Substantively unfairly dismissed employees may not always be reinstated

Substantively unfairly dismissed employees may not always be reinstated

Sections 193(1) and (2) of the Labour Relations Act, lists a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings.  Retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal.  On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.

Sections 193(1) and (2) of the Labour Relations Act reads that “Remedies for unfair dismissal and unfair labour practice. – (1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may – (a) order the employer to re-instate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2)  The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless—(a) the employee does not wish to be re-instated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure”.

However, not every employee who is held to have been substantively unfairly dismissed, is granted retrospective reinstatement, even though that is precisely the remedy they sought.

We know that section 193(2) leaves little dispute that retrospective reinstatement ‘must’ be applied in cases of substantively unfair dismissal, yet exceptions are none the less made for cases in which the unfairly dismissed employee themselves do not seek reinstatement, or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee”

In the recent Labour Court judgment in Sinenhlanhla Precious Mthetwa  v the CCMA & 2 others (Case number JR1806/18), the Acting Judge was required to pass judgement on whether an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed, and when the employee sought reinstatement.

The employee had pleaded guilty at a disciplinary hearing, to various allegations of serious misconduct, including assault, intimidation and harassment.  She was the dismissed.  She the challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have procedurally and substantively unfair.

After having that she sought the remedy of compensation in the pre-arbitration minutes, she altered her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.

When all was said and done, the Commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she sought.  The employee then took the judgment on review to the Labour Court, arguing that the Commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the Applicant sought ..”.

Not so, said the Judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the Commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision-maker could not have arrived at”.

So why did the Commissioner and the Judge conclude that the primary remedy of retrospective reinstatement should not apply in this case?  Various reasons were articulated.  To begin with, the employee was already on a final warning for misconduct, and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.

The Commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion which the Judge noted “is not explained”.

Be that as it may, this judgment aligns with prior case law which gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement, in cases of substantively unfair dismissals.

Employers may not randomly select a retirement age

Our labour courts still frequently hear cases in which employers have prematurely retired employees.  In the main, this has to do with employers either retiring employees prior to the correct normal retirement date, or imposing a retirement age when none otherwise exists.

This emphasises the importance of employers ensuring that they have a prescribed, normal retirement age.  Provision for a company prescribed normal retirement age is most often found in the contract of employment, which confirms, for example, that an employee will retire when he, or she, reaches the age of sixty-five.

Section 187(2)(b) of the Labour Relations Act confirms that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.

This must be contrasted with section 187(1)(f) which provides that “a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to …. age”.

However, many employers do not make confirm their applicable normal retirement age anywhere what so ever.  It’s not confirmed in any contracts of employment, and there is no policy on the company retirement age.  If this is so, clues need to be sought on what the applicable retirement age is.  From time to time, the clue can be found in the rules of a benefit fund, such as a pension or provident fund.  This was the case is the recent Labour Court matter in NTM obo Israel Mothapo v Interwaste (Pty) Ltd [Case number J791/16] in a judgment passed on 13 November 2019.

In this case, the employer had retired the employee two and a half months after he had reached the age of sixty.  He was the offered a 12-month fixed-term contract of employment. The employee objected to this, claiming that this was a “forced retirement”, as his benefit statement confirmed his normal retirement date was recorded as being 30 June 2020, when he would turn sixty-five.

The employer replied that the “retirement age is 60 as per the normal practice in our business… While the benefit statement makes provision for retired at 65, it does not (and cannot) enforce the company to retire its employees at that age – it is a company prerogative”.  The employer’s representative argued that the employer’s reliance was placed on the norm as opposed to an agreement.

The Labour Court was underwhelmed by this argument, holding that “As pointed out, the respondent relies on the norm and not an agreement. The LAC in Rubin Sportswear v SACTWU and Others4 made it clear that an employer may not just wake up and say a particular age is a norm. The Court specifically stated the following: “A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period – so long that it can be said that the norm for employees in that workplace or for employees in a particular category is to retire at a particular age. An example would be where, without any formal agreement, employees in a particular category have over 20 years been retiring at a particular age without fail. The period must be sufficiently long and the number of the employees in the particular category who have retired at that age must be sufficiently large to justify that it is a norm for employees in that category to retire at that age. If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. And if the period is very long but the number of employees in the particular category who have retired at that age is not large enough, it might be difficult to prove that a norm has been established.”

The judgment went on to bluntly note that “It is apparent to me that this defence of 60 years being a norm is nothing but an afterthought”.

In this case, it was ultimately held in the judgment that “Accordingly, this Court is not satisfied that the respondent succeeded in showing that 60 years is a normal retirement age. On the probabilities, account taken of the benefit statement, the agreed retirement age between the applicant and the respondent is age 65. It being common cause that the applicant had not reached the agreed age at the time of termination, his dismissal is automatically unfair”.

The employee was awarded twenty-four months’ remuneration in compensation.

Falsely accused of sexual harassment

Falsely accused of sexual harassment

The 2005 Amended Code of sexual harassment talks of “…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: 4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; 4.2 whether the sexual conduct was unwelcome; 4.3 the nature and extent of the sexual conduct; and 4.4, the impact of the sexual conduct on the employee.”

But what if an allegation of sexual harassment is false?  In such circumstances, is an employer entitled to take disciplinary action against the apparent wrongful accuser?

In the Labour Court judgment in the case of NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee had been found guilty and dismissed for “falsely and/or maliciously accused (her manager) of sexual harassment” during a disciplinary hearing which she did not participate in.  At the CCMA arbitration hearing, her dismissal was held to have been procedurally and substantively fair.  She took this finding on review to the Labour Court.

The back ground to this case was that the employee had been charged with three acts of alleged misconduct.  It was however the third allegation that stood out.  It was namely “failing to comply with the (employer’s) conditions of service, procedures and directives in that on 24 February 2014 (you) had falsely and/or maliciously accused (her manager) of sexual harassment”.

Her version was that “On 24 February 2014 (she) went to see (her manager) about her request for a car allowance which had not been finalised. She alleges that at that meeting he had told her that if she slept with him he would grant the car allowance. (her manager) denies such discussion. The following day she lodged a grievance in that regard demanding a written apology. The first grievance hearing found the complaint unproved”.

The employer’s first witness testified that “some time before the incident of 24 February 2014 the Applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager). (Her manager) gave evidence about the events of 24 February 2014 and his demand that the matter be further investigated thereafter”.

It was submitted that the employer “took allegations of sexual harassment very seriously and once it had been found that the allegations were without proof it was harmful to an ongoing employment relationship. Essentially, the Applicant was found to have falsely laid a complaint of sexual harassment. Such conduct is detrimental to any ongoing employment relationship”.

For various reasons highlighted in the judgment, the Labour Court upheld the dismissal of the employee on grounds that she had falsely and maliciously accused the manager of sexual harassment.

Whilst there were various allegations of procedural unfairness, none of them were held to have been so serious as to have prejudiced the employee.

Whilst employers are duty bound to robustly investigate and address allegations of sexual harassment, and indeed any form of harassment, it is equally arguable that false and malicious allegations of sexual harassment equally warrant thorough investigation.

It is precisely for this reason that employers should sensitise all employees on the nature and implications of sexual harassment, to ensure that cases of this nature are kept to a minimum.

Substantively unfairly dismissed employees may not always be reinstated

Charged with one thing and found guilty of another

In the Labour Court case of EOH Abantu v (Pty) Ltd [Case No. JA4/18], the employee had been found guilty of a charge that was not specified in the employer’s charge sheet.  In short, the employee had been found guilty of gross negligence, when gross negligence was not specifically included in the charge sheet.  On the contrary, the charge sheet included allegations of, amongst other things, dishonesty, theft and fraud.  The employee was the dismissed.

What makes this case particularly interesting is the fact that he employee was found guilty of, and dismissed, for misconduct which did not appear anywhere on his charge sheet.  Put differently, the employee “was found to have committed the offences although it was not established that he had acted intentionally”.

The employee lodged an unfair dismissal claim at the CCMA.  At the arbitration, the Commissioner held that the employee’s dismissal was substantively unfair, as the employee “had been found guilty of the offence of gross negligence with which he had not been charged”.

The arbitration award continued that “It is common cause that the chairperson of the disciplinary enquiry could not find any dishonesty on the (employee’s) part but instead he found the (employee’s) actions grossly negligent” and “I find that the (employer) is bound by the choices it made at the time of charging the (employee)”.

The employer took the arbitration award on review at the Labour Court, and lost.  The Labour Court upheld “the arbitrator had correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged.  That is why the dismissal was unfair”.

As also held by the Labour Court, the employee was charged with dishonesty, “that is the case he went to meet and that is the case that the employer could not prove”.

On appeal, the Labour Appeal Court had an entirely different view on this issue, in essence posing the question – had the Commissioner acted unreasonably “in concluding that a finding of negligence was not a competent verdict under the charge”?

In its judgment, the Labour Appeal court acknowledged that “it is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation … however by the same token, courts and arbitrators must not adopt too formalistic or technical an approach.  It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed.  The categorisation by the employer of the alleged misconduct is of less importance”.

This view was further supported in the judgment which further held that “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly.  For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unathorised possession or use of company property.  The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed”.

This is an entirely sensible judgment, and essentially deals with circumstances in which the alleged act of misconduct is proved on a balance of probabilities, but the employer mistakenly attributes blameworthiness to intent, rather than negligence.

The judgment went further to add that “ .. the is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced.

Make no mistake, care must be taken when drafting allegations of misconduct in disciplinary cases.

Substantively unfairly dismissed employees may not always be reinstated

When the impartiality of a Commissioner is disputed

CCMA and Bargaining Council Commissioners must conduct arbitration impartially, and in an unbiased fashion.  When there is a perception of bias, a party can challenge the offensive conduct.

This is precisely what occurred in the recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others [Case no: JR135/16]. As noted in the judgment, “The main grounds for this review is that it is contended that the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”

It was further contended by the applicant that “the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”

In supporting these assertions, it was further argued that “In support of these grounds, (the applicant contended) that the Commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the Commissioner’s interventions were such that he failed to afford the parties a fair hearing, and that his conduct gave rise to a reasonable apprehension of bias.”

Apprehensions of bias occur frequently at the CCMA and bargaining Councils.  Let’s face it, in every arbitration hearing there is a winner and a loser; the losers can be prone to blaming a one-eyed Commissioner for the loss, rather than facing up to the fact that they may have simply lost on the merits, or demerits, of their case.

The judgment noted that “in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and others as follows, ‘What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity. …” [2014 (35) ILJ 1528 (LC).

So, had the Commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”?  Not so held the Court.

On the contrary, it was held that “The Commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.”

“(The applicant) had the onus to show that the Commissioner acted mala fide and in breach of his duties so as to afford City of JHB an unfair advantage. She failed to do.”

The judgment continued that “I believe that the Commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.

The chasm between regret and remorse

An employee may regret having committed an act of misconduct, but they may not be remorseful for having done so.  This distinction is important when considering both in the context of mitigating circumstances, after an employee has pleaded guilty, or been found guilty.

Item 3(5) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) reads that “When contemplating whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”.  ‘Mitigating circumstances’ if you will.

The same considerations would apply in the selection of a sanction in less offences.

‘Regret’ and ‘remorse’ are also factors to be considered when establishing mitigating circumstances, prior to selecting an appropriate sanction to be imposed.  But they are quite different concepts, which should not be confused.

This was highlighted in the Supreme Court of appeal judgment involving The State v Phakamani A Nkunkuma & 2 others (SCA: 101/2013), which held that “
‘[13] . . . There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions”.

In The Foschini Group (Pty) Ltd v Marie Fynn (Labour Appeal Court: DA1/04), it was held that “It would in my view be difficult for an employer to re-employ an employee who has shown no remorse.  Remorse is much, much more than regret.  You can regret committing the act of misconduct, but not be remorseful.

As was put in the Labour Court in Toyota SA Motors (Pty) Ltd v the CCMA & 3 others  (Case No: D600/11) “remorse is a complex emotion, a mixture of shame and regret for the apparent victim. But supposed remorse may as well be linked to the perpetrator’s own sense of regret that it happened at all and that he got caught”.

The notion of remorse was also dealt with in the Labour Court judgment in Blitz Printers v CCMA & 1 other (JR 1782/2012), where it was held that “The fact that an employee shows remorse for his or her actions and takes responsibility for his or her actions may militate, depending on the circumstances, against imposing the sanction of dismissal. The converse also applies, dismissal may be an appropriate sanction where the employee commits an act of dishonesty, falsely denies having done so and then shows no remorse whatsoever for having done so. It is also important to point out that the respondent had persisted with her lying not only in the course of the investigations but also at her disciplinary hearing and in her sworn testimony before the arbitrator”.

Remorse can be likened to contrition.  A lack of remorse will typically confirm that the trust relationship is broken beyond repair, thereby justifying a sanction of dismissal.  It should also be borne in mind that an admission of guilt does not, in and of itself, amount to an expression of remorse.

As noted in the Labour Court judgment in Bongani Wellcome Rakhivhani v South African Police services & 2 others (Case number: JR1158 /13) “Genuine remorse contemplates an unconditional acknowledgement of the wrongdoing, a plea for forgiveness, and an undertaking that the misconduct will not be repeated if the employee is permitted to remain in the fold of the employment relationship”.

Hearsay evidence is admissible at times

Hearsay evidence is admissible at times

Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his/her own eyes or senses, but heard from someone else.

Hearsay evidence is considered to be unreliable, problematic as the source of the evidence is not available for cross-examination, and often faulty as the witness may have mistakenly made an error in the interpretation of that communicated to him/her by the source of the information.

It is typically weak evidence, to be handled with caution, and includes statements of 3rd parties & documents.

The Law of Evidence Amendment Act (45 of 1988) tells us that hearsay evidence is “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”.  It follows that hearsay evidence is generally inadmissible, but not always.

Schwikkard & van de Merwe, in Principles of Evidence (Second Edition; page 255) highlight that the fears associated with admission of hearsay, include “distrust of oral evidence reflected in the requirement that evidence is also problematic because the court is unable to observe the demeanour of the person who made the original statement.  Another reason given for the exclusion of hearsay evidence is that it is secondary evidence and consequently not the best evidence.

The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (LAC: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence, in the context of disciplinary and arbitration hearings.

Section 3 of the Law of Evidence Amendment Act, says the judgment, “essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission”.

Importantly, the judgment notes that “Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.  This Court held ‘Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion–orientated and rigid rule–and–exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted’. This section still retains the ‘caution’ concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not”.

So, what does this mean for us in disciplinary and arbitration hearings? Well, for starters, it confirms that hearsay evidence is indeed admissible ‘if the interests of justice require it to be admitted’.  Put differently, it is wholly incorrect to submit that hearsay evidence is always inadmissible.  However, caution must always be applied.

The judgment also tells us that “The provisions of section 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence”.

The judgment went on to quote S v Ndhlovu and Other which “referred to safeguards to ensure respect for an accused’s fundamental right to a fair trial. Cameron JA pointed out that safeguards, including the following, were important: “First, a presiding judicial officer is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. More specifically under the Act, ‘it is the duty of a trial judge to keep inadmissible evidence out, [and] not to listen passively as the record is turned into a papery sump of “evidence”.’ Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained… Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court’s judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.”

In the final analysis, professional advice should be sought when evaluating whether hearsay evidence is, or isn’t, admissible in a given set of circumstances.

The days of Recognition Agreements are pretty much over

Those old enough to remember the labour relations environment in the 1980’s will remember the emergence of Recognition Agreements. The then Labour Relations Act had no codification of trade union rights, or what we today refer to as ‘organisational rights’.  Way back then, emerging trade unions had to attempt to strong arm employers into ‘recognising’ them, and in so doing, grant the trade union stop-order, access, and shop steward rights.

And if union representation grew to majority representation, collective bargaining rights would be included in the Recognition Agreement.

It’s not far off the mark to say that prior to our current 1995 Labour Relations Act, trade unions entered into Recognition Agreements with employers, on the back of their significant membership numbers, and negotiating prowess.

Cue the introduction of the 1995 Labour Relations Act which simplified, and more importantly codified, the granting of trade union (organisational) rights, in obligating employers to extend such rights to trade unions, if they reached certain membership thresholds.

So, the notion of employers ‘recognising’ trade unions, at least for the purposes of trade union rights, fell away.  The threshold of ‘sufficient representation’ was born, and any trade union which now acquires ‘sufficient representation’ in a workplace, is automatically entitled to the trade union organisational rights associated with sufficient representation, namely (1) access to the employer’s workplace (section 12 of the LRA) and (2) the obligation of employers to deduct and pay over union membership subscriptions monthly (section 13 of the LRA).

Trade unions were no longer required to be recognised by employers for these rights, as they were an automatic consequence of the union having membership which met, or exceeded, the sufficient representation threshold.  However, the ‘sufficient representation threshold’ was not defined, at least not in percentage terms.  What initially became apparent, for various reasons, was that sufficient representation was in the region of 30% of all eligible union members, with eligible union members being all employees, excluding senior management.

Since 1995, statutory amendments to the Labour Relations Act, pre-empted by evolving case law, has, in certain circumstances, lowered the sufficient representation to less than 30%.

The second union membership threshold dealt with in the Labour Relations Act, for purposes relating to trade union, organisational rights, is majority union representation, often described to be 50% plus one member within the ranks of eligible union members.

Once a trade union acquires majority representation, two further trade union, organisational rights, kick in, namely the right to appoint shop stewards (referred to as trade union representatives in the LRA) in terms of sections 14 and 15 of the Labour Relations Act, and the right to information disclosure, in terms of section 16 of the Labour Relations Act.

In practice, there are occasionally squabbles between employers and trade unions over the verification of actual trade union membership with the ranks of eligible union members, although disputes of this nature are typically short-lived.

So how does collective bargaining fit into this scenario.  Well, it could be argued that there is still some degree of ‘recognition’ of trade unions, when it comes to collective (wage) bargaining.  It has become, wisely, a norm for employers to agree to enter into collective bargaining arrangements with unions which acquire majority representation, even though there is no duty to bargaining in our law, per se.

Over time, collective recognition agreements are being phased out, as trade unions no longer require employers to recognise them for trade union, organisational rights, as these rights have been codified in the Labour Relations Act, once sufficient and/or majority representation has been achieved and verified.

The trend nowadays, is to conclude separate organisational rights and collective bargaining agreements.  This makes sense on many levels.  To begin with, organisational rights and collective bargaining rights, are fundamentally different, and unrelated.  There is no logical reason why they should stand together in the same collective agreement.

Secondly, in the separate agreements scenario, an organisational rights agreement can persist in the event that a trade union loses majority representation.  If both organisational and collective bargaining rights were both contained in a single collective agreement, a new collective agreement would need to be concluded, even though the union may none the less retain a level of sufficient representation.

Our anecdotal observations of organisational rights and collective bargaining agreements is that they are not regularly reviewed to reflect renewed best practice over time.  Indeed, this is perhaps even more pertinent to disciplinary procedures and codes.

Hearsay evidence is admissible at times

Theft of relatively low cost items still typically warrants dismissal

One of our multi-national clients recently lamented the fact that, by a country mile, they experience the highest number of theft-related and dishonesty cases in South Africa, than anywhere else in the world.  The unfortunate reality is that our consultancy deals with numerous theft and dishonesty related disciplinary and arbitration hearings on an ongoing basis.

One of the questions which frequently arises is, does the monetary value of the items or money stolen, influence the choice of sanction, and importantly, if the item is of minimal monetary value, does it mitigate against dismissing the culprit?

To begin with, it’s worth remembering what the Constitutional court had to say on sanction selection in Sidumo & COSATU v Rustenburg Platinum Mines Ltd & 2 others (CCT85/06). This judgment, amongst other things, said that “In deciding whether a dismissal is fair a commissioner need not be persuaded that dismissal is the only fair sanction – it is sufficient that the employer establishes that it is a fair sanction”.

In this vein, the Concourt judgment continued that the “Labour Appeal Court in Nampak Corrugated Wadeville v Khoza (held that) the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  However, this discretion must be exercised fairly.  A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction.  The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable.

When all is said and done, said the judgment “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances.  He or she will necessarily take into account the importance of the rule that had been breached.  The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal.  There are other factors that will require consideration.  For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.  This is not an exhaustive list”.

It follows therefore, that the monetary value of goods or funds stolen must be considered as a mitigating factor when contemplating sanctions in dishonesty cases, but does it necessarily mean that they will save an employee from dismissal, even if the monetary value is low.

The short answer is, not necessarily.  But it may on occasion.  For example, the dismissal of an employee in a retails store who pleads guilty to stealing a few sprays of deodorant from a can of deodorant on the store shelf, would be substantively unfair (on grounds that the sanction is too harsh) if there were compelling mitigating factors such as long service, and a clean disciplinary record.

The Labour Appeal Court judgment, in Shoprite Checkers v CCMA & 2 others (LAC: JA08/2004) provides important insights into whether dismissal for the theft of small items.  This judgment quoted the  Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 at paras 38 – 41 where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”

This judgment continued that the Standard Bank judgment “was followed by Mlambo J (as he then was) in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at para 16 – 17 where the learned judge found that in relation to the consumption of one 250 ml bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”.

The question of whether dismissal for theft, regardless of the value of the stolen items, in the context of prevailing high stock losses, was addressed by the Labour Appeal Court in Leonard Dingler (Pty) Ltd v Ngwenya (1999: 20 ILJ (LAC) – “Was dismissal of the respondent an unfair sanction? I am persuaded that this question falls to be answered in the negative. It is true that the respondent had a long record of service (7 years 10 months…) with no previous record of a disciplinary offence. On the other hand, Oosthuizen testified that the appellant experienced theft by its employees on a large scale. It follows that a measure of deterrence is called for”.

Substantively unfairly dismissed employees may not always be reinstated

Lots of boxes to tick when proving poor performance

At the end of the day, managers and supervisors are paid to manage and supervise two things, employee conduct and employee performance.  From an employment law point of view, the conduct aspect of management becomes important when the employee’s conduct becomes misconduct.  Misconduct, is a blameworthy act or omission, which requires employers to trigger a disciplinary process.

On the other hand, the type of poor performance, addressed in the Labour Relations Act, is the non-blameworthy, incompetence specie of poor performance.  When all is said, and done, poor performance is either blameworthy, or not blameworthy.  Put differently, sometimes the employee is blameworthy for their poor performance, and sometimes they aren’t.

If it can be proved that the employee is blameworthy for their performance, a disciplinary procedure is followed, because the employer is able to prove that the employee was capable of better performance than they delivered, importantly, in circumstances where there were no extraneous factors causing the poor performance, over which the employee had no control.

In circumstances where it cannot be proved that the employee is blameworthy, or at fault for, his or her poor performance, there is no misconduct; rather, there is incapacity; meaning that the employee’s performance is poor, but for reasons beyond their control. The Labour Relations Act obligates employers to follow a counselling, not misconduct, procedure, in an incapacity-related, scenario of poor work performance.

In fact, there are even occasions where there are elements of both incapacity and misconduct in an employee’s poor performance.

The Labour Court recently (19 June 2019) passed judgment in the case of Moneyline Financial Services (Pty) Ltd v Tsientsi Chakane & 1 other (Case no: JR2454 /17).  This was a case which dealt with a dispute relating to the management of poor work performance.

The background to this case, as described in the judgment, was that “the respondent employees failed to achieve the performance targets between September 2016 and January 2017. On 12 October 2016, the first letter warning the respondent employees of poor work performance was issued in respect of the month of September 2016. On 9 November 2016, a second letter then serving as a final ultimatum was issued in respect of the respondent employees’ poor work performance for the month of October 2016. The respondent employees were afforded the opportunity to make written representations wherein they were to give reasons for failing to meet the performance targets. The applicant (the employer) found their explanation unacceptable. On 18 January 2017, the respondent employees were served with the notices to attend performance enquiries respectively”, and ultimately dismissed for poor work performance.

At the CCMA, the arbitration award held that the dismissals were substantively unfair as “the dismissal was not an appropriate sanction as training could have been a reasonable alternative. He accepted that the reasons proffered by the respondent employees for non-performance as genuine and plausible given the context of the industry they operated in”.

The employer took this arbitration award on review to the Labour Court, which dismissed the review application and upheld the arbitration award’s finding that the dismissals for poor performance were substantively unfair.

In so doing, the judgment emphasised what was held in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others  [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC), namely that “In order to find that an employee is guilty of poor performance and consider dismissal as an appropriate sanction for such conduct, the employer is required to prove that the employee did not meet existing and known performance standards; that the failure to meet the expected standard of performance is serious; and that the employee was given sufficient training, guidance, support, time or counselling to improve his or her performance but could not perform in terms of the expected standards. Furthermore, the employer should be able to demonstrate that the failure to meet the standard of performance required is due to the employee’s inability to do so and not due to factors that are outside the employee’s control”.

The judgment continued that “In the present case, the applicant failed to show that the respondent employees were given sufficient training, guidance, support, counselling and reasonable time to improve their performance. The respondent employees had genuine concerns that were outside their control and could have been managed with the assistance from the applicant. Clearly, the commissioner correctly found that the applicant failed to explore alternative measures short of dismissal, like training. It follows that the applicant failed to show that the dismissal of the respondent employees was an appropriate sanction”.