Job applicants must come clean on criminal records

Job applicants must come clean on criminal records

A job applicant who confirms, on employment, that they do not have a criminal record, better be telling the truth.  If it is subsequently found that they were fibbing, and that they did in fact have a criminal conviction, they run the very real risk of dismissal.

The recent (7 May 2019) Labour Court judgment in Pamela Nomawethu Njikelana v Werner Kruger, the CCMA & the SA Civil Aviation Authority (Case number JR1834/17), dealt with this and related issues.

The employee had originally been employed as Human Resources generalist, on a fixed term contract of employment, from 1 August 2015, to 31 July 2016.  Thereafter, her contract was renewed on two consecutive occasions; the first from 1 August 2016 to 31 December 2016, and the second from 1 January 2017 to 31 March 2017.

Importantly, it was not disputed that prior to commencing employment with the employer, the employee had been required to undergo various pre-employment verification exercises to verify her qualifications, credit rating and criminal record.  During the course of her employment, in or about July 2016, the employer conducted a further criminal record check on the employee, which established that she in fact had a criminal record.  On 10 October 2016, the employee was invited to a meeting by the employer’s internal audit unit “during which she was requested to complete a forensic interview information sheet”, which she did, confirming once again that she had no past, or pending, criminal record against her name.

When the employer informed the employee of the fact that they had recently established that there was a criminal record against her name, she denied any knowledge of any criminal record, and undertook to approach the Pretoria Criminal Record Centre to check her criminal record status, where it was confirmed that she did indeed have a criminal record.  The “criminal record arose from an incident in 1990 when she was arrested and fined R150.00 for stealing sweets, chocolate and biltong”.

The employee then approached the Department of Justice to apply for the expungement of her criminal record.

The next key development in this case arose when the employee subsequently applied for a permanent Human Resources positon, which the employer had advertised.  She was interviewed and requested to complete a declaration form, in which she disclosed her criminal record, which she corroborated in a separate affidavit.

Needless to say, the employer notified the employee that her application was unsuccessful, and furthermore, that her contract would not be renewed.  The employee was aggrieved by this, and lodged an unfair dismissal claim with the CCMA, on the basis that she had a reasonable expectation of renewal or permanent employment.

In his award, the CCMA commissioner held that the employee had no valid claim of unfair dismissal on grounds of a reasonable expectation of renewal, as she “was appointed in a temporary position and this position no longer existed”.  When dealing with the employee’s dishonesty, the “commissioner rejected the applicant’s submission that during her interview, she had forgotten that she had a criminal record” as “it is highly improbable that the applicant did not remember during the interview the fact that she was arrested.  In all likelihood this would have been a traumatic experience and it is difficult to see how she could forget it”.

The arbitration award continued that “she kept quiet and only informed the respondent of the incident on 23 March, some five months after the first interview”.

The commissioner dismissed her claim that she had reasonable expectation of renewal of her fixed term contract, or to permanent employment.

Aggrieved by the arbitration award, the employee took it on review to the Labour Court arguing, in that he “had arrived at an award that no reasonable decision-maker could have arrived at”.

The Labour Court agreed with the CCMA commissioner that “the applicant’s argument that she harboured a reasonable expectation to be appointed on a permanent position is .. not sustainable”.  The judgment noted that “Section 186(1)(b) of the LRA covers instances where the employee alleges a reasonable expectation of renewal of a fixed term contract that has expired … it does not cover reasonable expectation of appointment in a permanent position subsequent to several renewals of a fixed-term contract”.

In conclusion, the judgment held that “in failing to come clean and to admit that there was a criminal record against her name, the applicant was dishonest” and for this reason “she could not have harboured an objectively reasonable expectation of the renewal of her fixed term contract, or permanent employment”.

Circumstantial evidence if persuasive, can prove guilt

Circumstantial evidence if persuasive, can prove guilt

Circumstantial evidence is used to prove guilt when there were no eye witnesses.  No-one observed the misconduct, yet there are facts regarding the circumstances in which the misconduct occurred, which points to a most probable guilty person.

If you like, circumstantial evidence is indirect evidence, which can be distinguished from direct, eye witness evidence.  In Principles of Evidence (Schwikkard and van der Merwe: 2005), circumstantial evidence is said to furnish “indirect proof”, with the court, which in disciplinary hearings would include chairpersons, being “required to draw inferences” which “must comply with certain rules of logic.   Schwikkard and van der Merwe also tell us that “In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts”.

Circumstantial evidence can, and often is, used fairly in disciplinary hearings, to prove guilt on a balance of probabilities, as is required.  It follows that circumstantial evidence is also entirely admissible in arbitration hearings.  This is typically, amongst other things, premised on section 138(1) of the Labour Relations Act, which states that “The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”.

That’s not to say that circumstantial evidence is unquestionably admissible.  Our case law provides ample evidence of the manner in which circumstantial evidence will be admitted, and considered to be compelling in proving an employee’s guilt on grounds of misconduct.

Quite how circumstantial evidence is to be assessed in cases, was summarised in S v Reddy and Others 1996 (2) SACR, which held that ““In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft quoted dictum in R v Blom 1939 AD 188 at 202-203, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such “that they exclude every reasonable inference from them save the one sought to be drawn”.

The approach to be adopted when an inference is sought to be drawn from other facts was summarised in Cooper and Another NNO v Merchant Trade Finance Ltd [2000 (3) SA 1009 (SCA)].  Zulman JA observed that “It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the “two cardinal rules of logic” referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct. This rule is not applicable in a civil case. If the facts permit of more than one inference, the Court must select the most “plausible” or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”

Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) reminds us that “The danger with circumstantial evidence on the other hand, is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation …….. thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it”.

Circumstantial evidence if persuasive, can prove guilt

The conflicting evidence conundrum

Chairpersons in disciplinary hearings are frequently faced with conflicting evidence or testimonies from two witnesses describing the same event.  For example, an employee may testify that they were not sleeping on duty, whilst a manager may testify that they were.  Both witnesses testify with zeal and conviction, but one is telling the truth, and the other isn’t.  But how can this be determined?

This conundrum is faced by chairpersons in workplace disciplinary and appeal hearing, by Commissioners in CCMA and Bargaining Council arbitrations, and by judges in the labour courts.

Case law has much to say about resolving this dilemma in arbitration awards and labour courts judgments, invariably being referred to as the challenge faced by adjudicators of hearings, when faced with conflicting versions.

The point of departure is the understanding that, in disciplinary hearings, the employer has the burden of proof, which simply means that the employer has the obligation to prove, on a balance of probabilities, that the employee is guilty of the allegation in question.  It can also be described as the employer’s duty to prove that the employee is “probably’ guilty.  This principle is also important when faced with conflicting versions, or evidence.

The bottom line is that the adjudicator, or chairperson, must decide which of the two conflicting versions of the same event or observation, is most probable.

Our courts have addressed how one is to deal with cases in which there are two irreconcilable versions.  In Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the test is formulated as one in which “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows.  To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.  As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness.  That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candor and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.” 

 In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) it was stated that:  “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version”.

Yet further guidance was provided in Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC), in which it was held that “The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses, nor did he have regard to the inherent probabilities of the competing versions before him. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings”

To put it plainly, when a disciplinary hearing chairperson is faced with two conflicting versions, it is important to weigh the evidence that is tendered, with a view to arriving at a version that is most probable.

So there you have it.  When it’s one person’s word against another, one version can be preferred over the other, when there are sound reasons to do so.

The Assign Concourt TES Judgment tested at the CCMA

Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case.  This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months.  The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.

A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work.  It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk.  It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months.  Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.

This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act.  It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly.  In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”.  In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.

As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.

By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable.  Indeed, “all parties conceded to this”.  This meant of course that the client was deemed to be the employer.  The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client.  The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects.  The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”.  The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”.  For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”.  For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.

“In respect of the acceptance clerk, no comparator was placed before me.  It was established as common cause that Swissport does not employ any other acceptance clerks.  A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work.  In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.

The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work.  Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required.  This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only.  For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.

Dismissal for a positive cannabis test is fair says the CCMA

Dismissal for a positive cannabis test is fair says the CCMA

The Constitutional Court may have recently declared the private use of cannabis legal, but what is the impact of this on the workplace, and how does the private consumption of Cannabis, and alcohol for that matter, impact on employer rights?

The CCMA has however held, in Mthembu & others v NCT Durban Wood Chips (Case number KNDB4091-18), that employers are none the less entitled to discipline employees who are under the influence of cannabis during working hours.

The employer conducted business in the wood and chip industry, which involved the use of large machinery and “extremely dangerous vehicles coming in and out of the premises throughout the day”.  So, it’s quite clear that safety was of paramount importance to the employer, given the nature of the working environment.  This was all the more the case, given that large timber logs, weighing between 30 and 100 kilograms, were handled in the workplace, further emphasising the focus on safety.

There were sixty to eighty heavy duty truck deliveries into the mill daily

Evidence was led that the employees were informed of, and had signed, the company substance abuse policy in 2016.  In addition, frequent tool-box talks had reiterated the employer’s stance on substance abuse.

In mid-2017, an employee had resigned during his disciplinary hearing, after his urine sample tested positive for cannabis.  Further cannabis tests conducted at a laboratory, confirmed that four more employees had tested positive.

The employer testified that heavy-duty machinery is utilised the workplace, including a clipper which spins at five thousand revolutions, and takes approximately ten to fifteen minutes to stop, in case of an emergency. The ongoing delivery of timber into the mill by locomotive, poses further ongoing danger.

The employee’s themselves, were employed in dangerous positions.  One of the employees worked as a weigh bridge clerk, receiving trucks which he weighs, after inspecting them and testing the timber they are delivering.

A second employee sharpened and polished one meter long knives, three at a time.  A third employee was a log deck assistant, whose job it was to ensure that logs land on the log deck without being obstructed, and to manually clear any log obstructions.

The employees challenged the substantive fairness of their dismissals, uniformly claiming that they smoked Cannabis in their private time.

The arbitrator noted that the Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development has “pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution.  However, turning to the workplace, the Arbitrator noted that “Like alcohol where there is an inkling that intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence”.

The arbitration award goes onto recognise and confirm that “it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances” in workplaces with dangerous heavy machinery and equipment.  Quite clearly, workplaces of this nature pose   a high degree of danger.

Tellingly, the employees, according to the arbitrator, “showed no real remorse”.

The dismissals were held to have been substantively fair, and that, importantly, “It was for (the employees) to make sure that when they smoke for private use it must not result in them reporting to work under the influence thereof.  This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day, placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”, which could be pursued by the Department of Labour, for example.

The dangerous nature of the working environment was an important factor in this award.  In an environment which is less dangerous, or not at all dangerous, such as an office environment, a sanction of dismissal would have been harder to defend; in such cases, a final written warning would more likely be appropriate in the eyes of the CCMA or a Bargaining Council.

This case also highlights the importance of addressing substance abuse by way of a company policy.  It follows that company disciplinary codes should also include substance abuse, and intoxication, with recommended sanctions if an employee is found guilty in such cases.

Circumstantial evidence if persuasive, can prove guilt

The Assign Concourt TES Judgment tested at the CCMA

Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case.  This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months.  The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.

A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work.  It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk.  It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months.  Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.

This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act.  It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly.  In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”.  In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.

As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.

By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable.  Indeed, “all parties conceded to this”.  This meant of course that the client was deemed to be the employer.  The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client.  The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects.  The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”.  The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”.  For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”.  For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.

“In respect of the acceptance clerk, no comparator was placed before me.  It was established as common cause that Swissport does not employ any other acceptance clerks.  A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work.  In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.

The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work.  Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required.  This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only.  For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.

Nationality as a reason for dismissal is discriminatory

Nationality as a reason for dismissal is discriminatory

So, what do you do when a client you are delivering goods to, using foreign drivers, informs you that they will no longer permit foreign nationals on their premises, and you have no alternative employment for them?

This was the scenario faced by the Labour Court in Francis Kanko & 2 others v Grindrod Fuelogic [Case number C602/14].

The facts of the case are pretty straight forward.  The employer had three fuel tanker drivers in their employ, who were foreign nationals, employed to deliver fuel to an Eskom power station.  At a point in time, Eskom informed the employer that it would, as a matter of national security, no longer allow foreign drivers on its sites.  The services of the three foreign drivers were then terminated by the employer, and it was a matter of dispute as to how the employment relationship ended.

According to the employer, the three drivers were not dismissed per se, as they had agreed to be retrenched by signing voluntary retrenchment agreements.  The drivers, on the other hand, contested this, arguing that they were, without prior warning, abruptly summonsed to a meeting with management. At this meeting, they were shown the Eskom correspondence prohibiting foreign nationals from entering its power stations, and informed that they therefore had no choice but to accept their retrenchment.  The drivers submitted that they then signed the retrenchment agreements, drafted by the human resources department, under duress.  None of them received any retrenchment pay.

More precisely, the drivers submitted that they had, according to the judgment “signed the agreement under duress and they were, in fact, dismissed without any consultation as contemplated by section 189 of the Labour Relations Act.  The only reason for their dismissal was their nationality; hence, it was automatically unfair as envisaged by section 187(1)(f)” of the Labour Relations Act.

The drivers, although foreign nationals, had valid South African heavy duty licenses and work permits.

Let’s have a look at the evidence led.

The employer’s primary witness, the regional manager, testified that if the employer had refused to comply with the new rule from Eskom that no foreign drivers would henceforth be allowed to enter its premises, the employer would have lost the contract.  He continued that the employer had no choice.  He led no evidence that the employer had attempted to persuade Eskom otherwise.

The three drivers were called into a meeting individually, they each signed retrenchment agreements, without duress.  Each meeting lasted for about thirty minutes, and the drivers were paid the balance of their salaries for the remainder of the month.  He conceded that the drivers were not paid any severance pay.

The drivers testified, in essence, that they were, without prior notice, asked to attend a meeting with management, at which they were shown a copy of the e-mail from Eskom, after which the regional manager informed them that the employer had no choice but to retrench them as there were no vacancies.  They were told to sign the retrenchment as there was no alternative.

The judgment posed the question “Did the employees in this case sign the agreements voluntarily, ie: without duress or coercion, unequivocal and with full knowledge of its terms and implications as a full and final settlement of all the issues?”

On this issue, the Court concluded that “On the facts and on the evidence before me, and on the probabilities, I am not persuaded that (the employer) has discharged that onus.  All three drivers were called in out of the blue, with no prior warning and without the benefit of a notice that is required by law in section 189(3) of the LRA.  They were presented with a fait accompli”.

All three drivers had consistently testified that the regional manager had insisted that, on leaving the meetings with signed agreements.  The judgment in Corns v Adelkloof Drankwinkel cc t/a Cellars Drankwinkel (2002) 23 ILJ 2047 (LC) was quoted as being relevant in this case – “The main objective of that meeting was to procure the applicant’s signature on the agreement, and to circumvent the requirements of section 189 of the Act … In my view, an agreement obtained in such unfair circumstances amounts to a nullity”.

Having found that the three drivers had been dismissed, the question then became whether, or not, their dismissals were automatically unfair.

The Court held that “the only reason for the driver’s dismissals were their nationality” and that “there can be no doubt that nationality as a reason for dismissal is discriminatory” and the dismissals were therefore automatically unfair.

The Court ordered the retrospective reinstatement of the drivers.

Job applicants must come clean on criminal records

Fraudulent medical certificates warrant dismissal every day of the week

Make no mistake, a sizeable percentage of medical certificates, colloquially known as sick notes, presented to employers daily, are fraudulent.

Many employers will relate to the scourge of Monday and Friday “sick leave-itis”, which is a major contributor to sick leave typically being in excess of 15% on a daily basis.  This is a significant labour cost for employers.

It has been estimated by Occupational Care South Africa that approximately 40% of all employees claiming sick leave, are not physically ill, and that  South African businesses are losing as much as 17% of their payroll every year due to absenteeism.  This punishes already cash-flow strapped employers unfairly.

In the Labour Court case of BP Southern Africa v The National Council for the Chemical Industry & others (Case number JR2000.12), the employee had been dismissed for unauthorised absence from work and the submission of fraudulent medical certificates to the company. After a period of absence from work, the employee reported for duty and presented three copies of medical certificates issued by three different practitioners.

The first medical certificate, covering the first few days of the employee’s absence from work, declared the employee unfit to perform his duties due to cystitis.  The second period of absence was supported by a medical certificate from another medical practitioner, who booked the employee off work for migraines and depression.  The third leg of period of absence was supported by a medical certificate from a third medical practitioner, who booked the employee off sick for bronchitis.

The Judgment noted that on presenting the three medical certificates from three different medical practitioners covering the period of absence “an Occupational Health Consultant for the company also testified that he had assessed the copies of medical certificates submitted by (the employee), and had thereafter contacted the practitioners that had issued them. Dr Matjekane’s rooms had no evidence of (the employee’s) attendance at all, whilst Dr Bikitsha became abusive when contacted. Dr Adam on the other hand indicated that (the employee) had problems with alcohol abuse. Dr Manjra had concluded that (the employee) had an alcohol problem and that HR should intervene. (The employee) was then referred to a Psychiatrist who after consultations on 7 February 2012, concluded that he was not mentally ill and was fit to resume work”.

At the CCMA arbitration hearing, the Commissioner held that “It was clear that the three medical certificates submitted by (the employee) did not reflect his true medical condition and the real reason for his absence between 9 and 20 January 2012, and accordingly his absence was unauthorised”, and that the employee “presented false medical certificates to BP well knowing that they were false and therefore did so with fraudulent intent, causing potential prejudice to BP”.

It was however apparent that the employee had an alcohol dependency problem.

The CCMA arbitration award held that, notwithstanding the identified fraudulent medical certificates “the sanction of dismissal was unfair as it gave BP an opportunity to get rid of (the employee) instead of following the more cumbersome route of rehabilitation”.

The employer sought to review this finding at the Labour Court.

The Labour Court held that “there is no hesitation in concluding that the Commissioner went on a frolic of his own, and completely misconstrued the nature of the enquiry before him based on the reason for the dismissal and evidence led in that regard. On his own, he had raised the issue whether the core of the dispute was not a matter of incapacity due to alcohol abuse and whether (the employee) should not undergo rehabilitation treatment for alcohol abuse. This was indeed irregular, in that, 25.5.1 It was never BP’s case nor that of (the employee) that the dismissal was related to alcohol abuse and incapacity, and that BP used the two charges that led to a dismissal as a smokescreen. Any such conclusions could only have been reached if pleaded by (the employee), and also if ultimately proven on the facts;  25.5.2 There was no evidence led by (the employee) that his alcohol problems had led to his alleged incapacity, or the reason for his absence, until probed and prompted by the Commissioner; 25.5.3 Only after being prompted by the Commissioner did (the employee) indicate that he was a heavy drinker, which revelation was not only opportunistic, but also evidence BP had not been aware of, or which it was afforded an opportunity to rebut; 25.5.4 There was evidence that (the employee) had been counselled before in regard to his absenteeism and bad attendance record; 25.5.5 The copies of fraudulent medical certificates submitted by (the employee), even if they were to be accepted, had not indicated that he had alcohol problems or was incapacitated, and the Commissioner had accepted that they were fraudulent.

25.5.6 (The employee) was not decisive as to whether he sought assistance or not in relation to his alleged alcohol abuse problems. On his version, he had not signed the consent forms to volunteer for rehabilitation, and even if it had dawned on him that he should have volunteered for rehabilitation, BP had already decided to take steps against him on the basis of his dishonest conduct; 25.5.7 The Commissioner ultimately during the course of the proceedings had realised that the details surrounding alcohol abuse and alleged incapacity were not placed before him, and he had nevertheless continued to make his ultimate findings on those issues.

25.5.8 Despite having concluded that copies of the medical certificates were fraudulent, and thus (the employee) was on unauthorised absence, the Commissioner nevertheless continued to conclude, and without any basis, that his absence was due to being incapacitated to do his work due to alcohol abuse”.

Circumstantial evidence if persuasive, can prove guilt

Retention agreements are hand-outs with handcuffs

The recent Labour Appeal court judgment delivered on 26 February 2019, in Solidarity OBO Scholtz v Gijima Holdings (Pty) Ltd [Case number JA131/2017] dealt with the subject of employee loyalty incentive scheme agreements, whereby an employee agrees to remain in the employ of the employer in return for him or her being paid a retention bonus by the employer to do so.

In this case, the agreement was entitled Employment Loyalty Incentive Scheme Agreement (ELISA).  It is not unusual for employers to enter into such agreements with employees from time to time, to ensure that they remain in the employ of the employer for a specified length of time.  This typically ensures continuity of service by an employee, and amongst other things, gives the employer peace of mind that the employee will not leave them in the lurch by resigning before the completion of the period for which the retention bonus has been paid.

The facts of the case were, by and large, not in dispute.  The ELISA entered into by the employer and the employee, incorporated a clause which read that “Where the beneficiary terminates its employ with the company after the effective date and before the expiry of the initial period of 12(twelve) months, (the “initial Period”), the beneficiary shall repay the full amount received by the beneficiary in terms of A.5.1 of annexure A”.

The Labour Appeal Court judgment noted in this regard that “Apparent from Clause 7 above is that a beneficiary of the scheme, having received a benefit in advance, before the commencement of the relevant retention cycle, would be required to remain in the employ of the respondent for a period of 12 months in respect of each retention bonus already paid.”

The judgment continued that retention bonus agreements of this nature were not a new phenomenon, and that, for example, they had been dealt with in Bonfiglioli SA (Pty) Ltd v Panaino (2015) 36 ILJ 947 (LAC), which noted that “A retention bonus, as the phrase suggests, is paid in order to retain the services of an employee for a specified period. Payment of the retention bonus is contingent upon the employee entering into an agreement with the employer to complete a specific period of service with the employer. The bonus can be paid after the expiration of the period, during the period or at the beginning of the period, depending on the agreement between the parties. The purpose of a retention bonus is, inter alia, to avoid instability caused by employees, especially senior employees, who would constantly search for greener pastures; to retain institutional memory and to promote a seamless continuity of operations.”

In another judgment,  Renaissance BJM Securities (Pty) Ltd v Group (2016) 37 ILJ 646 (LAC), retention agreements were deemed to be akin to hand-cuffs – “Retention agreements are therefore hand-outs with handcuffs or cheques with chains. The employee is given money and in return, he/she must give up his/her freedom to leave the employ of the employer. It curtails the employee’s right to jump ship even when the ship is being steered straight in the direction of an iceberg.”

In this case, the employer notified the employee, and indeed other employees who had signed similar agreements, that the agreement would not be continued beyond its initial three-year term.  The employee objected to this.

None the less, the employer paid the employee the third, and final, retention bonus for year three of the agreement.  Approximately one month later, the employee tendered his resignation.

The employer deemed this to amount to a breach of the retention agreement, and dealt with this by deducting the Rand value of the bonus from the payments due to the employee on termination.

The Labour Court subsequently held that the employer was entitled to make this deduction, and the employee then sought to appeal this judgment at the Labour Appeal Court.

The Labour Appeal Court upheld the Labour Court judgment, finding that “Clause 7.1 of the ELISA makes it plain that where a beneficiary terminates his/her employ with the company, after the effective date and before the expiry of the retention period of 12 months, he/she shall repay the full amount received in terms of A.5.1 of the annexure A to the agreement.”

Suspending employees pending finalisation of investigations and hearings

Employees can be suspended from work in either of two ways.  The two species of employee suspension are precautionary suspension and punitive suspension.  Punitive suspension occurs when an employer offers an employee a period of suspension without pay, as an alternative to dismissal, when dismissal would ordinarily be the only logical sanction, but extraordinary mitigating factors suggest that the employee is deserving of an option to retain his or her employment.

Precautionary suspension is quite different.  There are times when an employer, quite legitimately, is of the view that an investigation into suspected misconduct would benefit from the suspected offender not being at work.  There are numerous reasons why an employer may come to such a conclusion.  For example, the employer may have good reason to conclude that the employee in question may interfere with witnesses and evidence.  It is also quite possible that the employer may not know for sure whether the employee is entirely trustworthy.

This is when the precautionary suspension option becomes available to employers.  It must be borne in mind that an employee who is suspended as a precaution, must be fully paid whilst suspended, for the simple reason that they have, at that point in time, pending the outcome of an investigation, not been found guilty of any misconduct what so ever.  In fact, they have not even been charged with misconduct at that time.    In Sappi Forests (Pty) Ltd v CCMA & Others [2009] (LC), the Labour Court held that it was normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry.  The only time this would not be the case is when there is a collective agreement permitting unpaid precautionary suspension, or it is permitted in terms of legislation, as is the case in certain areas of the Public sector.

One occasion when an employer need not pay an employee during a period of precautionary suspension is when the disciplinary hearing must be postponed due to the employee failing to attend the disciplinary, without a valid reason for not doing so, whilst on precautionary suspension.

In the case of SAEWA obo members v Aberdare Cables [2007] (MEIBC) it was held that the employer does not have to pay an employee who is on precautionary suspension from the date he or she requested for postponement. The rationale for the decision was to avoid for situations where the employee may unreasonably delay the disciplinary hearing while earning the salary.

An employer decision to invoke its right to precautionary suspension, typically does so pending the outcome of an investigation into misconduct, and/or pending the outcome if a disciplinary hearing.

There are however certain simple steps to be followed when doing so.  It has become well stablished in our law that procedural fairness requires employers to afford employees an opportunity to oppose their proposed precautionary suspension, prior to it being confirmed by the employer.

It has been widely held that the suspension of employees pending disciplinary action is permissible only when reasonable grounds exist for suspecting that the employee is guilty of serious misconduct and that employee’s presence may compromise preliminary enquiry, and after the employee has been given opportunity to make representations.

The importance of complying with a fair procedure was emphasised by the Labour Appeal Court in MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) (LAC). It held that an opportunity to make written representations to show why a precautionary suspension should not be implemented is sufficient compliance with the requirement of procedural fairness.

In the Labour Appeal court case of Member of the Executive Council for Education North West Province v Gradwell (2012) (LAC) held that “The right to a hearing prior to a precautionary suspension arises therefore not from the constitution PAYA or as an applied term of the contract of employment but is a right located within the provisions of the LRA the correlative of the duty on employers not to subject employees to unfair labour practises.  That being the case the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to these rights.”

So in conclusion, in  the Labour Court, case of POPCRU obo Masemola and others vs Minister of Correctional Services (2010), fairness requires the following before suspending an employee pending an investigation or disciplinary action (a) the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct, (b)   there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of the pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of the affects parties in jeopardy and (c) that the employee is given the opportunity to state a case before the employer makes a final decision to suspend the employee.