The changing of an employee’s job content is frequently a highly sensitive and troublesome process which often has the potential to spawn individual labour disputes, and at times, collective conflict. It is not uncommon for employers to hear the refrain, “ .. but that’s not in my job description !” or “I’m the TEA lady, make your own COFFEE!”.
Quite clearly, employers are not entitled to fundamentally unilaterally change or vary an employee’s work obligations in a manner which imposes obligations on an employee for which they are not trained or qualified, or perhaps may move them into a higher job evaluation grade without a commensurate increase in remuneration.
However, the dynamic nature of the present-day workplace is such that very few jobs remain static in content.
Job content invariably evolves as organisations grow and vary strategies to maintain a competitive advantage in the market place. The conundrum faced by employers and employees relates to the point at which a change to job content, particularly when it takes the form of additional tasks and duties to be performed, amounts to a unilateral (and therefore ‘unfair’) change in an employee’s terms and conditions of employment. In the event that an employer were to be deemed to have unilaterally changed terms and conditions of employment, the remedy sought would ordinarily include additional compensation or a restoration of the status quo prior to the change.
So, to what extent can employers vary job content without running the risk of being subjected to section 64(4) of the Labour Relations Act?
In SA Chemical Workers Union obo Mhlongo v. Silicon Technology (Pty) Ltd [Case No.KN6500-02] the commissioner drew an important distinction in the arbitration award between ‘terms and conditions of employment’ and ‘work practices’. “Terms and conditions of employment” were defined as “the core rights and duties of employees under their employment contracts”, whilst ‘work practices’ were defined as to the manner “the contracted work is to be done”.
Of particular significance in the award was the point made by the commissioner that “The practical significance of the distinction between ‘terms and conditions of employment’ and ‘work practices’ is that it is now widely recognised that changes to work practices can be introduced unilaterally without prior negotiation – they fall within the management prerogative”.
However, the commissioner conceded that it may be difficult to distinguish between the two categories at times, and that it would be prudent in such circumstances to treat such changes “as subjects for negotiation with the aim of reaching consensus, if possible.”
In conclusion, the commissioner referred to the matter of A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC) in which the court observed that “employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work”.
Prolonged employee absenteeism due to ill health presents employers with a conundrum as lengthy or habitual absenteeism impacts on productivity. One thing is certain, employers may not simply dismiss employees who are absent for a lengthy period, or have a pattern of habitual absenteeism. Our courts have developed an empathetic approach to employees suffering from ill health. On the other hand, it is understood that employer’s interests are similarly legitimate and employers cannot be required to preserve the employment of long-absent employees indefinitely ad infinitum.
Schedule 8 of the LRA makes it quite clear that prior to taking any steps against an employee absent on grounds of ill-health the employer must conduct an investigation into nature and extent of the employee’s illness, and whether the resultant absenteeism expected to be prolonged or not. In addition, the employer must seek to establish whether the employee’s job can be adapted to accommodate the employee’s condition.
That’s not to say of course that employees themselves don’t have a duty to communicate with their employers in such circumstances as they clearly do; but our law, rightfully, contemplates circumstances where the employee’s illness may render him or her incapable of communicating at all or lucidly (such as cases of extreme trauma or mental illness).
Investigations of this nature ordinarily include contact with the employee if possible, medical staff and family.
This would address the so-called substantive fairness aspect of any subsequent dismissal, and would include the employee being warned that their ongoing employment relationship with the employer is in jeopardy.
From a procedural fairness perspective, the employee must also be afforded an opportunity to make representations to the employer prior to any dismissal decision being finalised, ensuring that any decision to dismiss is not made hastily.
Employers would differ in their ability to condone ill health absenteeism as well as their ability to seek alternative positions for the employee or adapt their duties. For example, a municipality employing many thousands of employees would be expected to be more capable of doing so than a small or medium sized enterprise.
In NEHAWU & another v SA Institute for Medical Research  2 BLLR 146 (IC) the employee had taken 475 days sick leave during her six years of employment prior to being dismissed on grounds of absenteeism due to her ill health. It was held that the dismissal of the employee was fair as the employer had consulted with her on three occasions, warning her each time that continued absences would jeopardise her employment.
In the final analysis, a methodical investigation by the employer into the nature and extent employee’s illness, followed by a hearing to assess whether the employee is capable of returning to work timeously is required. Add to this an exploration of alternative positions or altered duties, if possible, and a hearing to assess each of these aspects of the case. Dismissal may then be justified albeit reluctantly given the employee’s predicament.
Regardless of the raft of imminent labour law amendments and the introduction of yet further regulation in workplace law, one thing will remain constant. Discipline and dismissal will continue to account for in excess of all labour disputes country-wide. This should come as no surprise.
Ask any supervisor or line manager how which aspect of shop floor labour relations has the greatest impact on them day-to-day; the answer is uniformly ‘disciplinary action’. Yes, trade union management can be time-consuming and prickly, and unfair labour practice cases rear their head from time to time. But it’s the management of discipline at work which typically makes demands of supervisors and management, when it comes to workplace labour relations.
Indeed, in excess of 80% of all labour disputes account for alleged unfair dismissal claims alone.
That said, it follows that when contemplating, or more importantly, prioritising, line management training, special attention should be paid to the conducting of disciplinary hearings and the general management of workplace discipline and employee performance.
Employers continue to lose almost 50% of all unfair dismissal arbitration hearing cases. SETA accredited discipline training goes a long way to reducing discipline and dismissal risk, and significantly increases the prospects of a dismissal being upheld at the arbitration hearing stage.
Discipline training is targeted at all line managers and supervisors who are tasked with the responsibility of ensuring workplace discipline to ensure a safe and orderly working environment.
SETA accredited training ensures that discipline training material, content and incorporated practical exercises, meet strict quality requirements.
SETA disciplinary hearing accreditation is a rigorous process which accredits successful training providers as a Provider of Education & Training for disciplinary hearing training. A sound Quality Management System is a pre-requisite for SETA accreditation, to ensure that the training material and methodology meets stringent quality requirements.
SAQA unit standard number 10985 (NQF Level 5) is the specifically designated Unit Standard for the Conducting Disciplinary Hearings SETA accredited training programme.
The specified learning outcomes in the SETA accredited discipline workshop include (1) Conduct and manage a hearing, (2) Procedural fairness, (3) Handling non-dismissible offences, (4) Understanding the employer’s burden of proof, (5) Summarising of evidence and (6) Sanction selection.
Course content includes (1) what is misconduct and how is it proved?, (2) What procedures must be followed in a disciplinary hearing?, (3) What are an employee’s rights in a disciplinary hearing?, (4) What are an employer’s rights in a disciplinary hearing?, (5) What role does mitigation play in a disciplinary hearing?, (6) How should a sanction be selected which will meet the requirements of fairness and withstand scrutiny at an arbitration hearing?. Material also includes time-keeping and attendance offences.
SETA accredited discipline workshops also include role-plays to enable delegates to practice the skills acquired, as well as case studies, self-tests and practical exercises to assess and ensure the transfer of knowledge to delegates.
The CCMA, on occasion, has been required to determine when an employment relationship has actually commenced.
For some time there has been little clarity on whether employment commences on date of signature of an employment contract or offer of employment, or indeed only when the person actually commences employment. This issue was clarified in a Labour Appeal Court Judgment in the matter of Wyeth SA (Pty) Ltd v Manqele & others [JA50/03].
The key factors of this case were as follows. An offer of employment was made per an employment contract which was accepted and signed by the successful appointee. However, prior to commencing employment on the due date to do so, the employer deemed the appointee to have acted dishonestly in relation to the purchasing of a vehicle, being part of his remuneration. As a consequence thereof, the employer terminated the contract of employment with the employee prior to him starting employment on the due date. Notwithstanding this termination the employee reported for duty at which time he was advised that he should go home as he would not be employed by the employer.
The employee deemed this to be an unfair dismissal. The matter was ultimately heard at arbitration where the employer argued, inter alia, that the CCMA had no jurisdiction as the employment relationship had not come into existence at the time of the termination of the employment contract. The commissioner held otherwise in ruling that the person in question became an employee “the moment he accepted an offer of employment”.
The employee took this on review to the Labour Court who upheld the Commissioner’s ruling on grounds that the person in question was a party to a valid and binding contract of employment and was therefore an ‘employee’ as contemplated in the LRA.
The LAC held that it is entitled to extend the definition of ‘employee’ to include “a person who has concluded a contract of employment which is to commence at a future date”. The LAC judgment later draws comparison with the legal position of unborn children who, in law, are endowed with legal rights “by way of a fiction”.
The Court furthermore, quite rightly, referred to section 213 of the LRA which furnishes a definition of ‘employee’ which includes “is entitled to receive any remuneration”; it follows that a person who has signed an employment contract to commence employment at a future date is indeed entitled to receive remuneration, albeit at a later date.
Simply put, this case highlights that a person becomes an employee as early as the date on which they sign an offer of employment, notwithstanding that this may pre-date the actual date on which the person commences their duties in terms of such acceptance. It follows therefore that any dismissal from date of signature ought to comply with the pre-dismissal procedures of the LRA and be substantively fair.
As we head into what will, in all likelihood, be yet another challenging labour relations year, what with a raft of new labour laws and expected heightened industrial action, it is worth re-familiarising oneself with certain of the jargon and terms which are so often used in the labour relations environment.
The CCMA and Bargaining Councils, on occasion, schedule so-called In limine hearings which are described as “a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction” (Source: CCMA web site). A common example of a CCMA In limine hearing would relate to an application by an applicant for the CCMA to condone the late referral of a dispute. The In limine hearing would first be heard so that a Ruling can be made on whether, or not, the late referral is to be ‘condoned’ prior to the hearing proper proceeding.
Sufficient representation is the term used in the LRA to describe the amount of union representation, which is equal to or in excess of 30% of the legible union members, but less than majority membership. Trade unions which acquire sufficient representation, qualify for controlled access onto the employer’s premises, and the employer is obligated to deduct union membership fees on behalf of the union. Sufficient representation does not entitle a union to the appointment of statutory shop stewards, and neither does it typically entitle a union to collective bargaining rights (both of which do become a feature of majority representation).