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Sometimes, an employee facing dismissal will try to rely on a technicality in order to avoid the sanction posed. The case of South African Commercial, Catering and Allied Workers Union obo Vas / Carnival City Casino – (2019) 28 CCMA 8,37,6 (CCMA ) illustrates such a matter. The employee was dismissed for gross insubordination after making derogatory and abusive remarks (including the comment that she should “go back to China”) about a manager who had told the employee that the employer would not pay for flowers for her mother’s funeral. The employee admitted uttering the words, which has been captured on videotape but claimed that she had apologized and that her conduct constituted insolence rather than insubordination. The Commissioner of the Commission for Conciliation, Mediation, and Arbitration did not get side-tracked by the technicality. It was concluded that the employee’s conduct amounted to insolence rather than insubordination because the employee had not defied an instruction. The comment had been directed not only to the manager but to the Chinese community generally. The employee’s anger at the manager was unjustifiable because she had not taken the decision not to buy flowers and offered to personally contribute some of the money needed for the purpose. The employee’s comments were made in the presence of several other employees. The employee had shown no remorse and the Commissioner held that the dismissal was fair. Contact Global Business Solutions Have an issue, such as the one above, in your company? Contact Grant Wilkinson and the rest of the legal team to help you sort this out, grant@globalbusiness.co.za .

The issue of short time is a contentious one at the workplace . It results in less take-home pay for employees. This was looked at in the National Union of Mineworkers obo Mhlempu / UMSO Construction (Pty) Ltd – (2019) 28 BCCEI 6.7.2. An employee was placed on short notice due to the operational requirements. His wages were reduced from 45 hours a week to 30 hours. The employee claimed that the employer was not entitled to send its employees home on reduced pay, and institute short time, and contended that this amounted to an unfair labour practice. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that “short time” is not defined in the Basic Conditions of Employment Act 75 of 1997 but that the applicable bargaining council agreement defined short time as a temporary reduction of the number of ordinary hours of work due to contingencies beyond the employer’s control which directly affects the employer’s ability to provide work. This also means that if it is not contained in a bargaining council or collective agreement short time cannot be implemented without consent. The Labour Relations Act (LRA) states that collective agreements may vary contracts of employment of parties bound by the agreements. A dispute relating to a short time is properly dealt with by the bargaining council or the Department of Labour. Such disputes do not fall within the definition of “unfair labour practice”. The conclusion that this was not an unfair labour practice was correct. If there had been a collective agreement this would have then been an unfair labour practice. Contact Global Business Solutions In the era of Covid-19, the issue of short time has become ever apparent with many companies being forced into putting their employees on short time in order to survive financially. If you’re in any doubt about policies to apply in your workplace, please contact Marianne Gradwell , marianne@globalbusiness.co.za – who is an HR specialist with us here at GBS – who will be able to assist.

The Employment Equity Act makes paying people – who do the same work at different rates of pay – an offense. This amounts to unfair discrimination. However, what often happens is that employees misinterpret this provision as can be seen in the matter of Food and Allied Workers Union obo Mloyeni and another / Rio Ridge 1377 CC t/a Woza – (2019) 28 CCMA 1.17.2. Two employees, who were both employed as general assistants in the employer’s store, were paid at a lower rate than other general assistants at the employer’s store in East London. One employee claimed that she was performing the work of a sales assistant and should be paid at that rate.  The other employee claimed that the different rates paid in the store amounted to unfair discrimination and “exploitation”. The CCMA Commissioner noted that both employees were paid the minimum rates set in the applicable sectoral determination. Where unfair discrimination is alleged on an arbitrary ground, the employee must prove that the conduct is irrational and indeed amounts to unfair discrimination: The first employee had never been requested to do sales work.  The second employee was unaware of the sectoral determination. All employees at the Queenstown branch were paid the same rate.  In essence, the applicant was attacking the rationale of the sectoral determination.  The employees had, accordingly, failed to prove that they had been unfairly discriminated against. The application was dismissed. Contact Global Business Solutions There are increasing numbers of unfair discrimination cases, based on differences in pay, which are now being lodged. Contact Natalie Singer , who is our equal pay expert, to make sure that cases such as these don’t see the inside of the CCMA.

In the case of the University of Kwa Zulu Natal v Pillay and Others Case No: DA09/2015 , the issue of when an employee will be liable for the costs of an appeal and a review was considered in the Labour Appeal Court. The employee admitted that he had lied to a tribunal established by the university to inquire into the improper awarding of a degree and other suspicious activities.  The Labour Court upheld the finding that dismissal was justified but sent the matter to the same Commissioner to reconsider the issue of procedural fairness .  The Commissioner found that the dismissal was procedurally fair. On review, the Labour Court ruled that the dismissal was procedurally unfair and granted the employee 10 months’ salary.  On appeal, the Labour Appeal Court noted that the prior court had based its findings about procedural fairness on the view that the employee had not had a proper opportunity to answer the charges leveled against him.  The disciplinary inquiry had been convened to establish whether the employee had lied under oath to the investigating tribunal.  The employee had been given a full opportunity to address the university council’s view that he should be dismissed. The presiding officer found that the employment relationship had broken down and recommended that sanction.  The Commissioner’s finding that the dismissal was procedurally fair was eminently reasonable and the Labour Court had not explained its finding to the contrary.  The appeal was upheld and the employee was ordered to pay the costs of both the review and the appeal. Contact Global Business Solutions Our legal team – which Jonathan Goldberg, johnny@globalbusiness.co.za is an integral part of – deals with situations such as these all the time. If you have a similar situation in your company, please don’t hesitate to contact us!

Section 23 of the Constitution of the Republic of South Africa states that everyone has the right to fair labour practices. This is the basis of the Labour Relations Act (LRA). In the case of LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS; LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS CCT61/18 this right concerning suspensions was interpreted up to now. The employee was given the notice to attend a disciplinary enquiry on 28 August 2013. The three charges against him were: (a) gross dereliction of duties, (b) gross negligence, dishonesty, and derivative misconduct, and (c) bringing the company name into disrepute. All of these charges are related to the employee’s failure to properly manage the fleet. The employee was acquitted, at the disciplinary enquiry, on the charge of dishonesty but was found guilty in respect of dereliction of duties, gross negligence, and bringing the company name into disrepute. Consequently, he was dismissed. There Were Two Arbitrations The first was about the employee’s suspension pending disciplinary enquiry. The arbitrator concluded that the employee had not been given an opportunity to make representations to show why he should not be suspended. This he found to be an unfair labour practice . The arbitrator concluded that the suspension was unreasonably long, and had become punitive and unfair. The arbitrator awarded the applicant compensation equivalent to two months’ remuneration. The next arbitration related to the employee’s dismissal. The arbitrator was of the view that the issue he had to decide was whether the failure to take appropriate action to remedy the problems with the fleet could be attributed to the employee. The arbitrator found that the employee did not commit misconduct as the alleged failures did not fall within his responsibility. The employer was directed to reinstate the applicant with retrospective effect to the date of dismissal. On review, the Labour Court held that where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations. The Labour Court concluded the arbitrator’s reasoning, that the suspension was unduly long and had become punitive, was flawed. The Labour Court held that the arbitrator’s conclusions were materially irregular and that any prejudice to the employee was mitigated by the fact that he was fully paid while on suspension. The Labour Court further held that the arbitrator’s award constituted a gross irregularity in that he had failed to deal with – or even consider – material evidence. In addition, he did not reasonably and rationally evaluate and determine the evidence. The Labour Court held that on the evidence and taking into account the seniority and nature of the employee’s position, he was guilty of dereliction of duties. As a result, the arbitrator’s award was unreasonable. The Labour Court held that there had been a breakdown of the trust relationship and that the misconduct was serious. The Labour Court ordered that the employee pay the employee’s costs. The Labour Appeal Court refused the petition of the employee with no order as to costs. The employee then filed an application for leave to appeal to the Constitutional Court. This case concerns fair labour practices in terms of section 23 of the Constitution. Specifically, the matter dealt with if there is a requirement for a pre-suspension hearing for a precautionary suspension. The Constitutional Court concluded that the Labour Court’s finding – that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension – cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the employee was a precautionary measure, not a disciplinary one. Consequently, the requirements relating to fair disciplinary action under the Labour Relations Act (LRA) cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations. The Court concluded the fairness of the suspension is determined by assessing, first, whether there is a fair reason for suspension and whether it prejudices the employee. The Court did not pronounce on the fairness or otherwise of the dismissal which it seems was an oversight. Contact Global Business Solutions Our legal team deals with cases of unfair labour practices on almost a daily basis. Contact Grant Wilkinson , grant@globalbusiness.co.za , and the team for assistance with these types of matters.

In the case of the National Union of Metalworkers of South Africa v Transnet SOC Ltd Case No: JS427/15 the question of whether or not a company may prevent union members – from wearing union-related clothing while at work and thus regulating dress code – was looked at. This was the latest step in the long dispute between NUMSA and Transnet over the union’s insistence that its members be allowed to wear union T-shirts – and thus adopt a certain dress code – during working hours.  Transnet initially prohibited unions from so doing but later extended the ban to members of all unions.  The Labour Court held that, given the wide interpretation that must be given to the right to engage in unions’ lawful activities, the ban infringed section 5 of the Labour Relations Act (LRA).  The Court added that such a ban might be justified for safety purposes or if it provoked violent union rivalry. However, it was found unnecessary to consider that issue because Transnet had raised justification as a defense.  The relevant provision of the respondent’s clothing policy was set aside, as well as any disciplinary action contemplated against employees for breaching the rule. Contact Global Business Solutions If you need any assistance with drafting workplace policies, contact John Botha, john@globalbusiness.co.za , and the rest of the Global Business Solutions team.

In the case of Municipal and Allied Trade Workers Unions of South Africa v Central Karoo District Municipality and other- Labour Court, Cape Town, Case No: C671/18 , the question of whether agency shop agreements apply to all trade unions that are represented in a company. The trade union claimed that its members should not be required to pay an agency shop fee, which is applicable throughout the municipal sector because they were subject to a “double deduction”.  In addition, the Union argued that the introduction of section 21(8)(c) of the Labour Relations Act (LRA), allows for the extension of certain organisational rights to minority unions even if their membership falls short of threshold agreements concluded under section 18.  The Court found that free riders were free riders, regardless of whether they exercised their freedom of association to join minority unions without bargaining rights.  To accept the unions’ arguments would undermine the principle of majoritarianism on which the LRA was largely based.  Without a challenge to the constitutionality of section 25, which the Union had abandoned, there was no basis for departing from an earlier authority in which it had been held that agency shop agreements apply to the unions. Contact Global Business Solutions Jonathan Goldberg , johnny@globalbusiness.co.za , is an expert in trade union negotiations. If you need assistance with any such negotiations in your company, please contact him or anyone else in the Global Business Solutions team, we're happy to be of assistance.

The Compensation for Occupational Injuries and Diseases Act (COIDA), No. 130 of 1993, allows employees to claim compensation if an employee is disabled as a result of occupational injuries or diseases that are acquired or contracted while performing his or her job. Alternatively, should an employee die because of injuries or a disease sustained while performing their job, or if they were disabled as a result of these afflictions, they are entitled to institute a claim in terms of COIDA. There are a certain number of things that you, as an employer, need to know in terms of COIDA and how this Act affects your business. You must register with COIDA All employers need to be registered with the Compensation Fund which is the fund that administers COID claims. Once registered, you will need to pay the Fund's annual assessment fees. What is ‘work’ according to COIDA? In De Gee v Transnet SOC Ltd (30085/2015) [2019] ZAGPJHC 2 , the High Court had the opportunity to consider when an occupational injury can be said to have occurred during the course and scope of an employee’s employment for purposes of COIDA. De Gee, an executive support manager, injured his lumbar spine when the lift he was traveling in fell approximately seven floors. He was using the lift to gain access to his office situated on the 48th floor of his employer’s building. The court concluded the following guidelines to determine whether the employee was acting in the course and scope of his employment when the injury occurred: An employee is acting in the course of his employment when he is doing something he was employed to do. Where an employee is traveling to or from work, the journey is dis-associated from the employee’s employment unless the employee is fulfilling an obligation imposed by the contract of employment. An employee does not start working until he has reached his work unless – at the time the injury occurred – the employee was doing something in the discharge of his duty towards his employer. After an employee has finished his work for the day and has started his way home, his employment continues while navigating the premises. Once an employee reaches a place of public access, his status as a worker is removed and he becomes a member of the general public. An employee may be deemed to be working while traveling to work if he is required to follow a prescribed route or is required to use a prescribed means of transport.   In all cases where an employee – in going to or leaving – work suffers an accident on the way, the first question to be determined is whether an employee was at the place where the accident occurred by virtue of his employment or if as a member of the public. The court concluded that, based on the evidence before it, there was insufficient proof to determine whether at the time of the incident, the employee was acting in the course and scope of his employment. On this basis, the court found that the employee’s claim was not covered by COIDA. How does COIDA determine ‘disablement’? COIDA defines ‘disablement’ as follows: “temporary partial disablement, temporary total disablement, permanent disablement or serious disfigurement, as the case may be” From the above definition, it can be inferred that an employee may claim compensation in terms of COIDA if he is no longer able to work because he or she has been disabled as a result of occupational injuries or disease sustained while performing his or her job. Alternatively, the employee may claim benefits should he or she be off work for a period of time due to the disabling effect of the occupational injuries or diseases but be permitted to return to work after a time. Can relatives of a deceased employee claim COIDA benefits? If one of your employees dies as a result of an occupational disease or injury, a relative may claim the employee’s benefits. These relatives include: A widow or widower who, when the employee passed away, was married to the employee according to civil law, indigenous law, or custom. (The latter two options are only valid should the employee or his widow not have been part of another, pre-existing civil marriage.) Alternatively, if there was no marriage – but the widow/widower was living with the employee at the time as if they were husband and wife – the surviving partner is entitled to claim the COID benefits. A child – of the employee or of his/her spouse of a previous marriage – who is under 18. These children may include: –   Child born after the death of the employee, – Stepchild, –  Adopted child, or –  Child born out of wedlock. A parent or another person who, as far as the Director-General is concerned – was acting in the role of a parent and was either wholly or partly financially dependent on the employee when he or she died. A sibling or half-sibling of the employee . A grandchild of the employee. As stated above, as an employer it is your legal duty to be registered with the Compensation Fund. It is thus imperative for you and your HR department to know when a claim may be lodged so that this information can be disseminated properly to your employees. Contact Global Business Solutions Knowing how to navigate COIDA in your organisation properly is vital. Contact John Botha and the rest of the Global Business Solutions team for any COIDA-related assistance.

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.