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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Wednesday, April 14, 2010
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.
Multi-national employers and the application of the LRA
The Labour Relations Act (the LRA) applies to employers and employees in South Africa. It does not matter if the employer is not a South African company — the fact that the employee works for the employer in terms of an employment contract or even a less-formal employment relationship means that the LRA applies to that employment relationship: section 2 of the LRA, which contains the exclusions from the Act (the SA National Defence Force, the South African Secret Service and the National Intelligence Agency, for example) does not state that multi-national employers are not covered by the LRA.
But the issue of jurisdiction of the Labour Court did arise in the recent case of Moslemany v Unilever PLC & another (2006) 15 LC 1.1.6. The employee had been working for the employer since 1980 and he had worked on various assignments all over the world in terms of specific contracts. In February 2003 he was appointed Head of Development for a number of regions (including South and North Africa, the Middle East and Turkey). The appointment to this post was to be for a period of two to three years. In October 2005, the employer retrenched the employee with effect from 31 January 2006. To make matters more complicated: the employee claimed that his immediate superior had agreed to allow him to continue employment (but on a lower grade and in Ireland) until May 2007 — a point in time at which the employee would qualify for early retirement. The employer denied that such an agreement relating to continued employment until March 2007 had been concluded.
In interesting jurisdictional issues arose — for example, it was argued that the Labour Court of South Africa has no jurisdiction over the pension fund concerned (the fund was based in Ireland) and that the employee was to remain an order of the fund (until early retirement in March 2007) would not be competent. The employer launched three levels of challenges on jurisdictional grounds (relating to jurisdiction over persons, territorial jurisdiction arising from the cause and jurisdiction in respect of relief) and the Labour Court proceeds to deal with each of these challenges in some detail. The factual issues remain largely undecided in this case as the Labour Court here dealt only with the preliminary issues raised by the employer (and dismissed these objections).
Even more interesting is the importance the Labour Court attached to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the International Labour Organisation in November 2000.
In respect of what a multi-national employer is, the Tripartite Declaration says the following:
“To serve its purpose this Declaration does not require a precise legal definition of multinational enterprises; this paragraph is designed to facilitate the understanding of the Declaration and not to provide such a definition. Multinational enterprises include enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside the country in which they are based. The degree of autonomy of entities within multinational enterprises in relation to each other varies widely from one such enterprise to another, depending on the nature of the links between such entities and their fields of activity and having regard to the great diversity in the form of ownership, in the size, in the nature and location of the operations of the enterprises concerned.”
The Tripartite Declaration, signed by governments, representatives of organised labour and business deals with a number of issues, including collective bargaining, equality in employment and dealing with grievances. In respect of resolving disputes, clause 59 of the Declaration reads as follows:
“Multinational as well as national enterprises jointly with the representatives and organizations of the workers whom they employ should seek to establish voluntary conciliation machinery, appropriate to national conditions, which may include provisions for voluntary arbitration, to assist in the prevention and settlement of industrial disputes between employers and workers. The voluntary conciliation machinery should include equal representation of employers and workers.”
Dismissal is something not dealt with exhaustively in the Declaration — clause 27 of the Declaration simply states that arbitrary dismissal procedures should be avoided.
But the issue of jurisdiction of the Labour Court did arise in the recent case of Moslemany v Unilever PLC & another (2006) 15 LC 1.1.6. The employee had been working for the employer since 1980 and he had worked on various assignments all over the world in terms of specific contracts. In February 2003 he was appointed Head of Development for a number of regions (including South and North Africa, the Middle East and Turkey). The appointment to this post was to be for a period of two to three years. In October 2005, the employer retrenched the employee with effect from 31 January 2006. To make matters more complicated: the employee claimed that his immediate superior had agreed to allow him to continue employment (but on a lower grade and in Ireland) until May 2007 — a point in time at which the employee would qualify for early retirement. The employer denied that such an agreement relating to continued employment until March 2007 had been concluded.
In interesting jurisdictional issues arose — for example, it was argued that the Labour Court of South Africa has no jurisdiction over the pension fund concerned (the fund was based in Ireland) and that the employee was to remain an order of the fund (until early retirement in March 2007) would not be competent. The employer launched three levels of challenges on jurisdictional grounds (relating to jurisdiction over persons, territorial jurisdiction arising from the cause and jurisdiction in respect of relief) and the Labour Court proceeds to deal with each of these challenges in some detail. The factual issues remain largely undecided in this case as the Labour Court here dealt only with the preliminary issues raised by the employer (and dismissed these objections).
Even more interesting is the importance the Labour Court attached to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the International Labour Organisation in November 2000.
In respect of what a multi-national employer is, the Tripartite Declaration says the following:
“To serve its purpose this Declaration does not require a precise legal definition of multinational enterprises; this paragraph is designed to facilitate the understanding of the Declaration and not to provide such a definition. Multinational enterprises include enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside the country in which they are based. The degree of autonomy of entities within multinational enterprises in relation to each other varies widely from one such enterprise to another, depending on the nature of the links between such entities and their fields of activity and having regard to the great diversity in the form of ownership, in the size, in the nature and location of the operations of the enterprises concerned.”
The Tripartite Declaration, signed by governments, representatives of organised labour and business deals with a number of issues, including collective bargaining, equality in employment and dealing with grievances. In respect of resolving disputes, clause 59 of the Declaration reads as follows:
“Multinational as well as national enterprises jointly with the representatives and organizations of the workers whom they employ should seek to establish voluntary conciliation machinery, appropriate to national conditions, which may include provisions for voluntary arbitration, to assist in the prevention and settlement of industrial disputes between employers and workers. The voluntary conciliation machinery should include equal representation of employers and workers.”
Dismissal is something not dealt with exhaustively in the Declaration — clause 27 of the Declaration simply states that arbitrary dismissal procedures should be avoided.
Friday, April 9, 2010
GETTING BACK TO WORK . . .
Recovering from the festive season
Gradually, life (especially working life) is returning to normal. Some lucky ones are still on leave, only returning to work later in January. But for many, it is now a question of picking up where we left off at the end of 2003, putting the festivities behind us and easing back into the swing of things.
For many employers, the issue is to gear back up to full productivity as soon as possible: many employees are still in holiday mood (or mode), exchanging pictures and stories about their vacations and their celebrations. Getting employees back to work at this time of year is not an easy task, as many employees will take some time to fully realise that their break is something of the past and that their focus must now return to their work.
Speculating about 2004
2004 is, of course, an election year, and that will mean, inevitably, that public attention will largely shift to the political arena, until the elections have run their course. Much politicking is to be expected, and media attention will no doubt focus largely on the parties, their campaigns and the politicians seeking (re)election.
From a labour relation’s perspective, however, things will probably trundle along for the largest part of the year. In some sectors, debates about collective bargaining, bargaining structures (such as recognition agreements and bargaining councils), deliberations as to the relative advantages and disadvantages of centralised (as opposed to plant-level or company-level) bargaining will continue. These are difficult choices to make, and difficult debates that will, no doubt, continue to exercise the minds of employers and trade unions in some sectors.
This year may also see the final demise of the Labour Court as we know it, and the functions exercised by that Court will be transferred to specialist panels of the High Court. We have alluded to this issue and the debates about the Labour Court and its survival on IR Network during 2003, and it remains to be seen whether the legislature, once the fuss around the election is over and done with, can still get around to resolving this very real and pertinent question.
What effect will this transfer to the High Court have on our labour law? Some think that common law principles and considerations, including contractual principles, will enjoy more prominence than they have in the Labour Court or the Labour Appeal Court. Others believe that the High Court will deal with labour matters in more or less the same way and using the same basic approach of the Labour Court. The question as to how and whether the High Court’s approach will differ from that of the Labour Court remains open.
Dismissals will continue, and, in some sectors, retrenchments of some scale may be necessary as employers find themselves facing up to international competition and other economic factors beyond their control (such as the relative strength of our currency). It seems that more and more employers are opting for ‘lean and mean’ operations, especially in manufacturing. On the services side, however, organisations seem to be getting bigger all the time. Considering the developments in labour law in 2003, more and more employers may opt to change terms and conditions of employment, and, if employees refuse to accept the new changes, retrench them to make place for employees who will work under the new conditions.
No doubt further developments will take place in the context of misconduct dismissals, especially relating to procedural aspects. Last year we noted a number of cases arising from the procedural side of these dismissals, especially the difficult question of legal representation. It may be that our law on this point becomes even more complicated, making it more difficult for employers to comply with the requirements of procedural fairness.
What wage bargaining will look like is, at this early point in the year, anybody’s guess. If inflation remains low and interest rates follow suit, significant pressure may be placed on trade unions to lower their demands. It may be that we see even lower percentage increases than we did last year. It is also unclear as to whether we’ll see the same number of strikes that we saw last year — seen generally, last year’s big strikes related more to organisational issues (restructuring, contracts of employment, temporary workers) than to wages — the most notable exception being the close call in the mining sector (even there issues such as job grading cropped up).
Buckle your seat belts!
No doubt, whatever 2004 delivers, it will be an exciting year for all of us here at IR Network. As usual, we’ll keep you posted with all the new developments in the field as and when they happen. 2004, with the election and other big social issues (employment equity, skills development) may just prove to be a bumpier ride than we perhaps expect it to be! So buckle up and come and enjoy the IR ride through 2004 with us!
Gradually, life (especially working life) is returning to normal. Some lucky ones are still on leave, only returning to work later in January. But for many, it is now a question of picking up where we left off at the end of 2003, putting the festivities behind us and easing back into the swing of things.
For many employers, the issue is to gear back up to full productivity as soon as possible: many employees are still in holiday mood (or mode), exchanging pictures and stories about their vacations and their celebrations. Getting employees back to work at this time of year is not an easy task, as many employees will take some time to fully realise that their break is something of the past and that their focus must now return to their work.
Speculating about 2004
2004 is, of course, an election year, and that will mean, inevitably, that public attention will largely shift to the political arena, until the elections have run their course. Much politicking is to be expected, and media attention will no doubt focus largely on the parties, their campaigns and the politicians seeking (re)election.
From a labour relation’s perspective, however, things will probably trundle along for the largest part of the year. In some sectors, debates about collective bargaining, bargaining structures (such as recognition agreements and bargaining councils), deliberations as to the relative advantages and disadvantages of centralised (as opposed to plant-level or company-level) bargaining will continue. These are difficult choices to make, and difficult debates that will, no doubt, continue to exercise the minds of employers and trade unions in some sectors.
This year may also see the final demise of the Labour Court as we know it, and the functions exercised by that Court will be transferred to specialist panels of the High Court. We have alluded to this issue and the debates about the Labour Court and its survival on IR Network during 2003, and it remains to be seen whether the legislature, once the fuss around the election is over and done with, can still get around to resolving this very real and pertinent question.
What effect will this transfer to the High Court have on our labour law? Some think that common law principles and considerations, including contractual principles, will enjoy more prominence than they have in the Labour Court or the Labour Appeal Court. Others believe that the High Court will deal with labour matters in more or less the same way and using the same basic approach of the Labour Court. The question as to how and whether the High Court’s approach will differ from that of the Labour Court remains open.
Dismissals will continue, and, in some sectors, retrenchments of some scale may be necessary as employers find themselves facing up to international competition and other economic factors beyond their control (such as the relative strength of our currency). It seems that more and more employers are opting for ‘lean and mean’ operations, especially in manufacturing. On the services side, however, organisations seem to be getting bigger all the time. Considering the developments in labour law in 2003, more and more employers may opt to change terms and conditions of employment, and, if employees refuse to accept the new changes, retrench them to make place for employees who will work under the new conditions.
No doubt further developments will take place in the context of misconduct dismissals, especially relating to procedural aspects. Last year we noted a number of cases arising from the procedural side of these dismissals, especially the difficult question of legal representation. It may be that our law on this point becomes even more complicated, making it more difficult for employers to comply with the requirements of procedural fairness.
What wage bargaining will look like is, at this early point in the year, anybody’s guess. If inflation remains low and interest rates follow suit, significant pressure may be placed on trade unions to lower their demands. It may be that we see even lower percentage increases than we did last year. It is also unclear as to whether we’ll see the same number of strikes that we saw last year — seen generally, last year’s big strikes related more to organisational issues (restructuring, contracts of employment, temporary workers) than to wages — the most notable exception being the close call in the mining sector (even there issues such as job grading cropped up).
Buckle your seat belts!
No doubt, whatever 2004 delivers, it will be an exciting year for all of us here at IR Network. As usual, we’ll keep you posted with all the new developments in the field as and when they happen. 2004, with the election and other big social issues (employment equity, skills development) may just prove to be a bumpier ride than we perhaps expect it to be! So buckle up and come and enjoy the IR ride through 2004 with us!
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