In the case of N Msomi & 273 others v Capacity, Transman, Capital Outsourcing and Edcon Case No D659-15  Labour Court the principle of fair dismissal – as a result of strike action – was dealt with. The employees conceded that they were engaged in unprotected strike action on 3 December 2014. Their case is that the sanction of dismissal was unfair because: They were provoked into striking, The strike was of limited duration (from 10h00 to 15h30 on 3 December 2014) and peaceful and, The ultimatums were not explained to them. Their case on provocation was that on 3 December they requested printouts of the bonuses that were to be paid to the employees. The employer was then given until 10h00 to hand over the printouts, failing which employees would start striking.  When the ultimatum was not met, they went on strike. On 4 December, they tendered their services but the clock-in system had been deactivated.  It was not disputed that the employees went on a series of unprotected strikes in October and on 4 November 2014, and that they received ultimatums which recorded that their conduct could lead to dismissal. The probabilities favoured the employer’s version that, ordinarily, the schedules would only be prepared during the first week of December, and that they undertook to provide the bonus reports by Friday, 5 December 2014. Lt did not dispute that three ultimatums were issued on 3 December calling on the employees to return to work and warning them that they could face disciplinary action or dismissal. They did not compIy with the ultimatums and eventually left the premises at 15h30 It is also clear from photographs submitted by the employer that the employees had placed the notices on the notice boards. It is common cause that no striker informed any representative of the employer that the strike was over and/or that they intended to work. The violence occurred in the afternoon of 4 December 2014, when stones were thrown at cars driven by the management and this caused damage to the vehicles. The employees were, however, not dismissed for violence and the issue of violence would only be relevant in considering the relief of reinstatement in the event of substantive unfairness being found. The Labour Court concluded that the conduct of the employees rendered the employment relationship intolerable and dismissal was the only appropriate sanction. The strike was not in response to unjustified conduct by the employer. The employees knew that because it was the employer’s annual practice the bonus information would be made available to them individually in due course. In addition, their representatives were told on 2 December that the information would be there by 5 December. The employees have shown a propensity to strike on the spur of the moment. ln the space of two months, they had embarked upon six unprotected strikes. The strikes took place despite undertaking to report back in order to provide relevant information meetings being put in place to discuss grievances. This was the busiest time of the year leading to Edcon’s summer peak and the dismissal was found to be fair. Contact Global Business Solutions For any assistance in dealing with strikes in your organisation, contact Jonathan Goldberg , johnny@globalbusiness.co.za , and the rest of the Global Business Solutions team.

If an employee earns below the R205 433 per annum threshold, the onus shifts to the employer to prove that there was a justifiable reason for a fixed-term contract longer than three months. If the employer cannot do this then the employment is deemed indefinite. The case of Mageni /South African Bureau of Standards – (2019) 28 CCMA 7.1.5 illustrates this point. The employee was employed as one of the employer’s general managers on a five-year fixed-term contract. When the contract expired, he claimed that he had been unfairly dismissed because he had reasonable expectations that it would be renewed. The Commissioner at the Commission for Conciliation, Mediation, and Arbitration noted that initially there was some confusion over whether the employee was claiming that he had been allowed to work beyond the date on which his fixed-term contract expired. It was clarified that he was relying solely on section 186(1)(b) of the Labour Relations Act (reasonable expectation of renewal). Where such a dismissal is claimed, the reasons for the employer’s decision not to renew the contract must be examined and the employee must prove that a reasonable expectation of renewal had been created by the employer. The employee had relied on an e-mail from his line manager – dated a year before – the contract was set to expire and asking him whether he was willing to extend his fixed-term contract. The Commissioner found that this message did not constitute an offer and was not enough to create a reasonable expectation of renewal. The employee had indicated in correspondence that he knew his fixed-term contract would come to an end. The employee had been given no further indication that his fixed-term contract might be renewed. Since the employee had failed to prove that he subjectively believed that the contract would be renewed, there was no need to consider whether the expectation was objectively reasonable. The application was dismissed. Contact Global Business Solutions Richard Ryding heads up our team of B-BBEE experts who have helped countless businesses navigate the B-BBEE landscape. Contact Richard and the team to help you with the B-BBEE landscape in your business.

Many businesses – especially small businesses and start-ups – are not able to afford the services of an attorney for the purposes of drafting an employment contract . They may rely on a template contract that they download or purchase from a ‘reputable’ source and make additions to which, they see, as being necessary for their particular workplace. However, should it come to pass that the employment contract is tested at the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the Labour Court, the question has to be asked as to whether or not this DIY contract will afford you, the employer, the protection that it purports to. You cannot get an employee to sign away their rights All contracts of employment – as well as workplace policies and procedures – must be in line with the rights afforded to employees under the Basic Conditions of Employment Act (BCEA). If they are not, the part of the contract or the policies that are contrary to the BCEA is null and void. Contract templates, which are obtained from reliable sources, should be in accordance with the Act. However, the challenge that HR will face in modifying contracts of employment to suit various positions in the company is that the HR executive may not be that familiar with the legal requirements contained in the BCEA and, as such, draft the contract in such a way that is contrary to these employees’ rights. Should the contract be challenged, it may become costly to make sure that you win your case. A case in which an employment contract, drafted by HR, was challenged is National Union of Metalworkers of South Africa and Another v Transalloys (Pty) Ltd (JS237/15) [2017] ZALCJHB 364 (21 September 2017). In this case: Three employees were appointed as lab technicians at one salary level. This was stated in their contracts of employment which were signed by both parties, thus making them legally binding documents. It was discovered that the other lab technicians in the company earned a lower salary. The HR manager – who had drafted the contracts with the erroneous salary figure – was given a written warning. The HR manager then approached the employees and stated that they had been paid an incorrect salary and were going to be paid less, as of the following month. However, they would be able to keep the difference between the higher amount and the lower amount that they had already been paid. The employees filed a case against their employer saying that their contracts had been breached as these documents contained the fact that they would be earning a higher salary. It was found that the contract had not been breached but only corrected. Contact Global Business Solutions If you have any further questions regarding employment contracts or any other labour law-related matter, please contact Jonathan Goldberg, johnny@globalbusiness.co.za . Follow this link for more information.

Should you decide to institute disciplinary action against one of your employees, the time it takes for you to conclude the proceedings needs to be as short as possible. If it is not, you risk facing court cases in relation to this. The case of Stokwe v Member of the Executive Council: Department of Education Eastern Cape, and Others CCT 33/18 7 February 2019 illustrates this point. On 22 July 2010, the employee was charged with four counts of misconduct by the Eastern Cape Department of Education (Department) for awarding a service contract to her spouse’s company without the required approval and consent of her employer. The service contract was awarded to her spouse’s company in accordance with the required procedure. However, she did not receive permission from the Head of Department to make the award. The disciplinary hearing was scheduled for 12 August 2010 but only happened on 30 March 2011. On 22 June 2011, the Department informed the employee that she had been found guilty of two of the four charges brought against her and that she would be dismissed. She appealed in terms of section 8(4) of the Employment of Educators Act (EEA) which provides that a sanction may not be implemented pending the outcome of an appeal. Eventually, she was advised that her appeal was unsuccessful, on 14 February 2014, and she was dismissed. On 4 August 2014, an arbitrator found the dismissal was substantively fair as her misconduct seriously and negatively impacted the trust relationship between the employee and employer. The arbitrator’s award did not deal with procedural fairness. The employee approached the Labour Court to have the award reviewed and set aside. The Labour Court upheld the award. The Court refused leave to appeal. The application for leave to appeal in the Labour Appeal Court was also not successful. On petition to the Constitutional Court, the employee submitted that the delay was an unexplained and unjustified departure from the Department’s internal disciplinary procedure. The Court held that the arbitrator was reasonable in finding that the employee’s dismissal was substantively fair. The court did find it necessary to determine if the dismissal was procedurally fair. The Court held that both the EEA and the Labour Relations Act (LRA) provide that discipline should be prompt and fair and that the disciplinary proceedings must be concluded in the shortest possible timeframe. The Court held that if an employee is retained for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down. The Court therefore held that the delay did indeed render the employee’s dismissal procedurally unfair and that the matter must be remitted to the Labour Court as a specialist court for an appropriate remedy for the procedural unfairness to be determined, by that Court, as a matter of priority.

With the Equal Pay Provision that was introduced in 2014, there have been many cases lodged at the Commission for Conciliation, Mediation, and Arbitration alleging unfair discrimination based on the fact that this provision was not adhered to. The Case of African Meat Industry & Allied Trade Union/Premier FMCG (Pty) Ltd – (2019) 28 CCMA 6.12.2 shows that differences in pay for the same job do not always violate the Equal Pay Provision. The employees claimed that the employer was paying employees the same grade at unequal hourly rates and that this amounted to unfair discrimination. The employer contended that the differences in wage rates were based on different lengths of service and other considerations such as former Temporary Employment Services (TES) employees being employed. The CCMA Commissioner noted that the employees had claimed discrimination on an arbitrary ground. The onus, accordingly, rested on them to prove that the differences in the hourly rate of pay, which was relied on, were irrational and unfair. The arbitrator reasoned that employees must prove that the grounds on which they rely are linked to the prohibited grounds in the sense that the grounds have the potential to impair their dignity. The wage differentials in each group were based on seniority although other factors included the insourcing of former TES employees. The employees had merely relied on the difference in wage rates without citing the ground on which they relied. The employees’ unhappiness with their rates of pay was a matter of mutual interest. The Commissioner found that the difference in wage rates was neither irrational nor unfair. It did not amount to discrimination. The case was dismissed. Contact Global Business Solutions Natalie Singer , natalie@globalbusiness.co.za , is our equal pay expert and is on hand to handle any equal pay queries you may have.

The most recent round of amendments to the Labour Relations Act (LRA) have implications for the granting of organisational rights to trade unions. National Union of Mineworkers and others / Western Platinum (Pty) Ltd and others – (2019) 28 CCMA also reported at [2019] discusses. Three unions (NUM, Solidarity, and UASA), acting in a coalition, sought organisational rights, conferred by sections 12,13, and 15 of the LRA, in the workplace. Granting of organisational rights is governed by section 21(8c) of the LRA. The employers and the majority union, AMCU, contended that the unions were not entitled to those rights because they had concluded an agreement , in terms of section 18, with the employer and the unions did not meet the threshold set for acquisition in the organisation concerned. Membership numbers of NUM, Solidarity, and UASA were, respectively, 1 067, 736 and 417. The total workforce was 22 689, of which 18 969 were AMCU members. The Commissioner noted further that section 18 makes it legally possible for majority unions and employers to conclude agreements that set the threshold for the acquisition of organisational rights provided for in sections 12, 13 and 15. Section 21(8C) allows unions to be granted those organisational rights even if their members fall short of the threshold. This is provided that they represent a significant number of employees. Section 21(8C) is a departure from the method by which representatively is established by numbers alone. The issue is whether unions should be able to represent significant, important, and meritorious interests of members and defend their occupational interests. The Commissioner held that a ‘substantial number’ means a number that is not insignificant. The unions had all been previously involved in the workplace and had a history of organising in the mining sector. NUM was previously the majority union. Although the bargaining unit had since been expanded, granting the unions the organisational rights they sought would not redefine the new bargaining unit. The Commissioner, accordingly, held that the applicant unions represented a significant number of workers but declined to rule on whether they represented a significant interest. The unions were accordingly granted the right of access to the workplace, assistance with the collection of members’ fees and leave for activities. The employer was directed to make further submissions on how those rights should be exercised. Contact Global Business Solutions Besides being labour law experts, we also have some of the country’s top B-BBEE minds under our roof – such as Richard Ryding , richard@globalbusiness.co.za . If you have a question to do with B-BBEE please don’t hesitate to contact him!

Should it be found that an employee has been unfairly dismissed, the usual remedy is reinstatement. The case of the South African Municipal Workers’ Union and another v Ethekwini Municipality and others – (2019) 1 BILLR 46 (LAC) discusses this further. An employee was dismissed for gross insubordination for repeatedly refusing to obey an instruction to complete certain work. An arbitrator found the dismissal to be unfair on the basis of inconsistency. However, it was held that – because the employment relationship had broken down – the employee could not be reinstated. The arbitrator awarded compensation equal to six months’ salary. The award was upheld by the Labour Court. The Labour Appeal Court held that once a dismissal is found to be unfair the mutually exclusive remedies of reinstatement, re-employment, or compensation are to be considered. The exceptions provided in section 193(2) of the LRA must be considered at the same time. This section provides that the employee must be reinstated or re-employed unless: The employee does not wish to resume employment, The dismissal was found to only be procedurally unfair, or Reinstatement would be intolerable or impracticable. The employer has to prove the existence of these “non-reinstatable” conditions. And if they do not, an arbitrator only then has the discretion to decide on the period of retrospectivity. The finding of the arbitrator, that reinstatement was not reasonably practicable, was based on findings that other union members had also not complied with the instruction and that the employee had not filed a grievance. A reasonable Commissioner would have found dismissal too harsh a sanction, that progressive discipline could have been applied and that reinstatement was appropriate. The appeal was upheld and the employee was reinstated subject to a final written warning. Contact Global Business Solutions Complex labour law questions such as this is something that our team deals with on a daily basis. For all your labour law queries, please contact Jonathan Goldberg, johnny@globalbusiness.co.za , and the team.