Dismissal on grounds of ill health is fair if statutory obligations are met

Make no mistake, whilst dismissals on grounds of ill health can be fair in our law, as with all cases of dismissal, there are very specific procedures to be followed.  What makes these kinds of cases all the more challenging, is that there is no fault on the part of the employee; they are simply, and most unfortunately, the victims of ill health over which they have no control.

Be that is it may, our law deals with precisely these scenarios.  When considering the fairness of a dismissal on grounds of ill health, our courts, the CCMA, and Bargaining Councils, must “consider the provisions of Items 10-11 of the Code of Good Practice: Dismissal, which are binding on all commissioners as dictated by the provisions of section 188 (2) of the Labour Relations Act”, as noted in the Labour Court judgment in National Bargaining Council for the Road Freight Logistics Industry v the CCMA 7 2 others Case number 875/15.

When reading items ten and eleven of the Code, you will find an explanation of how employees should be treated in cases of temporary and permanent ill health or injury.  They are precisely the steps any one of us would want our employer to follow if we were the employee afflicted with ill health or injury.

For example, “the employer should investigate the extent of the incapacity or the injury”; “the employer should investigate all the possible alternatives short of dismissal”; “the possibility of securing a temporary replacement for the ill or injured employee” and in cases of permanent incapacity “the employer should ascertain the possibility of securing alternative employment, or adapting the duties or wok circumstances of the employee to accommodate the employee’s disability”.

The schedule goes onto say that “Any person determining whether a dismissal arising from ill health or injury is unfair, should consider (1) whether or not, the employee is capable of performing the work; and (2) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this I not possible, the extent to which the employee’s duties might be adapted; and, (3) the availability of any suitable alternative work”.

In our experience of such cases over many years, when the incapacity (ill health or injury) is first identified, the cards are, quite understandably, stacked in favour of the employee.  The employer must show reasonable accommodation, investigate the incapacity, and monitor the situation.

As time goes by however, the pendulum swings towards the interests of the employer, which are, after all, also legitimate. It should come as no surprise that ill health can be of both a physical and mental health, nature.

In “ IMATU obo Strydom v Witzenburg Municipality & others (Labour Appeal Court: 2012) 7 BLLR 660, it was noted in the judgment that  “My reading of item 10 and 11 gives me the impression that an incapacity enquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the enquiry or in any suitable alternative position. I am of the view that the conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there, the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity, or adapt the employee’s duties, or provide him with alternative work if same is available.

I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognised as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal”.

Finally, in short, extra special attention should be given to employees injured at work, as evident in item 10(4) of the Schedule, which informs us that “particular consideration should be given to employees who are injured at work, or who are incapacitated by work-related illness.  The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

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.

30+ years of labour relations consulting observations in SA

Our labour relations consultancy is in its 25th year, and this has inclined our team to reminisce over our journey, and prompted me to recall the trends and developments over time.  Labour relations is seldom viewed dispassionately.  It is a field which spans a multitude of collective and individual workplace interactions and experiences, from constructive relationship building initiatives to often sizzling adversarialism.

My graduation from UCT in the early 1980’s coincided almost exactly with the dawn of the present-day employment law, and labour relations regime which prevails today.  This itself may sound strange, especially if one recalls that apartheid was still at its height, and the release of nelson Mandela, and the dawn of a new democratic South Africa was over a decade away.  Even so, as early as the mid 1980’s, the concept of fairness in discipline and dismissal was already becoming prominent, as espoused by UNISA’s Professor Nic Wiehahn, a colourful character who was also renowned from his colourful neckties at the time.

It was also the time at which the so-called emerging Black unions began to increase in prominence, and display competent and powerful leadership, with Cyril Ramaphosa’s National Union of Mineworkers leading the way.  Organised labour was still none the less highly oppressed by the P W Botha Nationalist government.  At the time, and quite understandably, organised labour would put employers under enormous pressure to send a ‘telegram’ to the Minister of Police, to demand the release of union officials who had been detained without prosecution, for simply being union officials.

Over time, the then ‘Personnel Department’ morphed into being referred to in various ways, including the ‘Human Resources Department’, the ‘Human Capital Department’ and more recently, “People and Culture’, all of which are labels to describe the team within an organisation charged with various responsibilities including staff administration, training and development, recruitment and selection, employee wellness, and of course, labour relations.

In our view, the trade union landscape his significantly changed over time.  There is no doubt that the evolution of COSATU in the mid-1990’s brought greater cohesion to the realm of organised labour.  Alignment with the ANC added impetus to COSATU’s breadth of influence.  But it didn’t last.  Even though union membership in the Public sector remains high, the split within COSATU, resulting in the formation of rival union federation SAFTU, it has negated the role of trade unions in the Private sector, which currently has about one in eight employees being union members. Overall, only about twenty five percent of employees are union members.

Another consequence of the split in COSATU is the increase in numbers of trade unions, of a lesser size.  This in turn has led to an increase in union rivalry, and by and large, generally less effective trade unionism.

Trade unions have, from the very beginning, suffered from a glut in competent leadership, due primarily to the fact that competent trade union leaders are frequently fast-tracked into governmental positions.

No analysis of the SA labour relations landscape would be complete without a look at the CCMA, and bargaining Council dispute resolution centres.

The CCMA is probably approaching nine hundred labour disputes being referred to it every working day.  About seventy five percent of those cases are ‘resolved’ or ‘conciliated’, either because one or both parties are fearful of losing at arbitration, or the employer is willing to pay the ex-employee a settlement sum so as to avoid the nuisance factor associated with arbitration.

The introduction of minimum wage legislation and the recent appointment of the CCMA to address the non-payment of salaries, will probably see one thousand labour disputes being referred every working day, in the not too distant future.

Employers still lose nearly fifty percent of all arbitration hearings.  This percentage is almost certainly skewed by the SMME sector who fare far more poorly than larger, more sophisticated employers.  We remain of the sincere view that there is no reason why employers should have poor outcomes at the CCMA, if they apply the fundamentals of our discipline and dismissal protocols.

Perhaps the biggest challenge facing employers in the labour relations space is that they frequently don’t know what they don’t know.  This results in often fatal flaws being made in, for example discipline cases, which cannot then subsequently be reversed. It must still be borne in mind that approximately eighty percent of all labour disputes are discipline related, and competence in managing discipline, misconduct cases, requires close attention and training.

And finally, increasing employment law continues to decrease labour flexibility.  Some would also argue that our employment law regime is over regulated, and too job security, than job creation focussed; you can go ahead and put our firm in that camp.

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.

Can employers object to employee t-shirts?

Can employers object to employee t-shirts?

How far can employers go in banning employees from wearing t-shirts which the employer considers inappropriate, and can such a ban ever infringe upon a union member’s right to freedom of association?  This was the question posed in the Labour Court case NUMSA obo members v Transnet Soc Ltd (case number JS427/15).

At the commencement of this judgment, the dispute was succinctly stated to be, “Is it legitimate for an employer to prohibit the wearing of union t-shirts in the workplace? The applicant (NUMSA) contends that such a prohibition would breach the rights of expression and freedom of association of its members. The respondent (Transnet) contends that there is no substantive right to wear a union t-shirt in the workplace as an element of the exercise of the right of expression or freedom of association, or on any other basis, except with its consent”.

In October 2014, the employer introduced a corporate and protective clothing policy which prohibited the wearing of ‘political party clothing or non-recognised union regalia’ during working hours.

Of particular importance in this case was the policy wording that “It is prohibited to wear clothing of any political party or union that has no organisational rights within the workplace…”.  This of course meant, inter alia, that members of the two recognised trade unions, SATAWU and UTATU, could wear union t-shirts, but unrecognised trade unions, such as NUMSA, could not.

Thereafter, with effect from 1 June 2015, this policy was revised to broaden the prohibition to the wearing of clothing “or any regalia of any sort of any political party or trade union…”.

The employer argued that the blanket ban on the wearing of union t-shirts was, in essence, to avoid union rivalry which had the potential to spawn conflict, or as recorded in the judgment, “The new policy, introduced in 2015, prohibits all employees, regardless of union affiliation, from wearing union t-shirts on account of its intent to maintain and ensure a peaceful environment in the workplace. The rationale for the t-shirt ban, he (the employer) said, was one related to risk management”.

The court contended that “There are two issues to be decided. The first is whether the workplace rule banning employees from wearing ‘clothing or any other regalia of any sort of any political party or trade union …during working hours’ is constitutional, lawful, reasonable and valid. Put another way, the issue is whether through its conduct in prohibiting the wearing of union t-shirts in its workplace, Transnet has infringed the protections accorded by the right to freedom of association enshrined in Chapter II of the Labour Relations Act, 66 of 1995, (LRA). The second is whether Transnet has applied the rule selectively by not taking disciplinary action against members of other unions who despite the policy, continue to wear union t-shirts to work and if so, whether this differentiation amounts to an act of unfair discrimination against NUMSA’s members”.

The Court held “having regard to the interpretation of s 5 (2) (c) (iii) adopted by the Constitutional Court, in my view, the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5 (2) (c) (iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice proscribed by that provision. In short, the t-shirt ban is unlawful and invalid with reference to s 5 (2) (c) (iii)” and “the wearing of union t-shirts constitutes a lawful activity”.

The judgment continued, however, that the right to wear union t-shirts is not unlimited – “This is not to say that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is unlimited. One can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. Indeed, Matlou gave the example in his evidence of employees engaged in work on tracks being prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion that may arise.”

That is not to say that the prohibition on the wearing of union t-shirts will always be unlawful.  The judgment continued that “I have no doubt that in appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia (or even its prohibition in extreme cases)”.

But for now, the blanket banning of union regalia, under normal circumstances, is prohibited.