Incompatibility can be a case of misconduct or incapacity

Incompatibility can be a case of misconduct or incapacity

Incompatibility between an employee and his or her colleagues can, and often does, result in fair dismissal, on grounds of either misconduct or incapacity.  It is a set of circumstances in which an employee is responsible for an irretrievable breakdown in harmony which, as described in Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) “is of such a gross nature that it causes consternation and disruption in the workplace”.

In the Labour Court case of Sally-Anne Bentley v Survival Tyre Safety (Pty) Ltd (Case number JS799/16), it was noted that “A dismissal for incompatibility is more properly classified as a form of dismissal for incapacity if the employees concerned are not to blame for the conduct that renders them incompatible.  On the other hand, if the employee concerned is to blame for his or her behaviour, termination of employment can be viewed as dismissal for misconduct”.

In this case, the employee had been accused of incompatibility on grounds of misconduct.  None of the employer witnesses testified that they were unable to work with the employee; on the contrary, they testified that they were in fact able to do so. No employer witnesses were led who had allegedly complained about the employee’s behaviour.  One of the employer witnesses testified that when asked by management to formulate written complaint about the employee, she was unwilling to do so.  In fact, the employer witness continued that “the (employee) was the only female in a predominately male environment and that she had to fight harder to get what she wanted.  The (employee’s) persistence made her one of the most successful sales representatives” at the company.

The judgment continued that “the employee’s conduct must be the cause of the disharmony or tension”.  According to the employer, the employee was demanding and difficult to work with, and this coincided with a dispute about her commission structure, working hours and leave entitlement.

The employer also argued that the employee’s “alleged incompatibility stemmed from her inability to do her work.

The Court concluded that the employee’s dismissal on grounds of incompatibility was unfair, and that the evidence clearly points towards a unilateral change in the employee’s working conditions.

The Labour Court judgment in Watson v South African Rugby Union & others, was noted to have held that “the starting point is to treat any allegation of incompatibility as a case of incapacity.  It is only once the measures put in place to address and reverse the incompatibility complained of have failed that it can be treated as misconduct.  Thus, once those measures, accompanied by set norms and standards have failed to yield results and the employee continues with his or her errant ways, nothing prevents an employer from dealing with that employee’ stuffy subsequent behaviour as misconduct”.

In Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) the employer sought to review the dismissal of the employee on grounds of incapacity, which the CCMA had held had been substantively unfair, with the reinstatement of the employee with back-pay.

The employer contended that there had been several complaints from various staff members about the employee, around her work ethic her ability to work collaboratively within her team.  An incapacity hearing was convened at which the employee was held to have been incompatible, and dismissed with pay in lieu of notice.

In the review, the employer, amongst other things, argued that the dismissal was not procedurally unfair, that the CCMA Commissioner had “misconceived the enquiry”, ignored the employer’s poor work performance policy, and “ignored evidence of four witnesses and concluded that two other witnesses were relevant to prove incompatibility”.  The employer placed significant emphasis on its assertion that the Commissioner had also not given enough consideration to the employee’s poor work performance and insubordination.

The Court held that the employee was not in fact dismissed for poor work performance and insubordination, noting that “the reason why (the employee) was dismissed is that she was found to be incompatible”.

The judgment continued that “Incompatibility arises in a situation where there has been a breakdown in the harmony.  The golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to affect an improvement in the inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory.  The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony”.

The employee must then be afforded reasonable time to make amends.  The employee must be warned and counselled if there is no improvement, before a hearing is held.

In this case, the review application was dismissed with costs.

Can employers object to employee t-shirts?

Can employers object to employee t-shirts?

How far can employers go in banning employees from wearing t-shirts which the employer considers inappropriate, and can such a ban ever infringe upon a union member’s right to freedom of association?  This was the question posed in the Labour Court case NUMSA obo members v Transnet Soc Ltd (case number JS427/15).

At the commencement of this judgment, the dispute was succinctly stated to be, “Is it legitimate for an employer to prohibit the wearing of union t-shirts in the workplace? The applicant (NUMSA) contends that such a prohibition would breach the rights of expression and freedom of association of its members. The respondent (Transnet) contends that there is no substantive right to wear a union t-shirt in the workplace as an element of the exercise of the right of expression or freedom of association, or on any other basis, except with its consent”.

In October 2014, the employer introduced a corporate and protective clothing policy which prohibited the wearing of ‘political party clothing or non-recognised union regalia’ during working hours.

Of particular importance in this case was the policy wording that “It is prohibited to wear clothing of any political party or union that has no organisational rights within the workplace…”.  This of course meant, inter alia, that members of the two recognised trade unions, SATAWU and UTATU, could wear union t-shirts, but unrecognised trade unions, such as NUMSA, could not.

Thereafter, with effect from 1 June 2015, this policy was revised to broaden the prohibition to the wearing of clothing “or any regalia of any sort of any political party or trade union…”.

The employer argued that the blanket ban on the wearing of union t-shirts was, in essence, to avoid union rivalry which had the potential to spawn conflict, or as recorded in the judgment, “The new policy, introduced in 2015, prohibits all employees, regardless of union affiliation, from wearing union t-shirts on account of its intent to maintain and ensure a peaceful environment in the workplace. The rationale for the t-shirt ban, he (the employer) said, was one related to risk management”.

The court contended that “There are two issues to be decided. The first is whether the workplace rule banning employees from wearing ‘clothing or any other regalia of any sort of any political party or trade union …during working hours’ is constitutional, lawful, reasonable and valid. Put another way, the issue is whether through its conduct in prohibiting the wearing of union t-shirts in its workplace, Transnet has infringed the protections accorded by the right to freedom of association enshrined in Chapter II of the Labour Relations Act, 66 of 1995, (LRA). The second is whether Transnet has applied the rule selectively by not taking disciplinary action against members of other unions who despite the policy, continue to wear union t-shirts to work and if so, whether this differentiation amounts to an act of unfair discrimination against NUMSA’s members”.

The Court held “having regard to the interpretation of s 5 (2) (c) (iii) adopted by the Constitutional Court, in my view, the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5 (2) (c) (iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice proscribed by that provision. In short, the t-shirt ban is unlawful and invalid with reference to s 5 (2) (c) (iii)” and “the wearing of union t-shirts constitutes a lawful activity”.

The judgment continued, however, that the right to wear union t-shirts is not unlimited – “This is not to say that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is unlimited. One can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. Indeed, Matlou gave the example in his evidence of employees engaged in work on tracks being prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion that may arise.”

That is not to say that the prohibition on the wearing of union t-shirts will always be unlawful.  The judgment continued that “I have no doubt that in appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia (or even its prohibition in extreme cases)”.

But for now, the blanket banning of union regalia, under normal circumstances, is prohibited.

Can employers object to employee t-shirts?

Strike management comes to the fore in strike season

Managing strikes is a topical subject, with the current bus drivers strike and the prospects of a teachers, police and nurse public sector strike, also over wages and conditions of service.

Section 213 of the Labour Relations Act defines a ‘strike’ as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.”

Section 68(5) of the Act provides that “Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not a dismissal is fair, the Code of Good Conduct: dismissal in Schedule 8 must be taken into account.”

Item 6 (1) of this Code deals with the substantive fairness of strike dismissals as follows, “Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of a dismissal in these circumstances must be determined in the light of the facts of the case, including:

 (a)        the seriousness of the contravention of this Act;

(b)        attempts made to comply with this Act; and

(c)        whether or not the strike was in response to unjustified conduct by the employer.”

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.  Amendments to the Labour Relations Act are expected to be Gazetted before year-end, which will compel unions to hold secret strike ballot before commencing strike action.

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 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.  There is a process that must be followed.

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 interdicts, restraining orders, and an application to the Labour Court for compensation for any losses attributable to the unprotected strike action.  In addition, employers are entitled to contemplate the 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”, and (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”.

Strike related misconduct is, unfortunately, frequently evident during bot protected and unprotected strikes.  On this subject, the Labour Appeal Court has confirmed that the right to strike is not a licence to engage in misconduct.

Employee dishonesty invariably warrants dismissal

Employers are quite rightly entitled to view employee dishonesty in a very serious light.  Regretfully, theft-related and dishonesty cases are quite common in the workplace.  In our experience, for example, half of the disciplinary cases in the hospitality industry ate theft-related.

In the Labour Appeal Court case in Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC), the Court warned that ‘dishonesty’ is not a loose term that could just be thrown at employees in any circumstances. The Labour Appeal Court held that dishonesty entails ‘a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.

In another case, the Labour Court dealt with employee dishonesty in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].

The facts were quite straight forward.  The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry.  During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.

This charger was on sale at the store in question, and the employee had no proof of purchase. The employee subsequently failed a polygraph test.

The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.

The employee referred an unfair dismissal claim to the CCMA.  At the arbitration hearing.  The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation.  The employer took the matter on review to the Labour Court.

The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.

This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger.  The employee had also admitted this during the original disciplinary hearing.

The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.

The Court set aside the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.

On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal.  Dismissal for a first instance of such misconduct was fair ..”.

In the matter between ABSA Bank Ltd v Naidu DA14/12 24/10/2014 (LAC), it was held that “dishonesty has a corroding effect to the trust which the employer is entitled is entitled to expect from its employees in its various operations”.

The Labour Appeal Court had the following to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) – “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee”.

It follows that dismissal is generally considered justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer.

In Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, the Labour Court stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty.  The Court continued that the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship, will entitle the employer to bring it to an end, is a long established one.

In Toyota SA Motors (Pty) Ltd v Radebe and others [2000] 3 BLLR 243 (LAC), it was held that “Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind, one such clear act of misconduct is dishonesty”.

The 2019 labour relations outlook

2019 is going to be an interesting year in the South African labour relations environment.  There are a number of reasons for this.  To begin with, the evolution of the South African Confederation of Trade Unions (SAFTU) will continue to influence the labour relations environment by increasing union rivalry.

SAFTU is by no means in the same league as COSATU in either breadth of influence, or membership, but what it does do, and has done, is duplicate union presence within sectors.

Prior to the break-away of SAFTU from COSATU, there was, pretty much. One union per sector, and that was typically a COSATU union.  Things have changed.  SAFTU is now seeking to compete with COSATU in every sector, and that results in union duplication.  This has been particularly evident in the transport sector where the splintering of COSATU’s South African Transport and Allied Workers Union (SATAWU) has been quite significant, both in term of the SATAWU equivalent, and other new independent transports sector trade unions, all vying for a sector which was, up until quite recently, dominated by SATAWU.

The proliferation of trade unions in industry sectors breeds union rivalry.  It is already evident, and will continue to grow in 2019.  The old COSATU slogan of ‘one union one industry” is under severe strain, given the emergence of SAFTU, and the growing influence of FEDUSA.

This is not good news for employers.  Union rivalry is a challenge for employers in that it promotes a multi-union workplaces, which requires duplication of, for example, organizational rights agreement san collective bargaining, if unions elect not act in unison.

It can, as it has in the past, lead to workplace violence and worse, as unions compete for membership in the same workplace.

Unions are all too aware union rivalry, and this has led to an increase in demands for closed shop agreements to shut out competing unions.  This is made all the more challenging by relatively recent amendments to the Labour Relations Act which gives organizational rights previously reserved for majority unions, to minority unions.  This includes the deduction of union subscriptions, workplace access, and the appointment of shop stewards.  It is now quite possible, for example, for more than one trade union to have statutory shop stewards appointed in a single workplace.

New labour legislation, and amendments to key pieces of existing labour laws will also add complexity to the South African labour relations environment in 2019.

Let’s start with the Minimum Wage Act, and its’ Regulations. Approximately six and a half million workers will benefit from the introduction of the R20.00 per hour minimum wage, with a lesser sum being applicable to agricultural and domestic workers, at least for now.

The CCMA will be largely responsible for resolving disputes relating to the failure by an employer to pay the prescribed minimum wages.  It remains to be seen how the CCMA will manage this increased burden on its case load, when its resources are already severely stretched.

It is furthermore highly likely that there will be a multitude of applications lodged by employers to be exempted from paying the prescribed minimum wages.  The regulations governing the Minimum Wage Act appear to set out provisions for employers to be exempted from paying the prescribed minimum wages, which could spawn widespread minimum wage exemptions.  This has already caused disquiet amongst labour federations, although minimum wage exemptions are capped at no less than ninety percent of the applicable minimum wage, and are for a maximum period of twelve months.

Other new labour law developments include paternity leave and secret strike ballots, both of which are very significant.

In simple terms, men will now qualify for two week’s paternity leave, and adoptive parents are included in this benefit, although only applicable to one of the parents.

The introduction of secret strike ballots is to be welcomed.  This enables union members themselves to vote for, or against, embarking upon protected strike action, without fear of intimidation.  It also removes the almost carte blanche decision making which union officials had to prompt strike action.

A further component of the evolution of new labour legislation is the well-intended extension of advisory arbitration awards in labour disputes which warrant dispute resolution intervention when it is the public interest for such intervention.  The shortcoming however is that the efficacy of advisory arbitration awards is minimal, as they are not binding on the parties to the dispute.

So 2019 is expected to be another year of labour strife with increased turmoil.  For example, we expect the number of disputes referred to the CCMA to exceed one thousand a day before year-end, including minimum wage disputes.

Fasten your seat belt.