On 8 May 2002, the CCMA published an urgent directive confirming how its operations will function from 11 May 2020. This includes how conciliation and arbitration cases will be dealt with.
Yip, these are historical times. As things stand, the lockdown will be uplifted from 1 May 2020, maybe. As has been the case in our sector of labour relations consulting to employers across the country, and indeed many others, the hitherto lesser known benefits of working remotely, have been revealed to our own consultancy, and our clients alike. But more of that in future articles.
For now, the world of work has, like the rest of society worldwide, received a body blow of the like we have never seen before, and are hopefully unlikely to see again any time soon. The Covid-19 pandemic has already pole-axed thousands of jobs, and is likely to continue to do so, in our estimation, until at least the second quarter of 2021.
During the lockdown, our firm’s interaction with clients has, in the main, been dominated by the UIF TERS benefit application process, and retrenchments, not to mention putting the final touches to the launch of our first online training workshop “Managing discipline & dismissal at the workplace” (watch this space …).
But what can we expect the labour relations environment to look like during the first hundred days after the national lockdown? We think that the hot topics in that first hundred days are already quite apparent.
First and foremost is the health and safety of staff. Employers have a duty and statutory obligation to protect staff in the face of Covid-19. This will require a thorough audit of all health and safety practices, procedures and personal protective equipment.
Next, the CCMA and Bargaining Councils, together with the labour courts, have a massive backlog to deal with. Our guestimate is that the CCMA alone will have a backlog of approximately 20 000 cases, of which approximately 16 000 will be unfair dismissal cases. Tag that onto an already burdensome 850, or so, cases being referred to the CCMA daily across the country, and you can immediately begin to fathom the challenge ahead. Of course, there will be far fewer misconduct, and even incapacity, related dismissals, and therefore related disputes, referred during the lockdown period, but the raft of retrenchments during the lockdown period may more than compensate for the lesser number of misconduct and incapacity disputes during the same period. Time will tell. Regardless, the cases set-down for the lockdown period will also add to the backlog. The CCMA will no doubt be aware of this and already planning its contingencies.
Perhaps the most dominant feature of the labour relations environment during the first hundred days post-lockdown, will be inevitable widespread retrenchments and short-time. There will no doubt have been a number of employers who have retrenched, or started retrenchment consultations, during the lockdown, relying on section 189, or 189A of the Labour Relations Act. We have advised our clients not to do so however, in the understanding that when all is said and done, and regardless of the availability of rock-star technology enabling virtual face-to-face communication, many employees don’t have access to such technology, and besides, whether we like it or not, there are question marks over the ethics of retrenching employees remotely. Some employers, on the other hand, may have been faced with no other option, given their financial plight. None the less, we have encouraged our clients not to be the test case on this issue.
That said, the upliftment of the lockdown will present employers with the opportunity to initiate section 189 and 189A Labour Relations Act processes. The socio-economic impact of doing so is obvious. Yet many employers will literally have no other option, if they wish to keep their doors open. Let’s not forget, many companies won’t be reopening. A huge number that do, in some sectors more than others, will be retrenching, and/or placing staff on short-time. Employer labour consultancies like ours have already been briefed by clients on the commencement of statutory retrenchment procedures the very second the lockdown is uplifted.
Finally, expect turmoil in the public sector with the tightening of Treasury’s belt, especially in light of the impact of Covid-19 of the fiscus.
There you have it, our take on the labour relations landscape in the first hundred days after lockdown.
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.
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.
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.
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.