Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.
Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Predictably, the Commission for Conciliation, Mediation and Arbitration has been required to conciliate and adjudicate disputes relating to post retirement-age dismissals.
The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se, but is deemed to be a termination of the contract of employment due to the effluxion of time, which is fair.
A retirement date may be agreed. However, there may be no agreement on the normal retirement date. In such circumstances, sixty five is normally deemed to amount to a generic normal retirement date.
In the CCMA arbitration case of SASBO versus Khayalethu (Case Number FS822) the 70 year-old employee argued that she was dismissed and pensioned by the company because of age, and that this constituted age discrimination as provided for in section 187(1)(C) of the LRA.
She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.
The Commissioner disagreed with the employee stating in the arbitration award that section 187 of the LRA provided for post retirement-age dismissal.
This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz versus Pepps Mokopane Primary School (Case Number NP6559).
The employee was challenging the fact that she was compelled to retire on the date on which she reached normal retirement date.
The employee had in fact wanted to work beyond this date, as is often the case.
The commissioner found that the dismissal was fair stating that a contract of employment may be terminated where the employee has reached his/her normal retirement age (see Harris versus Bakker & Steyger 1993 14 ILJ 1553).
“Although I accept that in terms of section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote section 187(2)(b) of the LRA.
The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.
Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.
A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent. Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.
A Labour Appeal Court judgment caused quite a stir in addressing leave applications to attend Sangoma training, with many commentators erroneously reporting that the judgment confirmed that it created new law compelling employer’s to accept unregistered Sangoma, or traditional healer, certificates, for BCEA sick leave purposes.
The case in question was that of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & 2 others (JA78/10).
The employee was a Chef. She approached her superior and informed him that she was attending a ‘traditional healer’s course’, and for this reason, requested that she be permitted to work morning shifts only to enable her to attend the course without adversely affecting her employment obligations.
It was agreed that the employee’s request could be accommodated, and the employee commenced working morning shifts.
The employee re-approached her superior, informing him that she was about to complete her Sangoma training course, and now needed to complete the course full time for the final month. She therefore requested unpaid leave for one month to do so.
The employer granted the employee permission to use her accumulated annual leave; on closer examination, it was established that she had no accumulated annual leave. It was therefore decided to offer her one week’s unpaid leave; this was insufficient leave as the employee was required to attend the final one month of the course on a full time basis.
The employee then submitted correspondence from her Traditional Healer Association requesting to give her permission to attend her final month of full time training, as well as her graduation ceremony, and advising that she had “permissions of ancestors”. The employee duly absented herself for the month in question.’
On her return, the employee was subjected to a disciplinary hearing, and charged with absence without leave and “gross insubordination/challenge of employer’s authority”.
Importantly, the disciplinary hearing chairperson concluded that the employee had no medical certificate from a medical practitioner as required by the Basic Conditions of Employment Act.
The employee was found guilty of all allegations, and dismissed.
The employer was of the view that it would have done the same thing if the employee had requested unpaid leave for a karate course.
The CCMA held that it was clear that the parties had conflicting interests, and that the employer had acted with a lack of empathy and understanding of cultural diversity in the workplace, continuing that the employee, faced with two evils, had chosen the lesser evil. It was also noted that the employer had not suffered irreparable harm, and that the employee’s absence was beyond her control.
The Courts agreed with this, noting importantly that the employee was not in fact seeking sick leave.
In conclusion, the judgment noted that “what is required is reasonable accommodation of each other to ensure harmony and to achieve a united society”.
Various myths and facts are associated with strike activity, especially given the heightened emotions and tension which accompanies strike action.
To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences. Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.
In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike.
Voting to strike in a strike ballot is one thing, sustaining the strike is quite another. It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.
Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves. There is the added consideration of the the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.
In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth.
Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.
Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action. Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].
The remedies available to employers faced with unprotected strike action are:
1. Interdicts or Restraining Order
2. An application to the Labour Court for compensation for any losses attributable to the unprotected strike action
3. Dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.
Primary considerations should be:
1. Was the unprotected strike spawned by unjustified conduct on the part of the employer?
2. The employer must promptly engage the union, outlining its intended course of action.
3. Prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”.
4. “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.
Finally, regarded must be had for recent amendments to the Labour Relations Act which quite significantly change striker picketing rights, especially in the event that the employer is a tenant of a landlord who may disapprove of picketing taking place on their property.
Section 69 of the LRA deals with the rights of strikers, and their supporters, to picket, which is further dealt with in the LRA Code of Good Practice on Picketing.
This right to picket can be traced back to section 17 of the Constitution which provides that everyone (strikers and their supporters) have the right to assemble, demonstrate, picket and present petitions in a peaceful, unarmed manner.
More precisely, the purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike, .. to encourage employees not to work during the strike or lock-out, .. to dissuade replacement labour from working, and to persuade members of the public or other employers and their employees not to do business with the employer”.
The LRA gives effect to this right as a legitimate right associated with strike action.
Importantly, this right to picket is limited to protected industrial action (ie: a protected strike or protected lock-out), and does not apply in cases of, for example, unprotected (so-called ‘wild-cat’) strike action.
Pickets may only be authorised by a registered trade union, and may only be held in a public place “but outside the premises of an employer”, or with the permission of the employer, inside the employer’s premises. Importantly, the employer may not unreasonably withhold permission for a picket on its premises.
Section 69 of the LRA also makes provision for the trade union or employer to approach the CCMA to facilitate picketing rules, and in the absence of agreement on the rules, to “establish picketing rules, and to provide for picketing on the employer’s premises if the Commission is of the view that the employer’s refusal to permit onsite picketing is unreasonable”.
Procedural or recognition agreements frequently include picketing rules for implementation during protected industrial action, as it is invariably difficult to reach agreement on picketing rules during the normally tension-filled pre-industrial action period.
Picketing rules would typically be drafted according to the following structure:
Conduct during a picket can become troublesome. The LRA Code of Good Practice on Picketing states, at section 6, that “picketers must conduct themselves in a peaceful and lawful manner, and must be unarmed”. In addition picketers “may not physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employer’s premises”. In so far as they do, they would be subject to the employer’s disciplinary procedure and could render themselves liable for dismissal given the gravity of the picketing-related misconduct.
Finally, picketing rules should also include a clear prohibition of violent and threatening conduct.
Employers will frequently consider it necessary to suspend an employee, on full pay, pending the outcome of an investigation into suspected misconduct on the part of the employee, and/or to similarly suspend an employee pending the outcome of a disciplinary hearing.
This is ordinarily referred to as ‘precautionary suspension’, and is resorted to when an employer is of the reasonable opinion that its’ business interests are potentially at risk due to the employee continuing to be present during an investigation into suspected misconduct, and/or prior to the concluding of a disciplinary hearing.
At the crux of this initiative to suspend, is a belief that the continued presence of the employee during these periods, has the potential to compromise the employer.
Such precautionary suspension should not be confused with suspension without pay, which is a form of disciplinary sanction.
As held in Mabilo v Mpumalanga Government & others (Labour Court case no. J4158/98), in cases of precautionary suspension “the employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process. The investigation must be concluded within a reasonable time taking all the relevant factors into consideration and the employee must be informed without undue delay about the process steps that the employer is initiating. This may take the form of allowing the employee to return to his or her work or alternatively furnish this individual with a charge sheet summoning the individual to a properly constituted disciplinary hearing’.
The Labour Court added that “The disciplinary hearing must be initiated within a reasonable time of the individual being suspended”, further noting that “The objects underlying the right to a speedy investigation, without unreasonable delay, can be stated to be the following (1) To prevent the unnecessary disruption in the life of the employee, (2) To minimize the anxiety and concern of the employee, and (3) To limit the possibility that the employee will not be allowed a fair hearing”.
Although there is no need to convene a formal ‘pre-suspension’ hearing before suspending an employee on precautionary grounds, the weight of authority does suggest that employers should afford employees an opportunity to make representations to the employer, prior to the precautionary suspension being confirmed.
Put simply, the employee should be informed why the employer believes that precautionary suspension is warranted, and the employee should be afforded an opportunity to have his or her say on this proposal, before the suspension is confirmed.
Precautionary suspension could constitute an unfair labour practice in certain circumstances, such as (1) it is unpaid, (2) endures for an unduly long period of time, (3) inadequate reasons are tendered by the employer.
Precautionary suspension should not be confused with suspension without pay, which is a disciplinary sanction typically reserved for occasions when dismissal would ordinarily have been justified, but compelling mitigating factors suggest that a lesser sanction may be warranted.