by Jonathan Goldberg and Grant Wilkinson
Welcome to the next edition of the Labour Law Newsflash
Welcome to the next edition of the Labour Law Newsflash
Labour Law is all about fairness. You need to act fairly as an employer and it is also vital to be seen to be acting fairly.The two cases below illustrate the importance thereof.
The cases also illustrate the fact that it is necessary to be very cautious in approaching a labour forum as you need to ensure that your preparation and documentation are in order failing which your case may very well be dismissed.
We hope that you enjoy the read and apply the necessary caution in dealing with amending terms and conditions as well as ensuring proper strike management.
In Reddi and Others v Mercedes-Benz South Africa Limited and Others (J3053/14) [2017] ZALCJHB 362 (28 September 2017):
- The applicants’ contracts of employment stated that any amendments to said contract needed to be in writing and agreed to by both parties.
- However, some of the applicants’ contracts contained additional information stating that policies regarding company vehicles are subject to periodical review.
- The applicants sought a declaratory order stating that unilateral amendments by the respondents to the employment contracts of the applicants – regarding the allocation of company cars and fuel allocation without the written consent of both parties – constitutes an unlawful breach of the clause.
- All the employment contracts of the applicants were not attached for the Court to peruse. Merely affidavits stating these facts were attached.
- When the employment contracts were delivered to the Court, these were not accompanied by the requisite affidavits.
- The Court dismissed the case because the applicants did not prove their case.
In SACCAWU obo Mokebe and Others v Pick ‘n Pay Retailers (JA36/16) [2017] ZALAC 55 (26 September 2017):
- In June 2010, wage negotiations between Pick ‘n Pay and the South African Commercial Catering and Allied Workers Union (SACCAWU) broke down.
- In early September, SACCAWU’s National Negotiating Committee felt that conciliation would fail and organised a strike for Friday 24 September.
- This strike was later set for a later time and thereby attained protected status.
- However, owing to clerical miscommunication the staff at one of the Pick ‘n Pay branches did not receive notification of this new time and went on an unprotected strike for an hour before the allocated time.
- As the striking employees were already on final written warning for a similar offence they were dismissed.
- The Labour Court found this dismissal procedurally and substantively fair.
- However, the Labour Appeal Court found the dismissals procedurally unfair as workers at other branches of Pick ‘n Pay were only given written warnings for similar offences.
- These employees were retrospectively reinstated (seven years back).
You can see that not consistently adhering to well-worded company policies and procedures could have you losing a case. Make sure that this doesn’t happen to you and speak to one of our legal eagles for advice!
Take care,
Johnny and Grant