress code, belonged to the Company's pension and medical aid scheme etc. ‘¢ The most popular test is the dominant impression test, which looks at the ‘dominant impression’ left by the contract and the working relationship in determining the nature of the relationship. Some of the factors which are relevant to this test are ‘the employer's right to select who will do the work, the power to dismiss, the employee's obligations to work for a given time and for certain hours, whether remuneration is paid for the time worked or for a particular result, whether the employer provides the employee with tools, equipment and office space and whether the employer has the right to deploy the empioyee as it sees fi, Previous decisions have found that a director of a company and a senior managerial employee fall within the definition of an ‘employee’ See in this regard: SABC v Mokenzie (1999) 20 ILJ 585 (LAC) in which the Court held: “{9] Some of the important characteristics of the contract of employment and the contract of work, respectively, are: 4. The object of the contract of service is the rendering of personal services by the employee to the employer. The services are the object of the contract. The object of the contract of work is the performance of a certain specified work or the production of a certain specified result. 2, Ascording to a contract of service the employee will typically be at the beck and call of the employer toNotes-2004 Labour Law 1 LABOUR LAW - 2004 INDIVIDUAL EMPLOYMENT LAW 4. APPLICABLE LEGISLATION: Labour Relations Act 66 of 1995 (LRA), as amended Employment Equity Act 55 of 1998 (EEA) Basic Conditions of Employment Act 75 of 1997(BCEA), as amended 2. PARTIES TO THE EMPLOYMENT CONTRACT ‘One of the fundamental issues, which arise in a labour dispute, is whether the parties are ‘employees’ and ‘employers’ as defined by the legislation ‘An employee is defined in the LRA as ‘any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer.’ The significance of this definition is that it establishes whether the protections against unfair dismissal ought to be extended to a person. Various tests have been utilised over time in order to establish whether a person is an independent contractor (and thereby not protected by the LRA) and include the control test, organisation test and dominant impression test. The control test recognises that there must be an element of contro! over the employee by the employer. ‘¢ The organisation test examined whether a person was part of an organisation eg complied with the Company dress code, belonged to the Company's pension and medical aid scheme etc. ‘« The most popular test is the dominant impression fest, which looks at the ‘dominant » impression’ left by the contract and the working relationship in determining the nature of the relationship, Some of the factors which are relevant to this test are ‘the ‘employer's right to select who will do the work, the power to dismiss, the employee's obligations to work for a given time and for certain hours, whether remuneration is paid for the time worked or for a particular result, whether the employer provides the employee with tools, equipment and office space and whether the employer has the right to deploy the employee as it sees fit, Previous decisions have found that a director of a company and a senior managerial employee fail within the definition of an ‘employee’ See in this regard: SABC v Mckenzie (1999) 20 ILJ 585 (LAC) in which the Court held: “[9] Some of the important characteristics of the contract of employment and the contract of work, respectively, are: 4. Tho object of the contract of service is the rendering of personal services by the employee to the employer. The services are the object of the contract. The object of the contract of work is the performance of a certain specified work or the production of a certain specified result. 2, According to a contract of service the employee will typically be at the beck and call of the employer toNotes-2004 Labour Law 2 render his personal services at the behest of the employer. The independent contractor, by way of Contrast, is not obliged fo perform the work himself or to produce the result himself, unless otherwise greed upon. He may avail himself of the labour of others as assistants or employees to perform the ‘work or to assist him in the performance of the work. 4, Services to be rendered in terms of a contract of service are at the disposal of the employer who may inhis own discretion subject, of course, to questions of repudiation decicle whether or not he wants to have them rendered. The independent contractor is bound to perform a certain specified work or produce a cortain specified result within a time fixed by the contract of work or within a reasonable time where no . time has been specified, 4. The employee is subordinate to the will of the employer. He is obliged to oboy the lawful commands, crders or instructions of the employer who has the right of supervising and controlling him by : prescribing to him what work he has to do as well as tho manner in which it has to be dono, The Independent contractor, however, is notionally on a footing of equality with the employer. Hes bound to troduce in terms of his contract of work, not by the orders of the employer. He is not under the Supervision or control of the employer. Nor is he under any obligation to abey any orders of the employer in regard to the manner in which the work is to be performed. The independent contractor is his own master. 5 Acontract of service Is terminated by the death of the employee whereas the death of the parties toa contract of work does not necessarily terminate it, 7 6. Acontract of service terminates on expiration of the period of service entered into while a contract of Work torminates on completion of the specified work or on production of the specified result. See Smit v Workmen's Compensation Commissioner at 610-1.” Buiding Bargaining Council v Melmons Cabinets CC (2001) 22 ILJ 20 (LC) ~ Contracts signed by employees acknowledging independent contractorship status — found to be a sham: Establishing whether @ person is an employee is even more complicated in the case of ‘atypical’ employees. An ‘atypical’ employee is one that is not in engaged in a permanent employment relationship. Examples of this are part-lime employees, casual employees, temporary employees, fixed term employees, homeworkers, amongst others. A number of 1 recent decisions have interpreted this issue (see Sibiyta and Others v ABI [2001] 10 BLLR 1471 (LO) empoyer is not defined in the LRA or other iabour legislation, as can accordingly be given a corresponding meaning to employee. The Labour Relations Amendment Act of 2002 provides for the inclusion of a new s200A, which creates a presumption as to who is an employee: 200A. (1) Until the contrary is proved, a person who works for, or renders services fo, any other e person is presumed, regardless of the form of the contract, to be an employee, if ny one or more of the following factors are present: - {@) tho manner in which the person works Is subject to the control or direction of another person; (0) the person's hours of work are subject to the contro! or direction of another person; {c) in the case of a person who works for an organisation, the person forms part of that organisation; (a) the person has worked for that other person for an average of at least 40 hours per month over the last three months; {o) the person is economically dependant on the other person for whom he or she works or renders services; {) the person is provided with tools of tracie or work equipment by the other person; or (g) the person only works for or renders services to one person.Notes-2004 Labour Law 3 (2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. (3) a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts dotermined by the Minister in terms of section: 6(3) of the Basic Conditfons of Employment Act, any of the contracting parties may approach the Commission for an advisory award ‘on whether the persons involved in the arrangement are employees. (4) NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining Whether persons, including those who earn in excess of the amount determined in subsection (2) are employees." This amendment incorporates elements of the control, organisation and dominant impression tests. Itis important to note that the onus has been reversed so as to require the employer to prove that the applicant is not an employes. This presumption only applies to employees earning less than R89 499 per annum. rey EXERCISE 1-*=,' ABC Retailers, in tetms'of programme for the Company, i employees in its application. He is all to dress according to.the Com 3. DUTIES OF THE EMPLOYEE AND EMPLOYER - The employment relationship gives rise fo a number of reciprocal obligations between employer and employee. Duties of employee: i) Toenter and remain in service ii) To maintain reasonable efficiency — the standard of competence of a particular employee depends on the capacity in which he/she is employed and the status/seniority of the employee. iii) To further the employer's business interests: —a failure to do so is a breach of the relationship of trust between the parties and a breach of their fiduciary duties iv) To be respectful and obedient v) To refrain from misconduct generally — any misconduct which renders the continuation of the employment relationship intolerable and undermines the relationship of trust between the parties may be regarded as sufficient to justify dismissal.Notes-2004 Labour Lavy 4 Duties of employers: i) _ toreceive the employee into service ii) toremunerate the employee ii) to ensure safe working conditions iv) to. comply with rontractual and statutory obligations. 4, DISCIPLINE AND DISMISSAL Supplementary readings: Du Toit Labour Relations Law (3ed) Chapter Vill (pg 337 -424) Grogan Workplace Law (Sed) p91 —192 or (Ged) p103 . Introduction The laws and regulations governing dismissals have undergone a major transformation over the past 20 years. Whereas in the past it was the employer's right (o hire and fire employees at will, in 1979 after the Wiehahn Commission's report, the concept of an ‘unfair labour practice’ (ULP) was introduced into our law. While the Labour Relations Act of 1956 did not Fegulate dismissels, the industrial court was given the jurisdiction to determine the faimess of b dismissal. Over a period of years an unfair labour practice jurisdiction developed with the Industrial Court deciding on what behaviour constituted an unfair dismissal. The 1995 Labour Relations Act (LRA) abolishes the Industrial Court and its ULP jurisdiction. In its place it has included provisions governing unfair dismissal (Chapter Vill) and the Code of Good Practice (Schedule 8). The LRA of 1996 has been recently amended by the LRA Amendment Act of 3002, and some of the problems identified since the passing of the Act have been identified and rectified by the amendments. Unfair dismissal 185 - Every employee has the right not to be unfairly dismissed. We will be looking at: i) the meaning of the term ‘dismissal’, ii) the circumstances in which a dismissal is unfair; iil) the categories into which dismissals fall; iv) _ the specific faimess requirements in respect of each category of dismissal, and iv) _ the remedies for an unfair dismissal £186 - Meaning of dismissal 5186 defines dismissal so as to include within its meaning the conduct of the employer which goes beyond the ordinary termination of employment. Dismissal means that: (a) an employer has terminated a contract of employment with or without notice.Notes-2004 Labour Law 5 Until recently it was acceptable for an employer to terminate an employee's services by simply giving the required notice with or without a valid or fair reason or a fair procedure. Now in order to terminate the employment relationship an employer has to comply with the requirements of substantive and procedural faimess. (b) non-renewal of a fixed term contract where employees had a reasonable expectation that their contracts would be renewed on same or similar terms. A fixed term contract is an employment contract concluded for a specified period of time (eg 6 months) and based on the principles of contract is terminated automatically on the expiration of this specified period. However if there had been a regular renewal in the past creating an expectation of an ongoing relationship then the Industrial Court has held that itis possibie to imply continuous employment. This was held in the decision of Cremark v SACWU (1994)15 ILJ 289 LAC. Note that this protection extends to the situation where re- employment is offered on less favourable terms. The difficulty arises in establishing what constitutes a ‘easonable expectation’. There can be no reasonable expectation if the work is inherently temporary eg replacing someone on matemity leave, or in the event of a once-off grant etc. The testis really whether the position was genuinely temporary or whether the work the employee performed terminated upon termination of his/her employment. If the answer is ‘no’ then the next question to be considered is: {whether the employer has said or done anything that might lead to the expectation of renewal or (ji) whether the employee could infer from the facts of the situation whether renewal was likely. ‘A question which has arisen is whether the expectation ought to be of a further fixed term or could include an expectation of permanent employment. in Mcinnes v Technikon Natal (2000) 24 ILJ 1138 (LC) the court held that the s186(1)(b) extended to the expectation of permanent employment. But See Auf de Heyde v UCT [2000} 8 BLLR 877 (LC) in which it was held that reasonable expectation.does not extend fo an expectation of a permanent appointment. EXERCISE 2 UND advertises a ‘permanent position for a lecturer in the Department of Classics. A MA in Classics is a requirement for the position. Mr Smith applies and is appointed but because his MA is incomplete at the time of the application, he isappointed on a 2- year contract, This is also-done because the Classics department is experiencing financial problems due to low student registration. During the 2-year contract, Mr Smith performs his duties weli and completes-his MA..However at the termination of the contract, UND insist on terminating his appointment and re-advertising the pos’ well qualified applicant gets the post. Mr Smith alleges he has.been unfairly dismissed. , Advise him. 7 ° LS (c) refusal to allow employee to resume work after maternity leave on the same terms and conditions.Notes-2004 Labour Law 6 This should be read in conjunction with s187(1)(e) which makes it automatically unfair to dismiss an employee by reason of her pregnancy, intended pregnancy or any reason related fo her pregnancy. Maternity leave is governed by $25 of BCEA and provides for 4 months unpaid maternity leave. (d) selective re-employment of dismissed employees Selective re-employment (eg where an employer dismisses a group of employees eg for an ilegal strike and re-employs only a few of them) has been considered an ULP by the industrial Court for a long time. However confusion arose in this sphere following the case of Borg-Warner v NAAWU (NUMSA) 1991 12 ILJ 549 which held that affer the dismissal of an employee, the court has no jurisdiction to determine the faimess of selective re-employment as the employment relationship terminates on dismissal. Therefore an ex-employee was not entitled to relief under the old ULP jurisdiction as there was no employment relationship between the parties. However in the AD decision of NAAWU v Borg- Warner (1994) 15 ILJ 309 A itwas held that the employment relationship does not come to an end on dismissal but father when equity permits, The inclusion of this provision in the definition ensures that this confusion does not reoccur. (e) Constructive dismissals. Constructive Dismissal means ‘actions on the part of the employer which drive the employee to leave", In Jooste v Transnet Lid fa SAA (1995) 16 ILJ 629 LAC the test used was whether the employer’s conduct, judged reasonably and sensibly, is such that the employee cannot be expected fo put up with it, The onus is on the employee to prove that he/she had not intended fo terminate the employment relationship. Thus unfair disciplinary action against an employee, demotion of an employee without consultation and sexually harassing an employee have all been recognised as giving rise to constructive dismissal. In the recent case of CEPPWAWU v Glass and Aluminium 2000 CC [2002] 5 BLLR 399 (LAC) the LAC addressed an issue of constructive dismissal. [81] In Pretoria Society for the Care of the Retarded v Loots (1997) 18 IL) 881 (LAG) at 986 this Court dealt with constructive dismissal and laid down a number of features: fa) When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has ecome so unbearable that the employee cannot fulfil what is the employee's most important function, namely to work, The employee Is in effect saying thatho would have carried on working indefinitely hac the unbearable situation not been created. 1b) He does so on the basis that he does not belivve that the employer will ever reform of abandon the pattern of ereating an unbearable work environr tent. if ho is wrong in this assumption and the employer proves that his fears were unfounded then he has not been constructively dismissed and his conduct proves that he has in fact resigned. {c) . Where he proves the creation of the unbearable work environment he is entitled to say that by doing ¢o the employer Is repudiating the contract and he ras a choice either to stand by the contract or accept the repudiation and the contract comes to an end. {d) Itis tho employer's unlawful act that has precipitated the refusal to work and the acceptance of the employer's repudiation, The two envisaged steps are not always easily separable as the enquiry into whether the employee intended to terminate the employr.rent by accepting the repudiation will often involve an enquiry into whether such resignation was volun ary oF not. {e) In determining whether an employee was const’uctively dismissed the court will have to determine whether the employee's evidence of the intolerabl work environment should be believed or Muhether the employer's evidence, which is to the effect that xe actually resigned, should carry the cay. {f) The enquiry then becomes whother the appellat, without reasonable and proper cause, condusted itself in'a manner calculated or likely to destro) or seriously damage the relationship ofNotes-2004 Labour Law Zz confidence and trust between employer and employee, Its not necessary to show that the employer intended any repudiation of the contract; the court's function is to look at the employer's conduct as a ‘whole and determine whether itis such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. The conduct of the parties has to be looked at as awhole and its cumulative impact assessed. [82] In determining whether of not there has been a resignation the court has to evaluate what the Intention of the parties was. A contract of employment may be terminated if the employer and employee. by consensus decide to terminate the employment relationship between them (see Strachan v Lloyd Levy 4923 AD 670 and October v Rowe 1898 SC 110). [33] Resignation brings the contractto an end ifitis accepted by the employer. In Fijen v Council for Scientific & Industrial Research (1994) 16 ILJ759 (LAC) Farlam J (as he then was) said at 772C-D with regard fo the test for resignation that an employes has to “either by words or conduct, evince a clear and unambiguous intention not to go on with his contract of employment”. He went on to say that to resign he has fo “act in such a way as to lead a reasonable person to the conclusion that he did not intend to. fulfil his part of the contract” (cf Tuckers Land & Development Corporation v Hovis 1980 (1) SA 645 (A) at 653D-F). In the English case of McAlwane v Boughton Estates Ltd [1973] ICR 470 Donaldson J said that tribunals “should not find an agreement to terminate employment unless it is proved that the employee really did agree with full knowledge of the implications it had for him”. [34] The courts look for unambiguous, unequivocal words to amount to a resignation (Hughes v Gwynedd Area Health Authority [1978] ICR 161) and the courts did not find such to be so when the ‘employee was a mental defective and he uttered the words in the heat of the, moment after an argument (Barclay v City of Glasgow District Council [1983] IRLR 313). [35], The notion of a resignation in the heat of the moment was also discussed in Sothern v Franks Charlesly and Co [1981] IRLR 278 and Sovereign House Security Services Limited v Savage [1988] IRLR 116 (CA) where rasignation was held not to be effective which was that of “an immature employee, or ofa decision taken in the heat of the moment, or of an employee being jostled into the decision by the employers”. : See:also Mafomane v Rustenburg Platinum Mines Lid [2003] 10 BLLR 999 (LC) EXERCISE 3. .... as she vise her that if she fails to do so, both criminal proceedings as well ‘tenders a letter () transfer of employment The 2002 Amendment Act adds a new ground of constructive dismissal, being “an employee terminated a contract of employment with or without notice because the new employer, after. transfer in torms of section 197 or section 197A provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer." This will be looked at in greater detail when dealing with s197.Notes-2004 Labour Law 8 #818602) Unfair Labour practices The LRA Amendment Act of 2002 includes anew section in $186 on ‘unfair labour practices’ (ULP). ‘Unfair labour practice’ means any uniair act or omission that arises between an employer and an employee involving- 2) unfair eonduct by the employer relating to the promotion, demotion, probation (excluding Hisputes Shout dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employes; An employer is guilty of ny form of unfair conduct relating fo the promotion, demotion of training of an. employee or relating to the provision of benefits to-arremployee ‘Unfair implies failure to meet an objective standard and may be 7} taken toineidde arbitrary, capricious or inconsistent conduct, whether negligent or intended. The ambit of this sub-item is thus wider than that of s6(1) of the EEA. Thus the employee must prove that the employer acted unfairly in not promoting him whereafter the onus will Shift to the employer to justify his/her actions. The majority of cases arising under this section are based on the employer's failure to act in accordance with affirmative action policies. Itis not enough for an employee who complains of unfair conduct in relation to promotion to allege and prove that he or she was better qualified or more ‘suitable’ than the successful candidate. The employee will have to show unfaimess on the part of the ‘employer for example a breach of s6 of EEA. (6) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; Unfair suspension or ‘any other disciplinary action short of dismissal’ is an unfair tabour practice. At common law suspension without pay is breach of contract but, absent agreement to the contrary, remuneration satisfies the employer's contractual obligations. Exceptional circumstances would be where the employee, by reason of status, seniority, or the nature of the work itself, is entitled not merely to remuneration but to work, An employer is not usually obliged to hold a hearing prior to suspension; but where an employee's social status may be harmed by suspension even with remuneration, suspension could be perceived as a punitive measure and the employee may be entitled to a hearing. Summary suspension with pay may hot be unfair if the employer has a reasonable apprehension that a legitimate business interest would be harmed by the worker's continued presence in the workplace. {c) a failure or rofusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and The jurisdiction of the Industrial Court under the previous Act did not extend to former employees save where they challenged the fairness of their dismissal or sought re-engagement in terms of a collective bargaining agreement. Failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement is now Geclared to be an unfair labour practice ‘Agreement’ may thus refer to an individual contract, Smitten or verbal, as well as a collective agreement. There is no need to establish discrimination or unfaimess on the part of the employer. However where a refusal to re-employ a former employee is discriminatory, the provisions of the EEA will apply.Notes-2004 Labour Law 9 (a) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures ‘Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected. disclosure defined in that Act The PDA provides protection to employees who report their employers for breaking the aw. Thus if an employee is prejudiced in some way (short of dismissal) for ‘blowing the whistle’ on his/her employer then this provision will apply. See Landman ‘A Charter for Whistleblowers — a note on the Protected Disclosures Act 26 of 2000’ (2001) 22 ILJ 37 in which he states : “Disclosure means any disclosure of information regarding any conduct of an employer, or an employee ‘of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following: (a) _ thata criminal offence has been committed, is being committed or is likely to be committed; (b) _ that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (c) _ that a miscarriage of justice has occurred, is occurring or is likely to occur; {d) _ that the health or safety of an individual has been, is being or is likely to be endangered; {e) _ that the environment has been, is being or is likely to be damaged; (that unfair.discrimination as contomplated in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 has occurred; or (g) _ that any matter referred to in paras (a) to (f) has been, is being or is likely to be deliberately concealed. / See: Grieve v Dene! (2003) 24 ILJ 551 (LC) and CWU v Mobile Telephone Networks (Ply) Ltd (2003) 24 ILJ 1670 (LC) Automatically unfair dismissals Section 185 guarantees the rights not to be unfairly dismissed. Section 187 sets out the circumstances in which dismissals will be ‘automatically unfair’ which means that if this is roved the employee will be entitled to the remedies set out in sections 193 or 194(3), without ving to prove the unfaimess of the dismissal. wh. sce A dismissal will be unfair if the employer, in dismissing the employee, violates any of the Tights of employees and work seekers set out in section 5 [s 187(1)]. This means that an employer may not dismiss an employee for any of the following reasons: ~~ —oe—e «present, past or anticipated membership of a trade union or workplace forum, or refusing fo agree not to join a trade union or workplace forum, of refusing to give up membership {s 5(2)(@) and 5(2)(c)()}; 7 {See CEPPWAWU v Glass and Aluminium 2000 CC [2002] 5 BLLR 389 (LAC) BIAWU v Mutual and Federal {2002} 7 BLLR 608 (LC) * exercising any right conferred by the Act or taking part in any proceedings in terms of the Act [s 5(2)(b) and 5(2)(c)(vi) to (vi); * farticipating in the formation or any lawful activity of a trade union or workplace forum [s 5(2)(c}(il) to (ii); © failure or refusal to carry out an unlawful command or requirement of the employer [s 5(2)(c)liv); or » disclosure of information that the employee is lawfully entitled or required to give to another person [s 5(2)(c)(v)].Notes-2004 Labour Law 40 ‘These provisions for the most part echo the protection against victimisation contained in the previous Act, or in the common law, which the Industrial Court had upheld. * Section 187 also extends to render automatically unfair the dismissal of an employee for any of the following reasons:- «participation in or support for a strike that is procedural in terms of the Act, or the intention fo participate in or support such strike {s 187(1)(a)hfie a lawful strike or protest action] «refusal to perform the work of another employee who is taking part in a procedural strike, tris locked out, unless such work is ‘necessary to prevent an actual danger to life, personal safety ‘or health’ (s 187(1)(byk{scab labour except in the case of essential services} 4 «to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and the employee [s 187(1)(c)}; [eg tactical dismissals during a lock-otit}; «actual or intended action by the employee against the employer in the context of exercising any right conferred by the Act or paricipating in any proceedings in terms of the Act [s 187(1)(A)I: + pregnancy, intended pregnany or any reason related fo such pregnancy {s187(4)(@)]; Bismissal on grounds of pregnancy had been stigmatised as an unfair labour practice by the Industrial Court, The broadening of this protection to ‘any reason related to’ pregnancy extends the protection of women against dismissal in keeping with the guarantee contained in section 9 of the Constitution. ‘Mashava v Cuzons and Woods Attorneys [2000] 6 BLLR 694 (LC) But see Woolworths v Whitehead [2000] 6 BLLR 640 (LAC); (2000) 24 ILJ §71 (LAC) «unfair discrimination on any arbitrary ground, including, but not limited to, race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. [s 487(1)(H). ‘The Amendment Act adds the following two categories «the transfer or a reason related to a transfer (ito $197 and s197A) ; 2 a contravention of the Protected Disclosures Act, 2000, by an employer, on account of an employee having made a protected disclosure: For purposes of section 187(1)() it has to be established not only that the dismissal was Giscriminatory but that such discrimination was ‘arbitrary’. The reasons listed in section “187(4)(h are by definition arbitrary. Dismissal on other discriminatory grounds may also be automatically unfair, but only if the employee can establish that the criterion was arbitrary. See Moinnes v Technikon Natal [2000] 6 BLLR 701 (LC) where it was held that a dismissal jor ‘affirmative action’ purposes was not permitted by the LRA and was automatically unfair. the Act states that discrimination will not be arbitrary if it is based on ‘an inherent requirement of the particular job" or on age ‘f the person has reached the normal or agreed fetrement age for persons employed in that capacity’ [s 187(2)]. Dismissal on these groundsNotes-2004 Labour Law u ‘may’ accordingly be fair, provided it complies with the further requirements of the chapter. Schweitzer v Waco Distributors (a Division of Voltex (Ply) Ltd) (1998) 19 ILJ 1573 (LC) SACTWU v Rubin Sportswear (2003) 24 ILJ 429 (LC) Other unfair dismissals Even if'a dismissal does not fall within the automatically unfair category, it aves not follow that itis fair. It will only be fair if it is motivated by | zSpitrenson and, moreover, was affected in accordance with a fair procedure [s 188(1)]. This section states that the reason for dismissal may only be fair if it relates to: * the employee’s conduct; be «the employee's capacity; or * the employer's operational requirements. Section 188(1) echoes the ILO recommendations on the termination of employment as well as the Industrial Court findings on the meaning of faimess in the field of dismissal. As a result the relevant provisions of the Act are largely a codification of the existing law and as a results past precedent established in terms of the old Act provides valuable guidanes. The Code of Good Practice Section 188(2) provides that substantive and procedural fairness must be construed in the light of ‘any relevant code of good practice issued in terms ofthis Act [s 188(2)]. In the present context this refers to the Code of Good Practice: Dismissal (relating to dismissal on the grounds of misconduct, incapacity and operational requirements) contained in Schedule 8 to the Act. The Code is ‘intentionally general’ and takes into consideration the individual circumstances of specific employers and employees; for example, where the number of employees employed in an establishment warrants a different approach [Sch 8 item 1(1)]. While it provides guidelines to be followed by employers, it has been suggested that ‘action in manifest conflict with the provisions of the Code might, in the absence of-good cause, be regarded as a failure to take the Code into account and could be remedied by an order of the Labour Court requiring compliance with section 188(2) [s 158(1)(b) makes provision for the Labour Court to order compliance with any provision of the LRAJ' It should be noted that in keeping with the LRA’s emphasis on the primacy of collective agreements the Code does not apply where disciplinary codes and procedures are the subject of collective agreements or the outcome of joint decision-making by an employer and a workplace forum [Sch 8 Item 1(2)). Onus Section 192 clarifies the issue of onus and confirms that if a dispute goes to court or to arbitration, the employee is only required to prove the fact of dismissal. The onus will then be on the employer to prove the fairness not only of the substantive grounds for dismissal but also of the procedure that was followed [ss 188(1) and $192]. As stated before other unfair dismissals (other than automatically unfair) must fall into one of the following categories:Notes-2004 Labour Law 42 Misconduct Incapacity (incompatibility) © Operational requirements 3, __ Premilla ig a secretary.at S. Mil is rude to her colleagues and:uricoor her conduct remains uinchan 4. Sipho is employed’to promote. a produ | discreet private | v known gey acto for the produ 5. z 6. a 8 Sandile’is one of many work ‘negotiations Sandile.Notes-2004 Labour Law 43 Misconduct Disciplinary rules and standards: The Code requires employers to adopt disciplinary rules that establish the-standard of conduct required of their employees. Itis for the employer to set standards of conduct for the employees and the CCMA/Courts will not interfere unless these are grossly unreasonable. The form and content of the rules may vary according to the size and nature of the employer's, business. For example, it is suggested that a larger business will require a more formal approach to discipline than a smaller firm [Sch 8 item 3(1)]. Disciplinary rules may be incorporated into an individual employment contract as ‘conditions of service’ or may be negotiated in a collective agreement. Disciplinary rules are intended to create certainty and consistency in the application of discipline. The required standards of conduct should be clear and be made known to employees in a manner that is easily understood. This may be done, for example, by distributing copies of the disciplinary code to employees, placing notices on company notice boards, or informing employees during induction programmes. The Code recognises that some fules or standards may be so well established that it will not be necessary to communicate them [Sch 8 item 3(1)]. Examples may include the prohibition of theft, assault, intimidation, and working under the influence of alcohol. The cardinal question, however, will be whether an employee knew, or could reasonably have known, of the rule or standard. % The preach of a disciplinary rules gives an employer the right to institute disciplinary.action against an embleyes- 3h nature of the sanction depends on the importance of the rule and jow often it has been broken. As a general rule the Code endorses a ‘corrective’ or ‘progressive’ approach to discipline [Sch 8 item 3(2)] with dismissal viewed as a last resort. The purpose is to correct the employee's waywardness through a system of graduated disciplinary measures such as counselling and warnings. Only if these measures fail to produce the desired results could dismissal be appropriate. The Code does not necessarily require employers to invoke formal procedures if a rule is broken or a standard is not met [Sch 8 item 3(2)]}. Minor infractions of work rules may be dealt with through informal advice and correction. Repeated misconduct will warrant warnings, which may be graded according to the severity of the infraction. The hierarchy of warnings are aimed to achieve two purposes: (i) tobring to the attention of the employee that the misconduct is unacceptable. Warnings should serve to make employees know and understand what is expected of them. (i) to provide a means of dealing with repeated misconduct by defining a period during which a repetition of the misconduct would lead to a harsher sanction. Warnings are ranked in a specific order of seriousness - verbal warning, written warning, final written warning. A warning lasts for a definite period usually for 6 months. The progressive discipline system does not mean that an employee can only be dismissed for repeated acts of misconduct. If the act of misconduct is so serious and of such gravity that it makes the continuation of the employment relationship intolerable (eg. gross dishonesty, wilful damage to property of employer, wilful endangering of the’ safety of others, gross insubordination, physical assault of the employer, a fellow employee, client or customer) then dismissal for a first offence will be appropriate. According to the Code s2(1) a dismissal is-unfair if it is not effected for a fair reasonNotes-2004 Labour Law 14 (substantive fairness) and in accordance with a fair procedure (procedural fairness). af substantive fairness: Guidelines in cases of dismissal for misconduct “The Code offers guidelines to any person who is called upon to decide whether a dismissal on the grounds of alleged misconduct is unfair. ‘Any person’ in this context includes the employer hearing an appeal against dismissal as well as the arbitrator who may subsequently ule on the fairness of the dismissal and will also serve as providing guidance to employers on avoiding unfairness. The factors to be considered (as set out in 87 of schedule 8) are (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace Management must prove on a balance of probabilities that the employee broke the fule, ‘As itis a dispute between private individuals the civil balance of proof applies, (b) if a rule or standard was contravened, whether or not @) _ itwas a valid or reasonable rule or ‘standard; The tules must be for the purpose of maintaining an efficient and orderly workplace and therefore the rules should deter inappropriate behaviour and alow the employer to efficiently manage his workforce. The employer is entitled to set rules for the conduct of the employees, as long as these rules are fair and reasonable. (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; There must be proof that the rules were brought to the attention of the employees or were common law rules eg theft or assault, The employer must take all reasonable steps to bring the rules to the attention of the employee and must be able to prove that this has been done. (iii). the rule or standard has been consistently applied by the employer; and ‘an employer must apply the penalty of dismissal consistently with past practice and as amongst employees Who participate in the same misconduct {Sch 8 item 3(6)]. This fequirement embodies the distinction between ‘historical inconsistency and ‘contemporaneous inconsistency’ that was drawn by the Labour Appeal Court in National Union of Mineworkers v Amcoal Collieries & Industrial Operations Ltd (1992) 13 ILJ 1449 (LAC). The inconsistency may relate either to the employer's decision to enforce a disciplinary tule, of to its decision to impose a particular penalty. Le Roux and Van Niekerk illustrate how such inconsistency might operate: ‘Historical inconsistency occurs where an employer has in the past, as a matler of practice, not dismissed employees or Imposed a specific disciplinary sanction for contravention of a specific disciptinary rie, but et sages te dismiss or impose that sanction for contravention of the rule. The unfairness of this type of theonsistency appears to be based on the argument that falure to cismiss or to impose a specific sanction for he eer eetioy ofa rule in the past has created the impression that such actions will not be taken for such contravention... [i the case of contemporaneous inconsistency] employees whe commit the same disciplinary Cffenae contemporaneously of at roughly the same finie are not all disciplined, or they receive different Siscipinary penaities. In this case the unfairness is based on the proposition that similar cases should bs treated Sere ee vray and that it is important that employees.wwho commit the same misconduct should all be disciplined and be subjected to the same disciplinary penalty.” To promote objectivity and consistency, the Code states that records should be kept for each employee specifying disciplinary transgressions, the action taken by the employer and theNotes-2004 Labour Law 15 reasons for such action [Sch 8 item 5]. However, despite the “parity principle”, the employers entitled fo take into account the personal circumstances of the employees in deciding upon an appropriate sanction. Relevant personal circumstances, itwas pointed out in Early Bird Farms (Ply) Lid v Mlambo [1997] 5 BLLR 541 (LAC) include length of service and disciplinary tecords but differences in respect of the “merits” or substance of the misconduct, such as the roles played by the respective employees, may also be considered. Individualised discipline and collective misconduct Consistency requires thatemployoes a hould receive the same disciplinary sanction for the px. same a0 conduct. At the same time, faimness demands that the employees’ ~“maividuar creumstances, in particular their disciplinary records, be taken into account when deciding on an appropriate sanction. A more controversial issue is whether the employer can adopt an individualised approach to collective misconduct. No clear rule emerged from cases decided in terms of the previous Act. In NUM v Amcoal Collieries & Industrial Operations Lid (1992)13 ILJ 359 (LAC) it was held that an employer may apply individual employees’ disciplinary records in instances of collective misconduct. In NUM & others v Free State Consolidated Gold Mines (Operations) Ltd [1995] 12 BLLR 8 (AD) however, the Appellate Division held that the appellants’ previous offences of absenteeism were not a sufficient basis for their being treated differently from other participants in an illegal stay away. All the participants, it was held, should have been treated similarly as their misconduct was substantially the same. In SACCAWU & others v Irvin & Johnson Lid [1999] 8 BLLR 741 (LAC) Conradie JA accepted that, in the context of collective misconduct, "[s]ome inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case . . If, for example, one member of a group of employees who committed a serious offence [is] not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape.” The approach of the Labour Court hhas not been entirely clear. in SACTWU & others v Novel Spinners (Pty) Ltd [1999] 11 BLLR 1157 (LC) it was held that the employer had acted unfairly in taking into account warnings given for individual misconduct when dealing with employees taking part in an unprocedural stay-away.— thereby implying that previous misconduct warnings should be taken into account when dealing with collective misconduct. (iv) dismissal was an appropriate sanction for the contravention of the rule or standard [Sch 8 item 7(b) (iv)]. This gives rise to three considerations: (i) Did the employee have a good reason for breaking the rule? In certain circumstances justification may exist “or breaching the rules eg a worker who commits assault because he/she was provoked or an employee refusing to carry out an instruction which is unreasonable or illegal. (iy the gravity of the offence including a consideration of mitigating circumstances such as the length of service of the worker, any previous disciplinary record and personal factors eg breadwinner, dependants etc. [Sch 8 item 3(5)). This principle is well established. The Industrial Court had frowned on an approach that considered only the technical classification of t1e misconduct in question and insisted that the substance of the misconduct, the circurnstances under which it was committed and the position of the offender be consideied. Moahlodi v East Rand Gold and Uranium Co (1988) 9 ILJ 597. It was prepares. to interfere where it believed that thet Notes-2004 Labour Law. 16 employer had attached insufficient weight to mitigating circumstances, such as the employee's lenath of service and unblemished employment record. It also upheld the principle that the employer must take into account the nature of the employee's job and the circumstances under which the disciplinary offence was committed. For example, an employer who operated a brewery was enlitled to adopt a strict approach to the Consumption of alcohol on its premises by its employees. With regard to the Circumstances under which the misconduct was committed the court took into account whether an infringement was wilful, whether the disciplinary infraction was occasioned by coercion on the part of fellow eriployees, and whether the employees had feared for their safety. It is generally agreed that an employer is entitled to set disciplinary standards for its employees, provided. that they are reasonable and fair. In De Beers Consolidated Mines v CCMA [2000] 9 BLLR 995 (LAC) Conradie J held that ‘Long service fs no more than material from which an inference can be drawn regarding the employee's probable future reliability. Long service does notliessen the gravity of the misconduct or serve to avoid the appropriate sanction for it. A senior employee cannot, without fear of dismissal, steal more than a junior employee. The standards for everyone are the same. Long service is not as such mitigatony- titigation, ae that term is understood in the criminal aw, has no place in employment law. Dismissal is fotan expression of moral outrage; much less is it an act of vengeance. itis, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shely packers who steal small items are routinely dismissed, Their dismissal has litte to do with society's Froral opprobrium of a minor theft; it has everything fo do with the operational requirements of the employers enterprise.’ Long service is, of course, not entirely irrelevant. It is relevant in determining vinbther an employee is likely to repeat his misdemeanour. An employee who has tong and faithfully Served his employer has shown that he has little propensity for offending. That historical experience may persuade an employer to accept the risk of continuing to employ him now thatitis known that he is not ee honest as had been thought, Depending on the circumstances, long service may be a weighty Sonsideration. But the risk factoris paramount. If, despite the prima facie impression of reliability arising from tong service, it appears that in all the circumstances, particularly the required degroe of trust and the employee's lack of commitment to reform, continued employment of the offender will be operationally too risky, he will be dismissed.’ (iii) consistency in disciplinary proceedings itis essential that the employer applies the penalty of dismissal consistently among employees ~ Section 23 of the Constitution entitles every person to “fair labour practices’. This implies that the common law should be interpreted as requiring the employer to behave not only reasonably but fairly in exercising its disciplinary power. In deciding whether an employer's decision to dismiss was ‘appropriate’, it would also have to be considered whether itmet the constitutional standard of fairness.Notes-2004 Labour Law 47 EXERCISE 5 outside the pret up of 5employees throw rocks through the Company’s windows causing damages valued at R40 000. After the strike is resolved and the employees return to work, the group of § employees are called to a disciplinary hearing. Three of the employees,-that had: final written warnings for misconduct, are dismissed and the remaining two that had no disciplinary : records are given a final written warning. The inployees are aggrieved by their dismissal. employee, Mr Mark Lewis, for the theft of a, reel smuggling the cotton reel out of the workplace i in his lunch box. The value ‘of the cott reel was R25. Mr Lewis had been employed at the Company for a period of 9 years and had no previous disciplinary records. The-Company had a strict policy with regard to theft, which recommended the sanction of dismissal for a'first offence. A disciplinary Procedural fairness: x Section 188(2) stipulates that in assessing whether the dismissal was conducted in accordance with a fair procedure the code of good practice (s4 of schedule 8) must be taken into account, One of the uncertainties of the Industrial Court's jurisprudence was the degree of formality required in pre-dismissal disciplinary procedures. It had, in general, required an employer to give an employee a fair hearing prior to taking a decision to dismiss for misconduct, The Code removes much of the uncertainty, requiring a substantially fair procedure rather than compliance with prescribed formalities [Sch 8 item 4(1)]. Itis clear that the CCMA will require greater compliance with the requirements of procedural fairness from the larger companies as opposed to the smaller. So too will the standards vary depending on the circumstances of the case. Of all the requirements of procedural fairness the most important is the maxim audi alterem partem, the right to be heard, and employers should accordingly ensure that employees are given a fair hearing regardless of whether the dismissal appears to be substantively fair. Investigation whether there are grounds for dismissal: The Code states that an employer should ‘normally’ conduct an investigation to determine whether there are grounds for dismissal. Although this need not take the form of a formal enquiry, certain minimum requirements must be met. However a ‘checklist’ approach should not be adopted and the real issue is whether the procedure followed was ‘fair’. Representation The employee is entitled to the assistance of a trade union representative or fellow employee (shop steward). The courts have applied the general rule that lawyers or trade union officialsNotes-2004 Labour Law 18 may not be used. The representative is to assist in preparation as well as tepresentation. The charge ‘The employer must notify the employee of the allegations, using a form and language that the employee can reasonably understand. This requirement s to allow the employee to prepare his defence with full knowledge of the allegations. Adequate notice of enquiry ‘The employee should be given a reasonable time to prepare his or her response [e prepare for the enquiry. What is reasonable depends on the circumstances and general practice is fo afford at least 24 hrs notice although there has been a tendency by most employers to provide 3 - 7 days. Present at the hearing “The Code does not expressly refer to the presence of the employee at the enquiry however it does state that the employee should be allowed an opportunity to state a case in response to the allegations. This requires more than just physical appearance as the employee must be in a position to appreciate the nature of the proceedings. In one case an employee who was found to be drunk at work was called to a disciplinary enquiry immediately thereafter and it was held that he was not in a clear mental state for the enquiry to have proceeded. However an employer may be entitled to proceed with a hearing if the employee refuses to attend it ‘without good reason or has absconded. Right to call witnesses Tihs is not expressly mentioned in the Code however a refusal to allow an employee to call witnesses to assist his case will be construed as a breach of the employee's right to state a case. Right to an impartial presiding officer While this is not expressly referred to in the Code it is essential that the presiding officer is unbiased and objective. While in most companies the presiding officer is drawn from the ranks of senior management itis important that the presiding officer was not involved in the incident giving rise to the allegations or does not have a personal interest in the outcome of the dispute. : Notification of decision The decision is two-fold - firstly the guilt of the employee should be determined on the evidence and then secondly the penalty should 26 decided in light of the individual Circumstances of the employee. After the enquiry, tie employer should communicate the Gocision taken, preferably in writing [Sch 8 item 4(1)]. Le Roux suggests that if a decision is taken to dismiss, the employer must notify the employee not only of the decision but of the reason for the dismissal. ‘Thase procedural requirements are extremely sparse. It must be remembered, however, that they are only guidelines and may be assumed to imp y such further requirements as may be necessary to give effect to their purpose. For examale, to state a case in response to the Employer’ allegations the employee must understand not only the allegations but also the Svidence which the employer may present in suppor: of such allegations. This may make it necessary to involve an interpreter in the proceedings. Requirements of this nature, adapted fo the nature of the case in hand, had become well 2stablished in the jurisprudence of the Industrial Court and should survive the codification cf the law.Notes-2004 Labour Law 19 When no hearing is required ‘As under the previous Act, it is submitted that employers may dispense with any form of hearing in exceptional circumstances where a hearing cannot reasonably be expected. Such cases may include so-called ‘crisis-zone’ situations eg where there is a danger to life or property or cases where the employee is deemed to have waived the right to a hearing. Smaller businesses It has been recognised by the CCMA that in the case of small businesses greater flexibility should be allowed and the ultimate consideration should be whether the rules of natural justice have been complied with. (EXERCISE 8 aa IN EACH OF.THE FOLLOWING CASE 'SCEI tomorrow for:a dist company’s disciplinary co 2. Theo's Take- period of weeks about poor cookin: bunny chow, rt ‘eo you anythin. 3. The strike has taken a violent equipment. A security guard hi the loudspeakers that all strikers in to remove the strikers, 4, Mandla, an employee of a la time to prepare for the di ‘The Chairperson of thi ‘assaulting the othi 8. _ When Rosie gets'to t assisted by'a shop steNotes-2004 of sovcite acts of misconduct: *« We shall take a brief look at specific acts of misconduct, their nature and seriousness. Gross Dishonesty and Theft Gross dishonesty can take many forms in the employment law context including theft and fraud, Theft is regarded as one of the most serious forms of misconduct. Theft at common law is a breach of the employee's duty of trust and therefore a ground for dismissal. This approach has been endorsed and the Industrial Court has upheld dismissals for theft. The question which arises is whether dismissal is always the correct sanction for theft In the case Of Komjwayo v Anglo American Farms (1992) 13 ILJ 573 (LAC) a waiter was dismissed for stealing a can of Fanta valued at 65c. It was argued that the low cost of the stolen property did not justify dismissal. The court held that the test was whether the relationship of trust between the patties had broken down and the ‘continuation of tre relationship has been fendered intolerable’. [twas found that the theft of the Fanta was premeditated and stolen in tims of a Surreptitious plan which displayed a thieving propensity and that the relationship of trust had broken down. The court confirmed the dismissal. Thring J held in this case that “fu here the relationship between an employer and its employee is [such that] the ‘employermust...be confident that it can trust the employee not to, steal its stock-in-trade and that’ confidence is destroyed or substantially diminished by the realisation that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer. . . . That the thing stolen is: of comparatively little value is not relevant” It is not necessary to prove loss on the part of the employer - a mere break down in the relationship of trust, so as to render the continuation of the employment relationship ‘intolerable’ is sufficient to justify dismissal. It will be necessary to look at the nature of the employer's business and the employee's work. Most disciplinary codes provide for dismissal for the offence of theft or unauthorised possession of Company property (this provision is, usually inserted in disciplinary codes to cover situations where the elements of theft are difficult to prove.Notes-2004 Labour Law 24 In Toyota SA Motors (Pty) Ltd v Radebe & Others [2000] 3 BLLR 243 (LAC) Zondo AJP held that although a long pericd of service will usually be a mitigating factor, certain acts of misconduct are so serious that no length of service can save an employee who has committed them from being dismissed. Gross dishonesty, it was held, is one such act. Where an employee has been convicted in a criminal court, itis not sufficient forthe employer to rely solely on the guilty conviction to justify dismissal. A disciplinary hearing will nevertheless have to be conducted at which evidence of the conviction will be lead. Furthermore an employee cannot be dismissed solely on the basis of a failed polygraphilie detector test. An employee may not rely on a defence that he/she was instructed by a superior to commit the misconduct as an employee is not obliged to obey unlawful instructions. Drunkenness/drinking on duty The appropriate sanction for this offence depends upon the disciplinary rules in force, the nature of the employment, the level of the intoxication and its effect on the employee’s work performance. The court takes into consideration the factor that intoxication may cause a threat to the safety of others. In Rosenberg v Mega Plastics (Ply) Ltd (1984) 5 ILJ 29 (IC) the court upheld the dismissal for drunkenness of an employee who was the driver of a heavy- duty truck, Dismissal is not always an appropriate sanction and in fact a more recent approach is that if there is evidence of a dependence or addiction then this should be treated as a form of incapacity and a more appropriate solution is to require the employee to undergo counselling and rehabilitation programmes. Only in the event of the employees declining to do so would dismissal be appropriate. In Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) the Court considered - ‘Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task. A farm labourer may still be able to work in the fields although he is too drunk to operate a tractor. Consumption of alcohol would make an airline pilot unfit for his job long before it made him unfit to ride a bicycle. The question which | should ask myself is, therefore, whether the respondent's faculties were shown in all probability to have been impaired to the extent that he could no longer properly perform the skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance. Insolence/Insubordination Insolence is one of the forms of misconduct which has its roots in the common law duty of the employee to display an appropriate degree of respect to the employer. Where insolence is established dismissal is not justified unless it is of a sufficiently gross nature. The Industrial court has drawn a distinction between insolence and insubordination, with insubordination constituting a dismissible offence. Insubordination has been defined by the court as meaning ~ ‘when the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee's conduct poses a deliberate (wilful) and serious challenge to the employer's authority’. Insubordination may assume a number of forms from verbal defiance, to the most serious being a refusal to obey a reasonable instruction. SACCAWU & another v Shoprite-Checkers (1995) 12 BLLR 87 (IC)Notes-2004 Labour Law 2 Absent from work ‘an employer has the right to expect an employee not to be absent from work in Gircumstances where the absence cannot be justified. This is in keeping with the common law Which requires an employee to make his services available to the employer. Wilful absence fram work isan act of serious misconduct and consiitutes grounds for summary dismissal, However this depends on the circumstances of the absenteeism, the position of the employee, the nature of the job and the frequency of the breach, SABC v CCMA and Others [2002] 8 BLLR 693 (LAC) Lebowa Platinum Mines v CCMA [2002] 5 BLLR 429 (LAC) Internet Abuse Bamford v Energiser (SA) Ltd [2001] 12 BALR 1251 (P) Philander v CSC Computer Services [2002] 3 BALR 204 (CCMA) Misconduct during strike action The employees right to strike is upheld by the protection against dismissal for participation in a sitike. However an exception to this protection is where an employee has conducted him/herself in such a way that this conduct justifies dismissal. For example assault, intimidation, or malicious damage to property. In this case the decision to dismiss must comply with the provisions of Chapter VIL Misconduct prior to employment In Wium v Zondi [2002] 11 BLLR 1117 (LC) the employee had been convicted of theft of 300 prior to applying for a higher post. in his CV he stated that he had no previous criminal convictions. He was fairly dismissed as a result. Appropriate sanctions for misconduct: In keeping with the ethos of progressive and corrective discipline as expounded by the LRA, sanctions should be applied progressively; depending upon the severity of the offence. Sanctions can take the following form: }) Verbal warning — generally informal in nature, and appropriate for minor offences. Itis purely a corrective sanction, clearly not intended to result in the dismissal of an employee. it) Written warnings - more formal than a verbal warning. By reducing itto writing t may be utilised at future disciplinary action. As a result it can only be issued following a procedurally correct enquiry. ii) Final writen warning —itis the last warning prior to dismissal and therefore is regarded ina serious light, In the event of. the employee-committing a further similar offence than that for which the final written warning is issued, then dismissal is likely to be the appropriate sanctio} iv) Denial of privileges ~ includes a range of options eg removal of discretionary bonus, suspension of special privileges etc. v) Suspension — this can take two forms — either a ‘holding operation’ prior to the isciplinary action or as a sanction. The first type is not punitive in itself and is acceptable where the employer deems it necessary for the continued goodNotes-2004 Labour Law 23 administration or the business and where the employee is remunerated. The second type is a sanction, short of dismissal and enables an employee to be suspended without pay, provided the correct procedure has been followed. However where an employee is suspended pending a criminal trial, the employer is obliged to pay the employee during the period of suspension. vi) Demotion Dismissal for incapacity An employer may dismiss an employee for a fair reason related to the employee's incapacity fs 188(1)(a)()]- The Code distinguishes between incapacity due to: * ill health or injury and * “ineapacity. due to poor work performance [Sch 8 items 8 to 11) In each case the Code sets out guidelines for determining the fairness of dismissals as well as the procedure to be followed in deciding whether or not to dismiss. Dismissal for other forms of incapacity not referred to in the Code may also be permissible, as long as itis fair in the circumstances. The basic distinction between incapacity and misconduct is that in the latter instance the employee bears some culpability or fault. With this distinction in mind the requirements of substantive fairness therefore differ. Incapacity due to poor work performance Substantive criteria: In assessing whether dismissal on the basis of poor work performance is unfair the employer is generally required to conduct an appraisal or assessment of the employee's performance. 1G itis the employer's prerogative to set its, own performance standards, provided that they are = reasonable and known i je8, and the court or arbitrator should not substitute its, own assessment for that of the employer. ps cae —=— ee MB The Code provides that persons determining whether a dismissal for poor work performance is unfair should consider: (a) whether or not the empioyee failed to meet a performance standard; and ) if the employee did not meet such standard, whether or not (i) _ the employee was aware, or could reasonably be expected to have been aware, of ob the required standard; Z-“(ii) the employee was given a fair opportunity to meet the required standard; and ii) dismissal was an appropriate sanotion for not meeting the required standard [Sch B item 9]. We shall look each requirement in greater detail: (2) whether or not the employee failed to meet a performance standard The Code requires an employer io-conduct an investigation when allegations of poor work performance arise in order fo determine the reasons for this. This investigation should establish whether any weaknesses exist in the support system and whether any steps can be taken by the employer to rectify the situation. Performance standards generally fall within the employer's prerogative and the arbitrator has no capacity to substitute his or her ownNotes-2004 Labour Law 24 judgment. See Eskom v Mokoena [1997] 8 BLLR 965 (LAC). The arbitrator's task is ‘Sesentially to decide whether, in the event that a performance standard has not been met, dismissal was justified. This will also involve establishing whether an adequate evaluation procedure was followed by the employer to determine whether the employee had infact failed {5 mmect the required standard. Employers are under the obligation: to ensure that newly appointed staff as well as longer serving employees are aware of the performance standards. [Sch 6 item 9(b)(i)}. (b) whether the employee was aware, or could reasonably be expected to have been aware, of the required standard ‘An employee should be warned that his performance is not meeting the required work standard as well as details of the ways in which the performance is not sufficient. Employers Should take steps to ensure that employees are given any evaluation, instruction, training, guidance or counselling that is needed to render satisfactory service [Sch 8 item 8(1) and (2)h Employees should also be warmed that a fallure to improve performance could lead to a dismissal. (c) Fair opportunity to improve The employers must give the employee a reasonable opportunity to improve during which assistance in the form of guidance advice and additional training, if necessary, should be given. [Sch 8 item 8(2)] (d) Is dismissal an appropriate sanction? ‘Assuming that an employee's failure to meet the required standard of work performance has been established and that the employer has taken all necessary remedial action, certain further steps are required before a decision to dismiss can fairly be taken. The employer must give the employee an opportunity to ‘state a case’ (in the case of probationers) or a hearing (in the case of other employees). The employee whose performance is called into question thus has a right to respond to the charge of poor work performance. The employee's right to a hearing had become well-established in terms of the previous Act and there is, accordingly, no significant change in this regard The usual requirements for a fair hearing should apply; in particular, that the employee be informed of what the employer is proposing to do and that sufficient notice be given to enable the employee to prepare a response. Second, the employee has the right to be assisted bya trade union representative or fellow employee [Sch 8 item 8(4)]. This right had also been recognised by the Industrial Court. The fact that the Code mentions it specifically, in contrast to other requirements of fair procedure which are left implicit, suggests that particular importance may be attached to it in practice. The employer should therefore ensure that the employee is aware of this right and postpone the hearing if necessary to enable a trade union representative to attend. Finally, the employer should consider ways short of dismissal to remedy the employee's Unsatisfactory performance [Sch 8 items 8(3) and 9(b)(i)]. This may include adapting the job or finding alternative employment. However, it does not mean that the employer is obliged to create employment for an incompetent worker. Dismissal for incapacity without following these guidelines is unfair. In Gostelow v Datakor Holdings (Pty) Ltd Ya Corporate Copilith (1993) 14 ILJ 171 (IC) it was held that an employer must make an assessment before dismissing an employee for lack of skill and that, without an assessment, any judgment regarding the employee's performance will be objective nor reasonable. "The assessment will be incomplete’, it was held, “if no attempt is made to establish the reason for the employee's shortcomings and, save where the incompetence is irremediable, [no] attempt is made to assist the employeeNotes-2004 Labour Law 25 fo overcome his or her shortcomings”. This approach is now reflected in item 8(2) of the Code. The court went on to explain the employer's duty as follows: [During a careful appraisal of the employee's performance the employer must discuss its Criticism with the employee, warn him or her of the consequences of there being no improvement and give a reasonable opportunity to improve. Such an appraisal... . should show whether the employee's performance can be improved by advice, guidance and additional training. It may also highlight weaknesses in the support management has provided. The ‘employer must, after all, create the conditions which enable the employee to carry out his orher duties satisfactorily. A failure to provide adequate and suitably trained staff may render a ‘xsmissal for inadequate performance unfair. ¥ : Probationers ones te ‘Probationary clauses’ are included in contracts of employment in order to avoid the risk of an employer saddling himself with unsatisfactory workers. They provide the employer with a ‘reasonable period of time’ to assess the new employees ‘suitability fora job’. At common law an empioyer was entitled to terminate the employment contract on expiration of the probationary period. However the labour courts have not followed that approach and require pdemploverstgjusiy the sismieeal, just as they would have to justify the dismissal of a tenured ‘employee. SB of the Code, prior to the 2002 amendments drew little distinction between the requirements for fair dismissal in respect of a probationer and a tenured employee. However the amendments introduce a new item 8(1) to the Code of Good Practice: Dismissal which provide a more detailed set of rules governing probationers. Probationers : (1) (a) An employer may require a newly-hired employee to serve a period of probation before the ‘appointment of the employee is confirmed. (b) The purpose of probation Is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment. Peeeeeeeee (c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair (absur prictoa wb (d) The period of probation should be determined in advance and be of reasonable duration, The length of the probationary period should be determined with referance To the nature of the job and ye the time it takes 10 determine the employee's suitability for continued employment. (e) During the probationary period, the employee's performance should be assessed. An employer ‘should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service. “5 (0)If the employer determines that the employee's performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be. (g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve, oT (h) An employer may only decide to dismiss an employee or extend the probationary period after the ‘employer has invited the employee to make representations and has considered any representations re —_——~Notes-2004 Labour Law 26 made, A trade union representative or fellow employee may make the representations on behalf of the employee. (9 Irthe employer decides to dismiss the employee or to extend the probationary period, the Gaployer should advise the employee of his or hor rights to refer the matter to @ council having jurisdiction, or to the Commission. @ Any person making a decision about the faitness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal hat may be less compelling then would be the case in dismissals effected after the completion of the probationary period.". Eirst, brobationers (like other employees) are entitled to evaluation, instruction, training, guidance or counselling, a hearing prior to dismissal and assistance by @ trade union representative or fellow employee at such hearing [Sch 8 item 8(1)]. [Seconaline period of probation should be reasonable given the nature of the job and the iengih of time needed by the employer to determine the employee's suitability for continued employment [Sch 8 item 8(1)). It follows that, where a probationary period has not been stipulated in a contract of employment and is not implicit, a newly-hired employee cannot be said to have been placed on probation and will be entitled to the full protection of the Act. Provision is also made for the extension of a probationary period where necessary. However the Code is clear that the extension should be for appropriate purposes and not merely to avoid making a permanent appointment. The most significant provision of the amendments is item 8(1)() which provide that any Wien making a decision about the faimess of the dismissal of a probationer ‘ought fo a ecent reasons for dismissal that may be less compelling’ than would be in respect of tenured employees This clearly recognises tie differential treatment of probationers. The Code does not indicate what is meant by ‘suitability for continued employment. It is submitted that it means more than an assessment whether the employee has the necessary skills to do the job. Other factors may also be relevant, including the employee's compliance with company rules (conduct) or, where appropriate, the extent to which the employee fits into the corporate culture (compatibility). See Crawford v Grace Hotel (2000) 21 IL 2215 (CCMA) SA Transport and Allied Workers Union v Spoornet, Orex (2001) 22 ILJ 21120 (ARB) Incapacity arising from ill health or injury Substantive criteria: “The Code provides that any person determining whether a dismissal arising from ill health or injury was upfairmust consider - (a) whether or not the employee is able to perform the work; and (b) if the employee is not capable - (i) _ the extent to which the employee is able to perform the work; {i) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and (ii) the availability of suitable alternative work [Sch 8 item 11].Notes-2004 Labour Law 20 This test is virtually identical to that adopted by the Industrial Court and as a result the previous decisions of the Industrial Court will remain relevant in deciding whether, in a given set of circumstances, dismissal is justified. See Davies Deale CC (1992) 13 ILJ 1230 (IC) in which the Industrial Court summed up the principles for ascertaining the faimess of a dismissal for ill-health or injury which is now captured in items 10 and 11: “a) There fs a.greater duty to accommodate the employee where the disablement is caused by a work-related injury or illness. ‘(b) The employer must in the first instance ascertain whether the employee is ... capable of performing the work ... for which he was employed, and if not, the extent to which he will be tunable to perform his former duties. This investigation, in which the employee is entitled to participate ... may ... require further medical investigation and opinion and/or the employes's being asked to perform his former tasks to demonstrate Is ability. “(c) The employer should next, after consultation with the employee, ascertain whether the duties required of the employee ... can be so adapted that the employee is capable of fulfilling [them] cither alone or with such assistance as Is reasonable under the circumstances. “(q) The employer must, if the employee cannot be placed in his former position, ascertain whether alternative work even at_a reduced salary is available within the employer's organisation.” in dealing with dismissal on the grounds of ill health, it is essential to determine whether the illness or injury isferiborarygermanent] Schedule 8 ite 10(1) provides that in respect of temporary ill health or injury, thé dismissal may be justified if the employee is likely to be absent ‘for a time that is unreasonably long in the circumstances’ [Sch 8 item 10(1)]. But, as under the previous Act, much will depend on the nature of the work. Procedural fairness: The procedural aspect of the inquiry and the substantive factors to be considered in determining whether dismissal is appropriate are intertwined. The first step suggested by the Code for an employer is to determine whether the e nployee's incapacity is temporary or permanent. In the case of temporary disability, the employer is advised to take the following steps: * investigate the extent of the incapacity or the injury; establish the likely length of the employee's period of absence in order to determine whether it will be ‘unreasonably long’. in the circumstances; and investigate ‘all the possible alternatives short of dismissal’, Factors to be taken into account, include ‘the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee’ (Sch 8 item 10(1)]. roves ‘onably long’ absence may be treated as parmanent incapacity. In the event of permanent incapacity, the employer should ascertain thé possibility Of securing Htemative J employment or adapting the duties or work circumstances of the employee to accommodate his or her disability [Sch 8 item 10(1)]. The degree as well as the cause of incapacity are relevant to the fairness of possible dismissal. Different causes of incapacity may indicate different kinds of remedial action short of dismissal. For example, where incapacity is due to aleoholism or drug abuse, counselling and rehabilition may be appropriate steps for an ‘employer to consider [Sch 8 item 10(3)]. J nthe course ofthe employers investigation, the emp oyee is entitled ta state is or het case and to be assisted by a trade union representative or fellow.employee [Sch 8 item 10(2)]. The usual requirements of a Tair hearing will appl i Where employees have been injured at work or are in:apacitated by work-related illness, theNotes-2004 Labour Law 28 B employer's duty to accommodate the incapacity of the employee is more onerous item 10(4)]. Spero v Elvey Intemational (Pty) Ltd (1995) 16 ILJ 1210 Carr v Fisons Pharmaceuticals (1995) ILJ 179 (IC) “The enquities into procedural faimness and substantive fairness in the case of incapacity due foil nenith are “closely interlinked, and the above distinctions which the court makes are 10 tte for convenience sake." In Hendricks v Mercantile & General Reinsurance Co of SA Lig(1994) 15 ILJ 304 (LAC) the previous Labour Appeal Court held hat “procedural fairness pertaining to incapacity on the grounds of il health involves the employers consulting with the Smployee about his ailment and, in conjunction with him, trying to find @ solution to the problem, including the consideration of the provision of suitable alternative employment for the employee.” tn National Uniow of Mineworkers & Another v Libanon Gold Mining Co Lid (1994) 181.J 585 (LAC) it was held that, “{w/hile an employer may not be obliged to retain an employee who is Pct productive, fairness requires that a proper assessment be made of whether that _ et Eee has been reached before the employer resorts to dismissal." It may well be possible, ihecourcacded, "Ihat the post can be adapted fo account for the employee's incapacity wuthout undue hardship to the employer, or that an altemative post may be found, or that the Smployee concerned can be given preference for the first suitable vacancy which. orclrs. These are but examples of the manner in which the employee's misfortune may be alleviated, and are not intended to be exhaustive. Each case will depend on its own facts.” The Court added that ithe substantive fairness of dismissal depends on the question whether the employer can fairly be expected to continue the employment relationship bearing in mind the intorosts of the employes and she employer and the equities of the case. Relevant factors would include inter alia the nature of the incapacity; the cause of the ‘incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer's operations; the effect of the ‘employee's disability on the other employees; and the employee's ‘work record and length of service.” The test, it was. added, Syemains whether because of the employee's absences and incapacity, having regard to the frequency and duration of such absences and the effects they have on the employee’s co-workers morale, the employer could in fairness have been expected to wait any longer before considering dismissal”. {iis approach has been held to apply both in cases of lengthy or intermittent periods of Absence from work and irreversible impairments of their capacity or ability to perform the duties for which they were employed. : Other forms of incapacity incapacity, by its nature, is not limited to the two forms mentioned in the Code, There are 8 great many other situations unrelated to the employer's operational requirements and eontaining no element of misconduct, where the employee may be unable to perform his or het functions adequately and where the employer may be entitled to dismiss. Incompatibility ‘The concept of compatibility, which may be defined as ‘inability on the part of an employee to work i ‘ony either within the “corporate culture” of the business. or with fellow employees’, led a Somewhat uncertain existence under tite previous Act. While ae valid ground for termination of employment, itwas not one of the three fundamental reasons 1a fav dismissal Tecogniséd by the ILO, and opinions were divided on where it belonged Rycroft and Jordaan treated incompatibility as a species of unsatisfactory work performanes cy incapacity whereas Le Roux ard Van Niekerk, in the light of the decision in Wright v St Mary's Hospital(1992) 13 ILJ 987 (IC) classified it as a form of dismissal tor operational turposes. The new Act makes it vital to resolve the uncertainty, Unless inoompatibily is Freaght under one of these two headings, itwillne longer be a valid ground for dismissal. But eg eer ne ge eee SE p>,