It may sound unfair, or unreasonable, but employers are not obliged to pay employees who are retrenched, severance pay, if they refuse to accept an offer of alternative employment with their current employer or another employer, when being retrenched. This is specifically provided for in sections 41(2), and 41(4) of the Basic Conditions of Employment Act.
Employees are, in law, entitled to a minimum of one week’s severance pay for each completed year of continuous service with the same employer, when retrenched. However, the employer is not obliged to pay severance pay if an employee unreasonably refuses to accept an offer of alternative employment.
In 2014, the Cape Town Labour Court, in Argent Steel (Pty) Ltd t/a Gamid George v Tracey Ann Lancaster & 3 others (case number C541/2014) made reference to the landmark judgment in “Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics (2014) 35 ILJ 140 (LAC), with particular reference to Irvin and Johnson Ltd v CCMA (2006) 27 ILJ 935 (LAC), reasonableness of a refusal to accept an offer of alternative employment should be assessed within the context of the following factors and principles where (a) an employer arranged alternative employment for an employee and the employee rejected the alternative employment for no sound reason, but simply in order to take the severance pay, that payment should not be paid to such employee; (b)the purpose of these provisions was to discourage employees from unreasonably rejecting offers of alternative employment arranged by their employers simply because they might prefer cash in their pockets in the form of severance pay; (c) if an employer offers an increased amount or, at the very least, the same amount, viewed within the context of the specific conditions of employment that cannot on any reasonable basis be taken as more onerous than that which existed prior to the retrenchment exercise, and if an employee refuses to accept such an offer, that refusal is then unreasonable;
(d) the purpose of the BCEA, would be subverted, where a Court finds that, notwithstanding an equivalent offer, at the very least, an employer would be compelled to pay severance packages; (e) if there is a reasonable and similar position offered at a similar salary, then the refusal to accept same will negate the necessity to pay a severance payment to that employee; (f) thus, the refusal must be justifiable and reasonable in order to lay claim to the severance payment, and there would no necessity to pay any severance payment if in fact the offer of alternative employment was fair and reasonable in all the circumstances, inclusive of a transfer from one region to another; (g) similarly, a refusal to accept an offer of alternative employment in circumstances where the employer still need the skills and expertise of the affected employees, and the latter insists that they be offered the same positions or positions at the same or higher level, is unreasonable”, so held in Pretorius v Rustenburg Local Municipality and Others (2008) 29 ILJ 1113 (LAC).
It makes sense that an employer should not be compelled to pay an employee severance pay in circumstances in which the employee is offer alternative employment which would not materially prejudice them. For example, if an employee whose position has been made redundant, is offered alternative employment which does not actually, or materially, impact on his or her remuneration, working hours and status, which they decline to accept, the employer is not obligated to pay the employee being retrenched, severance pay.
When all is said, and done, every case needs to be assessed on its merits; no two cases are the same. It also follows that if an employee reasonably refuses an offer of alternative employment with the employer, or another employer, because the working hours are longer, their remuneration is less, or the position would require them to relocate, the employer would be obligated in law to pay the employee severance pay no less than one week’s remuneration for each year of continuous employment.
Assault is an understandably emotionally charged, category of assault, which more often than not, justifies dismissal. It need not however always warrant dismissal.
In the arbitration award in SACCAWU obo A. Carolus v Freshmark (Pty) Ltd [Case number 16835-18], it was noted that “There is no doubt that the rule against assault is an important one. An employer is obliged to provide its employees with a safe working environment and an assault by one employee on another (whether a permanent employee or contracted worker) causes a breach of this duty. For this reason, the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) lists assault as one of the valid grounds for dismissal for a first offence, with no requirement for prior warnings”.
In Bombela Operating Company (Pty) Ltd and Jackson Mthukwane, NO & others JR 1922/13 the Labour Court held that an “assault takes a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied. In this case, there was such application of physical force. By its very nature, assault is a serious form of misconduct. This however does not imply that every case of assault should be met with dismissal, in that it acknowledges that defenses such as provocation may negate the unlawfulness of that conduct “. In this case, the Court concluded that the order of reinstatement should have been accompanied by some form of sanction, and upheld the reinstatement of the employee, ordering that he be issued a final warning, rather than being dismissed.
In a recent arbitration award (21 January 2020) the CCMA upheld the notion that whilst assault is clearly a form of gross misconduct, it will now always warrant dismissal. The arbitration award in Petheni Andrews Mhlabeni v Rainbow Chicken Farms (Pty) Ltd [Case number NWRB2867-19], the employee, a machine operator, had been dismissed for assault.
One of the employee’s colleagues had grabbed him by the lapel of his coat, after which he then struck him in response. As noted in the judgment, “The footage clearly shows (the colleague) grabbed (the employee’s) coat. (The employee) retaliated by striking (his colleague) with both hands on either side of his head. Both then disengaged. Had (the employee) then struck (his colleague) I would have no hesitation in agreeing with the Respondent that dismissal was the appropriate penalty. However, I am required to find whether the sanction of dismissal was fair in these circumstances”.
That said, John Grogan in his book, Dismissal Juta & Co. Ltd Second Edition 2014 states that, “assault is generally accepted as a valid ground to dismiss the assailant? The legal requirements for the offence are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or threat that such force will be applied. In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship between the employee and the complainant, and the effect of the assault on the interpersonal relations and the business of the employer.”
Like pretty much all misconduct cases, each individual assault case needs to be assessed on its own merits. No two cases are the same; they may be at face value, but on closer scrutiny, each case has its own unique set of circumstances.
Dismissal for assault was also considered too harsh in the MEIBC arbitration award in NUMSA obo A. Ntlabezi v Betafence SA (Pty) Ltd [Case number MEWC 10814] in which it was held that “on a balance of probabilities that Ntlabezi is guilty of a minor assault after extreme provocation from Swartz. However, such provocation was not taken into account by the employer and a sanction short of dismissal should have been applied”.
Professional advice should be sought if in doubt as to the seriousness of such cases.
Section 96 of the Labour Relations Act outlines the steps to be followed when a trade union or employer’s organisation wishes to register with the Department of Labour. This process is relatively straightforward and includes the completion of a prescribed form, the submission of, for example, the trade union’s Constitution, and “any other information that may assist the registrar to determine whether or not the trade union or employer’s organisation meets the requirements for registration”. Once registered, there are various ongoing requirements to remain registered, including the keeping of accounting records and the conducting of annual audits. In addition, unions have a duty to keep certain records, including a list of all its members, the minutes of meetings as well as ballot papers, for a period of three years from the date of every ballot.
Provision is made in Section 101 of the Labour Relations Act for the changing of a trade union’s Constitution or its name. This again is a relatively simple process, and may include circumstances in which the trade union wishes to change or replace its Constitution.
One of the key components of any trade union’s Constitution is a description of its scope. A trade union’s scope describes, in simple terms, the industries in which the trade union seeks to operate, and this is typically listed in an annexure to a trade unions constitution. It follows that when a trade union drafts a Constitution that specifies the industries and sectors in which its scope of operations is to operate, it is obligated to limit its activities to those specific sectors and industries, and not stray into other, non-specified sectors.
One would expect a trade union, and indeed and employer’s organisation for that matter, to stay in its lane when it comes to conducting its day to day activities in the industries and sectors which it identifies as its jurisdiction, in its Constitution. For example, trade union registered to be active in the hairdressing industry should not seek to represent members in the mining industry.
The fact of the matter is however, that quite frequently, trade unions operate in industries and sectors outside the list of industries and sectors listed as their scope in their Constitution.
This very issue was addressed in a Labour Appeal Court judgment handed down in mid-2019 in the case of Lufil Packaging (Isithebe) (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & 2 Others (Case number DA8/2018).
In this case, it was held that “a trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so, they act in excess of their powers and the act has no validity”. A purported decision by a union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision which is immune from attack by an affected employer. Such a decision is ultra vires and invalid and as such, susceptible to challenge by the employer from whom organisational rights, based on the membership concerned, is sought.
So, what we saw in this case was the employer challenging the union’s scope in that it was successfully argued by them that the printing and packaging sector in which it operates does not form part of the union’s scope.
NUMSA (National Union of Metalworkers of South Africa) approached the employer “asking it to provide stop-orders for the deduction of union fees for its (alleged) members who were employees” of the employer. The employer refused to recognise NUMSA by virtue of the fact that NUMSA had registered scope (“metal and related industries), specified in its constitution, which fell outside of the employer’s scope of business. More specifically, the employer operated in the printing and packaging sector, not in metal and related industries.
The Lufil Labour Appeal court judgment held that “trade unions at common law have only those powers and capacities that are conferred on them by their constitutions. The LRA required unions to determine in their constitutions which employees are eligible to join them and by necessary implication precludes them from admitting as members employees who are not eligible to be admitted in terms of the trade union’s registered constitution. If it is shown that the persons concerned are precluded by the union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires the union’s constitution and invalid”.
For this reason, it was held that “the employees on which (NUMSA) relied in alleging it was sufficiently representative could not be and thus were not, in law members of NUMSA, as they did not fall within the scope of the union in terms of NUMSA’s constitution”. Put differently, Lufil operated in the printing and packaging sector, not the metal and related industries sector.