The employer Covid-19 vaccination conundrum

The employer Covid-19 vaccination conundrum

The much-anticipated Department of Employment and Labour ‘Direction’ on Covid19 vaccination was Gazetted on 11 June 2021. Mandatory vaccination is permissible; or is it?

Employers across the country are grappling with the decision of whether to make Covid19 vaccination mandatory, ensuring compliance with the 11 June 2021 Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces Gazette.  Annexure C of this Gazette is entirely devoted to mandatory Covid19 vaccination (“Guidelines if an Employer Makes Vaccination Mandatory”).  Helpful as it is, it does not address the question of dismissal in circumstances where an employee persists in their refusal to be vaccinated, if the employer has adopted a mandatory vaccination policy.

Getting the social partners to reach agreement on the question of workplace vaccination considerations can’t have been easy.  In fairness, it is a complex, multifaceted challenge.  On the one hand, the Occupational Health and Safety Act compels employers to promote and ensure workplace safety, health and hygiene, which suggests that workplace Covid19 vaccination should routinely be mandatory.  Yet, on the other hand, our Constitution provides for key human rights such as the right to equality, dignity, bodily and psychological integrity, freedom of religion, belief and opinion, and fair labour practices; all of which lay the groundwork for the contesting of mandatory workplace Covid19 policies.

So, there we have it.  Employers may establish mandatory vaccination policies, or is that may not?  Hence the current almost paralysis in employer ranks on the workplace vaccination policies being pondered throughout commerce and industry.

At face value, some industry sectors will have a stronger argument and justification for establishing blanket mandatory workplace vaccination policies than others.  For example, most health facilities, in all likelihood, will be able to justify a mandatory vaccination policy given the operational difficulty in applying strict social distancing protocols.  The mining sector too should be able to justify a mandatory vaccination policy given the enclosed working environment in mines, other than open cast mines.  It is even quite arguable that in the hospitality sector, such as kitchens and housekeeping, mandatory Covid19 vaccination policies should be able to withstand scrutiny.

However, our observations over a wide cross-section of other industry sectors, is that employers would by and large prefer mandatory vaccination policies, but are reluctant to do so for fear of being one of the first test cases on the question of mandatory vaccination policies.  Because, make no mistake, there will be a test case, or more likely, a slew of test cases, and no employer is particularly enthusiastic about being a party in such a case.

When all is said, and done, there are three options when it comes to concluding a workplace vaccination policy (1) vaccination is non-mandatory, (2) vaccination is mandatory, or (3) vaccination is mandatory for some employees, but not others.

Section 4 of Annexure C of the Gazette highlights that when contemplating a mandatory vaccination policy “a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business”.

An employer’s risk assessment in accordance with sections 8 and 9 of the Occupational Health and Safety Act will largely influence employer decisions regarding mandatory, or non-mandatory workplace Covid19 vaccination policies.  If an employer risk assessment concludes that the workplace is an inherently hazardous environment which is incapable of limiting the likelihood of workplace infection, a mandatory Covid19 mandatory workplace policy will be more justifiable than a workplace which can take steps to minimise the likelihood of infection.  This, of course, applies to both employees and any other third parties who may access the workplace.

On a practical level, the workplace risk assessment would focus on the ability to maintain social distancing, ventilation, sanitising protocols, the staggering of working hours and meal breaks, hygiene protocols and the like.

It is quite possible that an employer makes Covid19 vaccination mandatory for some employees, but not for others.  For example, given the ergonomics of many workplaces, there may be a likelihood that infection will more likely impact on the health of employees, or others, in one area of a workplace, more than another.

Sooner or later, there will be dismissals for refusal to be vaccinated in workplaces with mandatory Covid19 vaccination policies; it’s inevitable.  It’s clear from annexure C of the Gazette that any pre-dismissal procedure will need to include an employer evaluation of the employee’s grounds for refusal, and an assessment of whether it was possible to accommodate the employee in a position that does not require the employee to be vaccinated.  If not, dismissal on grounds of refusal to be vaccinated in a workplace with a mandatory workplace Covid 19 policy will likely amount to dismissal on grounds of either misconduct (refusal to obey a lawful and reasonable instruction), or potentially on grounds of incapacity, in that without being vaccinated, the employee does not have the capacity to meet their employment obligations in not agreeing to be vaccinated.

The tickly beard and the sexual harassment dismissal

Most unfortunately, we will in all likelihood be lamenting the scourge of workplace sexual harassment for some time to come.  The Code of Good Practice in handling of Sexual Harassment Cases in the Workplace could not be clearer – “Sexual harassment in the working environment is prohibited on the grounds of sex and/or gender and/or sexual orientation” (section 3).

Section 4 of the Code provides us with the test for sexual harassment – “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”.

It’s not complicated, but here’s the thing.  Firstly, most employees underestimate how broad the definition of sexual harassment is, and secondly, too few employers educate and sensitise employees on sexual harassment in the workplace, and the consequences thereof, for both the victim and the perpetrator.

On 11 May 2021, the Labour Court passed judgement on one such sexual harassment case – Thandani Umlaw v CCMA & 2 others (Case no. JR1466/18).

The facts were quite straight forward.  As recorded in the judgment “The applicant (the alleged perpetrator) was alone in an elevator at work when a female colleague (Ms. S) entered and complimented him on his newly grown beard.  Ms. S added that the beard looked good on him.  After the applicant had thanked her, Ms. S asked him why he had kept his beard long.  The applicant’s response was that he uses it to ‘tickle’ and then proceeded to demonstrate what he meant by holding Ms. S and rubbing his bearded face against her face in a tickling manner, giving her a bear-hug, and a kiss on the neck and face.  On his own version, and for good measure, a further kiss on Ms. S’ forehead followed”.

The judgment continued that “for demonstrating the tickling prowess of his grown beard and other related conduct whilst in the elevator with Ms. S, the applicant was charged and dismissed for sexual harassment”.

Let’s pause a moment.  Most reasonable minded people will have no difficulty in appreciating that the behaviour described is wholly unacceptable.  Be that as it may, the alleged perpetrator, who was dismissed for sexual harassment, after which he referred an unfair dismissal case to the CCMA.

At the CCMA, the dismissal of the alleged perpetrator was held to have been procedurally and substantively, after which he took the CCMA arbitration award on review at the Labour Court, arguing that his dismissal as unfair, and seeking an order that the arbitration award be set aside.

During the course of the Labour Court matter, further details regarding the case came to light, such as the fact that Ms. S reported the incident to her employer, informing them, understandably, that she felt violated and was scared to go back to the office.  According to Ms. S “throughout the experience she remained numb and silent in shock and disbelief”.

The alleged perpetrator acknowledged asking Ms. S about her weekend plans when the elevator stopped at the level where staff vehicles were parked.

In the Labour Court judgment, the Judge noted that “The compliment of Ms. S was clearly innocuous and did not deserve any response other than a simple ‘thank you’ .. not the response she got”.

Tellingly, the perpetrator “ .. failed at the time and even in these review proceedings, to appreciate the enormity of the consequences of his reprehensible conduct”.

Predictably, the review was dismissed and the dismissal was upheld.

Employers interfere with hearing sanctions at their peril

As a rule, employers may not interfere with the outcome of a disciplinary hearing where the chairperson is empowered to make a final decision.  This, was confirmed in South African Revenue Services v Commission for Conciliation Mediation & Arbitration & others [2016] 3 BLLR 297 (LAC), in order to protect employees from arbitrary interference with discipline in a fair system of labour relations.

This issue was addressed in a recent Labour Court case – Technology Innovation Agency v Segopotso Mashapo & 2 others (Case no. JR449/19).

The employee had been issued a written warning for insubordination.  The employee was “displeased” with the written warning, and lodged an internal appeal.  This, puzzlingly, led to a formal disciplinary hearing being convened. As noted in the judgment “It is not apparent from the record as how the appeal process concluded and what happened to the impugned written warning”.

The disciplinary hearing was chaired by an independent chairperson who found the employee guilty and recommended a sanction of a final written warning, valid for a period of 12 months. However, management than corresponded with the employee, informing him that management had ‘expressed its reservation’ on the recommended sanction of a final written warning “and invited him to make written submissions as to why the sanction of final written warning should not be substituted with a sanction of dismissal”.

Notwithstanding the employee’s objection to this, management substituted the final written warning with the sanction of dismissal.

The dismissal of the employee was, unsurprisingly, found to have been substantively unfair, and the employee was awarded 6 months compensation.

The Labour Court judgment concurred with the CCMA Commissioner – “It is inexplicable that a sanction of a written warning would be catapulted into a dismissal when the circumstances that led to the charges remained the same”.

There’s a lesson here for employers.  As we routinely advise clients, always build a managerial appeal into a company appeal procedure. This may not have quite assisted the employer in this case, but it does as a rule afford employers a legitimate opportunity to revisit disciplinary hearing outcomes they consider ill advised.

The story of the light blue hairclip and a fair dismissal

The story of the light blue hairclip and a fair dismissal

It’s an unfortunate reality that in this day and age of massive unemployment, certain employees have scant regard for, or appreciation of, their otherwise secure employment. All too often, employees behave in a manner which defies all logic and comprehension.  Such was the case of the case of the light blue hairclip and a fair dismissal.

Our story starts in a Pick n’ Pay franchise in Brackenfell, where Xolelwa Ntantiso was employed as a cashier. Xolelwa had an otherwise good relationship with her manager.  She had none the less received a written warning for insolence earlier in the month in which Hairpingate occurred, although toward a different manager, and in different circumstances.

The employer had a policy governing the personal appearances of staff, one aspect of which was that hair accessories had to be navy blue or black.  Let’s pause for a moment.  One would think that it would not cross an employee’s mind that this was an unreasonable rule, nor indeed a rule worth repeatedly and defiantly refusing to comply with, thereby putting one’s job security in jeopardy.  Well, that’s exactly what Xolelwa inexplicably did.

On the morning in question, her supervisor observed her wearing a light blue hairpin, and asked her to remove it.  Xolelwa refused to do so “pointing to another staff member whose hairpin similarly did not comply with the policy”.  The supervisor the instructed the other employee to remove her hairpin, which she did.  Yet Xolelwa continued to refuse to remove her hairpin, after which an altercation ensued and she was disciplined and ultimately dismissed.

Xolelwa was of the view that her dismissal was unfair, and she lodged an unfair dismissal dispute at the CCMA.

The arbitrator acknowledged that Xolelwa’s failure to wear the correct colour hairpin, in and of itself, was only a breach of a minor rule governing the wearing of hair accessories.  However, she had been dismissed for “serious, persistent and deliberate” insubordination.  The arbitrator dismissed Xolelwa’s submission that she was in fact unaware of the policy, as on a previous occasion when she had worn the wrong colour hairclip, she had removed it without question.  When originally instructed to remove her hairpin on this occasion, she had demanded an explanation from the supervisor why she should do so.

The supervisor’s instruction to remove the hair pin had been repeated several times, after which “an audible altercation arose between them in full view of customers and other staff”.  This altercation caught the attention of the manager who called them both to his office.  The manager then instructed Xolelwa to remove her hairpin; once again, she refused to do so, shouting at the manager, and alleging that the he was victimising her.

According to Xolelwa, she felt that she needed the hairpin in the same way that she needed her glasses.  Unsurprisingly, the arbitrator concluded that simply wearing the correct colour hairpin would have resolved the problem.

The arbitrator further found that Xolelwa “must have realised that her defiant refusal to carry out the instruction even when it was issued a number of times, was putting her job at risk.  She could easily have complied.  It was not merely a failure to carry out a reasonable instruction but her deliberate and persistent challenge” to management’s authority to issue such an instruction, remembering that this took place in full view of customers and other staff members, intentionally undermining company discipline.

The arbitrator found Xolelwa’s expectation that she only be issued a final written warning “misconceived the seriousness of her insubordination”, and the employer could not be expected to tolerate such persistent and defiant defiance.

As such, the arbitrator held that her misconduct justified dismissal, noting that “The Applicant’s refusal to carry out a very simple instruction shows her defiant attitude to the authority of her manager, which she repeat when the store manager instructs her to remove the hairpin.  This was preceded by her written warning for being insolent to a different manager that same month.  The Applicant remained obstinate and argumentative at the disciplinary inquiry, and at arbitration never once conceding that she may have been in breach of the company’s uniform policy.  To have been so recklessly insubordinate while on a written warning for insolence towards another manager, suggests an entrenched pattern of defiant behaviour towards management which, from the company’s point of view, makes continued employment intolerable”.

The Labour Court review application failed, and the dismissal was upheld.

The story of the light blue hairclip and a fair dismissal

Dismissal of employees in an unprotected strike mob was fair says the Labour Court

The CCMA comes in for quite a bit of flack.  Let’s face it, half of the parties in arbitration cases lose, and the CCMA and its Commissioners are the easiest, and closest targets.  In our experience, however, you normally pretty much get the arbitration award you deserve.  But not always.  There are indeed occasions when arbitration awards are wrong.  That’s not unique to CCMA Commissioners though.  It is precisely for this reason that our legal system has a series of review and appeal processes, across all fields of law, not just employment dispute resolution channels.

To be fair to CCMA and Bargaining Council Commissioners, employer cases are often lost due to defects in how a disciplinary hearing was conducted by an employer.  Training can go some way to reducing poorly applied internal disciplinary processes.

That said, CCMA can err in their judgments, and be found to have committed irregularities in their arbitration awards.

Such was the case in San Michele Home NPC v Mahlangu D. & others (Case number JR1692/19, in a recently published Labour Court judgment.

The background to this case was that on 9 January 2019, “singing and dancing” union members had confronted an employer Administrator “in his office and handed him a letter of grievances, and demanded that he should leave the premises.  He was subsequently escorted out of the premises”.  An unprotected strike the ensued, during which “employees who were not party to the strike were equally subjected to intimidation by the striking employees”.

The employer obtained a Labour Court interdict on an urgent basis, on 17 January 2019, in light of the striker’s conduct.  Needless to say, as is so often the case, “the unprotected strike and unlawful conduct had persisted”.

“The employees were subsequently charged with and dismissed for intimidation, participating in an illegal removal of two employees (Administrator and Social Worker) from the premises, and insubordination.  Thirty other employees who were members of NUPSAW were also dismissed for similar misconduct”.

At arbitration, the Commissioner held that the dismissal of the two employees dismissed for intimidation and the illegal removal of two employees, were substantively and procedurally unfair on grounds that (1) there was no evidence of intimidation, (2) the two employees allegedly evicted by the strikers had testified that they had “played along with the strikers in order to save themselves from potential if not actual harm, (3) the alleged offenders had shown no intention of participating in the unprotected strike, and (4) that the two dismissed employees had long service, and, in essence, acted out of fear of union member retribution if they did not act as they did.

The employer took the arbitration award on review to the Labour Court.

The judgment was scathing of the Commissioner’ arbitration award.  For example, the judgment notes that “ .. the glaring evidence before the Commissioner was that indeed the employees had not only participated in the unprotected strike action, but were also positively identified as part of the employees who had also committed acts of misconduct”, continuing that “Further to these factors is that the employees were part of a mob that had unlawfully and in an intimidating and unconscionable manner, removed officials of the applicant (a home for the mentally handicapped) who were going about their primary duties”.

The judgment also noted that neither of the two dismissed employees had shown any form of contrition for their actions, or taken stock of the consequences thereof”.

Turning to the arbitration award’s remedy of the reinstatement of the two dismissed employees, the Labour Court Judge noted that “I fail to appreciate how the Commissioner could possibly have concluded that a reinstatement with no consequences was appropriate”.

The Judge was finished.  He continued that “Having regard to the above and the overall approach of the Commissioner, it is apparent that he clearly made contradictory findings, and other than that, he had relied on speculation rather than the discernible facts that were before him … the Commissioner had misconceived the nature of the enquiry he was called upon to undertake, had completely ignored relevant evidence, had failed to properly apply his mind to material issues at hand, and had committed various other irregularities in the conduct of proceedings”.

The Court substituted the arbitration award of the Commissioner in holding that the dismissal of the two employees was substantively fair.

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.

The employer Covid-19 vaccination conundrum

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

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Eurita Swarts

HR Manager, First Quantum Minerals Limited