We don’t see enough progressive discipline

We don’t see enough progressive discipline

Disciplinary procedures are, first and foremost, a process to attempt to correct unacceptable employee behaviour.  There are of course many occasions when dismissal for a first offence is fair and justified, such as in cases of gross dishonesty, breaches of safety protocols and assault.  However, as a general observation, employers tend to utilise disciplinary action more for dismissal than correction.

As a rule of thumb, alleged unfair dismissal cases are easier to defend at the CCMA and bargaining Councils if there is a history of progressive discipline, than is the case when the employee, at face value, has no history of progressive discipline.

Item 3 (2) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) states that “The courts have endorsed the concept of corrective or progressive discipline.  This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them”.  Importantly, it continues that “Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings”.

We see in practice that less serious, and occasionally, regular acts of relatively minor misconduct are frequently overlooked by employers. Yet, as we see all too often, an employee may commit the same act of relatively minor misconduct once too often in the eyes of the employer, who then seeks the dismissal of the employee for repetition of the minor act of misconduct over time.  Such an example could include habitual late-coming.  The employee may indeed have a horrendous poor time-keeping record, but if no prior, timeous corrective or progressive disciplinary sanctions were applied in those instances, this employee with a poor time-keeping record has an unblemished disciplinary record, when they ought to have, for example, had a final written warning for this offence on file.

All too often we see employers rue the fact that they did not apply prior progressive discipline.

Item 3(3) of the Code of Good Practice: Dismissal confirms that “Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity.  More serious or repeated misconduct may call for a final warning, or other action short of dismissal”.

Item 3(4) of the Code of Good Practice: Dismissal emphasises the importance of progressive discipline even further in stating that “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable”.

The issuing of progressive disciplinary warnings is relatively simple.  There are typically three levels of disciplinary warnings, verbal warnings (typically valid for three months), written warnings (typically valid for six months) and final written warnings (typically valid for twelve months).  Before any warnings are issued, the employee should be given an opportunity to explain themselves, before the employer decides whether the employee is ‘probably’ guilty of the misconduct, prior to selecting an appropriate sanction (warning).

No formal disciplinary hearings are necessary before issuing a disciplinary warning.

In the final analysis, disciplinary warnings are an attempt to bring an employee’s attention to unacceptable conduct, in the hope that they will refrain correct their conduct going forward.  Whilst most employees will correct unacceptable conduct with simple counselling and informal measures, other employees will not do so until such time as disciplinary steps are taken against them more formally.

It is generally accepted that employers should develop a disciplinary procedure and code which outlines the employer’s in-house disciplinary procedures, and establishes a company disciplinary code which as appropriate for the nature of the employer’s business.

Can employers require employees to be vaccinated?

Can employers require employees to be vaccinated?

The tense uncertainty as to whether employers will be entitled to impose mandatory Covid19 vaccine policies on employees is already a hot topic, and it’s going to become even more so in the coming months, as vaccines arrive in the country and the vaccine drive begins. The answer to this conundrum is, perhaps understandably, unclear. There are many factors which will go into ultimate legal direction on whether employers will be able to make vaccines compulsory for employees and job applicants.

One thing I for sure, many employers will be eager to have all their employees vaccinated for numerous justifiable reasons.

Few countries having laws which explicitly permit or prohibit employers from mandating vaccines, and South Africa is no different. A recent (29 January 2021: Vol. XI, Number 29) of the USA National Law Review noted that “employers cannot mandate vaccination in the European Union, nor can governments justify it from the point of view of personal freedom. In Chile, the possibility of employer-mandated vaccination is under discussion, and in Canada, employers could consider, for example, access restrictions to the workplace where employees refuse the vaccination”.

But what about the South African workplace? Let’s start with the case for making vaccination compulsory at work.

The point of departure is the Occupational Health & Safety Act. You don’t need to look much further than section 8 of this Act, General duties of employees to their employees, to find pretty much everything there is to know about exactly what steps employers must take to ensure a healthy and safe workplace. A simple reading of section 8 of the Act all but confirms that mandatory vaccination in workplaces should easily pass legal scrutiny.

For starters, the Act compels employers to not only ensure the safety of its employees, but in fact all persons on the employer’s premises. This would include, for example, sub-contractors, visitors and anyone else who enters the employer’s premises. What’s more, this obligation to ensure the safety of all employees and any other person in the workplace must be undertaken proactively by the employer, as confirmed in a Labour Appeal Court judgment in Pikitup (Soc) Ltd v SAMWU [LAC: 2014].
It’s not a stretch to assume that a mandatory Covid19 vaccine policy would be one such proactive measure in the face of the pandemic.

The Act defines ‘occupational hygiene’ as meaning the “anticipation, recognition, evaluation and control of conditions arising in or from the workplace, which may cause illness or adverse health effects to persons”. Covid19 quite plainly “may cause illness or adverse health effects to persons”. Section 8(2)(b) of the Act compels employers to “eliminate or mitigate any hazard or potential hazard to the safety or health of employees, with section 8(2)(g) adding that it’s not only employees who are the focus of a healthy and safe work environment, but indeed “every person … on the premises”. This would include sub-contractors, visitors and any other person who enters the employer’s workplace.

Employees too have statutory Occupational Health & Safety Act obligations in that, says section 14 of the Act (Employee Duties), employees must “take reasonable care of the health and safety of himself and others who may be effected by his acts or omissions”. Does refusal to be vaccinated not adversely affect the “health and safety of himself and others” in the workplace? Surely it does?

It’s hard to argue against the fact that a simple reading of the Occupational Health & Safety Act all but confirms that will have a legal right to require employees to be vaccinated. However, and importantly, these statutory employer and employee obligations to ensure a safe and healthy workplace must be weighed up against certain human rights contained in the Bill of Rights in the South African Constitution.

Key Constitutional rights in this debate are the right to human dignity, bodily integrity (control over one’s body), religious and cultural beliefs. Let’s not forget however that all rights are subject to section

Key in the debate as whether or not employers can require employees to have the Covid19 vaccine is whether, or not, section 36 of the Constitution, Limitation of Rights, will ultimately be judged to limit the Constitutional rights to human dignity, bodily integrity, religious and cultural beliefs, in favour of mandatory vaccination, on grounds that these rights can, in the circumstances, be justifiably and reasonable limited, in the interest of public health and fighting the pandemic.

Another key consideration is the fact that in unionised environments, an employer can enter into collective agreement which makes vaccination compulsory for the entire workforce.

Yet another aspect of potential mandatory vaccination policies is potential for an employer to be sued by way of a civil claim, for any medical adverse effects, on an employee.

Perhaps the best compromise, is to permit mandatory Covid19 workplace vaccine policies, with the potential for exceptions based on justifiable medical, cultural and religious grounds, or to legislate for mandatory vaccination of employees in workplaces at greater risk of infection, such as mines and other workplaces which are characterised by enclosed, poorly ventilated working environments.

Selection criteria are frequently an employer’s Achilles heel in retrenchments

If you want to know what typically gets employers into trouble in retrenchment disputes, look no further than inadequate consultation and unfair selection criteria.

To begin with, employers have an obligation, in respect of section 189(2) of the Labour Relations Act, to conclude “a meaningful joint consensus-seeking process and attempt to reach consensus” on essentially three things.  Firstly, ways of avoiding the proposed retrenchments, secondly if unavoidable, ways of delaying the timing of the propped retrenchments, and thirdly, ways of mitigating the adverse effects of any confirmed retrenchments, including how much severance pay is to be paid.  As has been confirmed in case law over tie, including Van Vuuren v Mondelez South Africa (Pty) Ltd [2019] 3 BLLR (LC), a mechanical checklist approach is inappropriate, and will result in a presumption of unfairness.

As confirmed by the Labour Appeal Court in Wanda v Toyota SA Marketing [2003] 3 BLLR (LAC), there is no legal requirement that consensus is reached, although there must be clear evidence of the fact that the employer none the less sincerely endeavoured to facilitate a joint consensus-seeking process, even though that process was ultimately unsuccessful.  The emphasis is on there being evidence that the joint consensus-seeking process followed by the employer, was meaningful.

In Association of Mineworkers and Construction Union (AMCU) and Others v Shanduka Coal (Pty) Ltd, [2013] JOL 29787 (LC), the Labour Court confirmed that “It is well established that the consultation process envisaged under section 189 is intended to be a joint goal orientated problem solving process. It is one in which the parties ought to try and reach a common understanding on the need for and extent of any retrenchments. In examining the need for retrenchment, the parties must, as a matter of logic, and in terms of sections 189(2)(a)(i) and (ii), explore if there are ways of addressing the operational need without shedding jobs, or at least by minimising job losses. If job losses cannot reasonably be avoided there is a need to look at what can be done to ameliorate the position of those who will be affected and how they will be selected for retrenchment. Ideally, the logical progression of discussions would follow the sequence of issues set out in section 189(2). However, discussion on these issues often proceed in tandem, so that selection criteria might be discussed even though parties have not yet agreed on the need or extent of any retrenchments. Nothing prevents this happening but to avoid misunderstandings parties would be well advised at each round of consultations to review what has been agreed, what is still unresolved but requiring further consultation, and what is unresolved but where neither party has anything new to suggest which might break the impasse on an issue”.

However, employers who lose retrenchment cases, most often do so because it has been determined that the criteria adopted to select the retrenched employees, were unfair.  Section 189(2)(b) of the Labour Relations Act states that “The employer and the consulting parties must in the consultation envisaged by sub-sections (1) and (3) engage in a meaningful joint consensus-seeking process and attempt to reach consensus on the method for selecting the employees to be dismissed”.

Section 189(7) of the Labour Relations Act continues on this theme in adding that “The employer select the employees to be dismissed (retrenched) according to criteria – (a) that have been agreed to by the consulting parties; or (b) if no criteria have been agreed, criteria that are fair and objective”.

The significance of this section of the Act was emphasised in Singh v Mondi Paper [2000] 4 BLLR (LC) – “the selection process must rank as the most fundamental issue for scrutiny in order to determine whether the dismissal was fair or not.  An employer can get everything else right but if the selection process during which the employees who were ultimately dismissed is found to be unfair and subjective, the entire process is flawed thereby”.

The criteria to be adopted in the selection of potential retrenchees, is something which must be consulted on; the employer may not simply unilaterally impose cast-in-stone selection criteria.  If consensus cannot be reached on the selection criteria in the consultation process, the employer is then entitled to unilaterally identify selection criteria, as long as they are fair and objective.  And that’s the rub; all too often, selection criteria adopted by the employer are held not to have been fair and objective.

It must be remembered that retrenchment is a so-called no-fault dismissal, and as noted by the Labour Appeal Court in Porter Motor Group V Karachi [2002] 4 BLLR (LAC), the “code of good practice on dismissal in Schedule 8 to the Act …. lists length of service, skills and qualifications as generally accepted considerations”.

That said, evolving case law does recognise that certain other criteria may be considered fair and objective.  For example, in NUMSA & others v Columbus Steel (Pty) Ltd [LC: case number JS529/14] the court confirmed that an “employee’s disciplinary record and attendance records, which by any account are objective benchmarks” together with “conduct, experience, skill, adaptability, attitude, potential, and the like, are on the face of it, acceptable selection criteria”.

The non-disclosure of an adverse relationship with a prior employer is not grounds for dismissal

It’s not surprising that job applicants will typically be reluctant to reveal acrimonious termination of employment with a previous employer.  This is as common as the all too common patterns of CV embellishment seen daily.  So how much is a job applicant required to reveal about how they left their previous employer, in a subsequent job application process?  Also, is the non-disclosure of an adverse relationship with a prior employer amount to misconduct, and if so, dismissible misconduct.

The extent to which a job applicant is obligated to disclose facts during the recruitment process were prescribed by the Labour Court in Galesitoe v CCMA & others [2017] 7 BLLR 690 (LC), where the court had the following to say on the subject – “Accordingly, it is not unreasonable to ensure that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose having regard to the principle enunciated in ABSA v Fouche which the LAC and the LC followed in the Fipaza case”.

In a more recent judgment in Intercape Ferreira Mainliner (Pty) Ltd v Rory Mark McWade & others – (Labour Court: Case number JR158/170 delivered on 13 September 2019, the court pronounced on this issue by holding that -“outside the category of deliberate false representations of fact, a prospective employee may nonetheless be required to disclose information not specifically requested, if that information is material to the decision to employ: or where (as in the present instance) a question is asked, that a less than honest and complete answer might form the basis for a dismissal when the truth is ultimately discovered.”

The question of whether, or not, the nature of a job applicant’s relationship with a former employer must be disclosed to a prospective new employer, was once more addressed in a much more recent Labour Court judgment (8 May 2020) in Maye R. Makhafola v National Bargaining Council for the Road Freight and Logistics Industry & 2 others (Case number J2673/16).

The employee had resigned from her previous employer after she had been found not guilty at a disciplinary hearing.  She was especially aggrieved by the disciplinary hearing process, and subsequently resigned and lodged a constructive dismissal claim against the previous employer.  Prior to being issued the disciplinary notice, she had received a job offer from another employer.  What appears to have been somewhat relevant in this case is the fact that her previous employer was a client of her prospective new employer.

The employee did not disclose her disciplinary hearing or pending constructive dismissal case against her previous employer, with her new employer, until she had commenced employment with her new employer.

The applicant did however inform her new employer of the constructive dismissal claim pending against her old employer, and the disciplinary hearing at which she was found not guilty.

Her new employer “did not respond favourably to this and instituted disciplinary action against the Applicant which led to her dismissal”.  The new employer charged the applicant with (1) “Failure to disclose information relevant to your employment with Imperial in that you have known of the adverse relationship that you have with Aveng Trident Steel at the time of our appointment with Imperial and that you failed to disclose your adverse relationship with Aveng Trident Steel, the latter which prevented you to fulfil your contractual employment obligation as a Project Manager pertaining to the Aveng Trident Steel contract” and (2) “adverse relationship with Aveng Trident Steel in that you have an adverse relationship with Aveng Trident Steel, the latter which prevents you to fulfil your employment obligations as a Project Manager pertaining to the Aveng Trident Steel contract.” She was found guilty and dismissed. The applicant challenged the fairness of her dismissal at the CCMA, which held that the dismissal was “for a valid and fair reason. The failure by the Applicant to disclose an adverse relationship that she had with the Client (Trident Steel) [7] damaged the trust component that is corollary to an employment relationship”.The Labour Court held that “it cannot in my view be said that the so-called non-disclosure of the adverse relationship amounted to any form of misrepresentation on the Applicant’s part, nor constituted misconduct which became a dismissible offence”.  In yet another related judgment, the Labour Court in Galesitoe v CCMA and Others [2017] 7 BLLR 690 (LC) held “Accordingly it is not unreasonable to ensure that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. This would give rise to an obligation to disclose…”.  The Labour Court continued that the failure to disclose must pertain to material information, “at least in the sense that the prospective employer would have conducted its own enquiry into the relevant facts and determined eligibility or sustainability for employment as a consequence”.

First Quantum Minerals Limited

First Quantum Minerals Limited

Tony Healy & Associates is our go to labour consultants.  I recommend them for their pragmatic and value for money solutions to labour issues.

Eurita Swarts

HR Manager, First Quantum Minerals Limited