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Title: 22nd Annual


1
22nd Annual Current Labour Law
Seminar 2011 Alec Freund Peter le Roux Clive
Thompson Johannesburg, Pretoria, Durban, Port
Elizabeth Cape Town
2
INDIVIDUAL LABOUR LAW
  • PETER LE ROUX

3
Highlights
  • Contract principles An update
  • Administrative law principles An update
  • Delictual principles
  • Automatic termination of employment
  • Labour Appeal Court decisions dealing with
    dishonesty
  • Intoxication
  • Dismissal for refusal to undergo polygraph
    testing
  • Formulating disciplinary charges
  • What is a benefit?

Current Labour Law
4
Contract principles and fairness
SA Maritime Safety Association v McKenzie 2010
5 BLR 488 (SCA) The existence of a common law
duty of fair dealing rejected. But what about the
exceptional cases?
Current Labour Law
5
Contract principles and fairness
Mahumani v Member of the Executive Council
Finance, Economic Affairs and Tourism, Limpopo
(2010) 31 ILJ 2009 (NGP) procedural fairness
can be incorporated into contracts of employment
via applicable collective agreement. Nyathi v
Special Investigating Unit 2011 JOL 27537 (LC)
employer not contractually entitled to extend
suspension beyond a period 90 days. This was
prohibited by the disciplinary code that had been
incorporated into the contract of employment.
However, dismissal was lawful and not in breach
of contract. The disciplinary procedure not
applicable in this case.
Current Labour Law
6
Contract principles and fairness
Mahlalela v Office of the Pension Funds
Adjudicator 2011 6 BLLR 587 (LC) and Ebrahim
and Others v Sans Fibres (Pty) Ltd (2011) 32 ILJ
304 (LC) principle that disciplinary and other
policies can be incorporated into contract of
employment accepted but on the facts held that
there had been no such incorporation.
Current Labour Law
7
Contract principles
SAMWU v Matjhabeng Local Municipality 2011 3
BLLR 299 (LC) employees enjoying a contractual
right to free transport despite this not being
contained in their written contract of
employment. Contractual term based on practice
and oral undertakings given by employer
representatives.
Current Labour Law
8
Contract principles
Fourie v Stanford Driving School and 34 Related
Cases (2011) 32 ILJ 914 (LC) and Makume v Hakinen
Transport CC Moyi v Inkhunzi Contractors (Pty)
Ltd Shashape v Tswaing Local Municipality (2011)
32 ILJ 928 (LC) employees relying on
contractual right to claim certain BCEA rights.
Section 4 of the BCEA .   Oasis Group Holdings
(Pty) Ltd v Bardien 2011 3 BLLR 284 (LC)
period of resignation not extended if the
employee takes sick leave during the resignation
period.
Current Labour Law
9
Administrative law principles
Chirwa v Transnet Ltd and Others 2008 2 BLLR 97
(CC) and Gcaba v Minister of Safety and Security
2009 12 BLLR 1145 (CC) the decisions of
employers in the public sector to dismiss or not
to promote do not constitute administrative
action.
Current Labour Law
10
Administrative law principles Section 158(1)(h)
Section 158(1)(h) of the LRA empowers the Labour
Court to review any decision taken or an
act performed by the State in its capacity as
employer, on such grounds as are permissible in
law
Current Labour Law
11
Administrative law principles Section 158(1)(h)
MEC Department of Education Kwazulu Natal v
Khumalo and Another 2010 11 BLLR 1174 (LC)
employer seeking to overturn decision to promote
which was tainted by irregularities. Section
158(1)(h) applied.   National Commissioner of
Police and Another v Harri NO and Others (2011)
32 ILJ 1175 (LC) employer seeking to review a
decision of a disciplinary chairman not to
dismiss an employee. Section 158(1)(h) applied.
Current Labour Law
12
Administrative law principles Section 158(1)(h)
Grootboom v National Prosecuting Authority and
Another (2010) 31 ILJ 1875 (LC) the decision
not to reinstate an employee in terms of section
17(5)(b) of the Public Service Act (Proclamation
103 of 1994) can be challenged in terms of
section 158(1)(h) of the LRA. See also Mahlangu
v Minister of Sport Recreation (2010) 31 ILJ
1907 (LC).
Current Labour Law
13
Delictual principles
Mokone v Sahara Computers (Pty) Ltd (2010) 31 ILJ
2827 (GNP) employer held liable for damages on
the basis that it infringed the employee's right
to a safe working environment by not taking steps
to protect her against sexual harassment. The
employer should have had management and
disciplinary structures in place that would
immediately and effectively have dealt with the
plaintiff's complaint.
Current Labour Law
14
Fixed term contracts
University of Pretoria v the Commission for
Conciliation, Mediation and Arbitration and
Others (unreported JA38/2010 dated 28 October
2010 / 28 October 2011). The expectation of
permanent employment does not fall within the
ambit of section186(1)(b).
Current Labour Law
15
Fixed term contracts
21 The words chosen by the legislature, absent
an amendment to the legislation, cannot carry the
burden of the third respondents case in that it
covers a restrictive set of circumstances, namely
a reasonable expectation of renewal of that which
had previously governed the employment
relationship, namely a fixed term contract which
had previously been enjoyed, which had now
expired and, by virtue of the factual matrix
created, at best, a reasonable expectation of a
renewal.
Current Labour Law
16
Fixed term contracts
18 these words do not, however, carry the
meaning which is urged by third respondent,
namely that, by being employed on the basis of a
series of fixed term contracts, an employee has
without more a reasonable expectation of a
permanent appointment. The distinction between a
fixed term contract and a permanent contract has
a clear economic rationale. An employee in the
position of appellant may have discretionary
funds for a limited period. During this period,
it offers a series of fixed term contracts to a
particular employee. At some point these funds
are depleted and the employer can no longer
afford a further fixed term contract. By
contract, the creation of a permanent post would
necessitate a more permanent source of funding.
Current Labour Law
17
Automatic terminations of employment
Contractual mechanisms other than fixed term
contracts
  • Contracts linked to term of office as director.
  • Contracts of employment of employees of TESs or
    contractors expiring automatically if client no
    longer needs their services.

Current Labour Law
18
Automatic terminations of employment
Section 5 of the LRA Section 5(2) provides, inter
alia, that no person may do, or threaten
to do, any of the following (b) prevent
an employee from exercising any right
conferred by this Act.
Current Labour Law
19
Automatic terminations of employment
Section 5(4) states that A provision in any
contract, whether entered into before or after
the commencement of this Act, that directly or
indirectly contradicts or limits any provision
of this section is invalid, unless the
contractual provision is permitted by this Act.
Current Labour Law
20
Automatic terminations of employment
Mahlamu v CCMA and Others 2011 4 BLLR 381 (LC)
  22 In short a contractual device that
renders a termination of a contract of employment
to be something other than a dismissal, with the
result that the employee is denied the right to
challenge the fairness thereof in terms of s188
of the LRA, is precisely the mischief that s5 of
the Act prohibits. Secondly, a contractual term
to this effect does not fall within the exclusion
of s5(4), because contracting out of the right
not to be unfairly dismissed is not permitted by
the Act.
Current Labour Law
21
Automatic terminations of employment
Mahlamu v CCMA and Others 2011 4 BLLR 381 (LC)
23 This is not to say that there is a
dismissal for the purposes of s186(1) of the
LRA in those cases where the end of an agreed
fixed term is defined by the occurrence of a
particular event. This is what I understand the
Ratio of Sindane (supra) to be that ordinarily,
there is no dismissal when the agreed and
anticipated event materialises (to use the
example in Sindane (Sindane v Prestige Cleaning
Services 2009 12 BLLR 1249 (LC)), the
completion of a project or a building project),
subject to the employees right in terms of
s186(1)(b) to contend that a dismissal has
occurred where the employer fails or refuses to
renew a fixed-term contract and an employee
reasonably expected the employer to renew the
contract.
Current Labour Law
22
Automatic terminations of employment
Mahlamu v CCMA and Others 2011 4 BLLR 381 (LC)
In other words, if parties to an employment
contract agree that the employee will be engaged
for a fixed term, the end of the term being
defined by the happening of a specific event,
there is no conversion of a right not to be
unfairly dismissed into a conditional right.
Without wishing to identify all of the events the
occurrence of which might have the effect of
unacceptably converting a substantive right into
a conditional one, it seems to me that these
might include, for example, a defined act of
misconduct or incapacity or, as in the present
instance, a decision by a third party that has
the consequence of a termination of the
employment.
Current Labour Law
23
Constructive dismissal
Eastern Cape Tourism Board v CCMA and Others
2010 11 BLLR 1161 (LC)   Test for constructive
dismissal coercion, duress or undue influence.
Current Labour Law
24
Alcohol and drugs
  • Transnet Freight Rail v Transnet Bargaining
    Council and Others 2011 6 BLLR 594 (LC)
  • Arbitrator had erred by applying the principles
    relating to incapacity in the situation where the
    employee was not an alcoholic. The fact that an
    employee was experiencing difficult circumstances
    at home did not justify treating the matter as
    one of incapacity.
  • The fact that the employee was 'caught' before
    any serious incident arose does not mean that the
    employee should be treated more favourably than
    the person who was not caught.

Current Labour Law
25
Alcohol and drugs
  • Transnet Freight Rail v Transnet Bargaining
    Council and Others 2011 6 BLLR 594 (LC)
  • The job function of the employee is relevant in
    determining the fairness of dismissal. Where the
    job is highly skilled, responsible or hazardous,
    or the offence is committed by a senior employee
    who should be beyond reproach, dismissal for a
    first offence is justified. Where the job
    function of an offending employee is such that
    misconduct of this nature would be extremely
    dangerous and could result in death, injury or
    damage, a strict application of the rule
    forbidding alcohol use must be applied.

Current Labour Law
26
Alcohol and drugs
  • Transnet Freight Rail v Transnet Bargaining
    Council and Others 2011 6 BLLR 594 (LC)
  • The strict application of such a rule is of
    importance to the company, its employees and
    public policy.
  • The implications of being lenient in the
    application of an important rule, and the message
    such leniency sends to other employees regarding
    their infringement of such a rule also needs to
    be considered. The need to deter other employees
    from committing the same misconduct is a response
    to risk management and is as legitimate a reason
    for dismissal as a breakdown in trust.

Current Labour Law
27
Alcohol and drugs
  • Transnet Freight Rail v Transnet Bargaining
    Council and Others 2011 6 BLLR 594 (LC)
  • The period of validity of a final written warning
    may differ, depending on the gravity of the
    offence. This is consistent with the principles
    of progressive discipline. Generally a final
    written warning valid for 12 months serves as a
    clear and strong communication to the employee
    that his conduct is regarded as extremely serious
    and will not be tolerated by the employer.
  • Usually, the presence of a valid final written
    warning at the time of the commission of the same
    or similar form of misconduct should be properly
    interpreted as aggravating in nature.

Current Labour Law
28
Alcohol and drugs
  • Transnet Freight Rail v Transnet Bargaining
    Council and Others 2011 6 BLLR 594 (LC)
  • The principles of progressive discipline requires
    such a re-offending employee to usually be
    considered irredeemable.
  • Even in circumstances where a final written
    warning or a string of warnings have expired, a
    sanction of dismissal may be justified.

Current Labour Law
29
Derivative misconduct
  • CEPPWAWU obo Hlebela v Lonmin Precious Metals
    Refinery 2011 8 BALR 814 (CCMA)
  • Employer suffering huge losses of product 1
    security employee for every 4 employees.
  • Employer informed by SAPS that employee may be
    involved in criminal offences.
  • Investigation revealed that he had an irregular
    and illogical clocking pattern.
  • Also discovered that his lifestyle could not be
    maintained on the salary he earned.

Current Labour Law
30
Derivative misconduct
  • CEPPWAWU obo Hlebela v Lonmin Precious Metals
    Refinery 2011 8 BALR 814 (CCMA)
  • On the advice of his union he refused to undergo
    a "lifestyle audit" and to answer questions
    regarding his extensive assets.
  • Employee charged with the following
  • It is alleged that you have knowledge of the
    enormous losses of PGMs at PMR but you have
    made no full and frank disclosure to PMR about
    what could assist PMR in its investigation
    therein.

Current Labour Law
31
Derivative misconduct
  • CEPPWAWU obo Hlebela v Lonmin Precious Metals
    Refinery 2011 8 BALR 814 (CCMA)
  • Found guilty of derivative misconduct.
  • What about a charge of insubordination?

Current Labour Law
32
Dishonesty
FAILURE TO DISCLOSE INFORMATION MEC for
Education, Gauteng v Mgijima 2011 3 BLLR 253
(LC) failure to disclose at the time of the
recruitment process that the employee faced
disciplinary charges. Fipaza v Eskom Holdings
Ltd (2010) 31 ILJ 2903 (LC) - employee not
disclosing the fact that she had previously been
employed by the employer and had been dismissed.
Dismissal unfair. The employee did not have
exclusive knowledge of this fact. Court also
appears to take the view that there is no general
duty on a prospective employee to disclose
material facts.
Current Labour Law
33
Dishonesty
FAILURE TO DISCLOSE INFORMATION Sotsepo v Kloof
Gold Mine 2011 6 BALR 684 (CCMA) employee
fairly dismissed for participating in a selection
panel which interviewed his wife for a job and
not disclosing this relationship.
Current Labour Law
34
Dishonesty
THEFT Miyambo v CCMA and Others 2010 10 BLLR
1017 (LAC) "13 It is appropriate to pause and
reflect on the role that trust plays in the
employment relationship. Business risk is
predominantly based on the trustworthiness of
company employees. The accumulation of
individual breaches of trust has significant
economic repercussions. A successful business
enterprise operates on the basis of trust. In De
Beers Consolidated Mines Ltd v CCMA and Others
2000 9 BLLR 995 (LAC) para 22, the court, per
Conradie JA, held the following regarding risk
management
Current Labour Law
35
Dishonesty
THEFT Miyambo v CCMA and Others 2010 10 BLLR
1017 (LAC) 'Dismissal is not an expression of
moral outrage much less is it an act of
vengeance. It is, or should be, a sensible
operational response to risk management in the
particular enterprise. That is why supermarket
shelf packers who steal small items are
routinely dismissed. Their dismissal has little
to do with society's moral opprobrium of a minor
theft it has everything to do with the
operational requirements of the employer's
enterprise.' "
Current Labour Law
36
Dishonesty
THEFT Miyambo v CCMA and Others 2010 10 BLLR
1017 (LAC) 21 Miyambo undoubtedly breached
the relationship of trust built up over many
years of honest service. The Company had a
consistent policy of zero tolerance for theft
and this had been clearly conveyed to all the
employees including Miyambo. I agree with the
Labour Court's ruling that the Commissioner's
award was not justifiable in relation to the
reasons given for it. On the basis of the
factual findings made by the Commissioner, the
dismissal of the Appellant was justified for
operational reasons and was fair.
Current Labour Law
37
Dishonesty
THEFT Woolworths (Pty) Ltd v CCMA and Others
2011 10 BLLR 963 (LAC) 48 It has long been
held that the employers decision to dismiss an
employee will only be interfered with if that
decision is found to have been unreasonable and
unfair. The fact that an employee has had a long
and faithful service with the employer thus far
is indeed an important and persuasive factor
against a decision to dismiss the employee for
misconduct, but is by no means a decisive one.
In Toyota South Africa Motors (Pty) Ltd v Radebe
and Others, this Court held
Current Labour Law
38
Dishonesty
THEFT Woolworths (Pty) Ltd v CCMA and Others
2011 10 BLLR 963 (LAC) Although a long period
of service of an employee will usually be a
mitigating factor where such an employee is
guilty of misconduct, the point must be made
that there are certain acts of misconduct which
are of such a serious nature that no length of
service can save an employee who is guilty of
them from dismissal. To my mind one such clear
act of misconduct is gross dishonesty.
Current Labour Law
39
Dishonesty
THEFT Woolworths (Pty) Ltd v CCMA and Others
2011 10 BLLR 963 (LAC) DVD footage implicating
the employee created an "evidentiary burden" to
demonstrate her innocence. See also Rainbow Farms
(Pty) Ltd v CCMA and Others 2011 5 BLLR 451
(LAC).
Current Labour Law
40
Bringing the employers name into disrepute
Mvembe v Cathorus Community Radio (2010) 31 ILJ
2217 (CCMA) criticism of the employer's board
and the station manager on facebook justifying
dismissal employee given the opportunity to
apologise on facebook but refusing to do
so.  Sedick and Another v Krisray (Pty) Ltd
2011 8 BALR 879 (CCMA) disparagement of
managers of employer on face book justifying
dismissal issue of invasion of privacy
considered.
Current Labour Law
41
Bringing the employers name into disrepute
Smith v Partners in Sexual Health (Non-Profit)
(2011) 32 ILJ 1470 (CCMA) employee denigrating
manager and disclosing information relating to
the employer's affairs to third parties though
her Gmail account. Employer initially gaining
access to employee's account accidentally and
subsequently doing so intentionally. Intentional
access on the second occasion contravening
Regulation of Interception of Communications and
Provision of Communication-related Information
Act, 70 of 2002. Evidence obtained as a result
thereof not permitted on the basis of the
infringement of the constitutional right to
privacy.
Current Labour Law
42
Inconsistency
  • CEPPWAWU v NBCCI and Others 2011 2 BLLR 137
    (LAC)
  • In cases of collective misconduct the employer is
    only obliged to discipline employees in respect
    of whom it has evidence.
  • An employer is not obliged to investigate the
    identity of every person who may have
    participated in wrongful activity.
  • In the case of collective misconduct a "wrong
    decision" resulting in an acquittal of an
    employee who did commit an offence will only be
    unfair "if it is a result of some discriminatory
    management policy.

Current Labour Law
43
Insubordination
Polygraph testing Nyathi v Special Investigating
Unit 2011 JOL 27537 (LC) refusal to undergo a
polygraph test constituted a material breach of
contract which could justify the lawful
termination of the contract of employment. But
see the following excerpt
Current Labour Law
44
Insubordination
Polygraph testing Nyathi v Special Investigating
Unit 2011 JOL 27537 (LC) 33 I do not intend
dwelling on the issue of the requirement of a
polygraph examination. Suffice to point out that
the court accepts that the respondent has sound
reasons for including such an obligation, to
submit to, inter alia, a polygraph, in light of
the core business and functions of the SIU which
is to investigate corruption and
maladministration in government departments and
State institutions.
Current Labour Law
45
Insubordination
Polygraph testing Nyathi v Special Investigating
Unit 2011 JOL 27537 (LC) The court also
accepts that although some of the measures, such
as having to submit to a polygraph examination,
having to provide urine and blood samples, may
seem to be intrusive, these measures are
reasonable in the context of an organisation such
as the respondent (provided, of course, that
these measures are applied fairly and only when
reasonably necessary to do so).
Current Labour Law
46
Insubordination
Nyathi v Special Investigating Unit 2011 JOL
27537 (LC) 39 I am firstly persuaded on the
papers that it is a material term of the
contract to submit to a polygraph test and that
the applicant by refusing to do so has
repudiated a material term of the contract
entitling the respondent to terminate the
contract. As already pointed out, it is not at
issue here whether or not the termination would
be fair. I am therefore not persuaded by the
submissions advanced on behalf of the applicant
that this refusal does not go to the root of the
agreement and therefore not material.
Current Labour Law
47
Insubordination
Nyathi v Special Investigating Unit 2011 JOL
27537 (LC) I am persuaded in light of the
facts contained in the answering affidavit that
it is not unreasonable nor unlawful taking
into account the nature of the business of the
respondent and the high premium placed on
integrity in light of the SIU's functions for
the respondent to require of an employee to
submit to a polygraph test. She had, after all,
contractually agreed to do so. The refusal to
undergo a polygraph test may also constitute
misconduct and may even be a ground for
dismissal.
Current Labour Law
48
Insubordination
Polygraph testing Blignaut v The Core Computer
Business (Pty) Ltd 2011 6 BALR 642 (CCMA) the
dismissal of an employee because he had failed to
undergo a polygraph test fair on the basis that
the employee's contract of employment required
the employee to undergo such testing. SATAWU obo
Mashiane v Swissport South Africa (Pty) Ltd
2010 10 BALR 1121 (CCMA) the dismissal of an
employee for a similar refusal was unfair because
the employer had failed to establish that there
was a tacit term in the contract of employment to
the effect that she could be required to undergo
such a test.
Current Labour Law
49
Polygraph testing and operational requirements
SA Transport and Allied Workers Union and Others
v Khulani Fidelity Security Services (Pty) Ltd
(2011) 32 ILJ 130 (LAC) dismissal for failing a
polygraph test could justify dismissal on the
basis of the employer's operational requirements.
National Union of Mineworkers and Others v Coin
Security Group (Pty) Ltd t/a Protea Coin Group
(2011) 32 ILJ 137 (LC) Labour Court
(reluctantly) accepted that it was bound by the
abovementioned decision but found that, on the
facts of the case before it, dismissal was not
justified.
Current Labour Law
50
Negligence
Transnet Freight Rail v Transnet Bargaining
Council and Others 2011 6 BLLR 594
(LC) 44 Negligence can be defined as a
failure to comply with the standard of care that
would be exercised in the circumstances by a
reasonable person. 45 It is obvious from that
definition, there is some times an overlap
between poor work performance and negligence.
Negligence can be treated as either incapacity
or as misconduct, depending on the
circumstances. The basis for culpability and
negligence cases is the lack of care and/or
diligence accompanying the act or omission. The
test for negligence is an objective one, namely,
whether the harm (or potential harm) was
foreseeable and whether a reasonable person
would have guarded against its occurring
Current Labour Law
51
Negligence
Transnet Freight Rail v Transnet Bargaining
Council and Others 2011 6 BLLR 594
(LC) 46 Negligence does not extend to acts
where an individual, knowing full well the
probability of the consequences of their actions
and dangers in their behaviour, deliberately and
wilfully choses to behave in such a manner
regarding the consequences.
Current Labour Law
52
Sexual harassment
  • Motsami v Everite Building Products (Pty) Ltd
    2011 2 BLLR 144 (LAC)
  • Employee claiming dismissal for sexual harassment
    unfair because employer should have utilised a
    conciliation process as envisaged in its
    disciplinary code.
  • Court rejects this view. Sexual harassment "the
    most heinous misconduct" which undermines the
    dignity integrity and self-worth of the person
    harassed.
  • Sexual harassment must be viewed from the
    perspective of the person victimized.

Current Labour Law
53
Sexual harassment
  • Motsami v Everite Building Products (Pty) Ltd
    2011 2 BLLR 144 (LAC)
  • To force conciliation on a victim compounds the
    wrong.
  • Unless the victim agrees to another procedure,
    the employer must conduct a disciplinary enquiry.
  • A disciplinary hearing must be conducted with the
    victim's co-operation. If the victim is
    uncomfortable with any process the employer must
    find a way to deal with it lest it be found
    culpable for failing to deal with the matter. In
    this case some form of counseling may be
    appropriate, if the employer "is of the means of
    providing it".

Current Labour Law
54
Sexual harassment
Motsami v Everite Building Products (Pty) Ltd
2011 2 BLLR 144 (LAC) 21 In this matter the
victim wanted a disciplinary hearing in such an
instance it would have been improper for the
respondent to proceed with a process other than
a disciplinary hearing. The fact that the
respondents disciplinary code provided for
conciliation does not mean that the respondent
is inextricably bound to follow that process.
The procedure must be chosen by the employer but
it must do so in consultation with the victim.
Current Labour Law
55
Sexual harassment
Motsami v Everite Building Products (Pty) Ltd
2011 2 BLLR 144 (LAC) Contrast with Hendricks
v Cape Peninsula University of Technology and
Others (2009) 30 ILJ 1229 (LAC) dealing with a
claim based on contract.
Current Labour Law
56
Sexual harassment
Mzi Gaga v Anglo Platinum Ltd and Others
(unreported JA44/10 dated 20/10/2011)
48 By and large employers are entitled (indeed
obliged) to regard sexual harassment by an older
superior on a younger subordinate as serious
misconduct, normally justifying dismissal. In SA
Broadcasting Corporation Ltd v Grogan N.O. and
Another (2006) 27 ILJ 1519 (LC), Steenkamp AJ (as
he then was) observed that sexual harassment by
older men in positions of power has become a
scourge in the workplace. Its insidious presence
is corrosive of a congenial work environment and
productive work relations.
Current Labour Law
57
Sexual harassment
Mzi Gaga v Anglo Platinum Ltd and Others
(unreported JA44/10 dated 20/10/2011)
Harassment by its nature will steadily undermine
the supervisory authority vested in the superior,
upon which the employer must rely, and hence will
diminish or even destroy the trust requisite in
the employment relationship ultimately
justifying the imposition of the sanction of
dismissal. It is appropriate then for this court
and employers to send out an unequivocal message
senior managers who perpetrate sexual harassment
do so at their peril and should more often than
not expect to face the harshest penalty.
Current Labour Law
58
Sexual harassment
Mzi Gaga v Anglo Platinum Ltd and Others
(unreported JA44/10 dated 20/10/2011)
Much will depend on the circumstances, with the
court or commissioner being obliged to have
regard to the nature and gravity of the
infringement the impact on the victim the
relationship between the perpetrator and victim,
the position and responsibilities of the
perpetrator and whether or not there is a patter
of behavior evidenced by prior misconduct.
Current Labour Law
59
Procedural fairness
  • There is some evidence to suggest that
    arbitrators are now taking into account the
    comments in the Avril Elizabeth decision.
  • The issue of double jeopardy appears to be being
    considered more often.
  • The formulation of disciplinary charges.
  • CCMA guidelines dealing with misconduct cases.

Current Labour Law
60
Procedural fairness
Formulation of charges Woolworths (Pty) Ltd v
CCMA and Others 2011 10 BLLR 963 (LAC)
32 Unlike in criminal proceedings the
misconduct charge on and for which the employee
was arraigned and convicted at the disciplinary
enquiry did not necessarily have to be strictly
framed in accordance with the wording of the
relevant acts of misconduct as listed in the
appellants disciplinary codes, referred to
above.
Current Labour Law
61
Procedural fairness
Formulation of charges Woolworths (Pty) Ltd v
CCMA and Others 2011 10 BLLR 963 (LAC) It
was sufficient that the wording of the misconduct
alleged in the charge sheet conformed, with
sufficient clarity so as to be understood by the
employee, to the substance and import of any one
or more of the listed offences. After all, it is
to be borne in mind that misconduct charges in
the workplace are generally drafted by people
who are not legally qualified and trained."
Current Labour Law
62
CCMA guidelines on procedural fairness Section D
  • No disciplinary procedure in place
  • Where there is no disciplinary procedure in place
    the Code of Good Practice Dismissal must be
    applied subject to any departures that may be
    justified by the circumstances.
  • It the procedure was defective the arbitrator
    must decide whether the defect was material. The
    seriousness of the defect should be taken into
    account when determining compensation for
    procedural unfairness.

Current Labour Law
63
CCMA guidelines on procedural fairness Section D
  • Disciplinary procedure in applicable collective
    agreement
  • If the disciplinary procedure is contained in a
    collective agreement, this takes precedence over
    the Code. If the collective agreement does not
    deal with the issue, the Code must be applied.
  • When deciding whether there has been procedural
    unfairness the arbitrator should examine the
    actual procedure followed. Unless the actual
    procedure followed results in unfairness, the
    arbitrator should not find that the procedure was
    unfair.

Current Labour Law
64
CCMA guidelines on procedural fairness Section D
  • Disciplinary procedure in contract
  • This disciplinary procedure must be tested
    against the Code. Any conflict should be decided
    in favour of the Code unless the employer can
    justify a departure.
  • If the contract imposes a more burdensome
    procedure than the one in the Code, procedural
    fairness must be tested against the contract.
  • A departure from the agreed procedure should
    constitute procedural unfairness. But not every
    departure ought to give rise to a compensation
    order. The materiality of the breach and the
    prejudice to the employee should be weighed up in
    deciding what compensation, if any, should be
    ordered to be paid.

Current Labour Law
65
CCMA guidelines on procedural fairness Section D
  • Disciplinary procedure imposed by employer
  • This disciplinary procedure must be tested
    against the Code. If there is a conflict the
    Code takes precedence. unless the employer can
    justify a departure.
  • A procedure that is not legally binding should
    not be strictly interpreted and applied.
  • Ordinarily, departures from established
    procedures (or from the Code) should not result
    in a finding of procedural unfairness unless
    there is material prejudice to the to the
    employee.

Current Labour Law
66
CCMA guidelines on procedural fairness Section D
  • Disciplinary procedure imposed by employer
  • If the employer amends or adjusts a procedure or
    policy to meet a particular exigency, or to
    address circumstances not contemplated by the
    policy or procedure, a finding of procedural
    unfairness is not warranted unless there is
    material prejudice to the employee.

Current Labour Law
67
Unfair labour practices
  • Benefits disputes The dilemma facing arbitrators
  • The unfair conduct of an employer relating to the
    provision of benefits can constitute an unfair
    labour practice.
  • Too wide an interpretation will deprive employees
    of the right to strike. Too wide a definition
    will lead to employees being able to convert
    disputes of interest into disputes and right and
    the determination of terms and conditions of
    employment by compulsory arbitration. See UASA
    obo Horne and Others v Atlantis Foundries (Pty)
    Ltd 2011 7 BLLR 779 (MEIBC).
  • Too narrow a definition could lead to unfairness.

Current Labour Law
68
Unfair labour practices
  • The approaches adopted by the Courts
  • Distinguishing between benefits and remuneration
    see Schoeman and others v Samsung Eletronics SA
    (1997) 18 ILJ (1098) and Gaylard v Telkom SA Ltd
    (1998) 19 ILJ 1624 (LC).
  • The requirement that it had to be a claim that
    arises ex contractu or from statute or collective
    agreement. See HOSPERSA and Another v Northern
    Cape Provincial Administration (2000) 21 ILJ 1066
    (LAC).

Current Labour Law
69
Unfair labour practices
  • The approaches adopted by the Courts
  • IMATU OBO Verster v Umhlathuze Municipality and
    Others 2011 8 BLLR 882 (LC) states that the
    HOSPERSA approach is no longer applicable. See
    also Protekon (Pty) Ltd v CCMA and Others 2005
    7 BLLR 703 (LC) and Department of Justice v CCMA
    and Others 2004 BLLR 297 (LAC).
  • The distinction between remuneration and benefit
    is also debatable. How does one draw the
    distinction?

Current Labour Law
70
Unfair labour practices
  • The approaches adopted by the Courts
  • Protekon (Pty) Ltd v CCMA and Others 2005 7
    BLLR 703 (LC) the ULP definition can be
    utilised to challenge employer discretionary
    decisions in terms of contractual schemes.
  • See also " The Unfair Labour Practice and the
    Definition of Benefits Labour Laws Tower of
    Babel (2009) 30 ILJ 1451.

Current Labour Law
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