It’ll never end, one supposes — the process of interpretation and application of the Labour Relations Act (LRA). Just when we thought that major issues had been settled, interesting and important new decisions emerge from the Labour Court and the Labour Appeal Court that cast new light on issues such as the definition of a strike. An recent editorial (2 August 2006) looked at a number of strike cases: two new and important decisions have now appeared here on IR Network, decisions with profound practical implications for employers.
Parties to councils and the identity of the employer
Section 64(1) of the LRA sets out the procedural requirements for a protected strike. In essence, the issue in dispute must be referred to either a bargaining council or the CCMA for conciliation, and notice must be given to the employer (48 hours’ notice or seven days’ notice if the employer is the state). But section 64(3) contains exceptions to this rule — the procedural requirements do not apply to a strike (or a lock-out) if the parties in dispute are members of a bargaining council and the dispute has been dealt with by that council in accordance with its constitution (section 30(1) provides that the constitution of a bargaining council must provide for a procedure to be followed if a dispute arises between the parties to the bargaining council).
But what happens if a company or organisation is a wholly owned subsidiary of another company or organisation and the subsidiary is itself not party to the bargaining council? Would it suffice if the matter is dealt with in the bargaining council, or must the union refer the issue in dispute to the CCMA instead? These are some of the issues that arose in SAA (Pty) Ltd v SATAWU (2006) 15 LC 9.6.2. The union concerned referred a dispute relating to restructuring of Transnet to the Transnet Bargaining Council and notified the council that strike action was to follow. SAA itself did not receive a notice of a strike — neither a primary strike nor a secondary strike. SAA had been transformed to an independent company but it was wholly owned by Transnet, but it was not itself party to the bargaining council. The strike related to demands made in respect of the restructuring (unbundling) of Transnet and one of the demands made by the union was that SAA should be transferred back to national government.
The union argued that its strike action was aimed at ending the “unilateral decision-making” by Transnet as these decisions would have a direct impact on not only terms and conditions of employment, but also the employee’s employment security. It had been proposed that if a business unit (such as SAA) is transferred, there should be a no-retrenchment guarantee for a period of three years. The issues in dispute therefore fell within the ambit of matters of mutual interest (a part of the definition of a strike as it appears in section 213 of the LRA). The restructuring process, the union also argued, was being driven by Transnet (and not SAA) — it would therefore be impractical to refer the same dispute to various bargaining councils and the CCMA.
The question was whether the fact that the issue in dispute had been referred to the Transnet bargaining council was sufficient for the strike to enjoy protected status. The Labour Court found that there is a connection between SAA and Transnet’s business activities and that the interests of their employees would overlap in many respects. But, the Court continued, it was also necessary to pay due attention to the identities of the parties in this case. SAA was not the same as Transnet, even though Transnet wholly owned SAA. The fact that Transnet held all the shares in SAA does not mean that it was the employer in respect of the employees for the purposes of the strike.
One could go further, of course: the Government is the sole shareholder in Transnet — would this fact mean that the Government is the employer of the employees for the purpose of a strike? This argument, the Court held, would disregard all legal principles applicable to separate legal entities — it would mean that the ultimate shareholder should be sought out and held responsible for any activities of a subsidiary and its employees.
The union should at least have declared some dispute with SAA and should have engaged SAA in discussions regarding the issues arising from the dispute. But the union engaged only Transnet and not SAA. In respect of the procedures, the Labour Court held that a dispute with SAA should have been referred to the CCMA and not to the bargaining council to which SAA was not a party. The Labour Court held that the strike action the union intended to take would be unprotected and granted an interdict prohibiting the union from going on strike.
The strike and the demand
The decision of the Labour Appeal Court in TSI Holdings (Pty) Ltd & others v NUMSA & others (2006) 15 LAC 9.6.1 is of considerable importance for both employers and unions — it focuses attention on the nature of the union’s demand. Two union members reported that a supervisor had made racist remarks and the union suggested that the matter should be referred to arbitration. The employer’s next move was perhaps not the wisest: it suggested that both the employees who had reported the racist remark to the union and the supervisor concerned should take polygraph tests. The union then headed for the CCMA, stating that its desired outcome was the dismissal of the racist manager. Conciliation failed and the union notified the employer that it was intending to go on strike — again the demand was for the dismissal of the supervisor with immediate effect. The employer suspended the supervisor and proposed that a disciplinary enquiry should be convened for the purposes of his dismissal; the hearing to be chaired by a neutral third party.
The Labour Court came to the conclusion that the union’s demand was not that the supervisor be unfairly dismissed or even that he should be denied a hearing. The demand was not for the employer to engage in an unfair dismissal. For the Labour Court, the demand itself was therefore not an unlawful demand. See TSI Holdings (Pty) Ltd & others v NUMSA & others (2004) 13 LC 9.5.1.
In the Labour Appeal Court, the employer argued that the union’s demand for the supervisor’s dismissal was an unlawful demand that a strike that consisted of a concerted refusal to work in support of an unlawful demand could not be a protected strike. The counter-argument was that the purpose of the strike on which the union had embarked was to have the supervisor subjected to a fair disciplinary process and that the union was prepared to accept the outcome of that disciplinary process.
Section 213 of the LRA, as regards the definition of a strike, reads as follows:
‘strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory…”
The Labour Appeal Court analysed this definition in some detail and identified three categories of a strike. Some strikes have a demand, some strikes relate to a grievance, and others relate to a dispute. If the action by the employees (refusal to work, retardation or obstruction of work) is accompanied by a demand, the demand is the issue in dispute. In the present case the Court held that this was a strike relating to a demand and the next enquiry was whether (a) the employer must dismiss the supervisor, or (b) that the employer should subject the supervisor to a fair disciplinary process — the outcome of this process could be either dismissal or continued employment. On the facts of the case, the Court found that the purpose of the concerted refusal to work (to use the terms of the statutory definition) was to compel the employer to dismiss the supervisor.
The next question was whether the demand was a lawful demand. Here the court assumed, without deciding in favour of the employer, that it is permissible in our law to engage in a strike in support of a demand that the employer dismiss an employee fairly:
“Let us say that employees found guilty of fraud have consistently been dismissed in a particular company for many years but in one case the employer decides that in a particular case he will not dismiss the employee because of some unacceptable reason such as that he is white and the others who had been dismissed for similar offences were Black. Let us assume that the loss resulting from such fraud for the employer is a million rand. It seems that in such a case, if the employee was guilty of such serious misconduct that would, quite clearly, be a fair reason for his dismissal. In such a case it may well be that, if there was a disciplinary inquiry and such employee was found guilty of such serious misconduct but was not dismissed on such unacceptable grounds as racist grounds, a demand that the employer dismiss such employee cannot be said to be a demand for the employer to act unfairly. It may well be that in such a case it is arguable – and I put it no higher than that – that such a demand may form part of a protected strike.” (at [39])
But would the dismissal of the supervisor be fair? There was no evidence before the Labour Appeal Court that if the employer had dismissed the supervisor as demanded by the union, the employer would have been able to prove that he had made the racist remarks and that there was a fair reason for a dismissal. In other words, the Court could not, on the evidence, make any finding as to whether there was a fair reason for the employee to dismiss the supervisor. This also entailed that if the employer had dismissed the supervisor as demanded, the dismissal would have been unfair — a violation of the supervisor’s right not to be unfairly dismissed (see section 185 of the LRA).
It was a matter of evidence, said the Court, and even those persons accused of racist are entitled to fair treatment — a determination of their guilt and a consideration as to whether they should be dismissed:
“However, all I am saying is that in the record before us no attempt was made to prove that he had used the racist language, probably because it was thought that the determination of the question whether or not he had used such language would be dealt with in another forum. Racism continues to be a cancer in our society. The workplace is no exception to this. Employers, unions, employers’ organisations and employees should play their role in eradicating it. Of course, in this regard only lawful and fair means are acceptable. This is no licence for people accused of racism to be treated unfairly for they too, are entitled to be dealt with fairly in the determination of whether they are guilty or not of racist conduct and whether or not in a particular case they should be dismissed. However, the situations which would render unfair the dismissal of a person guilty of racist conduct resorted to in the full knowledge that it is racist or racially offensive must be very limited. It is hoped that, if the complainants’ complaint has not been resolved, it can still be, and will be, subjected to an inquiry or process which would either result in an amicable resolution thereof or which will result in a determination that will put finality on whether or not the complainants were subjected to the racist and offensive language to which they accuse Mr Van Zyl [the supervisor] of having subjected them.” (at [45])
There was no doubt, held the Court, that a demand such as one made by the union in this case fell outside the category of demands that can be supported by a refusal to work. Put differently, the purpose of the concerted refusal to work (or retardation of work or the obstruction of work) in the definition of a strike may not be conduct that would violate another employee’s right not to be unfairly dismissed. The Labour Appeal Court upheld the appeal against the decision of the Labour Court.
New principles
It has always been a somewhat difficult issue to determine whether the issue in dispute giving rise to a strike has been dealt with in terms of the correct procedure and has been referred to the correct labour dispute resolution body. The decision of the Labour Court in SAA (Pty) Ltd v SATAWU (2006) 15 LC 9.6.2 goes some way in clearing up at least some of those difficulties. But for some, the Labour Court’s strict focus on the fact that SAA was a legally separate entity may well be turning a blind eye to the reality of power and economic control, management and prerogative existing between a subsidiary and its parent company.
The decision of the Labour Appeal Court in TSI Holdings (Pty) Ltd & others v NUMSA & others (2006) 15 LAC 9.6.1 has shed light not only on the interpretation of the definition of a strike, but has also effectively placed another limitation on the right to strike — that a strike may not relate to a demand that is unlawful or a demand that the employer violate another employee’s right to fair treatment before dismissal. A new slant to strike law indeed, and essential reading for both employers and employees.
Tuesday, April 20, 2010
Strike cases 2005-2006: an overview
Most of the time we focus on the relationship between the employer and an individual employee, be it unfair labour practices or, in most cases, dismissal in one form or another. In the background, of course, employers and unions continue in their relationship. And, as the security sector strike earlier this year illustrated, things can still go wrong — and badly so. While strikes no longer enjoy quite the prominence and controversy they enjoyed a decade or so ago, they continue to be of considerable relevance, not only for employers, but also for unions. Despite this fact, however, relatively few Labour Court decisions relating to strikes or issues arising from or relating to strikes are reported. Those that do appear, are of some considerable interest, especially if the ground they cover is new.
This editorial looks at most of the important strike cases between January 2005 and July 2006 as reported here on IR Network.
Protected and unprotected strikes
There are two procedural requirements for a strike to be protected: the issue in dispute must be referred to conciliation and the union must give the employer at least 24 hours’ notice of the impending strike. The issue in SATAWU v Coin Reaction (2005) 14 LC 9.5.3 was whether the issue in dispute had been referred to the CCMA for conciliation as required by section 64(1)(a) of the Labour Relations Act. One of the points raised in this case was the employer’s argument that the real issue in dispute was not the same as the dispute that had been referred to conciliation — this meant that the Labour Court again had to consider what the real dispute between the parties was.
Was the dispute about a wage increase or was it about a refusal to bargain? The strike was in support of a wage demand, but the employer argued that the dispute that had been referred related to a refusal to bargain: the refusal to bargain dispute was not the same as the dispute which had been referred to the CCMA. After analysing the facts, the Labour Court came to the conclusion that the wage dispute was the real underlying dispute between the parties. In respect of this dispute, the matter had been referred to conciliation and the strike was therefore protected.
Chubb Guarding SA (Pty) Ltd v SATAWU (2005) 14 LC 9.5.2 related to a secondary strike, whether this strike would be protected with reference to a collective agreement and the requirement that the secondary strike must be reasonable. While only about 60 employees were engaged in the primary strike, about 800 would be out on the secondary strike. If this large-scale secondary strike went ahead, the employer would have to close down its business. One of the questions the Labour Court had to consider in this case was whether the union had to comply with the procedures set out in the collective agreement: in this context, it was argued that principled laid down by the Labour Appeal Court applied — the principle being that a union has a choice whether to follow the procedures set out in a collective agreement or follow the procedures set out in the Labour Relations Act (see County Fair Foods (Pty) Ltd v FAWU & others (2001) 10 LAC 9.5.2 at [15]-[20]). This principle, the Court held, did not apply in the context of a secondary strike and that the provisions of the collective agreement should be complied with. The employer succeeded in obtaining an interdict against the secondary strike.
Picketing
When it comes to picketing, it is not unusual for managers to instruct someone to head outside and make video recordings of the picketers and the way in which they conduct themselves. If there is violence, intimidation or damage to property, the employees can then be identified by referring to the video tape. In Woolworths (Pty) Ltd v SACCAWU & another (2005) 15 LC 9.7.1 things were, however, a bit different. The employer had obtained a temporary interdict restraining the union and the strikers from approaching or being within 500 meters of the perimeter of any of the employer’s distribution centres (commercial centres were also subsequently included). The interdict also prohibited intimidation, assault, harassment and other interference with the employer’s business and the union was restrained from inciting or engaging any persons to commit any of these actions.
The question was whether the terms of the interdict had been contravened. The union denied any contravention, but the Labour Court was shown a video recording of a group of persons (some carrying sticks) who prevented a truck from entering the employer’s premises. Other conduct captured on tape included one person sitting on the road and preventing a truck from entering the employer’s premises. The video showed a group of about 60 people, but none of these were identified as employees and there was no attempt to identify these persons. Not that it would have been difficult for the employer to do, the Court added.
And this proved to be the end of the employer’s case. While the Labour Court would always have sympathy with an employer if violence has erupted during a strike; in situations such as these the Labour Court would readily grant an interdict. But this does not apply in situations where the employees have not been properly identified. The Court stated that it would always take into account the attempts that the employer has made to identify the persons against whom it is seeking an interdict. If it is impossible to identify the employees, then things may well be different, of course — but this depends on the facts.
Even if the employer had put forward just a few names, the Court continued, an interdict could be granted, because the Court would know that the order is directed against some specific individuals. But to grant a “blanket” court order, covering the whole range of the employer’s operations without any attempt to identify the employees concerned would be wrong.
The dismissal of strikers
NUMSA & others v Pro Roof Cape (Pty) Ltd (2005) 14 LC 9.3.1 is a decision made all the more interesting by the fact that the employer bore most of the blame for the dispute arising in the first place. Falling within the registered scope of a bargaining council, the employer was obliged to make payments to the council, including pension benefits, sick pay, administration of the council and a dispute resolution levies. The employer found itself in financial difficulties and fell into arrears. The employees were underpaid and the employer failed to pay them an annual leave bonus as provided by a collective agreement. The council issued compliance orders but, with the assistance of the trade union, the employer successfully obtained a retrospective exemption from the council in respect of some of the payments.
The actual dispute arose because of the employer’s failure to pay leave pay enhancements (a bonus) — the work stoppage occurred as the result of an employee taking leave and being issued with a payslip which did not indicate the leave enhancement bonus. A work stoppage ensued and, after a number of ultimatums were issued to the employees, they were eventually dismissed. The employer did give the trade union an opportunity to make representations as to why the employees should not be dismissed.
The Labour Court came to the conclusion that the employees’ actions fell within the ambit of the definition of a “strike” in section 213 of the Labour Relations Act and that the strike was not protected — the matter in dispute had not been referred to the bargaining council for conciliation, no certificate had been issued that the dispute remained unresolved and the employees did not give 48 hours’ notice of the strike.
Compliance with a recognition agreement and affording striking employees an opportunity to be heard before dismissal were issues raised in Communication Workers' Union & others v South African Post Office Ltd (2004) 13 LC 9.3.1. The recognition agreement provided that the employer undertook not to take disciplinary action against any union member for a period of 24 hours from the commencement of a strike if the strike was in contravention of the recognition agreement itself (if the strike complied with the provisions of the recognition agreement, this grace period would be 72 hours). The fact that the employer had failed to comply with its obligations in this respect was one of the reasons the Labour Court concluded that the dismissal of the strikers was unfair.
The judgment also focused on the employer’s issuing of an ultimatum to the employees. What is required, the Court held, is for the employees to be advised in writing that they are engaged in an unprotected strike. The union should be given an appropriate opportunity under the circumstances to address their members and to try and persuade the employees to return to work. The union must also be allowed to address management on the reasons why their members should not be dismissed. In this case it was clear that the dismissals could have been avoided if the union had been given more time. The employer was entitled to take a firm approach in respect of unprotected strike action, but even so, the employer was not entitled to breach the provisions of the recognition agreement and to take a “mechanistic” and “truncated” approach to the ultimatum issued. This ultimatum, the Court found, significantly contributed to the risk of dismissal rather than a resolution of the matter. The dismissal of the strikers was found to be substantively and procedurally unfair and the Court ordered the reinstatement of the dismissed strikers.
The case of NUMSA & others v Atlantis Forge (Pty) Ltd (2005) 14 LC 9.3.2, a long and complicated case, is of some importance because it deals not only with the fairness of the dismissal of the strikers, but also whether the actions of the employees constituted a strike in the first place. Also arising in this case was the issue of prior warnings and whether these should be taken into account in taking disciplinary action against individual employees.
One question was whether the employees’ leaving their workstations to attend a meeting constituted a strike as defined in section 213 of the Labour Relations Act. The union argued that it was a lawful gathering of the workforce and that it had been duly authorised by management. The Labour Court analyses the evidence in some detail — this is one of the longest decisions to emerge from the Labour Court for some time now. The Labour Court came to the conclusion that the purpose of the work stoppage was to put pressure on management to pay a bonus on a certain date and that this constituted an unprotected strike.
The Labour Court also again emphasises that an employer must act consistently and here it considers, again in some detail, the positions of some of the individual employees, some of whom had prior warnings on file. The disciplinary code provided that warnings expire after six months and that they are then removed from the employee’s file. In this light the Court concluded that the warnings given to some of the employees had lapsed after six months and they ought to have been removed from their files and destroyed. This would have meant that these individual employees would be treated as having a clean disciplinary record when they were next found guilty of misconduct. By differentiating between the strikers in respect of prior warnings, the employer made itself guilty of contemporaneous inconsistency in its disciplinary action — there was no rational or justifiable basis for the differential treatment of the employees. For this reason, the dismissal of a group of the employees was found to be substantively unfair.
But there is more (actually, much more): one employee was dismissed because of the role he played, his failure to obey specific instructions and this not living up to the standards expected of him as a shop steward. The Labour Court concluded, on this point, that his dismissal did not fall beyond the bounds of reasonableness and that it was substantively fair. The fact that he saw himself acting as a shop steward in the situation does not mitigate his conduct — he had no licence to resort to defiance and needless confrontation. He should have used his good sense and follow the instructions and should not have exposed his co-workers to unnecessary risks.
One cannot help but feel some considerable sympathy for the Labour Court in this case: it was certainly not an easy one and the way the parties conducted themselves did nothing to make it easier:
“The conduct of litigation in this matter did not proceed smoothly. The union ranged far and wide, putting almost every pertinent fact in issue, often unnecessarily so. Much time was wasted on irrelevancies, and the matter was on more than one occasion delayed by a lack of preparation. As for the applicants who gave evidence, they were altogether an unimpressive lot. They evaded, obstructed, contradicted themselves, equivocated and sporadically told lies in service of an extremely implausible version. Their case was poorly conceived, badly constructed and exposed at times to be plainly untrue. The finding of substantive unfairness in their favour does nothing to vindicate their behaviour. The finding flows mainly as a consequence of a tactical error on the part of the company to effect selective discipline and the necessity for this Court to enforce legal policy in accordance with the prevailing norms of collective bargaining. It certainly should not serve as any indication that this Court approves of the manner in which the applicants have conducted themselves in their industrial relations or before this Court.” (at [166])
Obtaining an interdict
The employer’s most powerful weapon in the context of an unprotected strike is obtaining an interdict in the Labour Court. This effectively stops a strike dead in its tracks, and for this reason employers and their lawyers carefully analyse strike situations in order to ascertain whether the strike is protected or not — the employer cannot obtain an interdict in respect of a protected strike. But the facts of County Fair Foods (a division of Astral Operations Ltd) v Hotel Liquor Catering Commercial & Allied Workers Union & others (2005) 14 LC 9.5.4 present an interesting spin when it comes to obtaining an interdict.
The employer had concluded a recognition agreement with the union, but shortly thereafter it appeared that the union was no longer representing the majority of employees. The employer notified the union of this fact and that it was suspending the recognition agreement (and pending substantive negotiations) until the union had succeeded in recruiting enough members to make it a majority union again. The union referred a dispute to the CCMA for conciliation, stating that the dispute related to the failure of the parties to reach agreement on wages (the union was demanding a 10% across-the-board increase). Conciliation duly followed, failed, and the certificate of outcome indicated that the dispute, a matter of mutual interest, remained unresolved. Eventually, the union notified the employer that it was embarking on strike action. The employer obtained a temporary interdict — one of the grounds being that the strike was unprotected: it related to a refusal to bargain dispute and therefore an advisory arbitration award was required (section 65(2) of the LRA).
One of the issues the Labour Court had to decide was whether the strike was about the suspension and termination of the recognition agreement or whether it related to the wage increase. If it related to the recognition agreement, the dispute would fall within the scope of a refusal to bargain dispute and the strike would only be protected if an advisory arbitration award had been obtained. The Labour Court found that the employer’s refusal to deal with the wage demand was not because it rejected the demand, but because it had withdrawn recognition. There was no deadlock over proposals and counter-proposals regarding wages; instead, the deadlock arose because the employer refused to bargain with the union. Because there was no advisory arbitration, the Court held, the employer was entitled to the interdict.
But at this point that there is a twist to the tale: section 68(3) of the LRA provides that if the union gives the employer notice of the strike at least 10 days before the strike starts, the employer, when applying for an interdict, must give the union at least 5 days notice of an application for the interdict. While the union had, on the facts, given the employer 10 days’ notice, the employer had failed to give the union the required 5 days’ notice of its application for an interdict. The Labour Court therefore declined to make the temporary interdict a permanent one.
Delictual claims
Mondi Ltd-Mondi Kraft Division v CEPPWAWU & others (2005) 14 LC 9.5.1 is of considerable interest because it relates, in essence, to a claim for delictual damages against a trade union: the employer claimed an about of over R600 000 which it allegedly suffered as a result of the unlawful switching off of its machinery on two days in July 2001. The amount claimed is for loss of production. The employer argued that the union members were acting in furtherance of the strike when they turned off the machine, that they acted on behalf of the union and its members and with the support and encouragement of the union’s office bearers (the shop stewards’ council). Therefore, the argument went, the union was vicariously liable for the loss of production.
This case raised the question of whether the Labour Court has the power to order a union to pay delictual damages in the context of a protected strike. After analysing numerous decisions and the provisions of the Labour Relations Act, the Labour Court came to the conclusion that it did indeed have the power to entertain delictual claims arising out of labour disputes:
“I am of the view that if the Legislature had deemed it necessary to oust the jurisdiction of the Labour Court in delictual claims in a protected strike it would have done so in clear terms. If a broad and purposive view is taken of the Act and the jurisdiction conferred on this Court then it is apparent that this Court has jurisdiction over all strikes and lock-outs and conduct in contemplation or in furtherance of a protected strike or lock-out which constitute both a criminal offence and a delict.” (at [27]).
On the facts and the evidence presented, however, the employer failed to discharge the onus to prove that the union was liable to pay compensation for any damages it suffered as a result of the shut down of the machinery.
Interesting developments
Looking back over the years, it seems that most of the important strike decisions came from the Labour Appeal Court and the Labour Court in the period 1996-2000. Many aspects of our law on strikes now appear to be settled. But as this overview of cases shows, there are always some more issues and factual situations that need to be analysed and decided upon.
This editorial looks at most of the important strike cases between January 2005 and July 2006 as reported here on IR Network.
Protected and unprotected strikes
There are two procedural requirements for a strike to be protected: the issue in dispute must be referred to conciliation and the union must give the employer at least 24 hours’ notice of the impending strike. The issue in SATAWU v Coin Reaction (2005) 14 LC 9.5.3 was whether the issue in dispute had been referred to the CCMA for conciliation as required by section 64(1)(a) of the Labour Relations Act. One of the points raised in this case was the employer’s argument that the real issue in dispute was not the same as the dispute that had been referred to conciliation — this meant that the Labour Court again had to consider what the real dispute between the parties was.
Was the dispute about a wage increase or was it about a refusal to bargain? The strike was in support of a wage demand, but the employer argued that the dispute that had been referred related to a refusal to bargain: the refusal to bargain dispute was not the same as the dispute which had been referred to the CCMA. After analysing the facts, the Labour Court came to the conclusion that the wage dispute was the real underlying dispute between the parties. In respect of this dispute, the matter had been referred to conciliation and the strike was therefore protected.
Chubb Guarding SA (Pty) Ltd v SATAWU (2005) 14 LC 9.5.2 related to a secondary strike, whether this strike would be protected with reference to a collective agreement and the requirement that the secondary strike must be reasonable. While only about 60 employees were engaged in the primary strike, about 800 would be out on the secondary strike. If this large-scale secondary strike went ahead, the employer would have to close down its business. One of the questions the Labour Court had to consider in this case was whether the union had to comply with the procedures set out in the collective agreement: in this context, it was argued that principled laid down by the Labour Appeal Court applied — the principle being that a union has a choice whether to follow the procedures set out in a collective agreement or follow the procedures set out in the Labour Relations Act (see County Fair Foods (Pty) Ltd v FAWU & others (2001) 10 LAC 9.5.2 at [15]-[20]). This principle, the Court held, did not apply in the context of a secondary strike and that the provisions of the collective agreement should be complied with. The employer succeeded in obtaining an interdict against the secondary strike.
Picketing
When it comes to picketing, it is not unusual for managers to instruct someone to head outside and make video recordings of the picketers and the way in which they conduct themselves. If there is violence, intimidation or damage to property, the employees can then be identified by referring to the video tape. In Woolworths (Pty) Ltd v SACCAWU & another (2005) 15 LC 9.7.1 things were, however, a bit different. The employer had obtained a temporary interdict restraining the union and the strikers from approaching or being within 500 meters of the perimeter of any of the employer’s distribution centres (commercial centres were also subsequently included). The interdict also prohibited intimidation, assault, harassment and other interference with the employer’s business and the union was restrained from inciting or engaging any persons to commit any of these actions.
The question was whether the terms of the interdict had been contravened. The union denied any contravention, but the Labour Court was shown a video recording of a group of persons (some carrying sticks) who prevented a truck from entering the employer’s premises. Other conduct captured on tape included one person sitting on the road and preventing a truck from entering the employer’s premises. The video showed a group of about 60 people, but none of these were identified as employees and there was no attempt to identify these persons. Not that it would have been difficult for the employer to do, the Court added.
And this proved to be the end of the employer’s case. While the Labour Court would always have sympathy with an employer if violence has erupted during a strike; in situations such as these the Labour Court would readily grant an interdict. But this does not apply in situations where the employees have not been properly identified. The Court stated that it would always take into account the attempts that the employer has made to identify the persons against whom it is seeking an interdict. If it is impossible to identify the employees, then things may well be different, of course — but this depends on the facts.
Even if the employer had put forward just a few names, the Court continued, an interdict could be granted, because the Court would know that the order is directed against some specific individuals. But to grant a “blanket” court order, covering the whole range of the employer’s operations without any attempt to identify the employees concerned would be wrong.
The dismissal of strikers
NUMSA & others v Pro Roof Cape (Pty) Ltd (2005) 14 LC 9.3.1 is a decision made all the more interesting by the fact that the employer bore most of the blame for the dispute arising in the first place. Falling within the registered scope of a bargaining council, the employer was obliged to make payments to the council, including pension benefits, sick pay, administration of the council and a dispute resolution levies. The employer found itself in financial difficulties and fell into arrears. The employees were underpaid and the employer failed to pay them an annual leave bonus as provided by a collective agreement. The council issued compliance orders but, with the assistance of the trade union, the employer successfully obtained a retrospective exemption from the council in respect of some of the payments.
The actual dispute arose because of the employer’s failure to pay leave pay enhancements (a bonus) — the work stoppage occurred as the result of an employee taking leave and being issued with a payslip which did not indicate the leave enhancement bonus. A work stoppage ensued and, after a number of ultimatums were issued to the employees, they were eventually dismissed. The employer did give the trade union an opportunity to make representations as to why the employees should not be dismissed.
The Labour Court came to the conclusion that the employees’ actions fell within the ambit of the definition of a “strike” in section 213 of the Labour Relations Act and that the strike was not protected — the matter in dispute had not been referred to the bargaining council for conciliation, no certificate had been issued that the dispute remained unresolved and the employees did not give 48 hours’ notice of the strike.
Compliance with a recognition agreement and affording striking employees an opportunity to be heard before dismissal were issues raised in Communication Workers' Union & others v South African Post Office Ltd (2004) 13 LC 9.3.1. The recognition agreement provided that the employer undertook not to take disciplinary action against any union member for a period of 24 hours from the commencement of a strike if the strike was in contravention of the recognition agreement itself (if the strike complied with the provisions of the recognition agreement, this grace period would be 72 hours). The fact that the employer had failed to comply with its obligations in this respect was one of the reasons the Labour Court concluded that the dismissal of the strikers was unfair.
The judgment also focused on the employer’s issuing of an ultimatum to the employees. What is required, the Court held, is for the employees to be advised in writing that they are engaged in an unprotected strike. The union should be given an appropriate opportunity under the circumstances to address their members and to try and persuade the employees to return to work. The union must also be allowed to address management on the reasons why their members should not be dismissed. In this case it was clear that the dismissals could have been avoided if the union had been given more time. The employer was entitled to take a firm approach in respect of unprotected strike action, but even so, the employer was not entitled to breach the provisions of the recognition agreement and to take a “mechanistic” and “truncated” approach to the ultimatum issued. This ultimatum, the Court found, significantly contributed to the risk of dismissal rather than a resolution of the matter. The dismissal of the strikers was found to be substantively and procedurally unfair and the Court ordered the reinstatement of the dismissed strikers.
The case of NUMSA & others v Atlantis Forge (Pty) Ltd (2005) 14 LC 9.3.2, a long and complicated case, is of some importance because it deals not only with the fairness of the dismissal of the strikers, but also whether the actions of the employees constituted a strike in the first place. Also arising in this case was the issue of prior warnings and whether these should be taken into account in taking disciplinary action against individual employees.
One question was whether the employees’ leaving their workstations to attend a meeting constituted a strike as defined in section 213 of the Labour Relations Act. The union argued that it was a lawful gathering of the workforce and that it had been duly authorised by management. The Labour Court analyses the evidence in some detail — this is one of the longest decisions to emerge from the Labour Court for some time now. The Labour Court came to the conclusion that the purpose of the work stoppage was to put pressure on management to pay a bonus on a certain date and that this constituted an unprotected strike.
The Labour Court also again emphasises that an employer must act consistently and here it considers, again in some detail, the positions of some of the individual employees, some of whom had prior warnings on file. The disciplinary code provided that warnings expire after six months and that they are then removed from the employee’s file. In this light the Court concluded that the warnings given to some of the employees had lapsed after six months and they ought to have been removed from their files and destroyed. This would have meant that these individual employees would be treated as having a clean disciplinary record when they were next found guilty of misconduct. By differentiating between the strikers in respect of prior warnings, the employer made itself guilty of contemporaneous inconsistency in its disciplinary action — there was no rational or justifiable basis for the differential treatment of the employees. For this reason, the dismissal of a group of the employees was found to be substantively unfair.
But there is more (actually, much more): one employee was dismissed because of the role he played, his failure to obey specific instructions and this not living up to the standards expected of him as a shop steward. The Labour Court concluded, on this point, that his dismissal did not fall beyond the bounds of reasonableness and that it was substantively fair. The fact that he saw himself acting as a shop steward in the situation does not mitigate his conduct — he had no licence to resort to defiance and needless confrontation. He should have used his good sense and follow the instructions and should not have exposed his co-workers to unnecessary risks.
One cannot help but feel some considerable sympathy for the Labour Court in this case: it was certainly not an easy one and the way the parties conducted themselves did nothing to make it easier:
“The conduct of litigation in this matter did not proceed smoothly. The union ranged far and wide, putting almost every pertinent fact in issue, often unnecessarily so. Much time was wasted on irrelevancies, and the matter was on more than one occasion delayed by a lack of preparation. As for the applicants who gave evidence, they were altogether an unimpressive lot. They evaded, obstructed, contradicted themselves, equivocated and sporadically told lies in service of an extremely implausible version. Their case was poorly conceived, badly constructed and exposed at times to be plainly untrue. The finding of substantive unfairness in their favour does nothing to vindicate their behaviour. The finding flows mainly as a consequence of a tactical error on the part of the company to effect selective discipline and the necessity for this Court to enforce legal policy in accordance with the prevailing norms of collective bargaining. It certainly should not serve as any indication that this Court approves of the manner in which the applicants have conducted themselves in their industrial relations or before this Court.” (at [166])
Obtaining an interdict
The employer’s most powerful weapon in the context of an unprotected strike is obtaining an interdict in the Labour Court. This effectively stops a strike dead in its tracks, and for this reason employers and their lawyers carefully analyse strike situations in order to ascertain whether the strike is protected or not — the employer cannot obtain an interdict in respect of a protected strike. But the facts of County Fair Foods (a division of Astral Operations Ltd) v Hotel Liquor Catering Commercial & Allied Workers Union & others (2005) 14 LC 9.5.4 present an interesting spin when it comes to obtaining an interdict.
The employer had concluded a recognition agreement with the union, but shortly thereafter it appeared that the union was no longer representing the majority of employees. The employer notified the union of this fact and that it was suspending the recognition agreement (and pending substantive negotiations) until the union had succeeded in recruiting enough members to make it a majority union again. The union referred a dispute to the CCMA for conciliation, stating that the dispute related to the failure of the parties to reach agreement on wages (the union was demanding a 10% across-the-board increase). Conciliation duly followed, failed, and the certificate of outcome indicated that the dispute, a matter of mutual interest, remained unresolved. Eventually, the union notified the employer that it was embarking on strike action. The employer obtained a temporary interdict — one of the grounds being that the strike was unprotected: it related to a refusal to bargain dispute and therefore an advisory arbitration award was required (section 65(2) of the LRA).
One of the issues the Labour Court had to decide was whether the strike was about the suspension and termination of the recognition agreement or whether it related to the wage increase. If it related to the recognition agreement, the dispute would fall within the scope of a refusal to bargain dispute and the strike would only be protected if an advisory arbitration award had been obtained. The Labour Court found that the employer’s refusal to deal with the wage demand was not because it rejected the demand, but because it had withdrawn recognition. There was no deadlock over proposals and counter-proposals regarding wages; instead, the deadlock arose because the employer refused to bargain with the union. Because there was no advisory arbitration, the Court held, the employer was entitled to the interdict.
But at this point that there is a twist to the tale: section 68(3) of the LRA provides that if the union gives the employer notice of the strike at least 10 days before the strike starts, the employer, when applying for an interdict, must give the union at least 5 days notice of an application for the interdict. While the union had, on the facts, given the employer 10 days’ notice, the employer had failed to give the union the required 5 days’ notice of its application for an interdict. The Labour Court therefore declined to make the temporary interdict a permanent one.
Delictual claims
Mondi Ltd-Mondi Kraft Division v CEPPWAWU & others (2005) 14 LC 9.5.1 is of considerable interest because it relates, in essence, to a claim for delictual damages against a trade union: the employer claimed an about of over R600 000 which it allegedly suffered as a result of the unlawful switching off of its machinery on two days in July 2001. The amount claimed is for loss of production. The employer argued that the union members were acting in furtherance of the strike when they turned off the machine, that they acted on behalf of the union and its members and with the support and encouragement of the union’s office bearers (the shop stewards’ council). Therefore, the argument went, the union was vicariously liable for the loss of production.
This case raised the question of whether the Labour Court has the power to order a union to pay delictual damages in the context of a protected strike. After analysing numerous decisions and the provisions of the Labour Relations Act, the Labour Court came to the conclusion that it did indeed have the power to entertain delictual claims arising out of labour disputes:
“I am of the view that if the Legislature had deemed it necessary to oust the jurisdiction of the Labour Court in delictual claims in a protected strike it would have done so in clear terms. If a broad and purposive view is taken of the Act and the jurisdiction conferred on this Court then it is apparent that this Court has jurisdiction over all strikes and lock-outs and conduct in contemplation or in furtherance of a protected strike or lock-out which constitute both a criminal offence and a delict.” (at [27]).
On the facts and the evidence presented, however, the employer failed to discharge the onus to prove that the union was liable to pay compensation for any damages it suffered as a result of the shut down of the machinery.
Interesting developments
Looking back over the years, it seems that most of the important strike decisions came from the Labour Appeal Court and the Labour Court in the period 1996-2000. Many aspects of our law on strikes now appear to be settled. But as this overview of cases shows, there are always some more issues and factual situations that need to be analysed and decided upon.
The essence of a disciplinary hearing
Here on IR Network we’ve usually concentrated on issues relating to substantive fairness in the context of a misconduct dismissal. Some time ago, a speaker at a seminar made the statement that procedural fairness is no longer an issue — for employers, at least. He could not have been more wrong, of course. Even a cursory glance at the CCMA and bargaining council arbitration awards is sufficient to know that, from employees’ perspectives at least, procedural issues are often top of the list.
Much has been made about “proceduralism” (and it will no doubt be debated in the future as well). The main issue here is that the pre-dismissal procedures an employer is expected to comply with have become too formal; they resemble formal court proceedings (sometimes complete with exchanges of documents and pre-trial meetings), legal representatives are often involved, and issues of evidence are hotly contested. Lots of fun for everyone, of course, except for the chairperson of the hearing. One commentator has pointed out that considerable levels of skill and considerable knowledge and experience (even legal knowledge and experience) have now become necessary to chair a disciplinary hearing. Perhaps this is why more and more employers use specialists to chair their hearings (mind you, there are a number of so-called specialists out there that really should … but that is another story).
A welcome breath of fresh air (blowing in the opposite direction) is the decision of the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4 — a decision we looked at in a weekly comment in September 2006. The reason why its perhaps necessary to look at this decision again is because of the enthusiasm (and even unbounded joy) with which this decision has been welcomed.
As regards the approach taken by the Labour Relations Act of 1995 in respect of procedural fairness, the Labour Court said the following:
•
The new rules (introduced in 1995) of procedural fairness do not replicate the criminal justice model.
•
There is a recognition that managers are not experienced judicial officers.
•
Workplace efficiencies should not be unduly impeded by onerous procedural requirements.
•
If we keep the “criminal justice” model of disciplinary proceedings, we would be duplicating essentially the same process (an initial hearing followed by an arbitration) — with no tangible benefit to either the employer or the employee.
•
The essence of the disciplinary hearing is a dialogue between the employer and the employee and an opportunity for reflection before any decision is taken to dismiss the employee.
These are the essential principles of procedural fairness as set out by the Labour Court in this judgment:
“In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement (see item 4(1) and (3)).”
These remarks should not be seen in isolation — the Labour Court clearly appreciated the connection between the employer’s disciplinary hearing and the subsequent arbitration:
•
For employees, true justice lies in expeditious and independent reviews of the employer’s decision to dismiss (with reinstatement the primary remedy).
•
Arbitration was intended to promote rational decision-making by employers in respect of workplace discipline.
•
The introduction of compulsory arbitration in 1995 was a recognition of the fact that the elaborate procedural requirements developed (largely by the Industrial Court) were in fact inefficient and inappropriate.
As mentioned before, this case makes for interesting reading and there can be no doubt that it signals at least some sense that our blind faith in proceduralism has now perhaps gone a bit too far. But is this decision, on its own, sufficient to stem the tide and to strip away ten years of interpretation, habit, practice and perceptions? Just how realistic is the hope that we can change how we see procedural fairness?
Something to watch out for
This year’s edition of the Tokiso Review will be released within the next week or so. It contains some important analyses on the state of the South African dispute resolution system and draws some interesting conclusions. And the issue of “proceduralism” (is this really the best term we can come up with?) is also addressed in the report.
Much has been made about “proceduralism” (and it will no doubt be debated in the future as well). The main issue here is that the pre-dismissal procedures an employer is expected to comply with have become too formal; they resemble formal court proceedings (sometimes complete with exchanges of documents and pre-trial meetings), legal representatives are often involved, and issues of evidence are hotly contested. Lots of fun for everyone, of course, except for the chairperson of the hearing. One commentator has pointed out that considerable levels of skill and considerable knowledge and experience (even legal knowledge and experience) have now become necessary to chair a disciplinary hearing. Perhaps this is why more and more employers use specialists to chair their hearings (mind you, there are a number of so-called specialists out there that really should … but that is another story).
A welcome breath of fresh air (blowing in the opposite direction) is the decision of the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4 — a decision we looked at in a weekly comment in September 2006. The reason why its perhaps necessary to look at this decision again is because of the enthusiasm (and even unbounded joy) with which this decision has been welcomed.
As regards the approach taken by the Labour Relations Act of 1995 in respect of procedural fairness, the Labour Court said the following:
•
The new rules (introduced in 1995) of procedural fairness do not replicate the criminal justice model.
•
There is a recognition that managers are not experienced judicial officers.
•
Workplace efficiencies should not be unduly impeded by onerous procedural requirements.
•
If we keep the “criminal justice” model of disciplinary proceedings, we would be duplicating essentially the same process (an initial hearing followed by an arbitration) — with no tangible benefit to either the employer or the employee.
•
The essence of the disciplinary hearing is a dialogue between the employer and the employee and an opportunity for reflection before any decision is taken to dismiss the employee.
These are the essential principles of procedural fairness as set out by the Labour Court in this judgment:
“In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement (see item 4(1) and (3)).”
These remarks should not be seen in isolation — the Labour Court clearly appreciated the connection between the employer’s disciplinary hearing and the subsequent arbitration:
•
For employees, true justice lies in expeditious and independent reviews of the employer’s decision to dismiss (with reinstatement the primary remedy).
•
Arbitration was intended to promote rational decision-making by employers in respect of workplace discipline.
•
The introduction of compulsory arbitration in 1995 was a recognition of the fact that the elaborate procedural requirements developed (largely by the Industrial Court) were in fact inefficient and inappropriate.
As mentioned before, this case makes for interesting reading and there can be no doubt that it signals at least some sense that our blind faith in proceduralism has now perhaps gone a bit too far. But is this decision, on its own, sufficient to stem the tide and to strip away ten years of interpretation, habit, practice and perceptions? Just how realistic is the hope that we can change how we see procedural fairness?
Something to watch out for
This year’s edition of the Tokiso Review will be released within the next week or so. It contains some important analyses on the state of the South African dispute resolution system and draws some interesting conclusions. And the issue of “proceduralism” (is this really the best term we can come up with?) is also addressed in the report.
Wednesday, April 14, 2010
Medical certificates and what they’re worth
How much is a medical certificate worth? Does it provide sufficient proof that an employee was, for a given period of time, unable to work because of illness? There have been many news stories about this: an employee approaches a medical practitioner, requests a medical certificate and, after a cursory examination (if at all) the medical practitioner allegedly issues a medical certificate or sick note, sometimes perhaps knowing full well that what is reflected on the medical certificate bears no resemblance to the truth whatsoever. Naturally, employers have become sceptical about medical certificates, suspecting that these could be obtained fraudulently with the intention to deceive.
What the BCEA says
Section 23 of the Basic Conditions of Employment Act (the BCEA) relates to the employee’s presenting proof of incapacity. In essence, it is up to the employee to prove his or her incapacity if he or she has been absent from work for more than two consecutive days (or more than two occasions during an eight-week period). Unless the employee provides a medical certificate as proof of incapacity upon request by the employer, the employer is not obliged to grant the employee paid sick leave — the implication being that the leave would, in the absence of a medical certificate, be regarded as unpaid leave.
The medical certificate must state that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury. The medical certificate must, in other words, confirm that the employee was, for the specific period, incapable of working due to illness or injury. This entails that there must be some indication as to the nature of the illness or injury — in most cases, a single word or a phrase hastily scribbled onto a pre-printed form by the medical practitioner.
Not just anyone can issue and sign a medical certificate — section 23(2) provides that the certificate must be signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. The implication of this section is that it is not only medical doctors who can issue and sign a medical certificate: any person who is certified to diagnose and treat and who is registered with a professional council can do so.
In respect of non-medical practitioners, the Traditional Health Practitioners Act 35 of 2004 is relevant. This Act establishes an interim Traditional Health Practitioners Council and section 21(1) of the Act provides that no person may practise as a traditional health practitioner unless he or she is registered in terms of the Act. Applications for registration to practice must apply to the registrar appointed in terms of Chapter 3 of the Traditional Health Practitioners Act. Once a traditional health practitioner is registered according to this Act, he or she can issue and sign medical certificates for the purposes of employment and in terms of section 23 of the BCEA.
Finally, section 23(3) of the BCEA relates to the situation where the employee lives on the employer’s premises. In this case, the employer may not withhold paying for sick leave unless the employer provides the employee with reasonable assistance to obtain a medical certificate.
The medical certificate as evidence
Employers often ask the question: just what is a medical certificate worth? Is it even worth the paper it’s written on? Given the media exposure of unscrupulous medical practitioners who issue medical certificates upon request without any physical examination, this may be a real concern, especially if the employer notices a pattern of medical certificates issued by certain practitioners.
In the first decision to consider, even in passing, the evidentiary value of a medical certificate, the Labour Appeal Court has broken new ground. In Mgobhozi v Naidoo NO & Others (2006) 15 LAC 1.18.1 . the employee (a junior clerk) was dismissed for various acts of dishonesty. His internal appeal was unsuccessful and he referred the matter to the CCMA. Some 31 weeks late, he sought to have the CCMA arbitration award set aside. This meant that he was required to apply for condonation.
In support of his condonation application, the employee presented his medical evidence. He approached a doctor who issued a medical certificate stating that the employee was being treated for, amongst others, depression, headaches, anxiety, and stress. The medical certificate also stated that he was treated with a potent cocktail of drugs for a period of 7 months. The medical certificate also stated, in conclusion, that the employee had become suicidal as a result of his symptoms. Another medical certificate, this time from a specialist psychiatrist, was also presented — the psychiatrist advised the employee to continue taking the medication, substituting some of the drugs and that monthly reviews of his conditions should be continued.
It is important to bear in mind, in relation to this case, that the medical certificates were being presented by the employee to indicate why he did not file his review application on time. Because of his illness, his argument went, and as supported by the medical reports, he was not in a position to bring the review application in time. In essence, the employee’s argument was that the review application was late because he was ill.
The Labour Court rejected this argument. One of the reasons for this was that neither doctor had expressed any opinion on the employee’s ability to manage his affairs. There was no way the Labour Court or the employee’s legal representative could draw the conclusion that the employee was, for the given time period, incapable of launching the review application. Nor could the employee say when and how he now again became competent to launch the review application. The Labour Court also rejected the employee’s case on the basis that it had no prospects of success on the merits.
Getting technical
Section 151 of the Labour Relations Act refers to the Labour Court as a court of law and equity. What does it mean that the Court has an “equitable” jurisdiction? Does it mean that different rules apply — for instance, that the rules relating to the admissibility of evidence are different in the Labour Court? Can the Labour Court be less strict in respect of evidence by permitting, for example, hearsay evidence?
This point is the main focus of the decision of the Labour Appeal Court in this case. The Labour Appeal Court’s basic point of departure was that the Labour Court is still a Court and it quoted, with approval, the following passages from 3M SA (Pty) Ltd v SACCAWU & others (2001) 10 LAC 1.1.2. .
“. In fact the description of the Labour Court and this Court [the Labour Appeal Court] as courts of equity does not add anything to the jurisdiction of these two courts. These two courts are superior Courts of law. The only fairness that they apply in dealing with matters which come before them is such fairness as they are specifically required to apply in specific sections of the Act in respect of specific types of disputes as well as such fairness as every Court of law is required to observe in terms of the rules of natural justice.
In fact the reference in the Act to the Labour Court and this Court as courts of equity (in addition to being courts of law) should be repealed because, while it adds nothing, it may cause unwarranted confusion.”
Having regard to section 151(2) . of the Labour Relations Act — which provides that the Labour Court has authority, inherent powers and standing equal to the High Court, the Labour Appeal Court concluded that the rules relating to the admissibility of evidence applies in the Labour Court (and in the Labour Appeal Court as well).
The two medical certificates submitted were not presented in affidavit form and they therefore constituted hearsay evidence: the authors of the documents were not present to confirm the contents of the documents and there could be no cross-examination of the documents. The question was whether the two medical certificates was admissible in the Labour Court in terms of the Law of Evidence Amendment Act 45 of 1988.
To cut the story short: the Labour Appeal Court confirmed that in order to convince the Labour Court that he was mentally or physically incapable of bringing the review proceedings, the evidence of the medical practitioners was necessary.
Where were the doctors?
The Law of Evidence Amendment Act requires a court to consider why the medical evidence was not provided in affidavit form. In the present case, the Court found that no reasons had been gives as to why affidavits made by the medical practitioners were not provided. It was, the Court remarked, not suggested that the doctors had passed away, that they had emigrated or that they were unavailable for some other reason.
Also worth noting is the fact that the Labour Appeal Court drew a negative inference from the fact that the medical practitioners concerned did not given evidence (affidavit or oral evidence):
“The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are – it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.” (at [27])
Implications
This decision of the Labour Appeal Court may not have a direct and immediate impact on daily practice, and it does not serve as an immediate source of rules for employers seeking to challenge medical certificates. It does, however, give an indication that a medical certificate is not a holy document, and that it can (and should) be questioned. On its own, a medical certificate constitutes hearsay, and this may be pertinent for the purposes of arbitration proceedings or even internal disciplinary enquiries. The fact that there is no evidence supporting a medical certificate presented in arbitration proceedings may give rise to some questions or inferences (naturally, the strict rules relating to hearsay evidence, while they continue to apply in the Labour Court, do not apply with full force in the CCMA).
The employer is always in a position to question a medical certificate if it reasonably believes that there is reason to doubt the veracity of the medical certificate. Medical practitioners should be asked difficult and detailed questions as to the examination they did, the nature of the symptoms they identified and, if necessary, the prognosis. And it will always be interesting to see whether a medical practitioner is prepared to go on oath, either in person or on affidavit, in support of a medical certificate that may have been issued in haste.
What the BCEA says
Section 23 of the Basic Conditions of Employment Act (the BCEA) relates to the employee’s presenting proof of incapacity. In essence, it is up to the employee to prove his or her incapacity if he or she has been absent from work for more than two consecutive days (or more than two occasions during an eight-week period). Unless the employee provides a medical certificate as proof of incapacity upon request by the employer, the employer is not obliged to grant the employee paid sick leave — the implication being that the leave would, in the absence of a medical certificate, be regarded as unpaid leave.
The medical certificate must state that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury. The medical certificate must, in other words, confirm that the employee was, for the specific period, incapable of working due to illness or injury. This entails that there must be some indication as to the nature of the illness or injury — in most cases, a single word or a phrase hastily scribbled onto a pre-printed form by the medical practitioner.
Not just anyone can issue and sign a medical certificate — section 23(2) provides that the certificate must be signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. The implication of this section is that it is not only medical doctors who can issue and sign a medical certificate: any person who is certified to diagnose and treat and who is registered with a professional council can do so.
In respect of non-medical practitioners, the Traditional Health Practitioners Act 35 of 2004 is relevant. This Act establishes an interim Traditional Health Practitioners Council and section 21(1) of the Act provides that no person may practise as a traditional health practitioner unless he or she is registered in terms of the Act. Applications for registration to practice must apply to the registrar appointed in terms of Chapter 3 of the Traditional Health Practitioners Act. Once a traditional health practitioner is registered according to this Act, he or she can issue and sign medical certificates for the purposes of employment and in terms of section 23 of the BCEA.
Finally, section 23(3) of the BCEA relates to the situation where the employee lives on the employer’s premises. In this case, the employer may not withhold paying for sick leave unless the employer provides the employee with reasonable assistance to obtain a medical certificate.
The medical certificate as evidence
Employers often ask the question: just what is a medical certificate worth? Is it even worth the paper it’s written on? Given the media exposure of unscrupulous medical practitioners who issue medical certificates upon request without any physical examination, this may be a real concern, especially if the employer notices a pattern of medical certificates issued by certain practitioners.
In the first decision to consider, even in passing, the evidentiary value of a medical certificate, the Labour Appeal Court has broken new ground. In Mgobhozi v Naidoo NO & Others (2006) 15 LAC 1.18.1 . the employee (a junior clerk) was dismissed for various acts of dishonesty. His internal appeal was unsuccessful and he referred the matter to the CCMA. Some 31 weeks late, he sought to have the CCMA arbitration award set aside. This meant that he was required to apply for condonation.
In support of his condonation application, the employee presented his medical evidence. He approached a doctor who issued a medical certificate stating that the employee was being treated for, amongst others, depression, headaches, anxiety, and stress. The medical certificate also stated that he was treated with a potent cocktail of drugs for a period of 7 months. The medical certificate also stated, in conclusion, that the employee had become suicidal as a result of his symptoms. Another medical certificate, this time from a specialist psychiatrist, was also presented — the psychiatrist advised the employee to continue taking the medication, substituting some of the drugs and that monthly reviews of his conditions should be continued.
It is important to bear in mind, in relation to this case, that the medical certificates were being presented by the employee to indicate why he did not file his review application on time. Because of his illness, his argument went, and as supported by the medical reports, he was not in a position to bring the review application in time. In essence, the employee’s argument was that the review application was late because he was ill.
The Labour Court rejected this argument. One of the reasons for this was that neither doctor had expressed any opinion on the employee’s ability to manage his affairs. There was no way the Labour Court or the employee’s legal representative could draw the conclusion that the employee was, for the given time period, incapable of launching the review application. Nor could the employee say when and how he now again became competent to launch the review application. The Labour Court also rejected the employee’s case on the basis that it had no prospects of success on the merits.
Getting technical
Section 151 of the Labour Relations Act refers to the Labour Court as a court of law and equity. What does it mean that the Court has an “equitable” jurisdiction? Does it mean that different rules apply — for instance, that the rules relating to the admissibility of evidence are different in the Labour Court? Can the Labour Court be less strict in respect of evidence by permitting, for example, hearsay evidence?
This point is the main focus of the decision of the Labour Appeal Court in this case. The Labour Appeal Court’s basic point of departure was that the Labour Court is still a Court and it quoted, with approval, the following passages from 3M SA (Pty) Ltd v SACCAWU & others (2001) 10 LAC 1.1.2. .
“. In fact the description of the Labour Court and this Court [the Labour Appeal Court] as courts of equity does not add anything to the jurisdiction of these two courts. These two courts are superior Courts of law. The only fairness that they apply in dealing with matters which come before them is such fairness as they are specifically required to apply in specific sections of the Act in respect of specific types of disputes as well as such fairness as every Court of law is required to observe in terms of the rules of natural justice.
In fact the reference in the Act to the Labour Court and this Court as courts of equity (in addition to being courts of law) should be repealed because, while it adds nothing, it may cause unwarranted confusion.”
Having regard to section 151(2) . of the Labour Relations Act — which provides that the Labour Court has authority, inherent powers and standing equal to the High Court, the Labour Appeal Court concluded that the rules relating to the admissibility of evidence applies in the Labour Court (and in the Labour Appeal Court as well).
The two medical certificates submitted were not presented in affidavit form and they therefore constituted hearsay evidence: the authors of the documents were not present to confirm the contents of the documents and there could be no cross-examination of the documents. The question was whether the two medical certificates was admissible in the Labour Court in terms of the Law of Evidence Amendment Act 45 of 1988.
To cut the story short: the Labour Appeal Court confirmed that in order to convince the Labour Court that he was mentally or physically incapable of bringing the review proceedings, the evidence of the medical practitioners was necessary.
Where were the doctors?
The Law of Evidence Amendment Act requires a court to consider why the medical evidence was not provided in affidavit form. In the present case, the Court found that no reasons had been gives as to why affidavits made by the medical practitioners were not provided. It was, the Court remarked, not suggested that the doctors had passed away, that they had emigrated or that they were unavailable for some other reason.
Also worth noting is the fact that the Labour Appeal Court drew a negative inference from the fact that the medical practitioners concerned did not given evidence (affidavit or oral evidence):
“The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are – it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.” (at [27])
Implications
This decision of the Labour Appeal Court may not have a direct and immediate impact on daily practice, and it does not serve as an immediate source of rules for employers seeking to challenge medical certificates. It does, however, give an indication that a medical certificate is not a holy document, and that it can (and should) be questioned. On its own, a medical certificate constitutes hearsay, and this may be pertinent for the purposes of arbitration proceedings or even internal disciplinary enquiries. The fact that there is no evidence supporting a medical certificate presented in arbitration proceedings may give rise to some questions or inferences (naturally, the strict rules relating to hearsay evidence, while they continue to apply in the Labour Court, do not apply with full force in the CCMA).
The employer is always in a position to question a medical certificate if it reasonably believes that there is reason to doubt the veracity of the medical certificate. Medical practitioners should be asked difficult and detailed questions as to the examination they did, the nature of the symptoms they identified and, if necessary, the prognosis. And it will always be interesting to see whether a medical practitioner is prepared to go on oath, either in person or on affidavit, in support of a medical certificate that may have been issued in haste.
MEDICAL CERTIFICATES
(This document is not published nor sold by the South African Labour Guide. It is available free of charge from the Health Professions Council of South Africa.)
Medical certificates (or 'sick notes' to use the common term) are a source of aggravation to employers.
What constitutes a 'valid' medical certificate? That is the question.
The following excerpt from the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa provides a starting point: (don't worry too much about this mouthful – put differently, it means that the medical profession have introduced the following rules with respect to medical certificates)
Rule 15.(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
• the name, address and qualification of the practitioner;
• the name of the patient;
• the employment number of the patient (if applicable);
• the date and time of the examination;
• whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
• a description of the illness, disorder or malady in layman's terminology, with the informed consent of the patient:, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
• whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
• the exact period of recommended a sick leave;
• the date of issuing of the certificate of illness; and .
• clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters .
(2) If preprinted stationery is used, a practitioner shall delete words which are irrelevant.
(3) a practitioner shall issue a brief factual report to a patient where such a patient requires information concerning himself or herself.
The above is largely self explanatory. Rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes along to the Doctor and informs the Doctor that he had flu since Monday and requires a sick note. The Doctor will then normally write in the sick note that "I was informed that the patient etc."
You do not have to accept this as genuine illness. The Doctor is only telling you that the patient says he was ill. The Doctor is not certifying that he made an examination and is able to confirm the illness.
You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the Doctor when he falls ill and not after he has recovered from the alleged illness.
Rule (f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.
If you have extremely good reason, for example if this employee is regularly off sick, then perhaps you could assist the employee in typing a letter for the Doctor authorising him to disclose to you the nature of the illness. Alternatively you could request the employee to go to the Doctor and obtain the information in terms of rule (3).
Note that in terms of rule (j) the medical practitioner is required to print his name and initials on the medical certificate in addition to his usual signature.
Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.
An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable.
A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.
This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases you must insist that the rule (j) be complied with, otherwise you must treat the period of illness as unpaid leave.
Medical certificates (or 'sick notes' to use the common term) are a source of aggravation to employers.
What constitutes a 'valid' medical certificate? That is the question.
The following excerpt from the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa provides a starting point: (don't worry too much about this mouthful – put differently, it means that the medical profession have introduced the following rules with respect to medical certificates)
Rule 15.(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
• the name, address and qualification of the practitioner;
• the name of the patient;
• the employment number of the patient (if applicable);
• the date and time of the examination;
• whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
• a description of the illness, disorder or malady in layman's terminology, with the informed consent of the patient:, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
• whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
• the exact period of recommended a sick leave;
• the date of issuing of the certificate of illness; and .
• clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters .
(2) If preprinted stationery is used, a practitioner shall delete words which are irrelevant.
(3) a practitioner shall issue a brief factual report to a patient where such a patient requires information concerning himself or herself.
The above is largely self explanatory. Rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes along to the Doctor and informs the Doctor that he had flu since Monday and requires a sick note. The Doctor will then normally write in the sick note that "I was informed that the patient etc."
You do not have to accept this as genuine illness. The Doctor is only telling you that the patient says he was ill. The Doctor is not certifying that he made an examination and is able to confirm the illness.
You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the Doctor when he falls ill and not after he has recovered from the alleged illness.
Rule (f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.
If you have extremely good reason, for example if this employee is regularly off sick, then perhaps you could assist the employee in typing a letter for the Doctor authorising him to disclose to you the nature of the illness. Alternatively you could request the employee to go to the Doctor and obtain the information in terms of rule (3).
Note that in terms of rule (j) the medical practitioner is required to print his name and initials on the medical certificate in addition to his usual signature.
Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.
An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable.
A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.
This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases you must insist that the rule (j) be complied with, otherwise you must treat the period of illness as unpaid leave.
Local government transfers
All employees enjoy the protection of the Labour Relations Act of 1995 — irrespective of who they work for. Before 1995, a number of labour laws covered different categories of employees. No more — irrespective of who the employer is, an employee (as defined in the LRA) is an employee and therefore protected against, for instance, unfair dismissal. But while the rules set out in terms of the LRA apply to everyone, some exceptional provisions may apply in some sectors — local government, for instance. There are a number of specific pieces of legislation that apply in the context of local government; for the purposes of this comment, the focus is on the Local Government: Municipal Structures Act 117 of 1998.
Just as employees may be transferred from one employer to another if the business is sold, employees of a municipality may be transferred from one municipality (the old employer) to a new municipal employer: this often happened in the context of municipal re-organisation or the consolidation of smaller municipalities into larger ones. And it is when employees are transferred from one municipality to another that some interesting issues arise. There are special rules in this regard: sections 12 and 14 of the Municipal Structures Act empower the MEC for local government in a province to establish a municipality by notice. If a new municipality is established in the place of the old municipality, the section 12 notice, as it is commonly called, will regulate the transfer of employees from one municipality to the next. While a section 12 notice gives the MEC a relatively wide power, there are some limitations: an employee may not be transferred on less favourable conditions of service and the transfer must be in accordance with the LRA.
But what happens if an employee refuses to be transferred, or requests a severance package in stead of being transferred? This is one of the issues raised in Pretorius v Rustenburg Local Municipality & others (2005) 14 LC 5.4.1. This case is unusual: the relief the employee asked the Court for was to be retrenched and to receive a severance package. The MEC’s section 12 notice contained a clause that stated that no employee acquires a right to retire or to a severance or retrenchment package as a result of the transfer: in other words, the transfer from the (disestablished) municipalities to the new did not confer on the employees the right to demand severance pay. The employee in question had refused an offer of alternative employment — indeed, his skills were needed by the new municipality (he also sought an order of Court declaring that his post had become redundant).
The employee found himself in a virtual no-man’s land of employment: he was in a “corporate pool” of employees( this term is usually applied to employees who have not yet been finally allocated to a post in the new municipal organisation). His old post had been abolished and these functions incorporated into a new post — a post the employee did not occupy. Instead, swimming around disconsolately in this “corporate pool” the employee merely did what the municipal manager told him to.
The Labour Court came to the conclusion, on the facts, that the employee had never accepted the position in question, but that he did indeed report for work: the employer should have dealt with his position a lot sooner. The Labour Court also expressed some concern at the fact that an employee’s getting out of the pool depended on a job evaluation to be done by a job evaluation committee — but there was no committee to be found.
On the facts of the case, the provisions of the section 12 notice superseded the other applicable agreements, and the employee was therefore not entitled to a Court order retrenching him.
Frankly, this is the first decision we’ve ever seen in which an employee head for the Labour Court for an order retrenching him.
Just as employees may be transferred from one employer to another if the business is sold, employees of a municipality may be transferred from one municipality (the old employer) to a new municipal employer: this often happened in the context of municipal re-organisation or the consolidation of smaller municipalities into larger ones. And it is when employees are transferred from one municipality to another that some interesting issues arise. There are special rules in this regard: sections 12 and 14 of the Municipal Structures Act empower the MEC for local government in a province to establish a municipality by notice. If a new municipality is established in the place of the old municipality, the section 12 notice, as it is commonly called, will regulate the transfer of employees from one municipality to the next. While a section 12 notice gives the MEC a relatively wide power, there are some limitations: an employee may not be transferred on less favourable conditions of service and the transfer must be in accordance with the LRA.
But what happens if an employee refuses to be transferred, or requests a severance package in stead of being transferred? This is one of the issues raised in Pretorius v Rustenburg Local Municipality & others (2005) 14 LC 5.4.1. This case is unusual: the relief the employee asked the Court for was to be retrenched and to receive a severance package. The MEC’s section 12 notice contained a clause that stated that no employee acquires a right to retire or to a severance or retrenchment package as a result of the transfer: in other words, the transfer from the (disestablished) municipalities to the new did not confer on the employees the right to demand severance pay. The employee in question had refused an offer of alternative employment — indeed, his skills were needed by the new municipality (he also sought an order of Court declaring that his post had become redundant).
The employee found himself in a virtual no-man’s land of employment: he was in a “corporate pool” of employees( this term is usually applied to employees who have not yet been finally allocated to a post in the new municipal organisation). His old post had been abolished and these functions incorporated into a new post — a post the employee did not occupy. Instead, swimming around disconsolately in this “corporate pool” the employee merely did what the municipal manager told him to.
The Labour Court came to the conclusion, on the facts, that the employee had never accepted the position in question, but that he did indeed report for work: the employer should have dealt with his position a lot sooner. The Labour Court also expressed some concern at the fact that an employee’s getting out of the pool depended on a job evaluation to be done by a job evaluation committee — but there was no committee to be found.
On the facts of the case, the provisions of the section 12 notice superseded the other applicable agreements, and the employee was therefore not entitled to a Court order retrenching him.
Frankly, this is the first decision we’ve ever seen in which an employee head for the Labour Court for an order retrenching him.
Just administrative action and employment rights
When it comes to fundamental rights in the context of labour law and employment relations, we first think of the provisions of section 23 of the Constitution of 1996 — protecting the right to fair labour practices, the right to engage in collective bargaining, the right to organise and the right to strike. When it comes to discrimination in the workplace (and the Employment Equity Act) we immediately think of section 9 of the Constitution; that no person may unfairly discriminate against anyone.
But a recent series of cases relate to the right to just administrative action. Section 33 of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable, and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for that action. This right is taken further by the Promotion of Administrative Justice Act 3 of 2000 (abbreviated as PAJA).
The definition of administrative action
Section 1 of PAJA defines administrative action as any decision taken (or any failure to take a decision) by an organ of state which adversely affects the rights of any person and which has a direct, external legal effect. The decision (or failure to decide) must be taken in terms of either the Constitution, a provincial constitution or any legislation. A natural or juristic person (other than an organ of state) will also be covered by PAJA if that person (including a company or CC or an individual) exercises a public power or performs a public function in terms of any empowering provision in legislation.
Western Cape Workers Association v Minister of Labour (2005) 14 LC 15.3.2 illustrates some of these points. The trade union had failed to comply with a number of requirements in terms of the Labour Relations Act (the LRA). The Registrar of Labour Relations (appointed in terms of the LRA and whose functions are set out in the LRA) cancelled the union’s registration. One of the arguments raised by the union was that it had a right of appeal against the Registrar’s decision also in terms of PAJA (in addition to the appeal in terms of the LRA itself). The Labour Court did not agree, stating that PAJA does not apply to labour disputes. Taking into account section 210 of the LRA (which states that the LRA takes precedence over any conflicting legislation except the Constitution), the Labour Court held that the LRA prevails.
Unfair labour practice or unfair administrative action?
There is a clear trend now for employees and unions to argue, in either the High Court or the Labour Court, that a matter relating to the employment relationship also falls within the scope of PAJA and that they have additional remedies in terms of PAJA. Of course, this also has a jurisdictional impact — the Labour Court can only hear matters arising out of the LRA, while other courts (such as the High Court) can and will hear cases relating to infringements of other fundamental rights such as the right to fair administrative action. The question may also arise as to whether a particular dispute falls within the scope of an unfair labour practice (as defined in the LRA) or whether the violation of the right to fair administrative action is at stake (in this case the High Court would have jurisdiction).
These are some of the issues canvassed in the Supreme Court of Appeal in United National Public Servants Association of SA v Digomo NO & others (2005) 14 SCA 1.1.2. The dispute was about the integration of public service employees who had been employed in Gazankulu into the Northern Province Department of Health. A task team set up to deal with the matter appointed a number of employees on the basis of seniority. The task team stated that it was simply not possible to conduct merit assessments and to appoint employees on the basis of merit. The High Court held that the dispute was about an unfair labour practice and that it did not have jurisdiction. The Supreme Court of Appeal disagreed, coming to the conclusion that the union’s case was based on unfair or unjust administrative action: the union was, in effect, seeking to enforce the right of its members to administrative action that was reasonable, fair and procedurally valid. This meant that the High Court did have jurisdiction and it referred the matter back to the High Court for a final decision.
Additional employee remedies?
The pivotal question is whether the right to fair administrative action and PAJA provides employees with remedies in addition to those found in the LRA. Before the LRA of 1995, the administrative law remedies were of considerable importance in the public sector, as public sector employees were not covered by labour legislation. Now that these employees also enjoy the protection of the LRA, the question remains whether public sector employees have two sets of remedies: one in terms of the LRA (protection against unfair dismissal and unfair labour practices) and another in terms of PAJA.
The question also relates, fundamentally, to the distinction between administrative law and labour law. Traditionally, administrative law relates to the relationship between the state and its various organs and citizens — it focuses on decisions taken by public officials that affect the rights of individuals, groups and organisations.
In PSA obo Haschke v MEC for Agriculture & others (2004) 13 LC 1.16.3 the Labour Court held that PAJA was not applicable to CCMA arbitration awards. In passing, however, the Labour Court made the following important statements:
“Labour law is not administrative law. They may share many common characteristics. However, administrative law falls exclusively in the category of public law, whereas labour law has elements of administrative law, procedural law, private law and commercial law. Historically, recourse has been had to administrative law to advance labour rights where labour laws were inadequate.” (at [11])
One of the most important recent decisions as regards administrative action and employment rights is SA Police Union & another v National Commissioner of the SA Police Service & another (in next case update). The police commissioner wanted to introduce an eight hour shift for members of the SA Police who were on duty. No labour consultation or bargaining had taken place and the unions sought an interdict to prevent the introduction of these new working hours. One of the union’s arguments was that the police commissioner’s decision constituted unfair, unreasonable or unjust administrative action.
The first question the Labour Court had to answer was whether the police commissioner’s decision constituted administrative action. It was clear that the Sa Police Service constituted an organ of state for the purposes of PAJA and that the commissioner’s powers to change working hours had its origin in the relevant legislation. But there was nothing public about the police commissioner’s changing the working hours — the matter fell squarely within the ambit of the employment relationship. The changing of the working hours had nothing to do with the relationship between the state and its citizens (the essence of administrative law).
The Labour Court also highlighted the difference between private law (for instance, the contractual relationship between an employee and an employer) and public law (the law regulating the relationship between the state and citizens). There is a real sense that administrative action and administrative law does not apply to private relationships between employers and employees: if every employment relationship (or any dispute arising from this employment relationship) in the public sector were subject to administrative law requirements, it would impose considerable burdens on the state and public sector employers.
Importantly, the Labour Court affirmed the principle that merely because a power (such as the commissioner’s power to change working hours) had its origin in legislation, this did not necessarily mean that the exercise of the power constituted an administrative act for the purposes of the Constitutional right to just administrative action or PAJA. The source of the power (legislation) is just one factor to be taken into account — other pertinent factors include the nature of the power being exercised and the subject matter in respect of which it is being exercised. From a practical perspective, this means that the taking of disciplinary steps against an employee, operational changes or the transfer of employees from one position to another does not constitute administrative action — it constitutes actions deriving from the private relationship between an employer and an employee. This means also that if an employee is appointed in terms of legislation (such as the Public Service Act of 1994 or any other legislation), the relationship remains one of employment: the employer’s decision to discipline and dismiss does not change from employment to administrative in nature.
Another important principle the Labour Court considered was that of consistency. From a policy perspective, the Court held, it was against public policy that public sector employees should have additional remedies and additional labour dispute resolution procedures at their disposal. All labour disputes should be treated in the same way, irrespective of whether the dispute arose between a private employer and employee or a public sector employer and an employee. Now that the LRA applies to public sector employees as well, disputes should be resolved by means of the procedures set out in the LRA: unfair labour practices, unfair dismissal and collective bargaining. These disputes should not be resolved by reference to administrative action.
This decision by the Labour Court has been followed in Hlope v Minister of Safety & Security & Others (in next case update).
Caution called for
Public sector employees include not only those working in national and provincial government (appointed in terms of the Public Service Act of 1994). Employees of statutory bodies, such as the SA Police Service, employees of the SA Revenue Service and all other statutory bodies also fall within the public sector. The fact that these employees are appointed in terms of legislation does not change the nature of their employment relationships to a public law relationship. The fact that a decision-maker takes a decision impacting on their employment relationships does not and that this decision-maker’s power is statutory in origin does not change the relationship either; nor does it mean that the decision-maker’s decision (or failure to take a decision) constitutes administrative action for the purposes of PAJA — the decision is not necessarily subject to review in terms of PAJA.
This means, in turn, that employees and trade unions should exercise some caution in seeking to challenge decisions made by a public decision-maker. It seems that the Labour Court, at least, will be reluctant to conclude that such decisions are administrative in nature. Instead, the Labour Court now takes the view that these decisions remain firmly rooted in the private sphere, a relationship between employer and employee. Only in exceptional cases will a challenge based on administrative justice succeed.
But a recent series of cases relate to the right to just administrative action. Section 33 of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable, and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for that action. This right is taken further by the Promotion of Administrative Justice Act 3 of 2000 (abbreviated as PAJA).
The definition of administrative action
Section 1 of PAJA defines administrative action as any decision taken (or any failure to take a decision) by an organ of state which adversely affects the rights of any person and which has a direct, external legal effect. The decision (or failure to decide) must be taken in terms of either the Constitution, a provincial constitution or any legislation. A natural or juristic person (other than an organ of state) will also be covered by PAJA if that person (including a company or CC or an individual) exercises a public power or performs a public function in terms of any empowering provision in legislation.
Western Cape Workers Association v Minister of Labour (2005) 14 LC 15.3.2 illustrates some of these points. The trade union had failed to comply with a number of requirements in terms of the Labour Relations Act (the LRA). The Registrar of Labour Relations (appointed in terms of the LRA and whose functions are set out in the LRA) cancelled the union’s registration. One of the arguments raised by the union was that it had a right of appeal against the Registrar’s decision also in terms of PAJA (in addition to the appeal in terms of the LRA itself). The Labour Court did not agree, stating that PAJA does not apply to labour disputes. Taking into account section 210 of the LRA (which states that the LRA takes precedence over any conflicting legislation except the Constitution), the Labour Court held that the LRA prevails.
Unfair labour practice or unfair administrative action?
There is a clear trend now for employees and unions to argue, in either the High Court or the Labour Court, that a matter relating to the employment relationship also falls within the scope of PAJA and that they have additional remedies in terms of PAJA. Of course, this also has a jurisdictional impact — the Labour Court can only hear matters arising out of the LRA, while other courts (such as the High Court) can and will hear cases relating to infringements of other fundamental rights such as the right to fair administrative action. The question may also arise as to whether a particular dispute falls within the scope of an unfair labour practice (as defined in the LRA) or whether the violation of the right to fair administrative action is at stake (in this case the High Court would have jurisdiction).
These are some of the issues canvassed in the Supreme Court of Appeal in United National Public Servants Association of SA v Digomo NO & others (2005) 14 SCA 1.1.2. The dispute was about the integration of public service employees who had been employed in Gazankulu into the Northern Province Department of Health. A task team set up to deal with the matter appointed a number of employees on the basis of seniority. The task team stated that it was simply not possible to conduct merit assessments and to appoint employees on the basis of merit. The High Court held that the dispute was about an unfair labour practice and that it did not have jurisdiction. The Supreme Court of Appeal disagreed, coming to the conclusion that the union’s case was based on unfair or unjust administrative action: the union was, in effect, seeking to enforce the right of its members to administrative action that was reasonable, fair and procedurally valid. This meant that the High Court did have jurisdiction and it referred the matter back to the High Court for a final decision.
Additional employee remedies?
The pivotal question is whether the right to fair administrative action and PAJA provides employees with remedies in addition to those found in the LRA. Before the LRA of 1995, the administrative law remedies were of considerable importance in the public sector, as public sector employees were not covered by labour legislation. Now that these employees also enjoy the protection of the LRA, the question remains whether public sector employees have two sets of remedies: one in terms of the LRA (protection against unfair dismissal and unfair labour practices) and another in terms of PAJA.
The question also relates, fundamentally, to the distinction between administrative law and labour law. Traditionally, administrative law relates to the relationship between the state and its various organs and citizens — it focuses on decisions taken by public officials that affect the rights of individuals, groups and organisations.
In PSA obo Haschke v MEC for Agriculture & others (2004) 13 LC 1.16.3 the Labour Court held that PAJA was not applicable to CCMA arbitration awards. In passing, however, the Labour Court made the following important statements:
“Labour law is not administrative law. They may share many common characteristics. However, administrative law falls exclusively in the category of public law, whereas labour law has elements of administrative law, procedural law, private law and commercial law. Historically, recourse has been had to administrative law to advance labour rights where labour laws were inadequate.” (at [11])
One of the most important recent decisions as regards administrative action and employment rights is SA Police Union & another v National Commissioner of the SA Police Service & another (in next case update). The police commissioner wanted to introduce an eight hour shift for members of the SA Police who were on duty. No labour consultation or bargaining had taken place and the unions sought an interdict to prevent the introduction of these new working hours. One of the union’s arguments was that the police commissioner’s decision constituted unfair, unreasonable or unjust administrative action.
The first question the Labour Court had to answer was whether the police commissioner’s decision constituted administrative action. It was clear that the Sa Police Service constituted an organ of state for the purposes of PAJA and that the commissioner’s powers to change working hours had its origin in the relevant legislation. But there was nothing public about the police commissioner’s changing the working hours — the matter fell squarely within the ambit of the employment relationship. The changing of the working hours had nothing to do with the relationship between the state and its citizens (the essence of administrative law).
The Labour Court also highlighted the difference between private law (for instance, the contractual relationship between an employee and an employer) and public law (the law regulating the relationship between the state and citizens). There is a real sense that administrative action and administrative law does not apply to private relationships between employers and employees: if every employment relationship (or any dispute arising from this employment relationship) in the public sector were subject to administrative law requirements, it would impose considerable burdens on the state and public sector employers.
Importantly, the Labour Court affirmed the principle that merely because a power (such as the commissioner’s power to change working hours) had its origin in legislation, this did not necessarily mean that the exercise of the power constituted an administrative act for the purposes of the Constitutional right to just administrative action or PAJA. The source of the power (legislation) is just one factor to be taken into account — other pertinent factors include the nature of the power being exercised and the subject matter in respect of which it is being exercised. From a practical perspective, this means that the taking of disciplinary steps against an employee, operational changes or the transfer of employees from one position to another does not constitute administrative action — it constitutes actions deriving from the private relationship between an employer and an employee. This means also that if an employee is appointed in terms of legislation (such as the Public Service Act of 1994 or any other legislation), the relationship remains one of employment: the employer’s decision to discipline and dismiss does not change from employment to administrative in nature.
Another important principle the Labour Court considered was that of consistency. From a policy perspective, the Court held, it was against public policy that public sector employees should have additional remedies and additional labour dispute resolution procedures at their disposal. All labour disputes should be treated in the same way, irrespective of whether the dispute arose between a private employer and employee or a public sector employer and an employee. Now that the LRA applies to public sector employees as well, disputes should be resolved by means of the procedures set out in the LRA: unfair labour practices, unfair dismissal and collective bargaining. These disputes should not be resolved by reference to administrative action.
This decision by the Labour Court has been followed in Hlope v Minister of Safety & Security & Others (in next case update).
Caution called for
Public sector employees include not only those working in national and provincial government (appointed in terms of the Public Service Act of 1994). Employees of statutory bodies, such as the SA Police Service, employees of the SA Revenue Service and all other statutory bodies also fall within the public sector. The fact that these employees are appointed in terms of legislation does not change the nature of their employment relationships to a public law relationship. The fact that a decision-maker takes a decision impacting on their employment relationships does not and that this decision-maker’s power is statutory in origin does not change the relationship either; nor does it mean that the decision-maker’s decision (or failure to take a decision) constitutes administrative action for the purposes of PAJA — the decision is not necessarily subject to review in terms of PAJA.
This means, in turn, that employees and trade unions should exercise some caution in seeking to challenge decisions made by a public decision-maker. It seems that the Labour Court, at least, will be reluctant to conclude that such decisions are administrative in nature. Instead, the Labour Court now takes the view that these decisions remain firmly rooted in the private sphere, a relationship between employer and employee. Only in exceptional cases will a challenge based on administrative justice succeed.
Grievance/ (Residual) Unfair Labour Practices
Baxter v National Commissioner, Correctional Services & another –
(2006) 15 LC 6.9.3
Subject matter classification:
grievance/ (residual) unfair labour practices - failure to appoint, promote, reinstate or re-employ - discrimination - race - employee overlooked for promotion - incorrect statistics relating to employer’s employment equity plan
Mini Summary:
The applicant, a “Coloured” male provincial inspector with the rank of Deputy Director, was one of nine candidates interviewed for a vacant post of Area Manager. After the interviews, the applicant was recommended for appointment. However, the recommendation was turned down on the basis that it did not advance the department’s employment equity objectives. The position was re-advertised, and a Black male was appointed. The successful candidate was subsequently transferred to another post, and another officer transferred to the post in question without promotion. After a request for the record of the interview in terms of the Promotion of Access to Information Act 2 of 2000, the applicant was informed that he “did not possess suitable qualifications and experience in comparison with the other candidates who were recommended for appointment” and that his appointment would not “address the Department’s Equity Target”. The applicant contended that he was the victim of unfair discrimination because, had he been appointed, he would have been the only “coloured” Director in the province concerned, the other senior posts being filled by Black males and one Black female.
The Court noted that the Public Services Regulations, 1999 provide, inter alia, that selection committees should make recommendations on the suitability of candidates after considering stipulated criteria. When an executing authority does not approve a recommendation, he is required to record the reasons for the decision in writing. The evidence indicated that the only document used by the selection committee and the commissioner was a pro forma memorandum. The last entry in the memorandum required the commissioner to endorse whether he approved or did not approve the appointment of the candidate concerned. In the case of some of the candidates, the commissioner had cancelled the notation “not approved”. However, in the applicant’s case, the commissioner had done neither. Had the commissioner disapproved the recommendation that the applicant be appointed, he was required to record the reason for his decision. He had not done this either. Since the regulation requiring the commissioner to give reasons is cast in peremptory terms, the commissioner had no discretion to decide not to give reasons. His failure to do so constituted a gross irregularity.
The Court held further that the commissioner’s request to the Department’s equity officer to motivate deviation from the equity plan meant that his decision depended on the answer he received, which had to relate to the equity plan of the province. The equity officer had based her answer on the national plan. This meant that the applicant had established a prima facie case of discrimination based on gender and race. Reliance on the incorrect statistics rendered the decision not to appoint the applicant unfair and arbitrary.
The Court held further that the reasons ultimately given by the respondents for the decision not to appoint the applicant contradicted the recommendations of the selection committee. The evidence as a whole was therefore sufficient to prove that the decision not to appoint the applicant was based on unfair discrimination.
Turning to relief, the Court accordingly ordered the respondents to ensure that the applicant received the salary and benefits to which he would have been entitled had he been appointed to the post, with interest.
Industrial Action
SATAWU v Natro Freight (Pty) Ltd –
(2006) 15 LC 9.6.3
Subject matter classification:
industrial action - unprotected industrial action - union failing to serve referral of dispute on employer - unilateral change of terms and conditions of employment - calling members out on strike before certificate of outcome issued - strike unprotected
Mini Summary:
After having secured a major contract requiring a seven-day week operation, the respondent company announced a change of working hours for drivers and general assistants. The applicant referred simultaneous disputes concerning a unilateral change to terms and conditions of employment and a “matter of mutual interest” to the National Bargaining Council for the Road Freight Industry. After the respondent announced that it intended unilaterally imposing new hours of work, the parties continued negotiating. However, the applicant’s members ultimately embarked on a strike. Management issued two ultimatums, then summoned the strikers to attend individual disciplinary inquiries. The applicant union sought an order inter alia declaring the strike protected and restraining the applicant from dismissing its members.
The Court noted that the union relied upon section 64(5) of the Labour Relations Act 66 of 1995 (“LRA”) in support of its contention that the strike was protected. That section requires an employer to restore changes to terms and conditions of employment within 48 hours of service of a strike notice coupled with a demand to restore the status quo. It was common cause that the union had referred a dispute to the bargaining council. However, the respondent denied that it had received the referral. The onus of proving proper service rested on the applicant. The union’s contention that the respondent must have received the referral on the same day as the matter was referred to the council was not the only reasonable inference to be drawn from the facts.
The Court also rejected the applicant’s claim that, at the latest, the respondent would have been informed of the dispute at the conciliation meeting the following day. Apart from the fact that the respondent denied having been informed of the dispute relating to a unilateral change to terms and conditions at that conciliation meeting, the applicant could not rely on the this point because the LRA requires an employer to restore the original terms and conditions of employment within 48 hours of the time notice is served on it. The applicant could not therefore claim that it acquired the right to strike immediately by virtue of section 64(3)(c), because the respondent had failed to restore its members’ terms and conditions. That being the case, the requirements set by section 64(1) applied. Since the council had not issued a certificate of outcome, the strike was accordingly unprotected. The applicant had accordingly failed to make out a case for the relief sought.
The application was dismissed with costs.
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(2006) 15 LC 6.9.3
Subject matter classification:
grievance/ (residual) unfair labour practices - failure to appoint, promote, reinstate or re-employ - discrimination - race - employee overlooked for promotion - incorrect statistics relating to employer’s employment equity plan
Mini Summary:
The applicant, a “Coloured” male provincial inspector with the rank of Deputy Director, was one of nine candidates interviewed for a vacant post of Area Manager. After the interviews, the applicant was recommended for appointment. However, the recommendation was turned down on the basis that it did not advance the department’s employment equity objectives. The position was re-advertised, and a Black male was appointed. The successful candidate was subsequently transferred to another post, and another officer transferred to the post in question without promotion. After a request for the record of the interview in terms of the Promotion of Access to Information Act 2 of 2000, the applicant was informed that he “did not possess suitable qualifications and experience in comparison with the other candidates who were recommended for appointment” and that his appointment would not “address the Department’s Equity Target”. The applicant contended that he was the victim of unfair discrimination because, had he been appointed, he would have been the only “coloured” Director in the province concerned, the other senior posts being filled by Black males and one Black female.
The Court noted that the Public Services Regulations, 1999 provide, inter alia, that selection committees should make recommendations on the suitability of candidates after considering stipulated criteria. When an executing authority does not approve a recommendation, he is required to record the reasons for the decision in writing. The evidence indicated that the only document used by the selection committee and the commissioner was a pro forma memorandum. The last entry in the memorandum required the commissioner to endorse whether he approved or did not approve the appointment of the candidate concerned. In the case of some of the candidates, the commissioner had cancelled the notation “not approved”. However, in the applicant’s case, the commissioner had done neither. Had the commissioner disapproved the recommendation that the applicant be appointed, he was required to record the reason for his decision. He had not done this either. Since the regulation requiring the commissioner to give reasons is cast in peremptory terms, the commissioner had no discretion to decide not to give reasons. His failure to do so constituted a gross irregularity.
The Court held further that the commissioner’s request to the Department’s equity officer to motivate deviation from the equity plan meant that his decision depended on the answer he received, which had to relate to the equity plan of the province. The equity officer had based her answer on the national plan. This meant that the applicant had established a prima facie case of discrimination based on gender and race. Reliance on the incorrect statistics rendered the decision not to appoint the applicant unfair and arbitrary.
The Court held further that the reasons ultimately given by the respondents for the decision not to appoint the applicant contradicted the recommendations of the selection committee. The evidence as a whole was therefore sufficient to prove that the decision not to appoint the applicant was based on unfair discrimination.
Turning to relief, the Court accordingly ordered the respondents to ensure that the applicant received the salary and benefits to which he would have been entitled had he been appointed to the post, with interest.
Industrial Action
SATAWU v Natro Freight (Pty) Ltd –
(2006) 15 LC 9.6.3
Subject matter classification:
industrial action - unprotected industrial action - union failing to serve referral of dispute on employer - unilateral change of terms and conditions of employment - calling members out on strike before certificate of outcome issued - strike unprotected
Mini Summary:
After having secured a major contract requiring a seven-day week operation, the respondent company announced a change of working hours for drivers and general assistants. The applicant referred simultaneous disputes concerning a unilateral change to terms and conditions of employment and a “matter of mutual interest” to the National Bargaining Council for the Road Freight Industry. After the respondent announced that it intended unilaterally imposing new hours of work, the parties continued negotiating. However, the applicant’s members ultimately embarked on a strike. Management issued two ultimatums, then summoned the strikers to attend individual disciplinary inquiries. The applicant union sought an order inter alia declaring the strike protected and restraining the applicant from dismissing its members.
The Court noted that the union relied upon section 64(5) of the Labour Relations Act 66 of 1995 (“LRA”) in support of its contention that the strike was protected. That section requires an employer to restore changes to terms and conditions of employment within 48 hours of service of a strike notice coupled with a demand to restore the status quo. It was common cause that the union had referred a dispute to the bargaining council. However, the respondent denied that it had received the referral. The onus of proving proper service rested on the applicant. The union’s contention that the respondent must have received the referral on the same day as the matter was referred to the council was not the only reasonable inference to be drawn from the facts.
The Court also rejected the applicant’s claim that, at the latest, the respondent would have been informed of the dispute at the conciliation meeting the following day. Apart from the fact that the respondent denied having been informed of the dispute relating to a unilateral change to terms and conditions at that conciliation meeting, the applicant could not rely on the this point because the LRA requires an employer to restore the original terms and conditions of employment within 48 hours of the time notice is served on it. The applicant could not therefore claim that it acquired the right to strike immediately by virtue of section 64(3)(c), because the respondent had failed to restore its members’ terms and conditions. That being the case, the requirements set by section 64(1) applied. Since the council had not issued a certificate of outcome, the strike was accordingly unprotected. The applicant had accordingly failed to make out a case for the relief sought.
The application was dismissed with costs.
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Monday, April 12, 2010
Internet abuse: the usual excuses
By now there are a number of standard excuses employees raise when they are charged with disciplinary offences relating to internet or e-mail abuse. A recent bargaining council arbitration award — Kalam / Bevcap (Nampak) (2006) 15 MEIBC 8.32.1 — illustrates some of these excuses and arguments.
The employer’s version of events was that the employee was dismissed for unacceptable conduct, spending excessive amounts of time on the internet and contravening the employer’s information-technology policy (IT policy). The employee’s access to internet sited had been monitored for a period of five months and he visited almost 15 000 (yes, that is fifteen thousand) sites in this period. He spent about 285 hours a week trawling the internet (this meant that he spent about a quarter of each working day). Most of the sites were pornographic in nature. The employer also gave evidence to the effect that the employee had been informed about the IT policy and that all employees were informed that their internet browsing was being monitored.
The employee conceded that he had contravened the IT policy, but argued that dismissal was too harsh a sanction for this breach. But the employee then went on to argue that he had not been trained (or informed) on how to use the internet after it had been made available to employees. Nor had he read the IT policy — it was a very lengthy document. He was not aware that he was breaching the employer’s IT policy. In other words, the employee was arguing that he did not know that his activities amounted to a breach of workplace rules. Another standard excuse was raised: he saw nothing wrong with what he was doing. Why, he asked, did the employer wait for five months to inform him that what he was doing was wrong? The next step: an allegation that the disciplinary charges and the dismissal were a “plot” to destroy him; an allegation also entailing a perception that he had been singled out. But the employee conceded, during the arbitration proceedings, that it was his duty to read the IT policy and that he had acted irresponsibly.
For the arbitrator, it was relevant not only that the employee had breached the company’s IT policy and that the employee was aware of the policy, but that his internet abuse had considerable cost implications (although these are not canvassed in the arbitration award). Some importance was also attached to the fact that the employee concerned was middle management and that he was not directly supervised. Out of the blue, the arbitrator states that the trust relationship has been severely destroyed — a novel formulation if ever there was one: the trust relationship is either destroyed or severely damaged.
Unfortunately, the arbitrator then gets personal. A picture was presented as evidence: probably an image taken from one of the websites visited by the employee. We are spared details of the picture, but the arbitrator goes a step too far in saying that in viewing the picture, the employee’s behaviour “poses serious concern about his lifestyle, particularly as a manager/leader”. Issues about lifestyle and personal choices are not pertinent in deciding whether a dismissal was fair or not and comments such as these are completely inappropriate. If the employee’s internet activities had a bearing on his performance or his exercise of duties, the arbitrator should have said so.
On the facts, the arbitrator came to the conclusion that the employer’s IT policy was valid and reasonable and that the employer’s disciplinary code unambiguously provides that abuse of internet access is a dismissable offence. In view of the fact that the employee occupied a managerial position, the arbitrator concluded, the dismissal was justified: both substantively and procedurally, the dismissal was fair.
At some stage, some employees are going to come up with new excuses for abusing e-mail and internet: until then, the usual excuses include that they were not aware of the rule, had not read the policy, that they did not know that what they were doing was wrong or that they had been singled out or victimised for some other reason. In preparing for an arbitration on these issues, any prudent employer will prepare a counter-argument in respect of each of these employee contentions.
The employer’s version of events was that the employee was dismissed for unacceptable conduct, spending excessive amounts of time on the internet and contravening the employer’s information-technology policy (IT policy). The employee’s access to internet sited had been monitored for a period of five months and he visited almost 15 000 (yes, that is fifteen thousand) sites in this period. He spent about 285 hours a week trawling the internet (this meant that he spent about a quarter of each working day). Most of the sites were pornographic in nature. The employer also gave evidence to the effect that the employee had been informed about the IT policy and that all employees were informed that their internet browsing was being monitored.
The employee conceded that he had contravened the IT policy, but argued that dismissal was too harsh a sanction for this breach. But the employee then went on to argue that he had not been trained (or informed) on how to use the internet after it had been made available to employees. Nor had he read the IT policy — it was a very lengthy document. He was not aware that he was breaching the employer’s IT policy. In other words, the employee was arguing that he did not know that his activities amounted to a breach of workplace rules. Another standard excuse was raised: he saw nothing wrong with what he was doing. Why, he asked, did the employer wait for five months to inform him that what he was doing was wrong? The next step: an allegation that the disciplinary charges and the dismissal were a “plot” to destroy him; an allegation also entailing a perception that he had been singled out. But the employee conceded, during the arbitration proceedings, that it was his duty to read the IT policy and that he had acted irresponsibly.
For the arbitrator, it was relevant not only that the employee had breached the company’s IT policy and that the employee was aware of the policy, but that his internet abuse had considerable cost implications (although these are not canvassed in the arbitration award). Some importance was also attached to the fact that the employee concerned was middle management and that he was not directly supervised. Out of the blue, the arbitrator states that the trust relationship has been severely destroyed — a novel formulation if ever there was one: the trust relationship is either destroyed or severely damaged.
Unfortunately, the arbitrator then gets personal. A picture was presented as evidence: probably an image taken from one of the websites visited by the employee. We are spared details of the picture, but the arbitrator goes a step too far in saying that in viewing the picture, the employee’s behaviour “poses serious concern about his lifestyle, particularly as a manager/leader”. Issues about lifestyle and personal choices are not pertinent in deciding whether a dismissal was fair or not and comments such as these are completely inappropriate. If the employee’s internet activities had a bearing on his performance or his exercise of duties, the arbitrator should have said so.
On the facts, the arbitrator came to the conclusion that the employer’s IT policy was valid and reasonable and that the employer’s disciplinary code unambiguously provides that abuse of internet access is a dismissable offence. In view of the fact that the employee occupied a managerial position, the arbitrator concluded, the dismissal was justified: both substantively and procedurally, the dismissal was fair.
At some stage, some employees are going to come up with new excuses for abusing e-mail and internet: until then, the usual excuses include that they were not aware of the rule, had not read the policy, that they did not know that what they were doing was wrong or that they had been singled out or victimised for some other reason. In preparing for an arbitration on these issues, any prudent employer will prepare a counter-argument in respect of each of these employee contentions.
Insolence as a ground for dismissal
Insolence and insubordination, as misconduct, almost always go together. While insubordination lies in the employee’s refusal to comply with a lawful and reasonable instruction of the employer, insolence consists of impudence, cheekiness, disrespect or rudeness. In CCWUSA & Segwenyane v Wooltrue t/a Woolworths (Randburg) (1995) 1 ICJ 1.2.2 the Industrial Court distinguished between “mere” insolence and insubordination, stating that the two are different forms of misconduct. A warning for insolence will not normally justify a subsequent dismissal for insubordination.
While it is clear that willful and serious insubordination may lead to dismissal (even, in some cases, for a first offence), insolence on its own as a ground for dismissal appears to be the exception rather than the rule — employers tend to charge employees with a combination of insubordination and insolence at the same time.
But there does appear to be some scope for, at the very least, disciplinary action in the context of insolence. In this case, however, progressive and corrective discipline will play a pivotal role: the basic principle here being that dismissal will not be appropriate for a first offence. Instead, a graduated series of warnings will be more appropriate, ranging from a written warning, perhaps, for a first offence, to a final written warning, and, if the insolence persists and is of a serious nature, dismissal as a last resort.
Another fact that may play a role is whether the employee’s co-worker or manager provoked the employee into insolence — this may have a considerable mitigating effect on the seriousness of the offence and may render dismissal inappropriate, even if the insolence was of a gross and serious nature.
What insolence and insubordination have in common is that they both amount to the employee challenging the employer’s authority. Once this essential element can be proven by the employer, the employee may be found guilty of insolence or insubordination in the absence of provocation.
An interesting recent CCMA arbitration award is Sekete and Temoso Technologies 8A College (2004) 13 CCMA 8.18.7. In this case, the CCMA commissioner came to the conclusion that insolence is a form of insubordination, consisting of the employee’s breaching his or her duty to show respect to the employer. If the insolence is willfull and serious, it would amount to gross insubordination. The commissioner also rejected the employee’s novel argument that he was merely exercising his freedom of speech.
The problem with disciplinary offences such as insubordination and insolence is that they often arise in the context of a breakdown in working relationships between managers and subordinates or even co-workers. If this is the case, it may be more appropriate for the employer to focus on the breakdown of the relationship and to intervene, in some way or another, in that relationship, rather than taking disciplinary action against only one party. Of course, these things can be messy in the extreme, as long histories of personal animosity may have to be aired. Another choice the employer will have to consider is whether to proceed against an employee on the basis of misconduct or on the basis of poor work performance — incompatibility, in this case.
But it cannot be expected of an employer to put up, over the longer term, with an employee who is rude and disrespectful to others. Eventually, once corrective and progressive discipline have run their course, the employer may find itself contemplating dismissal as the only means of dealing with a disruptive employee.
While it is clear that willful and serious insubordination may lead to dismissal (even, in some cases, for a first offence), insolence on its own as a ground for dismissal appears to be the exception rather than the rule — employers tend to charge employees with a combination of insubordination and insolence at the same time.
But there does appear to be some scope for, at the very least, disciplinary action in the context of insolence. In this case, however, progressive and corrective discipline will play a pivotal role: the basic principle here being that dismissal will not be appropriate for a first offence. Instead, a graduated series of warnings will be more appropriate, ranging from a written warning, perhaps, for a first offence, to a final written warning, and, if the insolence persists and is of a serious nature, dismissal as a last resort.
Another fact that may play a role is whether the employee’s co-worker or manager provoked the employee into insolence — this may have a considerable mitigating effect on the seriousness of the offence and may render dismissal inappropriate, even if the insolence was of a gross and serious nature.
What insolence and insubordination have in common is that they both amount to the employee challenging the employer’s authority. Once this essential element can be proven by the employer, the employee may be found guilty of insolence or insubordination in the absence of provocation.
An interesting recent CCMA arbitration award is Sekete and Temoso Technologies 8A College (2004) 13 CCMA 8.18.7. In this case, the CCMA commissioner came to the conclusion that insolence is a form of insubordination, consisting of the employee’s breaching his or her duty to show respect to the employer. If the insolence is willfull and serious, it would amount to gross insubordination. The commissioner also rejected the employee’s novel argument that he was merely exercising his freedom of speech.
The problem with disciplinary offences such as insubordination and insolence is that they often arise in the context of a breakdown in working relationships between managers and subordinates or even co-workers. If this is the case, it may be more appropriate for the employer to focus on the breakdown of the relationship and to intervene, in some way or another, in that relationship, rather than taking disciplinary action against only one party. Of course, these things can be messy in the extreme, as long histories of personal animosity may have to be aired. Another choice the employer will have to consider is whether to proceed against an employee on the basis of misconduct or on the basis of poor work performance — incompatibility, in this case.
But it cannot be expected of an employer to put up, over the longer term, with an employee who is rude and disrespectful to others. Eventually, once corrective and progressive discipline have run their course, the employer may find itself contemplating dismissal as the only means of dealing with a disruptive employee.
Incompatibility — new decision
An employer can insist on reasonable peace and harmony in the workplace; if personal animosities disrupt the work, every employer will, at some stage, consider taking steps against the employee or the employees concerned. For any number of reasons personal and professional working relationships can break down: the trust between managers and/or employees may be disrupted, there may be differences of opinion or even mere dislike can mutate into aggression that turns the workplace into something resembling a personal war zone.
There is no doubt that incompatibility is a valid ground for dismissing an employee. There was a time when it was uncertain whether incompatibility fell within the ambit of incapacity or the employer’s operational requirements. This debate was settled some time ago, and incompatibility is now seen as being a form of incapacity. The essence of incompatibility lies in the fact that the employee concerned cannot maintain sound working relationships with his or her colleagues.
Of course, when dealing with incompatibility, there is always an element of subjectivity: when can it really be said that the working relationships have broken down to the extent that dismissal is justified? Is it the case that only one employee is incompatible, or is it, instead, that issues have arisen amongst a number of employees; difficult and conflictual situations involving more than one employee? In the latter case, the problem may not lie with only one employee, and the situation then becomes a lot more complicated — the employer may have to investigate and consider just where the problem lies.
The Labour Court has handed down a new decision on the issue of incompatibility: Jabari v Telkom SA (Pty) Ltd (2006) 15 LC 6.11.1. This decision illustrates some of the difficulties an employer may face when it comes to an incompatibility issue. After a hearing, the chairperson concluded that the employment relationship had broken down because the employee was incompatible with the “corporate culture” (this is, of course, a vague concept in itself). The employee claimed that his dismissal was automatically unfair because the reason for the dismissal was that he had lodged grievances against management and that he had refused a voluntary severance package.
The main factual issue the Labour Court was called upon to decide was whether the employment relationship had irretrievably broken down as a result of the employee’s conduct and behaviour. This is the main onus resting on the employer in the case of incompatibility: it will be required of the employer to show how, where, when and how the employee’s conduct led to a breakdown of the employment relationship. For this reason, the Labour Court considers the evidence before it in some detail. Evidence was given that the employee concerned challenged and questioned decisions, did not follow instructions, that he is arrogant, insubordinate and unco-operative and that he habitually institutes grievances (without seeing these through). As regards the grievances lodged, the chairperson of the enquiry told the Court that the employee often initiated groundless grievance proceedings but that these grievances were unjustifiable and not work-related.
After dealing with the evidence presented, the Labour Court concluded that the employee had not been given an opportunity to confront the alleged disharmonious conduct he is accused of and he had not been given any counselling. He had not been given an opportunity to remedy the perceived incompatibility. This meant, the Court held, that the employer had failed to show reasonable grounds for concluding that the employee was incompatible or that the employment relationship had broken down. The real reasons for the employee’s dismissal related to the fact that he initiated grievance proceedings against the employer’s managers and that he refused a voluntary severance package.
Now one would expect the Labour Court to find the dismissal unfair. But it goes much further: it finds that the dismissal was automatically unfair — in terms of section 187(1)(c) and 187(1)(d) of the Labour Relations Act. And this is the debatable point in this decision: can it really be said that the employee’s dismissal was automatically unfair? A second point for debate, perhaps, is whether the employee’s dismissal was substantively unfair. Procedurally, there may be some arguments to be made out in favour of the employee, but the question remains whether the employer had a valid and fair reason to dismiss the employee.
There is no doubt that incompatibility is a valid ground for dismissing an employee. There was a time when it was uncertain whether incompatibility fell within the ambit of incapacity or the employer’s operational requirements. This debate was settled some time ago, and incompatibility is now seen as being a form of incapacity. The essence of incompatibility lies in the fact that the employee concerned cannot maintain sound working relationships with his or her colleagues.
Of course, when dealing with incompatibility, there is always an element of subjectivity: when can it really be said that the working relationships have broken down to the extent that dismissal is justified? Is it the case that only one employee is incompatible, or is it, instead, that issues have arisen amongst a number of employees; difficult and conflictual situations involving more than one employee? In the latter case, the problem may not lie with only one employee, and the situation then becomes a lot more complicated — the employer may have to investigate and consider just where the problem lies.
The Labour Court has handed down a new decision on the issue of incompatibility: Jabari v Telkom SA (Pty) Ltd (2006) 15 LC 6.11.1. This decision illustrates some of the difficulties an employer may face when it comes to an incompatibility issue. After a hearing, the chairperson concluded that the employment relationship had broken down because the employee was incompatible with the “corporate culture” (this is, of course, a vague concept in itself). The employee claimed that his dismissal was automatically unfair because the reason for the dismissal was that he had lodged grievances against management and that he had refused a voluntary severance package.
The main factual issue the Labour Court was called upon to decide was whether the employment relationship had irretrievably broken down as a result of the employee’s conduct and behaviour. This is the main onus resting on the employer in the case of incompatibility: it will be required of the employer to show how, where, when and how the employee’s conduct led to a breakdown of the employment relationship. For this reason, the Labour Court considers the evidence before it in some detail. Evidence was given that the employee concerned challenged and questioned decisions, did not follow instructions, that he is arrogant, insubordinate and unco-operative and that he habitually institutes grievances (without seeing these through). As regards the grievances lodged, the chairperson of the enquiry told the Court that the employee often initiated groundless grievance proceedings but that these grievances were unjustifiable and not work-related.
After dealing with the evidence presented, the Labour Court concluded that the employee had not been given an opportunity to confront the alleged disharmonious conduct he is accused of and he had not been given any counselling. He had not been given an opportunity to remedy the perceived incompatibility. This meant, the Court held, that the employer had failed to show reasonable grounds for concluding that the employee was incompatible or that the employment relationship had broken down. The real reasons for the employee’s dismissal related to the fact that he initiated grievance proceedings against the employer’s managers and that he refused a voluntary severance package.
Now one would expect the Labour Court to find the dismissal unfair. But it goes much further: it finds that the dismissal was automatically unfair — in terms of section 187(1)(c) and 187(1)(d) of the Labour Relations Act. And this is the debatable point in this decision: can it really be said that the employee’s dismissal was automatically unfair? A second point for debate, perhaps, is whether the employee’s dismissal was substantively unfair. Procedurally, there may be some arguments to be made out in favour of the employee, but the question remains whether the employer had a valid and fair reason to dismiss the employee.
Ill health, absenteeism and dismissal
Many employees take a few days’ sick leave every year to do battle with flu and colds; some may even be absent from work because of more serious illnesses. But there are a few employees who, suffering from chronic illness, are absent from work either on a regular basis or for extended periods of time. What are the employer’s options if the employee continues to be absent regularly or for longer periods of time? Naturally, it cannot be expected of the employer to accept such absences indefinitely — there will come a point at which termination of the employment relationship is the only real alternative for the employer. But would this be a dismissal for misconduct, a dismissal for poor work performance or a dismissal for ill health.
From misconduct to incapacity
Absenteeism itself is a recognised and, unfortunately, relatively common form of misconduct: the employee is not at work when he or she should be. This can range from being a few minutes late for a shift on the odd occasion to being considerably late on a regular basis. Usually, dismissal for misconduct would not be appropriate for a first offence of absenteeism; but if the absenteeism continues, more serious warnings and even dismissal may follow.
But can it be said that an employee who is regularly absent from work due to illness is guilty of misconduct? It can be argued that there is an important difference between the two forms of absenteeism: habitual absenteeism relating to an employee’s illness relates to the employee’s inability to work (due to ill health), absenteeism as misconduct entails the employee’s breaking a workplace rule. Different considerations apply: absenteeism arising from illness entails that the employee is unable to work and the illness is the underlying cause of the absenteeism.
This distinction is of considerable importance in practice because it relates to the reason for the dismissal. Is the employer dismissing the employee for misconduct (breaking a workplace rule) or is the dismissal dismissing the employee for poor work performance or ill health instead? This is a question a bargaining council arbitrator had to answer in NUMSA obo Cholani / Venture Otto SA (2005) 14 MEIBC 8.1.2. .
Illness and absence
The employee’s case was that she was dismissed when she exceeded her three year sick leave cycle by one day. She claimed that she became ill after her husband became ill in May 2004 and she had to care form him. She regularly suffered from flu and bronchitis. Later on, she received treatment for tuberculosis (TB) and eventually it was found that she was HIV positive and she received treatment in this regard. She did not know that she was under an obligation to inform her employer of her HIV status and the fact that she was receiving treatment. She feared disclosing her HIV status, thinking that the employer would dismiss her because of it.
The employer’s approach was completely different. Her dismissal arose because her sick leave pattern indicated that she was often absent from work on a Monday (7 out of 10 incidents) or before or after a paid public holiday (4 out of 10 incidents). The employee continuously changed doctors and the illnesses she reported to her employer kept changing. The employee received three counselling sessions and a meeting was held. To the employer it seemed that there was simply no end to the illnesses suffered by the employee and the employee could give no explanation as to why she was sick before and after public holidays and Mondays.
The employer’s evidence was that the employee was dismissed because her sick leave had a pattern, that the employee had consulted various doctors, that she had various illnesses, but that there was no plan forthcoming from the employee as to how to deal with these illnesses. The employee’s illnesses resulted in her frequent absences and these in turn had a disruptive effect, as other employees had to do her work and they then had to work overtime. There had been no indication from the employee that she was HIV positive — her HIV status was only disclosed to her employer in the course of the present arbitration proceedings.
The reason for dismissal
The bargaining council arbitrator was well aware of the distinction between misconduct absenteeism and incapacity absenteeism and came to the conclusion that the employee in this case was not dismissed for misconduct but for incapacity: poor work performance. Her poor work performance meant that she was not fulfilling her contractual obligations as employee. The question of fault or culpability was not pertinent in this case.
The employee confirmed, in her evidence, that she had received considerable assistance from the employer (including financial assistance with her domestic problems) and that she was provided not only with time off, but also granted unpaid leave on many occasions. But it was clear from the evidence that the employee had failed to comply with the employer’s performance standard and that her absenteeism had reached an unacceptable level.
Another argument raised by the employee was that it was patently unfair for the employer to dismiss her when she exceeded her sick leave entitlement by one day. But the arbitrator confirmed that an employer is entitled to take up incapacity cases even before an employee’s sick leave is exhausted. It would be unfair, the arbitrator continued, to expect an employer to wait until an employee has exhausted his or her sick leave before dealing with the employee’s absenteeism.
The employer’s performance standards
As indicated above, the arbitrator found this case to be one not of misconduct, but of incapacity in the form of poor work performance. This means that the crux of the case lies in the employee’s inability to meet the performance standards set by the employer. And on this point, the arbitrator found that the employee had failed to meet the employer’s performance standard as regards absenteeism: her absenteeism was at an unacceptable level.
When it comes to the performance standards set by the employer, the arbitrator in this case closely followed an important principle, namely that a commissioner should show deference to the employer’s standards and should interfere only if it is clear that the employer’s performance standards are unrealistic or irrational. In other words, it is up to the employer to set the standards, and, as a rule, these standards should be accepted. It is not for a commissioner or arbitrator to judge these performance standards unless they are clearly unrealistic or irrational.
In the present case, the arbitrator found that the employer’s standard was reasonable, given the nature of the employer’s business, the production process, industry norms and the adverse impact absences have on the business of the employer. The award does not, however, contain much information as to the employer’s business and the processes referred to. The arbitrator does, however, conclude that the employee was not only aware of the performance standards as regards absenteeism, but that the employee had also been given ample opportunity to improve her absenteeism. Procedurally, given the counselling and other steps taken by the employer, the dismissal was fair.
Older cases
In this award, some reliance is placed on recent decisions relating to the distinction between misconduct and poor work performance and the employer’s discretion to set performance standards. No recent decisions deal with the issue of persistent absences due to illness — those we do have pre-date the Labour Relations Act of 1995. But the issues and considerations remain, especially as regards the question whether the dismissal is for misconduct or incapacity.
The first relevant decision is AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 14 LAC 1.11.31 . The employee had been absent from work for a total of 90 days during a period just short of four years. He had received warnings to improve his attendance at work, but nothing changed. The employee was dismissed on charges of abusing sick leave, but the employer did not question the medical certificates presented by the employee. For this reason, the Labour Appeal Court held, the employer could not rely on misconduct, but only on incapacity of the employee. After referring to a number of even earlier decisions, the Labour Appeal Court concluded that the employer was entitled to dismiss the employee for incapacity if the incapacity was due to persistent absence from work because of ill health. At the time of this decision, the principles it laid down in respect of procedural fairness was of some importance. These principles have now been replaced (and, to a large extent, codified) in item 9 of the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act).
Another interesting decision is Henn v Eskom (1996) 14 LAC 1.11.32..The employer’s records indicated that the employee concerned had ben absent from work for a total of 93 days between 11 April 1994 and 11 November 1994 — as the Industrial Court put it, the employee had been absent from work for a substantial period. The Industrial Court concluded that the employer was fast approaching the point where it could not be expected to tolerate these absences any longer. But whether this point had in fact been reached was not for the court to decide — the employer had to provide some evidence that it had reached the end of its tether as regards the employee’s absences.
Principles
This bargaining council arbitration focused on the substantive fairness of the dismissal; it seems that procedural fairness was not an issue. Given the evidence presented, the arbitrator concluded that it would be unfair to expect the employer to continue with the employment relationship and that the employee was incapable of meeting the business requirements of the employer. The dismissal was held to be substantively fair.
One thing is clear from these cases: it cannot be expected of an employer to put up with an employee’s absences from work due to illness indefinitely. As regards substantive fairness, the question is whether the employer can be expected to continue the employment relationship, given the nature and extent of the employee’s incapacity. This is not perhaps the best formulation — after all, the question of fairness does not focus on the employer, but on the dismissal of the employee instead. Put differently: the question is whether the employee’s inability to meet the employer’s standards as regards absenteeism justifies the dismissal for incapacity, given the nature of the employer’s undertaking and the nature and frequency of the employee’s absences. Procedural issues remain: the employee must be counselled, given an opportunity to improve, and must be given an opportunity to make representations as to why he or she should not be dismissed.
While an employer may show sympathy, understanding and compassion, the fact remains that recurrent absences by the employee may lead to dismissal for poor work performance. Even the fact that an employee has not yet exhausted his or her sick leave entitlement does not preclude dismissal. An employee is expected to work, and, if he or she cannot do so, the employer may have no option but to consider dismissal.
From misconduct to incapacity
Absenteeism itself is a recognised and, unfortunately, relatively common form of misconduct: the employee is not at work when he or she should be. This can range from being a few minutes late for a shift on the odd occasion to being considerably late on a regular basis. Usually, dismissal for misconduct would not be appropriate for a first offence of absenteeism; but if the absenteeism continues, more serious warnings and even dismissal may follow.
But can it be said that an employee who is regularly absent from work due to illness is guilty of misconduct? It can be argued that there is an important difference between the two forms of absenteeism: habitual absenteeism relating to an employee’s illness relates to the employee’s inability to work (due to ill health), absenteeism as misconduct entails the employee’s breaking a workplace rule. Different considerations apply: absenteeism arising from illness entails that the employee is unable to work and the illness is the underlying cause of the absenteeism.
This distinction is of considerable importance in practice because it relates to the reason for the dismissal. Is the employer dismissing the employee for misconduct (breaking a workplace rule) or is the dismissal dismissing the employee for poor work performance or ill health instead? This is a question a bargaining council arbitrator had to answer in NUMSA obo Cholani / Venture Otto SA (2005) 14 MEIBC 8.1.2. .
Illness and absence
The employee’s case was that she was dismissed when she exceeded her three year sick leave cycle by one day. She claimed that she became ill after her husband became ill in May 2004 and she had to care form him. She regularly suffered from flu and bronchitis. Later on, she received treatment for tuberculosis (TB) and eventually it was found that she was HIV positive and she received treatment in this regard. She did not know that she was under an obligation to inform her employer of her HIV status and the fact that she was receiving treatment. She feared disclosing her HIV status, thinking that the employer would dismiss her because of it.
The employer’s approach was completely different. Her dismissal arose because her sick leave pattern indicated that she was often absent from work on a Monday (7 out of 10 incidents) or before or after a paid public holiday (4 out of 10 incidents). The employee continuously changed doctors and the illnesses she reported to her employer kept changing. The employee received three counselling sessions and a meeting was held. To the employer it seemed that there was simply no end to the illnesses suffered by the employee and the employee could give no explanation as to why she was sick before and after public holidays and Mondays.
The employer’s evidence was that the employee was dismissed because her sick leave had a pattern, that the employee had consulted various doctors, that she had various illnesses, but that there was no plan forthcoming from the employee as to how to deal with these illnesses. The employee’s illnesses resulted in her frequent absences and these in turn had a disruptive effect, as other employees had to do her work and they then had to work overtime. There had been no indication from the employee that she was HIV positive — her HIV status was only disclosed to her employer in the course of the present arbitration proceedings.
The reason for dismissal
The bargaining council arbitrator was well aware of the distinction between misconduct absenteeism and incapacity absenteeism and came to the conclusion that the employee in this case was not dismissed for misconduct but for incapacity: poor work performance. Her poor work performance meant that she was not fulfilling her contractual obligations as employee. The question of fault or culpability was not pertinent in this case.
The employee confirmed, in her evidence, that she had received considerable assistance from the employer (including financial assistance with her domestic problems) and that she was provided not only with time off, but also granted unpaid leave on many occasions. But it was clear from the evidence that the employee had failed to comply with the employer’s performance standard and that her absenteeism had reached an unacceptable level.
Another argument raised by the employee was that it was patently unfair for the employer to dismiss her when she exceeded her sick leave entitlement by one day. But the arbitrator confirmed that an employer is entitled to take up incapacity cases even before an employee’s sick leave is exhausted. It would be unfair, the arbitrator continued, to expect an employer to wait until an employee has exhausted his or her sick leave before dealing with the employee’s absenteeism.
The employer’s performance standards
As indicated above, the arbitrator found this case to be one not of misconduct, but of incapacity in the form of poor work performance. This means that the crux of the case lies in the employee’s inability to meet the performance standards set by the employer. And on this point, the arbitrator found that the employee had failed to meet the employer’s performance standard as regards absenteeism: her absenteeism was at an unacceptable level.
When it comes to the performance standards set by the employer, the arbitrator in this case closely followed an important principle, namely that a commissioner should show deference to the employer’s standards and should interfere only if it is clear that the employer’s performance standards are unrealistic or irrational. In other words, it is up to the employer to set the standards, and, as a rule, these standards should be accepted. It is not for a commissioner or arbitrator to judge these performance standards unless they are clearly unrealistic or irrational.
In the present case, the arbitrator found that the employer’s standard was reasonable, given the nature of the employer’s business, the production process, industry norms and the adverse impact absences have on the business of the employer. The award does not, however, contain much information as to the employer’s business and the processes referred to. The arbitrator does, however, conclude that the employee was not only aware of the performance standards as regards absenteeism, but that the employee had also been given ample opportunity to improve her absenteeism. Procedurally, given the counselling and other steps taken by the employer, the dismissal was fair.
Older cases
In this award, some reliance is placed on recent decisions relating to the distinction between misconduct and poor work performance and the employer’s discretion to set performance standards. No recent decisions deal with the issue of persistent absences due to illness — those we do have pre-date the Labour Relations Act of 1995. But the issues and considerations remain, especially as regards the question whether the dismissal is for misconduct or incapacity.
The first relevant decision is AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 14 LAC 1.11.31 . The employee had been absent from work for a total of 90 days during a period just short of four years. He had received warnings to improve his attendance at work, but nothing changed. The employee was dismissed on charges of abusing sick leave, but the employer did not question the medical certificates presented by the employee. For this reason, the Labour Appeal Court held, the employer could not rely on misconduct, but only on incapacity of the employee. After referring to a number of even earlier decisions, the Labour Appeal Court concluded that the employer was entitled to dismiss the employee for incapacity if the incapacity was due to persistent absence from work because of ill health. At the time of this decision, the principles it laid down in respect of procedural fairness was of some importance. These principles have now been replaced (and, to a large extent, codified) in item 9 of the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act).
Another interesting decision is Henn v Eskom (1996) 14 LAC 1.11.32..The employer’s records indicated that the employee concerned had ben absent from work for a total of 93 days between 11 April 1994 and 11 November 1994 — as the Industrial Court put it, the employee had been absent from work for a substantial period. The Industrial Court concluded that the employer was fast approaching the point where it could not be expected to tolerate these absences any longer. But whether this point had in fact been reached was not for the court to decide — the employer had to provide some evidence that it had reached the end of its tether as regards the employee’s absences.
Principles
This bargaining council arbitration focused on the substantive fairness of the dismissal; it seems that procedural fairness was not an issue. Given the evidence presented, the arbitrator concluded that it would be unfair to expect the employer to continue with the employment relationship and that the employee was incapable of meeting the business requirements of the employer. The dismissal was held to be substantively fair.
One thing is clear from these cases: it cannot be expected of an employer to put up with an employee’s absences from work due to illness indefinitely. As regards substantive fairness, the question is whether the employer can be expected to continue the employment relationship, given the nature and extent of the employee’s incapacity. This is not perhaps the best formulation — after all, the question of fairness does not focus on the employer, but on the dismissal of the employee instead. Put differently: the question is whether the employee’s inability to meet the employer’s standards as regards absenteeism justifies the dismissal for incapacity, given the nature of the employer’s undertaking and the nature and frequency of the employee’s absences. Procedural issues remain: the employee must be counselled, given an opportunity to improve, and must be given an opportunity to make representations as to why he or she should not be dismissed.
While an employer may show sympathy, understanding and compassion, the fact remains that recurrent absences by the employee may lead to dismissal for poor work performance. Even the fact that an employee has not yet exhausted his or her sick leave entitlement does not preclude dismissal. An employee is expected to work, and, if he or she cannot do so, the employer may have no option but to consider dismissal.
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