by Tony Healy | Feb 28, 2019 | Miscellaneous
Employees can be suspended from work in either of two ways. The two species of employee suspension are precautionary suspension and punitive suspension. Punitive suspension occurs when an employer offers an employee a period of suspension without pay, as an alternative to dismissal, when dismissal would ordinarily be the only logical sanction, but extraordinary mitigating factors suggest that the employee is deserving of an option to retain his or her employment.
Precautionary suspension is quite different. There are times when an employer, quite legitimately, is of the view that an investigation into suspected misconduct would benefit from the suspected offender not being at work. There are numerous reasons why an employer may come to such a conclusion. For example, the employer may have good reason to conclude that the employee in question may interfere with witnesses and evidence. It is also quite possible that the employer may not know for sure whether the employee is entirely trustworthy.
This is when the precautionary suspension option becomes available to employers. It must be borne in mind that an employee who is suspended as a precaution, must be fully paid whilst suspended, for the simple reason that they have, at that point in time, pending the outcome of an investigation, not been found guilty of any misconduct what so ever. In fact, they have not even been charged with misconduct at that time. In Sappi Forests (Pty) Ltd v CCMA & Others [2009] (LC), the Labour Court held that it was normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry. The only time this would not be the case is when there is a collective agreement permitting unpaid precautionary suspension, or it is permitted in terms of legislation, as is the case in certain areas of the Public sector.
One occasion when an employer need not pay an employee during a period of precautionary suspension is when the disciplinary hearing must be postponed due to the employee failing to attend the disciplinary, without a valid reason for not doing so, whilst on precautionary suspension.
In the case of SAEWA obo members v Aberdare Cables [2007] (MEIBC) it was held that the employer does not have to pay an employee who is on precautionary suspension from the date he or she requested for postponement. The rationale for the decision was to avoid for situations where the employee may unreasonably delay the disciplinary hearing while earning the salary.
An employer decision to invoke its right to precautionary suspension, typically does so pending the outcome of an investigation into misconduct, and/or pending the outcome if a disciplinary hearing.
There are however certain simple steps to be followed when doing so. It has become well stablished in our law that procedural fairness requires employers to afford employees an opportunity to oppose their proposed precautionary suspension, prior to it being confirmed by the employer.
It has been widely held that the suspension of employees pending disciplinary action is permissible only when reasonable grounds exist for suspecting that the employee is guilty of serious misconduct and that employee’s presence may compromise preliminary enquiry, and after the employee has been given opportunity to make representations.
The importance of complying with a fair procedure was emphasised by the Labour Appeal Court in MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) (LAC). It held that an opportunity to make written representations to show why a precautionary suspension should not be implemented is sufficient compliance with the requirement of procedural fairness.
In the Labour Appeal court case of Member of the Executive Council for Education North West Province v Gradwell (2012) (LAC) held that “The right to a hearing prior to a precautionary suspension arises therefore not from the constitution PAYA or as an applied term of the contract of employment but is a right located within the provisions of the LRA the correlative of the duty on employers not to subject employees to unfair labour practises. That being the case the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to these rights.”
So in conclusion, in the Labour Court, case of POPCRU obo Masemola and others vs Minister of Correctional Services (2010), fairness requires the following before suspending an employee pending an investigation or disciplinary action (a) the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct, (b) there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of the pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of the affects parties in jeopardy and (c) that the employee is given the opportunity to state a case before the employer makes a final decision to suspend the employee.
by Tony Healy | Feb 26, 2019 | Discipline & dismissal
So, your car breaks down and you have no replacement; is your employer obligated to accommodate your absenteeism and late-coming that follows? No, they are not.
This was he scenario in the Labour Court review application in National Nuclear Regulator v the CCMA & others (Case number JR3104/12). The employee, a Senior Assessor Nuclear Safety, was dismissed for not adhering to the employer’s normal working hours, unauthorised absence from work, and insubordination.
This genesis of this case can be traced back to the time at which the employee’s motor vehicle allegedly broke down, and could not be repaired. Faced with this dilemma, the employee did not purchase another vehicle. He in fact the relied on a borrowed vehicle from a neighbour, but could only get to work on Mondays, Wednesdays and Thursdays, from approximately 3pm. This was of course untenable for the employer.
The employer’s CEO then sent out an e-mail to all staff clarifying working hours and imploring staff to observe the company’s punctuality requirements. All employees complied with the instruction to be punctual, except the employee in this case. Management engaged the employee in an attempt to address his ongoing failure to comply with the employer’s requirement for punctuality.
The employee was eventually issued a written warning, valid for six months. The employer continued to engage the employee on the issue, including a proposal that he use public transport to get to and from work. The employee replied “Your suggestion that I catch a taxi, and by so doing might possibly put my life in danger constitutes an unfair labour practice”.
A final written warning was the issued to the employee, who was also advised that should he commit a similar offence within the twelve-month validity period of the final written warning, a much harsher sanction would be imposed.
Thereafter, the employee was frequently absent from work and continued to report late for work, resulting in the employer summonsing the employee to a disciplinary hearing to answer to four allegations, (1) Failure or refusal to comply with a lawful instruction from the superior, (2) Absenteeism for three or more consecutive working days without permission and (4) Repetition of offence for which a written warning was issued. The employee was found guilty on all four counts, and dismissed.
The employee subsequently referred an unfair dismissal claim to the CCMA. At arbitration, the Commissioner held that the dismissal of the employee was both procedurally and substantively unfair, in that, alarmingly, “the applicant had an explanation for his limited attendance at the office” and that this explanation is “reasonable”.
To rub salt into the wound, the Commissioner made a costs order against the employer “without giving any reasons for such an order”.
The employer took the adverse arbitration award on review to the Labour Court, which held, amongst other things, that had the Commissioner “applied his mind to all the .. considerations which he has ignored, he may have come to a different conclusion. Accordingly, his award is vitiated with irregularities and stands to be reviewed and set aside”.
The judgment continued that the Commissioner had “totally misconstrued the case of the (employer) and in the process committed a reviewable irregularity” adding that he also “failed to take into account material evidence before him and, furthermore, he gave undue emphasis to irrelevant evidence”.
The Labour court ordered that the arbitration award in favour of the employee be set aside, and substituted with “the dismissal of the (employee) is procedurally and substantively fair”.
There are a number of lessons to be learnt from this case. To begin with, working hours should be unambiguous and clearly communicated to staff. Late-coming should be timeously and consistently sanctioned to build a history of progressive discipline. Employees cannot be found guilty of misconduct if they have a valid explanation for absenteeism or late-coming. But if they don’t, it is misconduct.
Prudent employers will also make specific provision for absence without leave and late-coming in their disciplinary codes.
by Tony Healy | Feb 21, 2019 | Industrial Action
Strikers, all too frequently, fail to comply with picketing rules, and elect, on the contrary, to behave in a violent and unlawful manner, causing mayhem. This was the backdrop to the recent Labour Court case in Dis-Chem Pharmacies Ltd v Solly Malema and the National Union of Public Service & Allied workers Case number J4124/18, with the Court eventually starting to show some steel in dealing with unlawful and violent strike related behaviour.
The facts of the case were quite simple. The union had recruited 11% of the employer’s workforce. Regardless of its slim minority membership, it sought collective bargaining rights to negotiate wages and conditions of service on behalf of its’ members. Unsurprisingly, the employer refused to grant the union the collective bargaining rights it sought. Employers typically refuse to grant minority unions collective bargaining rights, as they run the untenable risk of union proliferation, resulting in multiple collective bargaining arrangements in the same workplace or bargaining unit.
The dispute proceeded to the CCMA, and an advisory arbitration award was issued paving the way for the union to embark upon a protected strike to compel the employer to accede to its collective bargaining demands. Picketing rules were ultimately issued by the CCMA, and made an order of Court, after which the protected strike began.
The Labour Relations Act has a Code of Good Practice relating to picketing which, at paragraph two, states that “Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.”
Needless to say, the strikers completely disregarded the picketing rules, and their obligation to picket peacefully, and “remained steadfast in their conduct of violence, intimidation and unlawful behaviour” noted the Labour Court judgment, which continued that the union “either had no control over (the strikers), or did not want to control them”.
The range of unlawful conduct on the part of the strikers included the intimidation and serious assault of non-strikers, the damage to the property (homes and vehicles) of non-striking employees, blockades of shopping malls, and the assault of members of the public. In many instances, the SAPS needed to be summonsed to restore order, “bring the striking employees under control, and protect persons and property”.
The Labour Court judgment, in its analysis, noted that “It has become an almost common place occurrence that where there is a protected strike, violence and unlawful behaviour inevitably follows. It is almost as if striking employees believe this is how things should be done. One only has to spend a week in the urgent Court in this Court to appreciate the gravity of the problem. A significant portion of the urgent roll is devoted to interdicting violence and unlawful behaviour during strikes. The situation perpetuates because it seems that there is very little consequence for transgressors, despite picketing rules and interdicts by this Court being issued”.
This steely stance adopted by the Labour Court is refreshing, and this show of back-bone on the part of the Court, whilst overdue, is to be welcomed.
It is arguable that the all too common cycle of unlawful and violent strike conduct, should rob a protected strike from its protected status? Section 69 (1) of the Labour Relations Act is clear, a picket must be “for the purposes of peacefully demonstrating”, and not, as we so often see, carte blanche license to cause public mayhem.
The Labour Court judgment continued that “It follows that it cannot be seen to constitute a violation of a fundamental right where employees are held accountable for failing to exercise their right to picket in a peaceful manner as required by way of a suspension or forfeiture of those rights …. those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose. The right to protect, picket and assemble is directly linked to it being exercised peacefully”.
The judgment suspended the picketing rules, and interdicted and restrained the union from continuing to picket, or to gather, protest or assemble at any of the employer’s premises.
by Tony Healy | Feb 20, 2019 | Case Law
The best place to start when considering workplace sexual harassment is the Labour Relation Act’s Code of Good Practice on the Handling of Sexual Harassment Cases, which was published as far back as 1998.
This Code addresses such critical aspects of sexual harassment as its definition, forms of sexual harassment, guiding principles, procedures to be followed in such cases, the allocation of additional sick leave in certain circumstances, and employer obligations to educate staff on this important subject.
To begin with, the Code defines sexual harassment as “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behavior that is welcome and mutual”.
The Code goes on to state that “sexual attention becomes sexual harassment if – (a) the behavior is persisted in, although a single incident of harassment can constitute sexual harassment; and (b) the recipient has made it clear that the behavior is considered offensive, and/or (c) the perpetrator should have known that the behavior is regarded as unacceptable.”
The Code is especially informative in listing forms of sexual harassment, and how sexual harassment can be manifested. For example, sexual harassment includes “all unwanted physical contact, ranging from touching to sexual assault and rape. Unsurprisingly, this includes “a strip search by or in the presence of the opposite sex.
But it doesn’t end there. Further forms of sexual harassment include unwelcome innuendos; sexual suggestions and hints; sexual advances; comments with sexual overtones; sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or to them; unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling at a person or group of persons.
Non-verbal forms of sexual harassment listed in the Code include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects. So-called ‘quid pro quo’ sexual harassment “occurs when an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours”.
The Code goes as far as to also state that employers should “issue a policy statement” which confirms the employer’s commitment to all employees right to be treated with dignity, the prohibition of sexual harassment, and the role played by grievance and disciplinary procedures in cases of sexual harassment. In practice, and our firm’s experience in this area, the drafting, and education of staff on, a comprehensive sexual harassment policy meets the requirements of the Code in discouraging sexual harassment and providing a channel to deal with such cases should they arise.
The definition of sexual harassment in the later amended Code in 2005 is that sexual harassment is “…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors – (1) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; (2) whether the sexual conduct was unwelcome; (3) the nature and extent of the sexual conduct; and (4) the impact of the sexual conduct on the employee.’
The Labour Appeal Court judgment in Campbell Scientific Africa (Pty) Ltd v Simmers and Others held that “The treatment of harassment as a form of unfair discrimination in s 6(3) of the Employment Equity Act 55 of 1998 (EEA) recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace”, continuing that ‘‘By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this court has characterised it as ‘the most heinous misconduct that plagues a workplace’.
In SA Broadcasting Corporation Ltd v Grogan NO and Another (2006) the Labour Court observed that sexual harassment by older men in positions of power has become a scourge in the workplace. In Gaga v Anglo Platinum Ltd and Others (2012), the Labour Court held that this Court noted similarly that rules against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinates.
by Tony Healy | Feb 14, 2019 | Discipline & dismissal
It should go without saying that racist remarks and language is abhorrent, and is treated as such in labour disputes, if proved.
This was the subject matter in the Labour Court case of Juda Phonyogo Dagane v the Safety and Security Sectoral Bargaining Council & others (JR2219/14). More especially, the racist remarks were made on Facebook, showing the continued growing phenomenon of dismissal for inappropriate employee comments in social media.
In this case, the employee had been dismissed by the employer after having been found guilty of making “vitriolic racist comments on the Facebook page of the leader of the Economic Freedom Fighters (EFF), Mr Julius Sello Malema”. The employee’s alleged comments included “F… this white racist shi..! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA” and “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”
The employee had been charged with four counts of misconduct, namely “prejudicing the discipline and efficiency of the SAPS and contravening the SAPS Regulations, Code of Conduct and Code of ethics by unfairly and openly discriminating against others (whites) on the basis of race; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The dismissal was held to have been fair at the arbitration hearing. At the Labour Court, the substantive fairness of the dismissal was challenged on review. The procedural fairness of the dismissal was also challenged on review, via inappropriate means in so far as is relevant, on grounds that the “charge sheet” [sic] was not adequate, as it did not set out the date, time and place where the misconduct occurred.”
In assessing the merits of the review application, with specific reference as to whether the arbitrator had applied her mind in finding that the dismissal of the employee had been substantively fair, the Labour Court judgment noted that “The (CCMA) Commissioner (had) also considered the applicant’s argument that there was no policy regarding social media within the workplace. She noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. This too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee argued that his Facebook account had either been hacked, or someone had, unbeknown to him, opened the Facebook account without his knowledge or permission.
In this regard, the Labour court held that “The Commissioner found on a balance of probabilities that the applicant was the author of the offensive and racist remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech. This is a reasonable conclusion in relation to the totality of evidence that was before her”.
The judgment continued that the employee “was dismissed for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatant blatantly discriminatory racial remarks; by blatantly threatening the future safety and security of white people; and by making remarks on Facebook which amounted to hate speech. It hardly needs to be reiterated that the use of racist language is despicable”.
The judgment importantly added that “Whilst there has been a plethora of cases on this most unfortunate scourge of our society, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others perhaps remains the locus classicus “The attitude of those who refer to, or call, Africans “Kaffirs” is an attitude that should have no place in any workplace in this country and should be rejected with absolute contempt by all those in our country – black and white – who are committed to the values of human dignity, equality and freedom that now form the foundation of our society. In this regard he courts must play their proper role and play it with conviction that must flow from the correctness of the values of human dignity, equality and freedom that they must promote and protect. The courts must deal with such matters in a manner that will “give expression to the legitimate feelings of outrage” and revulsion that reasonable members of our society -black and white – should have when acts of racism are perpetrated. It was never contended that the use of the racist epithets in question should not be visited by the sanction of dismissal. Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question. The Judge President has dealt comprehensively with this matter in his judgment and I wholeheartedly endorse everything that he says in this regard.”
