18 NOVEMBER2014

URGENT STRIKE INTERDICT: BIDVEST FOOD
SERVICES AND NUMSA
The question is whether union members may strike at workplace that does not fall within the scope of the union constitution.
Bidvest made an urgent application interdicting or restraining NUMSA from engaging or participating in strike action.
Summary: Bidvest operates in the food industry and NUMSA approached it in July 2014 seeking organizational rights. Bidvest refused on the basis that NUMSA, in terms of their constitution may not organize in the particular sector.

NUMSA referred a dispute to the CCMA in terms of section 22(1) of the LRA.
CCMA finding: The commissioner ruled that the
CCMA did have jurisdiction to conciliate the dispute. He also referred to NUM obo Mabote v
CCMA that a registered trade union may represent its members at the CCMA irrespective of the scope of the union.
LC finding : The jurisdictional ruling of the CCMA stands. In terms of the ruling the CCMA had jurisdiction and NUMSA had locus standi to refer organizational rights dispute to the CCMA.

LC reasons/basis: The commissioners ruling in this case is not unlawful. Neither is his issuing of the certificate stating that the dispute remains unresolved.
Neither is the consequent action of the union to embark on strike action in terms of section 64 of
LRA.
The application to declare the strike unprotected is dismissed.

MAKING A SETTLEMENT AGREEMENT AND ORDER
OF COURT: BIFAWU AND ZURICH
In terms of the settlement agreement the parties agreed to meet on 30 November 2011 to discuss and finalize employment contracts in accordance with Section 197. The respondent contemplated the transfer of all employees.
The applicant contended the respondent was obliged to engage it in consultation in terms of section 197(6)(a) and (b) of the LRA
During the same meeting parties would consult on matters in relation to new contracts, old contracts and service level agreement.

LC FINDING : The LC noted that the settlement agreement concluded under the auspices of the
CCMA clearly amounted to an agreement creating rights for the applicant greater than that provided for under section 197 of LRA.
Such interpretation is not only consistent with the agreement concluded, but also with the communication by the respondent to its employees.

LC FINDING : The agreement concluded was aimed at the very least to ensure transferring employees would be transferred on terms and conditions of employment not less favorable.
Although the respondent did not comply with the agreement there is no evidence that the employees were transferred on less favorable terms.
Accordingly no purpose will be served in making the agreement an order of court. The application was dismissed and each party to pay its own costs.

DISMISSAL FOR INCOMPATABILITY: PSA AND OF
THE PRESIDENCY
The applicant was employed on a fixed term in the
Office of the Presidency.
His employment was terminated on 31 January
2009, however he was paid until the end of his contract (31 July 2009).
The arbitrator found that the dismissal of the applicant was for a fair reason namely: incompatibility, but that it was procedurally unfair.

The employee was awarded three month’s remuneration for procedural unfairness.
The applicant instituted review proceedings to have the finding on substantive unfairness reviewed and set aside.
The arbitrators finding that the dismissal was procedurally unfair was uncontested.
LC FINDING : Employer failed to prove that the relationship with the Deputy President was in deed incompatible .

There was no intolerable conduct on the part of the employee but there could have been uncomfortability or personality differences.
Incompatibility is a form of incapacity and it relates to the relationship of an employee and other workers within the employment environment, regarding the employee‘s inability or failure to maintain cordial and harmonious relationships.
The arbitrators finding that dismissal was fair set aside and he was awarded three months compensation for the substantive fairness.

SOUTH AFRICAN POST OFFICE AND CCMA
The employee applied for a post of internal investigator, for which one of the requirements was a valid driver’s licence.
A few months later, the employer discovered that applicant only possessed a learner’s licence. She was charged with dishonesty, and dismissed.
CCMA Finding: The employee claimed that the omission of the word “learners” was a typographical error, and that she had since obtained her divers licence.

The commissioner accepted that the employee was unaware of the error. The arbitrator also found that the employer acted inconsistently as it had not dismissed employees who had fraudulently obtained driver’s licences.
The employee was reinstated, subject to a final written warning. On review the Labour Court declined to interfere with the award.
LAC Finding : The commissioner appeared to have accepted the employees unproven statement that she had made a misrepresentation without determining the probability of that claim.

Had the commissioner done so, he would have found that the employee’s claim was untruthful because the employee knew that a valid driver’s licence was a prerequisite for the post.
Commissioner ignored unchallenged evidence that the employee would not have been employed had the selection panel not been given the impression that she had a valid licence.
The court also found no inconsistency. The other employee who was suspected of having a forged driver’s licence, was charged and found not guilty in a disciplinary enquiry. Hence, the question of inconsistency does not arise.

MEC FOR EDUCATION V MAGIJIMA:
The employee applied for a post advertised. After appointment the Department learned that the employee had resigned from her previous job.
The employee had signed a settlement agreement in terms of which the employer withdraw all the charges on condition she resign.
Despite having been asked in the interview whether she had any “ skeleton in her closet ” she did not disclose the circumstances of the termination of her employment.

The employer convened a pre-dismissal arbitration under the auspices of the BC.
The commissioner found that the employee was not obliged to disclose the fact that she had been suspended and that the employer could not rely on non-disclosure of charges not proven.
LC FINDING : The commissioner had erred grossly by relying on the presumption of “innocent until proven guilty”.
Continue…

The issue was the non-disclosure of information, not whether the employee was guilty.
The arbitrator also overlooked that, at the time of the interview, the charges had not been withdrawn.
The Court held further that the employee had applied for a senior post, which required the unimpeachable integrity and honesty.
The relevance of the fact that she was facing disciplinary charges at the time of the interview was for the new employer to determine.

BAUR RESEARCH CC AND CCMA:
Employee claimed he was summarily dismissed because he had failed to cut the grass at his employers home. Employer contended that after he expressed his displeasure that the work was not completed, the employee simply walked off the job.
The matter was referred to the CCMA, and the commissioner accepted the employee’s version, and awarded the employee compensation.

LC FINDING : The court held that the employer’s complaint was the commissioner had erred by allowing the employee to be legally represented and then by failing to assist its lay representative.
Also denied the representative to call two witnesses.
The court rejected the employer’s claim that the arbitrator has committed an irregularity by permitting legal representation. The employer could not prove that the commissioner had exercised his discretion improperly .

However once the employee had been granted the right to appoint a legal representative, the employer automatically acquired that right.
The commissioner was obliged to inform the employer’s representative that the employer was entitled to legal representation.
Failure to inform the employer of its right to legal representation rendered the hearing unfair.
This was aggravated by the commissioner’s failure to inform the employer’s representative that he could apply for a postponement.

The court held further that the commissioner’s refusal to allow the employer to call witnesses was another fatal irregularity.
The right to call witnesses is firmly entrenched in our law, and the denial of that right constituted a gross irregularity. That, too, had deprived the employer of a fair hearing.
The award was set aside and remitted to the
CCMA to be heard by another commissioner.

PLACE ENGINEERING AND NGOBO
The employee was employed as chief operations engineer, subject to a six month probationary period which in turn provided that if the employee did not perform to the respondent’s satisfaction, the appointment could be “reviewed”.
After three performance evaluations, it was established that the employee had failed to reach his monthly targets. The employee was set a fresh target, which he failed to meet. He was dismissed.
The commissioner found the dismissal substantively and procedurally unfair.

The LC found the dismissal only substantively unfair, and halved the compensation awarded.
LAC FINDING: The court noted while the employee had set targets for himself, these had been overtaken by fresh targets set by the employer.
The employee’s performance had been hampered by poor administration and lack of support.
The court noted that before dismissing probationary employees, employers are required to offer guidance and consult the employee.

The court held further that although senior employees are expected to assess for themselves whether they are performing according to the required standard, this does not absolve the employer of the duty to provide the resources required for meeting that standard.
That probationary employees may be dismissed for less compelling reasons than “tenured” employees does not mean that the employer need not prove that the dismissal was for a fair reason.
The LAC upheld the LC decision.

WESTERN CAPE EDUCATION DEPT
After suffering a heart attack, the employee was diagnosed with post-traumatic stress disorder.
After being hospitalized he applied for early retirement.
Sometime later he was informed that, no medical certificates had submitted and he was required to report for duty or face dismissal.
Months later, the employee was informed that his application for medical boarding had not been processed because the application for had not been signed by two witnesses .

The employee was then informed that he would be granted unpaid leave, and that the amounts paid to him whilst on sick leave, over R700 000, would be recovered from his pay.
The employee filed a grievance but the respondent continued to deduct an amount of
R12 000 per month for two successive months.
The employee resigned, claiming a constructive dismissal.
BC FINDING : The bargaining council arbitrator agreed and ordered the employer to reinstate the employee.

LC FINDING : The Labour Court dismissed the review application and ruled, that although it might seem unusual in a constructive dismissal matter, reinstatement was the appropriate remedy.
The Court held that the onus rested on the employee to prove that the employment relationship was indeed intolerable. The factors listed by the employee in support of his claim were largely unchallenged.
.
The facts indicated that the employer’s senior employees had rendered the relationship intolerable.
. . . .

The only reason why the employee had resigned was that the employer had frustrated his attempts to process his early retirement application.
This was aggravated by the employer’s insistence that the employee repay a huge amount.
To top it all off the employer ignored the employees' fragile and vulnerable mental state.
If an employee claiming constructive dismissal can prove that the circumstances that gave rise to his resignation have changed for the better, reinstatement remains a viable remedy.