by Jonathan Goldberg and Grant Wilkinson
Welcome to the latest edition of the Labour Newsflash.
Our labour market is in a constant state of flux and shortly after our Annual Employment Conference a new federation, SAFTU, was formed.
It is anticipated that the new federation will have its work cut out in terms of getting representivity on bodies like Nedlac. There are specific requirements to allow participation at Nedlac that requires a specific time as well as a corporate governance financial record.
It will be interesting to see what approach the federation will take, entering a labour market which is shedding jobs. One cannot turn a page in a newspaper without reading about a retrenchment happening somewhere in South Africa.
The economic situation is tight in our country and it is these times that call for innovative thinking and a new approach. As you would have read in our previous newsletters, this innovative approach is what was highlighted at our Employment Conference. In order for business and labour to survive, we need to see past our positions and reach across the divide to seek new solutions to our problems.
Bearing this changed approach in mind, we will be changing the format of our Labour Law Updates. To make the seminars more interactive, delegates will be provided with an information pack beforehand so that they can arrive armed for engagement with Johnny. Johnny will be covering case updates as well as issues impacting the labour market, such as the national minimum wage, changes in collective bargaining, etc.
Come join us at our Mid-Year Labour Law Updates around the country:
- East London – 14 June 2017
- Johannesburg – 21 June 2017
- Cape Town – 23 June 2017
- Durban – 27 June 2017
- Port Elizabeth – 30 June 2017
Please enjoy the two case summaries. The first illustrates the balancing of rights and the latter deals with the issue of sexual harassment, which together with harassment in general and bullying has come to the forefront of discussions again.
Click here to watch a recent interview related to this topic (the interview starts at 18min58sec).
We look forward to seeing you at our Mid-Year Labour Law Updates.
Till next time
Johnny and Grant
Case 1
Balancing of rights
In National Education Health and Allied Workers Union obo Molubi and others / Avondgloor Old Age Home (2017)26 CCMA 8.37.4 , as a result of a pay dispute, the employees (who were caregivers at an old age home) refused to attend to patients.
The case deals with both an unfair suspension as well as the alleged unfair dismissal. This summary discusses the latter.
After consideration of the facts, the Commissioner noted that the employees had been found guilty of gross negligence. Negligence is gross when it is committed with actual knowledge or wanton disregard of legal obligations. As a result of their wilful decision and the fact that the employees had admitted that they had not performed their duties, the Commissioner found that they were guilty of gross negligence and that the dismissal of the employees was justified.
Lesson to be learned
Even though employees may have gripes with their employer, they cannot fail in their obligations. There are processes in place to resolve any grievances and these need to be followed to resolve the situation. Any wanton disregard is punishable by dismissal.
Case 2
Sexual harassment
We are living in a society where sexual misconduct of all forms has become more prevalent and the most unacceptable defences are raised to these allegations.
Case in point being, Jordaan / Capitec Bank Ltd – (2017)26 CCMA 8.25.3. In this matter, the employee was dismissed for sexually harassing a much younger female subordinate by touching her inappropriately.
Whilst the applicant did not deny the alleged misconduct, he brushed it off saying that it only happened once and that he was just a friendly guy and that his subordinate had been flirting with him.
In assessing the merits of the matter, the Commissioner had noted that the alleged victim was clearly upset by the incident and had even left the proceedings. Her corroborated evidence was not sufficiently contradicted by the evidence of the accused employee. His defence of falling into the trap of the victim and inappropriate physical contact was not sufficiently put to the victim and had also not held water evidentially. The alleged victim’s version was further corroborated by her e-mails which clearly illustrated her trauma as a result of the unwelcome conduct.
Even if the alleged victim was flirtatious, the employee had to do what the responsible manager would do and not engage in such conduct.
After an evaluation of the evidence and having given consideration to the Code of Good Practice, the Commissioner ruled that the conduct of the employee constituted sexual harassment and that dismissal was appropriate in this matter.
Lessons to be learned
As management, one has to act in an appropriate manner and not find yourself guilty of such behaviour. Added to this, employers need to train all staff on what constitutes sexual harassment and how to prevent same. Employers should not forget their potential vicarious liability should they fail in their obligation to ensure a safe workplace.