CCMAil
December 2007
CONTENTS
CCMA CASE ALERTS..........................................................................................................................................................................2
LABOUR COURT AND APPEAL COURT JUDGEMENTS .................................................................................................................4
DECISIONS: OTHER DISPUTE RESOLUTION FORUMS ..................................................................................................................6
LABOUR WATCH...........................................................................................................................……………………………………..10
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Pregnancy and employment ........................................................................................................................................ ….…..10
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Insubordination, insolence and incompatibility .......................................................................................................................13
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The impact of recriminatory behaviour borne out of workplace relations.. ..............................................................................16
GLOBAL TRENDS……..…………………………………………………………………………………………………………………………19
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Trade union responses to globalisation: A review by the global research union research network ........... ………………………19
PRE- RUSTENBURG CASE…………………………………………………..………………………………………………………………. .21
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COSATU submission to Constitutional Court on SCA Judgement on Rustenburg Platinum v CCMA.……………………………21
POST-RUSTENBURG CASE…………………………………………………………………………………………………………………….23
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The Rustenburg test high noon at the Constitutional Court……………………………………………………….…………………….23
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Supreme Court decisions not final……………………………………………………………………….…………………………………24
EDITORIAL TEAM
Alucia Mdaka
Lucky Moloi
Nersan Govender
Poso Mogale
Samuel Denga
December 2007– Page 1
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By Alucia Mdaka
WE 598-07 Austin v SANS Souci Girls High School –
Commissioner: Mazwi
In limine ruling - Retrenchment - Whether CCMA had
jurisdiction to hear matter.
The commissioner was required to determine whether the
applicant’s dismissal was both procedurally and substantively
fair. At the commencement of the hearing, the respondent
raised a point in limine that the CCMA lacked jurisdiction to
hear the matter. It argued that the consultation process which
led to the dismissal of the applicant involved more employees.
It claimed that the dispute should have been referred to the
Labour Court (LC) as directed on the certificate of outcome.
The applicant submitted that the number of employees
dismissed was the determinant factor. She claimed that the
intention of the legislature was to allow individual employees
who had been retrenched a choice to refer the matter to the
CCMA. She also claimed that the certificate of outcome was of
little consequence in so far as jurisdiction was concerned.
Noted: That s 191(12) of the Labour Relations Act provides that
“if an employee is dismissed by reason of the employer’s
operational requirements following a consultation procedure in
terms of s 189 of the LRA that applied to that employee only,
the employee may elect to refer the dispute either arbitration or
Labour Court”.
Also noted: That the respondent’s argument pertaining to the
certificate of outcome that directs the applicant to refer the
dispute to the LC was of insufficient consequence.
Held: That the CCMA had jurisdiction to hear the matter.
Case references
Dadoo Ltd v Krugersdorp Municipal Council (1920) AD 530
NUMSA v Driveline Technologies (2001) 1 BLLR 20 (LAC)
Shenker v The Master & Another (1936) AD 136
GAPT1713-07 SAACOWU obo Ramoalosi v Brikor (Pty) Ltd
– Commissioner: Matjie
Absent without permission – Jailed employee dismissed for
failing to inform employer of his whereabouts.
It was common cause that the applicant had failed to report for
duty from 8 January to 5 February 2007 after the festive
season. He was charged with unauthorised absence from work
and was subsequently dismissed following a disciplinary
hearing. The applicant referred a dispute to the CCMA
challenging the fairness of his dismissal and sought
reinstatement.
The applicant claimed that he was arrested on 13 December
2006 for theft allegation reported by a colleague and was later
released on bail. He claimed that on his return to work, he had
been denied access into the respondent’s premises by the
security guard as per management’s instruction. He also
claimed that during the disciplinary hearing, the respondent had
denied him an opportunity to call witnesses.
The respondent claimed that the applicant had failed to inform it
of his whereabouts. It indicated that it had a policy which states
that unauthorised absence from work for a period of five or
more consecutive days is a dismissible offence. According to
the respondent, all employees were aware of the policy. The
respondent denied refusing the applicant to call witnesses. It
argued that the applicant’s witnesses were on leave and he was
advised to postpone the hearing, but had refused to do so. It
also claimed that the applicant had deliberately stayed away
from working because of the pending investigation.
Noted: That the applicant had testified at the disciplinary
hearing that he awaited the outcome of the criminal trial. The
commissioner noted that the applicant had only returned to
work after the magistrate had advised him to do so.
Also noted: That no satisfactory explanation was given by the
applicant for his failure to call witnesses.
Held: That the applicant had breached the company rule. The
commissioner held that the respondent had succeeded to
discharge the onus of proving that the dismissal was fair. The
applicant’s dismissal was, therefore, held to be both
procedurally and substantively fair.
ECPE361-07 van der Walt v van Staden – Commissioner:
Gruss
Procedural fairness in dismissal – Right to disciplinary enquiry –
Employee called to meeting – Employee refused to answer
questions on ground that matter was under investigation by
police.
The applicant was dismissed after being found guilty on
charges of misappropriation of company goods and for
conducting unauthorised hunting on the respondent’s farm.
The applicant denied shooting the springboks. He claimed that
he had permitted farm labourers to shoot one springbok but
instead they shot more than what was required. He contended
that he was not afforded an opportunity to defend himself at the
disciplinary hearing. He also contended that the respondent
was inconsistent in meting out the sanction because the
labourers were not dismissed. He further contended that other
employees who had previously committed the same offence
December 2007– Page 2
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were not dismissed.
The respondent claimed that it had a rule that hunting on the
farm was only permitted under its permission. It indicated that it
had a meeting with the applicant and the labourers to discuss
the matter but the applicant had refused to respond to the
question claiming that he would only respond to the police. It
indicated that it was unaware that a similar offence had been
committed.
Noted: That the applicant was called to a meeting but he
refused to answer questions on the grounds that the matter was
under police investigation.
Also noted: That the respondent had testified that it had no
knowledge of a similar offence being committed. The
commissioner also noted that the labourers were not dismissed
because they had testified that the applicant was the one who
shot the springboks.
Held: That the applicant had breached the company rule. The
applicant’s dismissal was both procedurally and substantively
fair. The application was, therefore, dismissed.
GAPT 8009-06 Fourie v Sabre Footwear (Pty) Ltd) –
Commissioner: Koekemoer
Dismissal – Employer instituting formal disciplinary action
against employee for isolated incident of sexual harassment
without first using informal procedure prescribed by sexual
harassment code.
The commissioner was called upon to determine whether the
applicant’s dismissal was both procedurally and substantively
fair.
The applicant was dismissed for sexually harassing a female
colleague during a company training session. He denied
committing the offence. He claimed that he only assisted the
complainant by taking her to his bedroom because she was ill
and unable to gain access to her apartment. He indicated that
the complainant had concocted the story. He contended that
the respondent had instituted a formal disciplinary action
without first using informal procedure as prescribed by the
company’s sexual harassment policy.
Noted: That the respondent had a sexual harassment policy,
which provided for informal counselling before instituting a
disciplinary hearing. The commissioner noted that no evidence
was presented to prove that the applicant had been afforded an
opportunity to make a choice between informal and formal
process.
Also noted: That the complainant and respondent’s witnesses
submitted contradictory evidence.
Held: That the respondent had failed to prove that the
applicant’s dismissal was fair. The applicant’s dismissal was,
therefore, held to be both procedurally and substantively unfair.
The respondent was ordered to compensate the applicant an
amount equivalent to five months’ salary.
Case references
Avril Elizabeth Home for Mental Handicapped v CCMA &
Others (2006) 9 BLLR 833 (LC)
Media 24 Ltd & Another v Grobler (2005) 7 BLLR 694 (SCA)
Reddy v University of Natal (1998) 1 BLLR 29 (LAC)
Rustenburg Platinum Mines Ltd v CCMA & Other (2006) 15
SCA 1.11.1
December 2007– Page 3
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By Poso Mogale
Labour Court: C32/2006
SACTWU obo Stinise v Dakbor Clothing (Pty) Ltd & Others:
Judge Nel (Acting)
Jurisdiction – Private arbitration clause – Contrary to public
policy.
This was a review application in terms of which the employer
contended that the private arbitration clause was in conflict with
the council’s main agreement and the Labour Relations Act 66
of 1995 (LRA). At arbitration, the employer raised two points in
limine. It contended that the bargaining council lacked
jurisdiction because the council’s main agreement had not been
extended to non-parties. It also contended that the contract
between the employee and the employer contained a clause
requiring all disputes between them to be referred to private
arbitration. The commissioner upheld the points in limine.
Noted: That s199 of the LRA prohibits contracts of employment
which permit an employee to be treated in a manner less
favourable than that prescribed by a collective agreement. The
Court noted that the commissioner had not applied his mind to
the question of whether the private arbitration clause had this
effect.
Held: That had the commissioner applied his mind to the
provisions of the LRA, he would have concluded that the private
arbitration clause was in conflict with the main agreement and
that it deprived the employee of free dispute resolution
procedure provided by the bargaining council.
Also held: That this was also contrary to public policy. The
ruling was, therefore, set aside.
Labour Court: JS270/06
De Beer v SA Export Connection CC t/a Global Paws:
Judge Francis
Automatically unfair dismissal – Pregnancy – Contracting out of
BCEA.
Not long after the employee was permanently employed, she
announced her pregnancy. An agreement to the effect that the
employee would return to work one month after the birth was
reached. The employee gave birth to twins who had health
problems and requested an extra month’s leave. However, the
employer offered an extra two weeks. When the employee
refused the offer, she was dismissed and alleged an
automatically unfair dismissal.
Noted: That the onus of proving that a dismissal was not
automatically unfair rests on the employer.
Held: That the agreement between the employer and the
employee fell foul of the Basic Conditions of Employment Act
75 of 1997, which protects pregnant employees, affords them
certain rights and prevents an employer from contracting out of
those rights. It was held that that agreement was invalid as it
purported to grant the employee less favourable rights than
those to which she was entitled to in terms of the law. The
dismissal was found to be automatically unfair and the
employee was granted 20 months’ compensation.
Case reference
Kroukam v SA Airlink (Pty) Ltd (2005) 12 BLLR 1172 (LAC)
Labour Appeal Court: JA65/05
Le Monde Luggage CC t/a Pakwells Petje v Dunn & Others:
Judges Davies, Jappie & Leeuw (Acting)
Constructive dismissal – Assault by company owner.
As a result of a disagreement between the employee and the
owner of the company, the owner slapped the employee and
she allegedly fell from her chair. She subsequently consulted a
medical doctor and resigned from her job, claiming to have
been constructively dismissed.
At arbitration, it was held that the employee had been
constructively dismissed and 12 months’ compensation was
awarded. The employer’s attempt to review the award at the
Labour Court (LC) was unsuccessful. In the present application
to the Labour Appeal Court (LAC), the employer required the
LAC to determine whether the employee was assaulted.
Noted: That the employee’s evidence was supported by
medical documentation.
Held: That the employer’s contention that no doctor had been
called to testify at arbitration was formalism. It was held that the
purpose of legislation in the LC was to resolve unfair disputes
without “slavish imitation” of the procedures and technical rules
adopted in other courts of law. Furthermore, the appellant’s
evidence to support its denial of the assault had been of a very
poor quality.
Also held: That no fault could be found with the arbitrator’s
finding that assault had occurred and that it had made
December 2007– Page 4
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continued employment relationship intolerable. The appeal was
dismissed with costs.
Case references
Naraindath v Commission for Conciliation, Mediation &
Arbitration & Others (2000) 21 ILJ 1151 (LC)
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC)
Labour Court: JR1022/05
Hydraulic Engineering Repair Services v Ntshona & Others:
Judge Molahlehi (Acting)
Definition of employee – Dominant impression test –
Shareholding.
A point in limine was raised at arbitration objecting to the
CCMA’s jurisdiction on the basis that Ntshona (the first
respondent) was not an employee. The arbitrator dismissed the
point in limine. That had led to the present application to review
that decision.
The applicant’s contention was that Ntshona was a shareholder
in the business and could not be regarded as an employee.
Held: That parties’ description of the relationship is not
conclusive of the true nature of that relationship. In using the
dominant impression test to evaluate whether an employment
relationship exists, the relationship should be looked at in its
totality. Those aspects that indicate an employment and those
indicating some other forms of relationship should be identified.
All the relevant factors are to be weighed and a determination
should be made as to whether from those factors a dominant
impression exists.
Also held: That applying the test to the facts of the present
case, Ntshona was an employee. The application was,
accordingly, dismissed.
Case references
PG Group (Pty) Ltd v Mbambo NO & Others (2005) 1 BLLR 71
(LC)
Rumbles v KwaBat Marketing (Pty) Ltd (2003) 8 BLLR 811 (LC)
SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585
(LAC)
Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ
673 (LAC)
Building Bargaining Council (Southern & Eastern Cape) v
Melmons Cabinets CC & Another (2001) 3 BLLR 329 (LC)
December 2007– Page 5
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By Lucky Moloi
Supreme Court of Appeal: 65/06
SANDU v Minister of Defence & Others: Judges Moseneke,
Madala, Ngcobo, Nkabinde, O’Regan, Sachs, Skweyiya &
Naysa
Duty to bargain – Union relying on Constitution to press claim to
compel employer to bargain – Reliance on Constitution
impermissible when regulated by legislation – SANDF obliged
to bargain with military unions.
After the establishment of the Military Bargaining Council
(“MBC”) to regulate relationships between the South African
National Defence Force (SANDF) and registered and
recognised trade unions, the SANDF and the South African
National Defence Union (SANDU) reached a deadlock on a
range of issues. Each accused the other of bad faith bargaining.
Among other issues was whether the SANDF was under a duty
to bargain with recognised unions. The High Court answered
this question in the negative in SANDU I, and in the affirmative
in SANDU II and SANDU III. These matters were consolidated
for purposes of an appeal to the Supreme Court of Appeal
(SANDU IV). The SCA held that neither the Constitution of the
Republic of South Africa, 1996 nor the military regulations
imposes a judicially enforceable duty to bargain, and upheld all
the regulations save one.
Noted: That in SANDU I the union had sought an order that the
SANDF was not legally entitled to withdraw from the MBC and
to impose preconditions on SANDU for its return. In SANDU II,
the union challenged the validity of certain regulations and
sought an order that the SANDF was obliged to negotiate the
content of those regulations and all matters of mutual interest.
The order sought in SANDU III, was a declaration that the
SANDF was not entitled to implement a transformation policy
until the dispute concerning that issue had been arbitrated. All
these issues related to the broader question whether the
SANDF had a duty to bargain. This entailed a further question
whether SANDU was entitled to rely directly on the Constitution
when regulations had been promulgated to regulate the right
enshrined in s 23(5). The second broad issue was whether the
individual regulations were inconsistent with the Constitution
and, therefore, invalid. The final issue was whether the
SANDF’s failure to consult on the transformation policy
constituted an unfair labour practice. The Court found that all
these issues were constitutional matters over which it had
jurisdiction, and that it was in the public interest that the dispute
should be finally determined.
Also noted: That in all three High Court (HC) judgments and
that of the SCA, the courts had commenced their analysis with
s 23(5) of the Constitution. However, this was not the correct
starting point. S 23(5) expressly provides that legislation must
be passed to regulate collective bargaining. It had already been
held that parties may not bypass the Labour Relations Act 66 of
1995 and seek to rely directly on the Constitution.
The Court, accordingly, held that a litigant who seeks to assert
the right to engage in collective bargaining must base his or her
case on the legislation enacted to regulate that right, not on the
Constitution. If the legislation does not fully protect the right, its
constitutionality must be challenged. In the present matter,
there was legislation to regulate the right claimed by SANDU,
and the union had not challenged its constitutionality. On the
contrary, SANDU had sought, in part, to rely on the regulations
to advance its claim. The Court held that once it is accepted
that disputes relating to collective bargaining must be
considered in the light of the regulations, the correct focus was
different from that adopted by the HC and the SCA. It was,
accordingly, unnecessary for the Court to pronounce on the
meaning and scope of s 23(5).
Further noted: That further regulations had been promulgated
after the right of SANDF members to join trade unions had been
confirmed. The regulations provided for the registration of
military unions, and conferred on them a range of organisational
and other rights, including the right to bargain over specified
matters, except during military operations. The regulations also
created the MBC, the function of which is to, inter alia, conclude
and enforce collective agreements and to resolve disputes. The
scheme of the regulations made it clear that a central objective
was to create a dispensation in which the parties will engage in
collective bargaining on prescribed matters with a view to
concluding collective agreements and to refer unresolved
disputes for arbitration. This scheme presupposed that the
employer may neither withdraw from the MBC, nor unilaterally
impose preconditions for further participation.
Turning to the individual regulations that had been ruled on by
the SCA, the Court held that the regulation prohibiting the right
to picket over “any matter concerning the employment
relationship with the Department of Defence or any matter
related to the Department” (regulation 8(b)) had to be read with
the Military Discipline Code, which prohibits private protest by
members of the SANDF that could cause “actual or potential
prejudice to good order or military discipline”. Regulation 8(b)
was, therefore, necessarily limited to acts which could not
December 2007– Page 6
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cause prejudice, good order and military discipline. Since the
conduct which the regulation sought to prohibit was already
covered by the disciplinary code, the regulation could only be
aimed at conduct which is neither prejudicial nor a threat to
discipline. The SANDF had failed to prove that this limitation on
the right to picket and demonstrate was justifiable.
SANDU also complained that regulation 13, which prohibits
military unions from affiliating or associating with any
unregistered or unrecognised labour organisation, infringed its
right to associate. Since the Constitution recognised the right of
unions to join federations, the regulation limited at least that
right. The Court noted that the Constitution prohibits
involvement by the SANDF and its personnel in party political
matters. Since many unions in South Africa have express
political affiliations, association by military unions with such
unions would be as suspect as their association with political
parties. The limitation contained in section 13 was therefore
justifiable.
Regulations 25 and 27, which respectively provide that military
trade union representatives may “assist” (as opposed to
represent) members in grievance and disciplinary proceedings
was unconstitutional because the SANDF had provided no
justification for limiting the fundamental right of unions to fully
represent members in such matters. The Court ordered that the
words “but not to represent” be excised from the regulation.
Regulation 37, which restricts the right of members to
participate in the affairs of unions while on military operations,
was justifiable.
Held: That regulation 73, which vests in the Minister the power
to appoint members of the Military Arbitration Board, was
unconstitutional because it encourages the perception that the
Board is not independent and impartial. Save for the finding in
respect of regulation 19, the appeal against SANDU IV was
upheld and the judgments in SANDU I, II, III and IV set aside.
The Court further ordered that the Department of Defence may
not unilaterally suspend negotiations in the MBC or impose
preconditions for bargaining with SANDU, and that the
necessary changes be made to the offending regulations.
Metal & Engineering Industries Bargaining Council, East
London: MEEL 311
CEPPWAWU obo Faku v Eco Tanks: Commissioner
Madotyeni
Misconduct outside workplace – Intoxicated employee abusing
superiors outside workplace.
The applicant, a machine operator, had failed to arrive at work
and the respondent was forced to close the factory for an entire
shift because it was required by law to ensure that all machines
were operated by two employees. While transporting the other
workers home, a supervisor came across the applicant
staggering along the road. The applicant signalled to him to
stop, jumped into the vehicle, and demanded to be taken to
work. When he was taken to the home of the respondent’s
owner to be examined, he became abusive and refused to take
a breathalyser test. The applicant was, subsequently,
dismissed. He claimed that his dismissal was unfair because all
the alleged offences had been committed outside the
workplace.
Noted: That the applicant had been absent without leave, that
he was intoxicated when he finally made his way to work, and
that he had been insubordinate. However, the applicant could
not be found guilty of presenting himself for work in an
intoxicated state because he had never arrived at work. Nor
could he be found guilty of insubordination, because the
incident upon which that charge was based also occurred
outside the workplace.
Also noted: That the fact that the applicant had verbally
abused his employer in the presence of colleagues was directly
relevant to the employment relationship. Even though this had
occurred off the workplace, it had affected the employment
relationship. The applicant’s actions were totally unprovoked
and there was no justification for his behaviour. The employer
has also led evidence that the employee has received
numerous prior warnings for various acts of misconduct but his
behaviour did not improve.
Held: That the applicant had not only proved himself as
unreliable and irresponsible, but has shown himself to be
disdainful of his superiors. He used foul language against both
his immediate manager and the owner of the factory in front of
his fellow employees while in his drunken stupor at the time he
was supposed to be at work. The application was, therefore,
dismissed. The applicant’s dismissal was, accordingly, justified.
Metal & Engineering Industries Bargaining Council, East
London: MEWC 1954
Henakom v Northern Catering Equipment (Pty) Ltd:
Commissioner Bulbring
Dismissal or resignation – Applicant given notice of termination
– Termination constituting dismissal.
After serving the respondent as an administrator for some
months, the applicant had expressed dissatisfaction with some
of her conditions of employment. After she fell pregnant with her
second child, the company learned that the applicant was
seeking alternative employment.
The applicant confirmed that she was doing so, but told her
superior that she would not give notice until she secured
another job. She then received a letter purporting to confirm an
oral agreement that she had decided to resign when the
respondent found a replacement for her, and informing her that
her services were terminated on two weeks’ notice. The
applicant was also informed that she would be required to repay
the amount spent by the respondent on a training course. She
claimed that she had been unfairly dismissed. The respondent
contended that the termination was by mutual agreement.
Noted: That the key issue was whether the applicant had
agreed that if the respondent found a replacement for her, it
could terminate her services. The applicant had denied such an
agreement. Her version was that she had said several times
December 2007– Page 7
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that she could not leave the respondent’s employ until she had
secured another position. The manner in which the letter of
termination was phrased confirmed that. It recorded that the
applicant had informed the respondent of her “intention” to
resign. The truth appeared to be that the applicant had merely
given the respondent the impression that her interview with
another company had been successful and that it was only a
matter of time before the applicant would give notice.
Also noted: That the respondent had expressed dissatisfaction
about her work performance. However, she had never been
counselled or warned.
Held: That there was no poor work performance or incapacity in
the sense expressed by the LRA. If this was the case, the
applicant should have been formally counselled and warned.
Also held: That the applicant’s dismissal was largely of her
own making. She had worked for the respondent for only a
short period, during much of which she had been looking for
another job. The applicant had found alternative employment
soon after her dismissal. Had the respondent not deducted
certain monies from her final salary, compensation might have
been denied entirely. The applicant was awarded compensation
equivalent to one month’s salary.
Supreme Court of Appeal: 97/06
Boxer Superstores Mthatha & Another v Mbenya: Judges
Cameron, Van Heerden, Jafta, Hancke & Theron
Terms of reference – High Court’s jurisdiction in employment
matters.
The first appellant (the employer) had terminated the
respondent's employment. Seven months later, the respondent
applied to the High Court (HC) for an order that the disciplinary
hearing preceding her dismissal be set aside, a declarator that
her dismissal was of "no force", reinstatement, back pay, and
costs. She claimed that she was not asked to plead guilty or not
guilty, and was put on her defence, and cross-examined,
without any evidence being proffered against her. The employer
raised a point in limine to that court's jurisdiction. The HC
having dismissed the objection, the present appeal ensued.
Noted: That s 157(1) of the LRA provides that subject to the
Constitution and to the Labour Appeal Court's jurisdiction, and
except where the LRA itself provides otherwise, the Labour
Court (LC) has exclusive jurisdiction in respect of all matters
that elsewhere in terms of the Act or in terms of any other law
are to be determined by the LC.
Also noted: That the novel question raised in the case was
whether an employee may sue in the HC for relief on the basis
that the disciplinary proceedings and the dismissal were
"unlawful", without alleging any loss apart from salary. It was
also noted that the HC has jurisdiction even if the claim could
also have been formulated as an unfair labour practice.
Held: That in light of an employee's common law contractual
claim, over and above a statutory unfair labour practice right, to
a pre-dismissal hearing, the HC is clothed with jurisdiction in
such cases. The appeal, accordingly, failed.
Case references
Denel (Pty) Ltd v Vorster (2005) 4 BLLR 313 (SCA)
Fedlife Assurance Ltd Limited v Wolfaardt (2001) 12 BLLR
1301 (SCA)
Fredericks v MEC for Education & Training, Eastern Cape
(2002) 2 BLLR 119 (CC)
Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 8 BLLR
699 (SCA)
Transnet Ltd & Others v Chirwa (2007) 1 BLLR 10 (2007 (2) SA
198) (SCA)
United National Public Servants Association of South Africa v
Dikgomo NO & Others (2005) 26 ILJ 1957 (SCA)
Supreme Court of Appeal: 483/05
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck:
Judges Mlambo, Mthiyane, Nugent & Combrinck
Compensation for Occupational Injuries and Diseases Act –
Employees of temporary employment services not precluded
from instituting civil action against brokers’ clients for whom
employees were working at time of injury.
The respondent, the employee of a labour broker assigned to
work at the appellant’s factory, was shot in the arm when
security guards in the employ of the appellant opened fire on a
getaway car after an armed robbery at the appellant’s premises.
The robbers had taken the respondent hostage, and
abandoned the car and the respondent soon after the robbery,
without harming her further. The respondent sued the appellant
for damages arising from the injury, and the trial court held that
the appellant was vicariously liable. At the conclusion of the
trial, the appellant sought to amend its plea to introduce a
special defence that the respondent was precluded by s 35(1)
of the Compensation for Occupational Injuries and Diseases
Act 130 of 1993 (COIDA) from suing for damages by civil
action. The application to amend the plea was refused by the
trial court.
Noted: That the appellant’s contention on appeal was that the
employees had fired on the vehicle in an effort to prevent the
robbers from killing or injuring the respondent, and that their
action was, accordingly, neither wrongful nor negligent. As a
general principle, it is wrongful to cause bodily harm to another.
However, the law also recognises that to do so will not in
certain circumstances attract liability. One of these
circumstances is where the defendant acts under
circumstances of necessity, which is conduct directed at an
innocent person to protect a third party (including the innocent
person) in a dangerous situation. In such circumstances, the
question is whether the conduct which caused the harm was
reasonable.
Also noted: That it was common cause that a security guard
had testified that he had shot at the getaway car to protect the
respondent from being killed by the robbers. The Court,
therefore, also noted that there was no direct evidence in casu
that the appellant would be killed or injured. That possibility was
December 2007– Page 8
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based only on the supposition that armed robbers have been
known to kill their hostages.
Held: That a reasonable person would not in the circumstances
have fired on the getaway car, and that, as their employer, the
appellant was vicariously liable for the damage caused.
Also held: That while the respondent was undoubtedly an
employee, COIDA precludes only actions by employees against
their own employers for injuries suffered in the course of their
employment. The Court noted that the predecessors to COIDA
made it clear that a person may have only one employer at a
time – namely, the person with whom a contract of employment
has been concluded. The immediate predecessor to the Act,
.
the Workmen’s Compensation Act of 1941, specifically provided
that where the services of an employee were “hired” to another,
that person remained the employee of the “lessor”. This
situation was not altered by the definition of “employer” in the
current Act.
Further held: That COIDA contemplates employees having
only one employer at a time, namely, the person with whom
they have a contract of employment, even if the employee
happens to be rendering service to another at the time of the
injury. The application for leave to introduce the special plea
had, accordingly, been correctly refused. The appeal was,
therefore,
dismissed
with
costs.
December 2007– Page 9
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PREGNANCY AND EMPLOYMENT
By Alucia Mdaka
Introduction
Times have changed. Women are increasingly entering the job
market. Most of the economically active ones are in their
childbearing ages. When a person is pregnant, she is most
likely to be unable to perform duties in a way that they would
have had it not been for the pregnancy. Depending on the size
and type of the business, operations may be affected by the
pregnancy. Pregnancies are accompanied by, amongst other
things, illnesses, tiredness, and attendance of antenatal
classes. These employees are granted protection by the
Constitution of the Republic of South Africa Act 108 of 1996, the
Code of Good Practice on the protection of employees during
and after the birth of a child (the Code), Labour Relations Act
66 of 1995 (the LRA), Basic Conditions of Employment Act 75
of 1997, Unemployment Insurance Act 63 of 2001 (UIA) and the
Employment Equity Act 55 of 1998 (the EEA).
The Constitution of the Republic of South Africa Act 108,
1996
Chapter 2 of the bill of rights provides that everyone has the
right to fair labour practices. It also provides that no person may
unfairly discriminate directly or indirectly against anyone on or
more grounds, including race, gender, sex, pregnancy, marital
status, ethnic, age, religion, disability, belief, language, birth,
culture, and sexual orientation. Discrimination on one or more
of these grounds is unfair unless it is established that the
discrimination is fair. It further provides that everyone has
inherent dignity and the right to have their dignity respected and
protected.
The Constitution also protects the right to bodily and
psychological integrity, which includes the right to make
decisions concerning reproduction s 12 (2) and gives every
person the right to health services, including reproductive health
care s 27 (1) (a).
The Code of Good Practice on the Protection of Employees
during Pregnancy and after the Birth of a child.
The Code stipulates that employers are required to provide and
maintain a working environment that is safe and without risk to
the health of employees.
The Code also requires employers who employ women of
childbearing age to assess and control risks to the health of
pregnant or breast-feeding employees and that of the foetus or
child. It further requires workplace policies to encourage women
employees to notify their employers about their pregnancy as
early as possible in order for the employer to identify and
assess risks. That would also assist both the employer and the
employee to make arrangements to attend antenatal and
postnatal clinics. Furthermore, arrangements should be made
for employees who are breast-feeding to have at least 30
minutes twice per day for breast-feeding or expressing milk for
the first six months of the child’s life.
Dismissal of pregnant or intended pregnant employee?
Section 187 (1) (e) of the LRA provides that a dismissal is
automatically unfair if the reason for dismissal is related to the
employee’s pregnancy, intended pregnancy, or any reason
related to pregnancy. However, Grogan (2003:137) indicates
that the phrase of “intended pregnancy” could create some
difficulties when identifying the true reason for dismissal. The
case of Uys v Imperial Car Rental (Pty) Ltd (2007) 3 BLLR 270
(LC) illustrates the effect of section 187 (1) (e). Three days
upon being appointed to a post in the office of the respondent’s
national credit manager, the applicant informed her superior
that she was pregnant. The superior became angry, but told her
to sign her letter of appointment because she was already
employed by the respondent. About two weeks later, the
applicant was called to a disciplinary inquiry and charged with
gross negligence for losing a number of debtors’ files, with
inflating the salary she claimed to have earned from her
previous employer, and with unsatisfactory work performance.
She was found guilty of the charges and was, subsequently,
dismissed. She claimed that she had been dismissed because
she was pregnant, and that her dismissal was automatically
unfair.
The Court rejected the view that the loss of the files was
concocted by the respondent to provide a justification for
dismissing the applicant because of her pregnancy. It was
noted that the more probable cause of the breakdown was the
manager’s discovery that the applicant had inflated her salary.
The Court, accordingly, held that the applicant’s dismissal was
not automatically unfair and that in the circumstances, dismissal
was too harsh. The applicant was awarded compensation
equivalent to six months’ remuneration.
The case of Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 13
LC 8.29.1 also illustrates the effect of section 187 (1) (e). In this
case, the applicant was charged with negligence and was
dismissed following a disciplinary hearing on her return from
maternity leave. She claimed that the reason for her dismissal
was related to her pregnancy. The Court held that given the
respondent’s detailed evidence of the applicant’s negligence
and incompetence, the true reason for her dismissal was not
related to any reason that she had taken maternity leave. The
applicant was, therefore, ordered to pay the respondent costs.
December 2007– Page 10
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According to Grogan (2003:137), the phrase is aimed at
preventing employers from dismissing women if they announce
that they plan to marry or raise a family.
van Niekerk (2003:30) emphasises that a dismissal under such
circumstances will inevitably also constitute an act of an unfair
discrimination on the grounds of pregnancy, sex, gender, race,
marital status, age, HIV status, language, birth and sexual
orientation in terms of section 6 of the EEA.
van Niekerk also emphasises that section 6 of the EEA ensures
that women are not disadvantaged by virtue of their being
women and the childbearing member of the human race. Its aim
is to protect against discriminatory hiring, as it is a particularly
difficult time for women to seek and find employment or
alternative employment. As in the case of Wallace v Du Toit
(2006) 8 BLLR 757 (LC), the applicant’s services were
terminated after the respondent had discovered that she was
pregnant. She then referred a dispute to the LC claiming that
she had been unfairly discriminated on grounds of her
pregnancy, and sought compensation under the LRA and also
claimed damages under the EEA. The respondent claimed that
during the pre-employment interview, it had agreed with the
applicant that her services would be terminated if she fell
pregnant. The applicant denied having entered into such
agreement. The LC held that since it could not be accepted that
not being pregnant or a parent was an inherent requirement of
the work, her dismissal constituted an unfair discrimination and
was an automatic unfair dismissal. The applicant was awarded
compensation equivalent to 12 months’ salary.
In terms of the BCEA they are entitled to four months unpaid
leave. Although the leave is unpaid, such employee’s absence
would have the effect of interrupting the normal or smooth
running of the business. The primary goal of every business is
to make profit whilst the primary goal of employees is to earn a
living. On the one hand, employers are reluctant to hire
pregnant job seekers, and on the other hand, pregnant job
applicants are also reluctant to disclose their status. Even after
appointment, employees may still be reluctant to disclose the
fact of their pregnancy to the employers (Mishcke, 2004).
Therefore, there must be a middle ground aimed at
accommodating the interests of both parties.
The case of Mashava v Cuzen & Woods Attorneys (2000) 9 LC
8.29.1 addressed the issue of non-disclosure. In this case, the
respondent dismissed the applicant who was on probation after
it had discovered that she was pregnant. The applicant claimed
that the respondent had accused her of lying about her
pregnancy and her services were terminated. The Labour Court
(LC) held that the respondent had unfairly dismissed the
applicant and, it was, therefore, ordered to pay her
compensation.
Aspects of pregnancy that may affect work
Employers and employees should be aware of the following
common aspects of pregnancy that may affect work:

The Basic Conditions of Employment Act, 75 of 1997
Section 25 of the Basic Condition of Employment Act provides
that an employee is entitled to at least four consecutive months’
unpaid maternity leave which may commence any time from
four weeks before the expected date of birth or from a date from
which a medical practitioner or midwife certifies that leave is
necessary for health reasons. The case of Lukie v Rural
Alliance CC t/a Rural Development Specialist (2004) 8 BLLR
769 LC addressed the issue of refusal by the employer to grant
an employee maternity leave. The employee had informed her
employer that she was pregnant and wished to take time off for
her confinement. Her manager agreed that she could take time
off but he later changed his mind and informed her that she
needs not to return to work after the birth of her child. The
applicant did not return to work and claimed that her dismissal
constituted automatically unfair dismissal in terms of section
187 (1) (c) of the LRA. The employer was, therefore, ordered to
compensate the applicant an amount equivalent to 80 weeks’
remuneration.
Section 25 (3) also stipulates that no employee may work
before the lapse of six weeks after the birth (whether or not the
child is born alive or miscarried), unless a medical practitioner
certifies that it is safe to do so. However, in the circumstances
where miscarriage had occurred or a mother bears a stillborn
child, the employee is entitled to six weeks maternity leave after
the miscarriage or stillbirth.




As a result of morning sickness, employees may be
unable to perform early shift work. Backache and
varicose veins may result from work involving prolonged
standing or sitting. This may also be as a result of work
involving manual handling,
More frequent visits to the toilet will require reasonable
access to toilet facilities and consideration of employee’s
position if leaving the work she performs unattended
poses difficulties,
The employee’s increasing size and discomfort may
require change of protective clothing, change to work in
confined spaces and changes to her work,
The employee’s balance may be affected making work on
slippery or wet surfaces difficult, and
Tiredness associated with pregnancy may affect the
employee’s ability to work longer hours. In such
situations, the employer may have to consider granting
rest period.
The case between Mnguni v Gumbi (2004) 6 BLLR 558 (LC)
dealt with the issue of tiredness associated with pregnancy. The
issue in this case was about a dismissal of the applicant, a
receptionist, by the respondent after she had complained that
she was tired due to her advanced state of pregnancy. The
applicant had been pushed out of the office by the respondent
and had been instructed not to return to work until it calls her.
The applicant phoned the respondent a week latter to inquire
about the promised call and she was invited to a meeting. At
the meeting she was told that her services were no longer
required. The LC noted that the LRA prohibits dismissal of
employees for any reason related to pregnancy. Therefore, this
December 2007– Page 11
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phrase was wide enough to cover the circumstances in which
the applicant had been dismissed. The Court held that the
respondent was aware of the applicant’s tiredness. She was,
therefore, awarded compensation equivalent to 24 months’
remuneration.
Maternity benefits
As discussed earlier that pregnant employees are entitled to
unpaid maternity leave, this does not necessarily mean that
they would be left with no protection in terms of money. They
are protected in terms of claiming Unemployment Insurance
Fund (UIF) benefits at the Department of Labour (DoL) during
maternity leave (UIF brochure, 2006:10). However, some
companies are paying their employees that are on maternity
leave salaries in terms of the company policy. In such cases
employees are prohibited from claiming the maternity benefits.
The benefits are only payable to UIF contributors. However, it
is the responsibility of the employer to register and deduct UIF
contribution from the workers’ remuneration and pay to the
Fund. In the case where the employer had been deducting, but
failed to pay to the fund, workers may refer the matter to the
DoL. Employees are encouraged to make applications for such
claims at least eight weeks before childbirth or within six
months after the birth of the child.
According to the (UIF brochure, 2006:10), the benefits that are
payable is the difference that the employer pays at the rate that
is according to a sliding scale of between 38 to 58%. However,
the total should not exceed 100% of the normal remuneration
that the person would have received if she had remained in the
employment. Furthermore, those benefits can be paid up to a
maximum of 121 days, and if there is a miscarriage or stillborn
child, it can be paid for a maximum of six week.
Supporting documents required when applying for
maternity benefit claims
Before pregnant employees can claim their maternity benefits,
they must get UI forms from DoL that needs to be completed
with assistance by the employer. The following are the list of
forms and documents that should be completed and submitted
for maternity claims:






Form UI-2.3 (application form),
Form UI-2.7,
Form UI-2.8 (for banking details),
Form UI-4 (follow- up form)
13-digit bar-corded ID or passport, and
Medical certificate from doctor for expiated date of
confinement or after childbirth, the birth certificate of the
baby.
When employees have completed and submitted the forms to
the DOL, the commissioner of the UIF or claims officer must
investigate those applications. In the case where the
applications are declined, he/she must advice the applicant in
writing that the applications were defective.
Dispute resolution
In the case where employees are dissatisfied with the decision
of a commissioner or claims officer, they can lodge an appeal
by submitting a completed UI-12 form against the decision to
the regional Appeals committee at the respective labour centres
of the DoL. If the matter remains unresolved it may be referred
to the National Appeals Committee for final decision.
Conclusion
The article revealed that at times employees and/or job seekers
may very well prefer not disclose their pregnancy to their
employers because they fear that they may not be appointed or
dismissed and/ or forced to resign if the employer knows about
their pregnancy. However, employees gain protection for such
dismissals and non-appointment in terms of the Constitution
LRA, BCEA, EEA, UIF and the Code.
The article also revealed that it is a duty of both employees and
employers to maintain a safe working environment as the Code
encourages pregnant employees or job seekers to disclose
their pregnancy in order to assess the risks involved during and
after the birth of the child.
References
Grogan, J. 2003. Workplace Law, 7th Ed. Juta Law:
Lansdowne.
Mischke, C. “Pregnant job applicants and employees”.
IRNETWORK. www.irnetwork.co.za. Accessed. October 2007.
van Niekerk, A. 2002. Unfair dismissal, Suber Ink: Claremont .
Republic of South Africa. Code of Good Practice on the
Protection of Employees during and after the Birth of the
Child. Pretoria: Government Printers. Pretoria.
Republic of South Africa. Basic Conditions of Employment
Act, 75 of 1997. Government Printers: Pretoria.
Republic of South Africa. Employment Equity Act, 55 of 1998.
Government Printers: Pretoria.
Republic of South Africa. Know your UIF rights and
obligations. DOL. Media Production Unit: Pretoria.
Republic of South Africa. The Constitution of South Africa
Act 108, of 1996. Government Printers. Pretoria.
Republic of South Africa. The Labour Relations Act, 66 of
1995 Government Printers: Pretoria.
Case references
Lukie v Rural Alliance CC t/a Rural Development Specialist
(2004) 8 BLLR757 (LC)
Mashava v Cuzen & Woods Attorneys (2000) 9 (LC) 8.29.1
Mnguni v Gumbi (2004) 6 BLLR 558 (LC)
Uys v Imperial Car Rental (Pty) Ltd (2007) 3 BLLR 270 (LC)
Wallace v Du Toit (2006) 8 BLLR 757 (LC)
Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 13 (LC) 8.29.1
December 2007– Page 12
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INSUBORDINATION, INSOLENCE AND INCOMPATIBILITY IN THE WORKPLACE
By Poso Mogale
Introduction
Employment relationships, like any other relationship, have their
own challenges. However, the employment relationship has its
distinctive elements. For example, the control that the employer
actually or potentially exercises over the employee is regarded
as one of the key characteristics of the relationship. This
effectively means that the employee has a duty to obey all
lawful and reasonable instructions issued by the employer.
With people becoming increasingly aware of their rights, there
is no doubt that there would be abuse or misinterpretation of
those rights. The result may be a distortion of the concept of
mutual respect. A person is deemed to be insubordinate if
he/she refuses or fails to comply with an order, or to submit to
authority. According to Grogan (2003:4) one of the duties of an
employee is to be respectful and obedient. He indicates that
“respect and obedience are regarded as implied duties of every
employee because if the former is absent, it renders the
interpersonal relationship between employer and employee
intolerable, and a denial of the latter undermines the employer’s
right to decide how its employees will work.” This article will
focus on legislation and recent decisions by various forums that
deals with the issue of insubordination.
Insubordination v Insolence
In the case of Commercial Catering & Allied Workers Union of
SA v Wooltru Ltd t/a Woolworths (1989) 10 ILJ 311 (IC), the
Court made a distinction between insolence and
insubordination. Insolence was described as a repudiation by
an employee of his duty to show respect. The Court equated it
with impudence, cheekiness, disrespect or rudeness. However,
insolence does not usually involve a refusal to obey the
authority of the employer.
Insubordination was described as a refusal to obey an
instruction issued by the employer. Insubordination is a more
serious offence than mere rudeness because it presupposes a
calculated breach by the employee of the duty to obey the
employer’s instructions.
The implication of this judgment was that insolence and
insubordination are two different offences. A prior warning for
one would not necessarily justify dismissal for commission of
the other.
However, in the case of Sekete v Temoso Technologies 8A
College (2004) 13 CCMA 8.18.7, the commissioner held that
insolence is a form of insubordination, consisting of the
employee’s breaching of his or her duty to show respect to the
employer. The commissioner concluded that if the insolence
was wilful and serious, it would amount to gross
insubordination.
In instances of insolence, progressive and corrective discipline
is advisable. Only if the insolence persists and is of a serious
nature can dismissal be imposed as a last resort. Mxube v
Makana Municipality (2006) 15 CCMA 8.18.11 is an example.
The employee was dismissed for insubordination. The
commissioner held that the dismissal was fair. In making this
decision, he took cognisance of the fact that the employee was
on a final written warning for the same offence.
In Clinix Private Hospital Soweto (Pty) Ltd v Ralefeta & Others
(2007) 5 BLLR 455 (LC), the LC set aside an award in which
the commissioner had held that the dismissal of an employee
for insubordination was unfair and ordered reinstatement. The
employee was dismissed for having sworn and ultimately
throwing a notice to attend a disciplinary hearing at the
manager during an altercation. The reason for setting aside the
award was that the commissioner had ignored the fact that the
employee was on a final written warning for a similar offence.
The cases of Mxube and Clinix are a clear indication that in
cases of insubordination progressive discipline should be
applied unless there are aggravating factors. Employees in
these cases were both on final written warnings.
Incompatibility
Incompatibility occurs when an employee does not fit in with the
working environment and relate poorly to colleagues and
clients. In Jabari v Telkom SA (Pty) Ltd (2006) 10 BLLR 924
(LC), the employee was dismissed because the employer
claimed that he had been arrogant, uncooperative and
insubordinate. It was also claimed that the employee had
demoralised his colleagues. The Court held that to justify a
dismissal for incompatibility, the employer must prove that the
intolerable conduct on the part of the employee was the primary
cause of the disharmony. The employee must be given an
opportunity to remove the cause of the disharmony, and if this
cannot be achieved, to reply to the allegation. The respondent
had led no evidence to prove that any of these steps had been
followed, or that the applicant’s conduct was the cause of any
disharmony. His dismissal was, accordingly, unfair.
The Court further held that the primary reason for the
applicant’s dismissal was that he had initiated grievance
proceedings against management, and challenged its unfair
labour practices. The secondary reason was that he had
refused to accept a voluntary severance package. The
evidence did not prove the respondent’s contention that the
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employment relationship had irretrievably broken down. It was,
therefore, held that the applicant’s dismissal constituted
victimisation and rendered the dismissal automatically unfair.
Elements of insubordination
Intention and lack of remorse
For the charge of insubordination to succeed, the refusal to
obey the instruction must be intentional. There must be some
intention on the part of the employee to defy the authority of the
employer. Provocation may serve as a ground of justification for
the act of insubordination. In NUMSA obo Yako v Maxiprest
Tyres (Pty) Ltd (2006) 15 MIBC 8.13.2, the dismissal of an
employee who was dismissed for insubordination, swearing and
“racial harassment” was upheld. It was held that the employee
showed no remorse and that the employment relationship had
been destroyed. This means that the presence of remorse can
serve as a mitigating factor.
Lawfulness
The instruction should not infringe the rules of the employer or
the rules of the country. The refusal would not amount to
insubordination if the instruction required the employee to
contravene a law, or subject him/her to personal danger. The
Court, in NUM v Western Platinum Mine (1996) 6 BLLR 771
(IC), held that the dismissal of employees who had refused to
perform work that they were not qualified to perform without
supervision constituted an unfair labour practice. It was further
held that to do so would have been illegal under the Minerals
Act 50 of 1991. Their dismissals were, therefore, not justified.
The instruction must be reasonable
An instruction can be lawful but be unreasonable. For an
instruction to be reasonable, it must be capable of being
performed and fall within the parameters of the job. Lindani
Mjezu v Kusasa Flexoprint (Pty) Ltd /Link Plastics (2006) 15
CCMA 8.18.3 bears an example of an unreasonable instruction.
The employee was notified 15 minutes before the end of his
day shift that he has to work overtime. When he refused to do
so, he was dismissed for alleged gross insubordination. The
commissioner found the dismissal to have been substantively
unfair. It was also held, inter alia, that the amount of notice to
work overtime given to the employee was unreasonable.
In an unreported case GAJB20020-06 – Dimakatso C Leshoro
v Yired (Pty) Ltd “Yfm”, the employee was dismissed for,
amongst other things, refusing to obey an instruction not to
circulate emails regarding refusal to work on women’s day. The
commissioner found that the instruction was not direct. She
went further to say that even if a direct instruction had been
issued, ignoring it would not have completely damaged the
employment relationship.
Refusal to sign a warning
In the case of Moloi v Quthing Construction & Development CK
(2007) 16 CCMA 7.2.4, it was held that the mere fact that the
employee had refused to sign a warning did not in itself amount
to gross insubordination. The commissioner held that all that
the employer had to do was to indicate the refusal to sign or
have a witness sign instead.
Shop stewards and insubordination
In workplaces with more than ten employees, members of the
majority trade union have the right to elect shop stewards.
These shop stewards are entitled to perform functions such as
assisting and representing union members in grievance and
disciplinary hearings, monitoring the employer’s compliance
with labour legislation and collective agreements, reporting
contraventions to the responsible authorities and to perform any
other agreed function. Ordinarily, the fact that a shop steward is
also an employee means that he/she remains subject to the
employer’s rules. The employer is required by law to inform and
consult the trade union before instituting disciplinary action
against a shop steward.
The Court, in Food & Allied Workers’ Union v Harvestime
Corporation (Pty) Ltd (1989) 10 ILJ 497 (IC) held that “a shop
steward wears two hats in his relationship with senior officials
and management. When he does so in his capacity as a shop
steward, he is on virtually an equal level with the senior official
or management. The ordinary rules applicable to the normal
employer/employee relationship are then somewhat relaxed.
However, this does not mean that the shop steward should be
rude or disrespectful.” The facts of the case were that a shop
steward was dismissed after he had approached a supervisor
who had allegedly unreasonably withheld employees’ pay
packets. When approaching the supervisor about the pay
packets, he used offensive language. The Court held that under
those circumstances, the shop steward did not commit
insubordination or insolence. Reinstatement was ordered.
The judgment of Mondi Paper Company v PPWAWU &
Dhlamini, N (1994) 15 ILJ 778 (LAC) has the following
principles:
 A shop steward should be entitled to pursue the interests of
the members he represents fearlessly and should be
protected against victimisation for doing so. He remains an
employee and his conduct towards his employer must be
appropriate to that relationship, and
 Defiance of management's authority amounts to
insubordination.
The latest case dealing with this issue is that of BIFAWU &
Another v Mutual & Federal Insurance Company Ltd (2006) 15
LAC 8.23.1. Profound principles emerged from this judgement.
It was held that the employer may not under any circumstances
dismiss a shop steward because of his/her exercising the
functions of a shop steward. Such a dismissal would constitute
an automatically unfair dismissal and the employer may have to
pay compensation of up to two years’ remuneration. Shop
stewards must bear in mind the fact that their position does not
December 2007– Page 14
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protect them against disciplinary charges and that a dismissal
for misconduct remains a possibility.
Occupational Health and Safety Act 85 of 1993 (OHSA)
In terms of the OHSA, employees are required to take
reasonable care for their own health and safety and that of
others who may be affected by their acts or omissions. An
employee is also required to carry out any lawful order given to
him/her and to obey the health and safety rules established by
the employer. This reflects the common law position that an
employee is entitled to refuse to obey a command where the
employer has not complied with its common law duties to
provide a safe workplace. In addition, employees must
cooperate with the employer so that any duty or requirement
placed upon the employer may be complied with.
National Environmental Management Act 107 of 1998
(NEMA)
If employees perceive the workplace as being too dangerous
they may, in certain instances, refuse to work. Section 29(1) of
NEMA provides that no person may be held liable, dismissed,
disciplined, prejudiced or harassed because that person had
refused to work. The person refusing to work must do so in
good faith and reasonably believe that doing the work would
result in an “imminent and serious threat to the environment”.
For the refusal to be lawful it must meet the following
requirements:



The refusal must be in good faith,
There must be a reasonable perception or belief that the
work would result in an imminent and serious threat to the
environment, and
The belief must exist at the time when the employee
refused to do the work.
Section 29(2) indicates that an employee who has refused to
work must as soon as possible notify the employer of the
refusal and give reasons for the refusal. In terms of NEMA it is
not a requirement to exhaust internal/grievance procedure
before the refusal to work.
Basic Conditions of Employment Act 75 of 1997(BCEA)
Employees who refuse to perform overtime work are often
accused of being insubordinate. Overtime work is regulated by
the BCEA. In terms of this Act, an employee is not required to
work overtime in excess of three hours per day. In Maneche &
Others v CCMA & Others (2007) JOL 20281 (LC), the
employees were dismissed for refusing to work overtime. The
commissioner held that because the employees had previously
agreed to work overtime in excess of three hours per day, their
dismissals were substantively fair. The LC disagreed and held
that in terms of section 79 of the BCEA, an employee may not
be prejudiced for a refusal to do anything that an employer may
not lawfully permit him to do. It was held that the commissioner
had committed a material error of law by regarding a basic
condition of employment as a standard capable of being
trumped by a unilaterally imposed workplace rule or practice.
Conclusion
Sikhakhane v Okapi (South Africa) (Pty) Ltd (2007) 16 MEIBC
8.18.1 sums up the above discussion. The employee is
expected to comply with the reasonable and lawful instructions
by the employer. Failure to do so constitutes insubordination
and, if the insubordination is of a serious nature, dismissal for
misconduct may be appropriate. The obligation of an employee
to obey a reasonable and lawful instruction is so fundamental to
the employment relationship that an employee cannot plead
ignorance of a specific clause in the disciplinary code that
relates to insubordination. A refusal to obey a lawful order is a
deliberate and open challenge to the legitimate authority of
management.
References
Grogan, J.2003. Workplace law. Juta Law
Republic of South Africa. Basic Conditions of Employment
Act 75 of 1997.Government Printers: Pretoria
Republic of South Africa. Occupational Health and Safety Act
85 of 1993.Government Printers: Pretoria
Republic of South Africa. National Environmental
Management Act 107 of 1998. Government Printers: Pretoria
Case references
BIFAWU & Another v Mutual & Federal Insurance Company Ltd
(2006) 15 LAC 8.23.1
Clinix Private Hospital Soweto (Pty) Ltd v Ralefeta & Others
(2007) 5 BLLR 455 (LC)
Commercial Catering & Allied Workers Union of SA v Wooltru
Ltd t/a Woolworths (1989) 10 ILJ 311 (IC)
Dimakatso C Leshoro v Yired (Pty) Ltd “Yfm” – GAJB20020-06
(unreported)
Food & Allied Workers Union v Harvestime Corporation (Pty)
Ltd (1989) 10 ILJ 497 (IC)
Jabari v Telkom SA (Pty) Ltd (2006) 10 BLLR 924 (LC)
Lindani Mjezu v Kusasa Flexoprint (Pty) Ltd/Link Plastics (2006)
15 CCMA 8.18.3
Mxube v Makana Municipality (2006) 15 CCMA 8.18.11
Moloi v Quthing Construction & Development (2007) 16 CCMA
7.2.4
Mondi Paper Company v PPWAWU & Dhlamini (1994) 15 ILJ
778 (LAC)
NUMSA obo Yako v Maxiprest Tyres (Pty) Ltd (2006) 15 MIBC
8.13.2
NUM v Western Platinum Mine (1996) 6 BLLR 771 (IC)
Maneche & Others v CCMA & Others (2007) JOL 20281 (LC)
Sekete v Temoso Technologies 8A College (2004)
13CCMA8.18.7
Sikhakhane v Okapi (South Africa) (Pty) Ltd (2007) 16 MEIBC
8.18.1
December 2007– Page 15
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THE IMPACT OF RECRIMINATORY BEHAVIOUR BORNE OUT OF WORKPLACE RELATIONS
By Lucky Moloi
Introduction
Few workplace issues instigate greater emotional reaction or
potential employer liability than claims of sexual harassment.
Employers must understand the basic elements of the law, take
steps to avoid sexual harassment in the workplace, and be
prepared to properly deal with any complaints that may arise.
This article discusses workplace relations and its impact at the
workplace. It attempts at describing what sexual harassment is
and what constitutes it. The article further discusses the
importance of establishing a written policy on this subject, and
offers suggestions on how an employer should deal with a claim
of sexual harassment.
Mixed gender workforce
The combination of a gender-mixed workforce and time spent at
the workplace has the effect of conjuring up human emotions
that often give birth to romance between co-workers and
between subordinates and their supervisors. Authors tend to
differ on the subject of workplace intimate relations. Some say it
is and may be detrimental to the organisation whilst other
authors state that intimate relations tend to yield positive results
for organisations. Those who perceive intimate workplace
relations as detrimental are more concerned with the issue of
employer liability, and those who view it as yielding more
positive production results, base their arguments on the fact
that employees spent most of their time at work than at home.
B.J. Walker, director of community operations for the Illinois
Department of Human Services in both Chicago and
Springfield, cautions that workplace intimacy should not be
confused with sexuality. Walker defines intimacy as genuine
caring, being concerned about and considerate of fellow team
members, as the team works together to accomplish a common
goal.
As in the FS67-07 Viljoen v Lewis Stores, the applicant was
dismissed for sexually harassing the complainant. She claimed
that she had an affair and had been flirting with the
complainant. However, the complainant denied having a
relationship of that nature with the applicant. The complainant
claimed that he had warned the applicant to stop sending him
text messages of a sexual nature, but she persisted. The
commissioner noted that the applicant, as a person in
managerial position, should have known that her actions were
disastrous. The commissioner also noted that the employer’s
disciplinary code and guidelines state that an employee found
guilty of sexual harassment would be dismissed. This stance
had been confirmed by the Supreme Court of Appeal (SCA) in
Media 24 Ltd & Another v Grobler (2005) 7 BLLR 649 (SCA),
where it stated that such conduct constitutes sexual
harassment even if the applicant or complainant had flirted on
occasion. If an office relationship degenerates to such a point, it
is important for the business owner to maintain an impartial
stance and make sure that decisions are made on the basis of
the evidence at hand.
Office romances are situations in which two members of a
business establishment—whether co-workers in an office or on
a shop floor—become romantically linked with one another. For
businesses of all sizes, such developments can complicate
business operations. After all, office romances that go awry
cannot only result in emotional pain for one or both of the
principals involved, but can also trigger losses of workplace
productivity that directly impact on the business. Of course,
office romances that go fabulously well can have the same
bottom-line impact on a company if the couple spends an
excessive amount of work time courting one another. These
concerns are often heightened in small business
establishments that feel such losses of personnel and
productivity more acutely than do larger companies.
Distinguishing between flirting and sexual harassment
Avoidance or fraternisation policy
Given the increase in sexual harassment lawsuits that have
been brought against companies in recent years, it is not
surprising that business owners have expressed concern about
the sometimes blurry boundaries between office flirtations—
which may lead to full-fledged office romances—and ugly
instances of sexual harassment. While businesses can take
certain steps to define inappropriate office conduct, many of
them quite effective, stopping sexual harassment is often a
more complicated issue if the two people involved were
formerly romantically involved. Indeed, some people resort to
harassment in the wake of a break up, while others have been
known to level false harassment charges after being jilted.
Most companies operating today recognise that attempts to
neutralise or forbid office romances are probably doomed to
failure. Despite widespread publicity about the perils of sexual
harassment, many companies operating in South Africa have
yet to address the problem. This is so because most companies
perceive office romance as a controversial issue for the
workplace to address. Some companies perceive office
romances as far from being harmful, many romances actually
improve work performances. They add a dynamism and energy
that translates into enhanced morale, communication, creativity
and even productivity. Should these relationships evolve into
long-term commitments, as often happens, companies will
generally benefit from happier and more fulfilled employees.
December 2007– Page 16
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Most companies that do have the sexual harassment policies
focus on addressing and eradicating sexual behaviour at work
that is not mutually consenting. Priority is to eradicate
harassment and discrimination to the exclusion of the impact
that workplace–based relationships may have in the business.
Companies are concerned about invading individuals’ privacy
as well as the recognition that, human nature being what it is,
people are going to get involved with their co-workers no matter
what their companies dictate.
Failure to adopt a pro-active and aggressive stance on this
issue can result not only in costly lawsuits, but also in a loss of
employee morale, decline in productivity, and an erosion of a
company's public image. That businesses are still taking
chances may reflect a failure to adequately consider the risks.
To act wisely, companies need to understand the whole issue
of sexual harassment.
Definition of sexual harassment
Sexual harassment is neither a trivial offence nor a personal
matter between employees. It results in loss of productivity and
is detrimental to staff morale. A harassment free work
environment is, therefore, essential to employees’ effectiveness
as an institution and to maintaining staff morale. Staff members
can expect harassment complaints to be taken seriously and
dealt with promptly. The proliferation of legal remedies to sexual
harassment in national law in many parts of the world suggests
it is good practice for centre management to be aware of local
law as it relates to this issue.
Sexual harassment is defined as an unwelcome sexual
advances, requests for sexual favours, and other verbal or
physical conduct of a sexual nature constitute sexual
harassment when:
(a) Submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s employment,
(b) Submission to or rejection of such conduct by an individual
is used as the basis for employment decisions affecting such
individual, or
(c) Such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.
There are two kinds of sexual harassment: “quid pro quo” and
“hostile environment”. In quid pro quo the “submission to or
rejection of [unwelcome sexual] conduct by an individual is
used as the basis for employment decisions affecting such
individual.” As in Taljaard v Securicor (2003) 24 ILJ 1167
(CCMA), where the applicant was dismissed from his
employment, as a security manager, for securing employment
for a subordinate employee and thereafter pursuing her with
sexual advances. The commissioner held that the manager is
under duty to ensure that dignity of all people is maintained in
workplace. Failure to do so irreparably damages the
employment relationship and causing breakdown in trust,
mutual confidence and respect.
A “hostile environment”, is the circumstance in which “such
conduct has the purpose or effect of unreasonably interfering
with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment” (Amaral:
2006). In some instances, both types may take place
simultaneously as in the case of Ntsabo v Real Security CC
(2004) 1 BLLR 58 (LC), the applicant, in her case, stated that
her supervisor, regularly harassed her sexually and he
eventually assaulted her. She alleged that, as a result of his
attentions, she became very uneasy in her work environment
and culminated in him actually simulating unwelcome sexual
acts on her person. Both types of sexual harassment can take
forms which may include physical, verbal and non-verbal
conduct. The Code of Good Practice on the Handling of Sexual
Harassment Cases, lists the following examples, but explains
that it is not limited to:
“(a) Physical conduct of a sexual nature includes all unwanted
physical contact, ranging from touching to sexual assault and
rape, and includes a strip search by or in the presence of the
opposite sex.
(b) Verbal forms of sexual harassment include unwelcome
innuendoes, suggestions and hints, sexual advances,
comments with sexual overtones, sex-related jokes or insults or
unwelcome graphic comments about a person’s body made in
their presence or directed toward them, unwelcome and
inappropriate enquiries about a person’s sex life, and
unwelcome whistling directed at a person or group of persons.
(c) Non-verbal forms of sexual harassment include unwelcome
gestures, indecent exposure, and the unwelcome display of
sexually explicit pictures and objects.
(d) Quid pro quo harassment occurs where an owner,
employer, supervisor, member of management or co-employee,
undertakes or attempts to influence the process of employment,
promotion, training, discipline, dismissal, salary increment or
other benefit of an employee or job applicant, in exchange for
sexual favours.
Organisations should be primarily concerned with potential
sexual harassment suits. They should have vested interests in
protecting the firm from lawsuits they deem preventable.
Employers may be concerned about office romances for a
variety of reasons. Employers are held liable when either their
supervisors or agents create a hostile environment, or if the
employer knew or should have known of the sexual harassment
and had failed to take appropriate corrective measures. As in
the case of Grobler v Naspers Bpk & Another (2004) 5 BLLR
455 (C), the Court held that that employers can be vicariously
liable for sexual harassment committed by a supervisor against
an employee. In cases where the harassment involves
employment-related threats, such as dismissal or nonpromotion or prejudicial changes to employment conditions (i.e.
quid pro quo harassment), liability can arise from the creation of
a “hostile environment”. However, it is accepted that the
employer can escape liability if it can prove that it took
immediate and effective steps to prevent the harassment,
and/or if the plaintiff had failed to take reasonable steps to avail
herself of assistance or to avoid the harm. Therefore,
December 2007– Page 17
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employers should not be reluctant to take corrective actions to
avoid being potentially held liable for sexual harassment that is
perpetrated by supervisors, by non-supervisory co-employees,
or even by non-employees such as customers or vendors.
Employers are deemed to know of sexual harassment if it is
openly practised in the workplace, well known among
employees and/or brought to the employer’s attention by a
victim’s filing of a charge.
Preventing sexual harassment liability
Employers may protect themselves from liability by taking
immediate and appropriate corrective action as suggested in
the Grobler judgement. To do so, companies need to institute
comprehensive, detailed, and responsible sexual harassment
policies. Such policies should briefly define sexual harassment
and identify two or more individuals to whom complaints of
harassment may be submitted (usually the head of human
resources or office manager, and at least one other person,
perhaps the president or other high ranking management
representative). The policy should state that harassment would
be grounds for disciplinary action up to and including dismissal.
Such a policy, combined with employee meetings or training
sessions on this subject, should help prevent sexual
harassment.
Some companies now suggest contracts for employees who
are dating that provide written guidelines for behaviour should
things fall apart. In the very case of Grobler, the Court further
held that in case a decision based on policy considerations was
wrong or because policy considerations were insufficient in
themselves to impute liability to an employer, the Constitution
bound the Court to do so. The Constitution enjoins courts to
develop the common law to give effect to the Bill of Rights. One
of the entrenched rights is the right to freedom and security of
the person and to physical and psychological integrity. The
rules of vicarious liability must be adapted to uphold that right.
The first defendant was, accordingly, held to be vicariously
liable to the plaintiff for her damages. Sexual harassment
policy should provide an important complaint procedure so that
any proven harassment may be stopped as soon as possible.
In the United States, the Equal Employment Opportunity
Commission had concisely explained the principle when it
stated that it will generally find an employer liable for hostile
environment sexual harassment by a supervisor when the
employer failed to establish an explicit policy against sexual
harassment, and did not have a reasonably available avenue by
which victims of sexual harassment could complain to someone
with authority to investigate and remedy the problem (Roberts &
Mann: 2007).
References
Amaral, H.P. Workplace Romance and Fraternization
Policies.
Internet
posting
www.uri.edu/research/lrc/research/papers
(Accessed
13
November 2007)
Johnson, B.T. 1996. Preventing Sexual Harassment Liability
Fairfield and Woods. np.
Joshi, J. & Nachison, J. 1996. Sexual Harassment in the
Workplace: How to Recognize It; How to Deal with It Internet
posting
www.worldbank.org/html/cgiar/publications/gender
(Accessed 12 November 2007)
Reed, M. 1999. Closer than the average co-worker workplace intimacy can enhance job satisfaction - Brief
Article Internet posting www.findarticles.com/p/articles/
(Accessed 12 November 2007)
Roberts, B. & Mann, R. Sexual Harassment in the
Workplace:
A
Primer
Internet
posting
http://www3.uakron.edu/lawrev/robert1.html (Accessed 13
November 2007)
Case references
FS67-07 Viljoen v Lewis Stores
Grobler v Naspers Bpk & Another (2004) 5 BLLR 455 (C)
Media 24 Ltd & Another v Grobler (2005) 7 BLLR 649 (SCA)
Ntsabo v Real Security CC (2004) 1 BLLR 58 (LC)
Taljaard v Securicor (2003) 24 ILJ 1167 (CCMA)
December 2007– Page 18
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TRADE UNION RESPONSES TO GLOBALISATION: A REVIEW BY THE GLOBAL RESEARCH UNION
RESEARCH NETWORK
by Verena Schmidt
Summarised by Poso Mogale
Executive Summary
Social dialogue through IFAs
Trade union responses to globalisation: A review by the
Global Union Research Network is a collection of
research studies from different parts of the globe on the
impact of globalisation on workers and the strategies
adopted by trade union organisations to deal with the
challenges. Globalisation has different effects on
workers. It has enabled workers to organise transnationally, to negotiate with companies on a global level
and to address global issues such as gender
discrimination and sustainable development with actors
from around the world. Increasingly, trade unions are
enlarging their agendas to include issues such as
engaging with international organisations in order to
influence their policies. Due to the growing power of
multinational enterprises (MNEs), trade unions are also
involved in international social dialogue through
International Framework Agreements (IFAs).
IFAs are a critical tool used by a number of unions to lay
down the rules of conduct for trans-national companies.
Since they are negotiated jointly by national trade unions
and Global Union Federations (GUFs) and companies,
they are an important instrument for dealing with some of
the issues raised by globalisation.
Governance and accountability
The enhanced coordination of productive activity
between countries by multinationals highlights how the
strength of corporate governance has increased in
recent years despite the greater dispersion of production.
As unions are confronted with the growing influence of
the private sector, many are concerned that, in some
cases, voluntary corporate codes of conduct are
introduced merely as PR exercises and that they are not
accompanied sufficiently by measures of “accountability”.
Trade unions are campaigning for the implementation of
an effective national and international framework of rules
and standards to ensure good corporate governance and
wider market integrity, along with regulatory systems to
ensure effective implementation and enforcement. In
meeting the challenge to instil a high standard of
corporate responsibility, directors of companies have to
engage with shareholders and other stakeholders in
determining company objectives and provide adequate
supervision of the executives who run the businesses.
If a MNE violates social and environmental norms, the
GUFs can either react by initiating demonstrative action
or they can take proactive steps by making an offer to
negotiate with the corporation on relevant agreements.
IFAs are a formal recognition of social partnership at the
global level, therefore, qualitatively different to
companies’ own internal codes of conduct. They reflect a
commitment to observe core international labour
standards. In principle, the employers who sign up are
demonstrating that they favour good industrial relations
at the workplace, feel responsible for the whole supply
chain and are open minded about trade union activities.
However, social partnership is not a substitute for union
organising.
Enlarging the trade union agenda
The international trade union movement has recently
focused on a number of emerging themes to respond to
the challenges of globalisation. The Global Unions,
consisting of the International Trade Union
Confederation (ITUC), GUFs and the Trade Union
Advisory Committee (TUAC), to the Organisation for
Economic Co-operation and Development (OECD) are
engaging with large international organisations such as
the IMF, the World Bank Group, the United Nations and
their programmes and funds such as the WHO and WTO
to influence their rules and regulations to promote a fair
globalisation.
Since May 2006 the International Finance Corporation
(IFC) has required that all enterprises borrowing from the
IFC abide by the core labour standards. In December
2006 the World Bank announced that it would extend the
September 2007– Page 19
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core labour standards requirement to public works
projects financed by the International Bank for
Reconstruction and Development and the International
Development Association. The World Bank started
including the core labour standards requirement in its
procurement contracts in May 2007.
Network and alliance building
Building networks between trade unions along global
production systems is an example of trans-national
cooperation. Unions have to deal with sophisticated and
often anti-union human resource management strategies
at a local level within global production systems and
respond to difficult representational situations as a result
of sourcing decisions. Organising along supply chains
could be a way to move beyond existing North–South
cooperation arrangements.
The role of the ILO on globalisation
International labour standards are an important catalyst
in improving working conditions. While core labour
standards must be respected in all member states of the
ILO regardless of whether they have been ratified by the
countries, the reality is very different. The international
labour movement is mobilising the international
community to put pressure on those countries that do not
respect the core Conventions to make the necessary
changes. For example, the international trade union
movement has recently addressed the issue of private
equity and hedge funds. The challenges of globalisation
can only be met if the trade union movement continues
to address new issues and adapt its organisational
structures
accordingly.
The
promotion
and
implementation of international labour standards is an
important tool to achieve a fair globalisation. A strong
and unified trade union movement, with a vision of social
justice for all, coherent concepts for social and economic
policy, effective collective bargaining and a modern and
inclusive form of trade union structures, are key
prerequisites to achieving this objective.
Reference
Schmidt, V.2007. Trade union responses to
globalisation: A review by the Global Union
Research Network. ILO Department of Communication
and Public Information. International Labour Office,
Geneva. www.ilo.org
September 2007– Page 20
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COSATU SUBMISSION TO CONCOURT ON SCA JUDGEMENT ON RUSTENBURG PLATINUM v CCMA
By Dominic Tweedie
Summarised by Lucky Moloi
The Congress of South African Trade Unions has
submitted an application to the Constitutional Court for
leave to appeal against the judgment of the Supreme
Court of Appeal (SCA) on 26 September 2006 in the
case between Rustenburg Platinum Mines Ltd and the
Commission for Conciliation, Mediation and Arbitration
(CCMA). COSATU believes that this judgement sets an
extremely dangerous precedent which could severely
weaken the country's labour laws.
COSATU's application concerns the SCA's key findings
on the powers of the Labour Court in reviewing CCMA
arbitration awards in unfair dismissal cases and CCMA
commissioners' approach to sanctions for misconduct in
conducting arbitrations in cases of alleged unfair
dismissal in terms of the Labour Relations Act (LRA).
COSATU believes that the SCA has significantly altered
the law governing these matters.
This case was initially simply a dispute about an
individual dismissal. Leave to appeal to the SCA was
sought and granted on the basis that it was a "test case",
but unfortunately, although the court regarded it as such,
none of the major trade unions were involved in the
litigation, which was being conducted by an individual
with his own attorney. Had either COSATU or NUM
known this was to be a test case where fundamental
issues were to be considered, they would have sought to
make submissions on issues that are vitally important to
our members and indeed the entire labour relations
dispensation.
The SCA's judgment was reported in mid-November
2006. Shortly before the publication of the report, officials
of COSATU's affiliates became aware of the judgment
and requested that it be placed on the agenda of the
Central Executive Committee (CEC), which met from 2022 November 2006. It resolved that COSATU should
instruct attorneys to investigate the possibility of
challenging the decision in the Constitutional Court.
The case centres on Zandise Sidumo, who was
employed as a security guard by Rustenburg Platinum,
until he was dismissed in 2000. He took an unfair
dismissal dispute to the CCMA. It was not resolved
through conciliation and he requested it be arbitrated.
The CCMA appointed an arbitrator who held that Sidumo
was guilty of misconduct but that dismissal was not an
appropriate sanction. He ordered the company to
reinstate him on a written warning and to pay him three
months' back pay.
The company applied to the Labour Court to review and
set aside this award, but they held that it was justifiable
and dismissed the review application. Then the company
appealed to the Labour Appeal Court (LAC), which held
that the commissioner's reliance on Sidumo's clean
disciplinary record and long service could sustain the
finding that the sanction of dismissal was too harsh. The
LAC dismissed the company's appeal with costs. The
company was then granted special leave to appeal to the
SCA against the LAC's decision. The SCA accepted the
company's argument that in assessing the fairness of a
dismissal, CCMA commissioners should apply the
"reasonable employer" test, exercise caution when
determining whether the sanction imposed by an
employer is fair, and display a measure of deference to
the employer's sanction.
The SCA's decision is clearly of great importance
beyond the facts of this particular case. COSATU is
approaching the Constitutional Court with a view to
resolve the following fundamental issues that arise and
need to be considered in an appeal:




What is the function of a CCMA commissioner in
deciding an unfair dismissal dispute?
How is a CCMA commissioner to approach an
employer's decision to impose the sanction of
dismissal? Is the commissioner limited in any way
by the employer's view of the matter, or is that
merely evidentiary material to be taken into account
in deciding whether the dismissal was fair?
What principles govern the review of a CCMA
commissioner's arbitration award?
What approach should be adopted by a Court
hearing an appeal against a judgment of the Labour
Court in a review application?
September 2007– Page 21
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COSATU shall submit that the proper starting point must
be that a dismissal is unfair if the employer does not
prove that it was for "a fair reason" related to the
employee's conduct or capacity. It is for the employer to
justify a dismissal by showing that both the reason for
dismissal and the procedure adopted are fair. Otherwise
it is unfair. The commissioner who arbitrates a dismissal
dispute must be persuaded that both the reason and the
procedure are fair.
If, as the SCA holds, the starting point is one of
deference to the decision of the employer, whose
decision on sanction should not lightly be departed from,
the effect is to reverse the onus that the legislation
places on the employer, or at least to create what
amounts to a presumption in favour of the fairness of the
employer's decision.
COSATU is submitting that this matter raises important
points of law that are of significance beyond the facts of
the present case, and that the constitutional matter is
one of substance on which a ruling by the Constitutional
Court is desirable.
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THE RUSTENBURG TEST HIGH NOON AT THE CONSTITUTIONAL COURT
Z Sidumo & Congress of South African Trade Unions v Rustenburg Platinum Mines & Others
By Perrott, R.R.
Summarised by Lucky Moloi
Readers will recall that the Supreme Court of Appeal
(SCA), in a carefully reasoned (and fully supported)
decision, had determined two issues of immense import
to those engaged in the labour law field.
In the first instance, the SCA determined that
commissioners must exercise caution in determining
whether a disciplinary sanction imposed by an employer
is fair. Arbitrators must apply "….a measure of deference
…." to the employer's sanction because it is primarily the
function of the employer to determine the proper
sanction. This was widely interpreted as cementing a
"reasonable employer" test into our law. In terms of
which, it was only those decisions that fell beyond a
broad range (or "band") of possible reasonable decisions
that could be interfered with.
In the second instance, the SCA found that the
Promotion of Administrative Justice Act, No 3 of 2000
(PAJA), applied to a review of decisions of CCMA
commissioners. The importance of this element was that
the PAJA provides far more extended grounds of review.
In its outcome delivered this morning, the Constitutional
Court has rejected the "fair employer test" determined in
the Rustenburg case, and reverted back to the test that
the plain wording of the LRA itself seems to imply – the
commissioner decides.
The Constitutional Court has determined that in
approaching a dismissal dispute, a commissioner must
do so impartially. The commissioner must take account
of "….the totality of circumstances". But, in terms of the
LRA, it is the commissioner who must determine whether
a dismissal is fair or not. A commissioner is "….not given
the power to consider afresh what he or she would do,
but simply to decide whether what the employer did was
fair or not. In arriving at a decision a commissioner is not
required to defer to the decision of the employer. What is
required is that he or she must consider all relevant
circumstances." (emphasis). The Constitutional Court
also determined that the Promotion of Administrative
Justice Act did not apply to the review of arbitration
awards made in terms of the Labour Relations Act.
The Constitutional Court outcome does have implications
for employers. In terms of the earlier Supreme Court of
Appeal decision, which was rapidly interpreted as a
restatement of the reasonable employer test within South
African labour law, employers were comforted by a broad
test that contemplated a range (or "band") within which
their decisions might fall, before a CCMA commissioner
could interfere. By the same token, the Constitutional
Court outcome does not signal a reversion to
administrative error for employers. Whilst the CCMA
commissioner will now be required to determine whether
employer’s decision was fair, he or she must do so
against a proper consideration of relevant circumstances
and as an "impartial adjudicator". The Constitutional
Court judgment will provide some guidance in this
regard, as will a more focused consideration of both the
terms (and stated purpose) of the Labour Relations Act
and the Code of Good Practice on Dismissal.
So ultimately, it is the commissioner's sense of fairness
that will now prevail, not the employers view. We are
back to the third umpire, in keeping with the quick and
easy process that forms the cornerstone of dispute
resolution under the "new" Labour Relations Act.
R.R. PERROTT
5 OCTOBER 2007
September 2007– Page 23
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HO@CCMA.org.za
SUPREME COURT DECISIONS NOT FINAL
By Lavery Modise & Felicia van Rooi
It is up to the employer to hire and fire employees. Only the employer has the power to fire an employee. However,
section 185 of the Labour Relations Act 66 of 1995 (LRA) protects employees against being unfairly dismissed by their
employers.
It entrenches the rights of employees not to be unfairly dismissed by their employers. This right is further protected by
section 188 of the LRA which provides that a dismissal must be for a fair reason relating to the employees conduct.
Commission for Conciliation, Mediation and Arbitration (CCMA) commissioners are empowered by the LRA to
determine the fairness of a dismissal for misconduct.
A commissioner in considering whether a dismissal is for a fair reason must take into account the Code of Good
Practice: Dismissal which can be found in Schedule 8 of the LRA. The Code states that dismissal for a first offence is
not appropriate unless:
“The misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.
Examples of serious misconduct are gross dishonesty, or wilful damage to property, physical assault and gross
insubordination.”
Determining the fairness of a dismissal involves a two stage enquiry. The first stage is to determine whether the
employee indeed committed the offence that led to the dismissal. If it is proven that the employee indeed committed
the offence then the fairness of the sanction of dismissal must be determined. Whose duty is it to determine whether
the employer's decision to dismiss was fair?
The Supreme Court of Appeal (SCA) decided in Rustenburg Platinum v CCMA & Others (2006) 27 ILJ 2076 (SCA) that
it was the employer’s prerogative to determine sanction and that a commissioner had to approach an employer's
decision to dismiss with a degree of respect and was not empowered to substitute his opinion for what is an
appropriate sanction for that of the employer. This approach of the SCA was overturned in the recent Constitutional
Court (CC) case of Sidumo and Another v Rustenburg Platinum Mines Ltd & others (CC) unreported Case No. 85/06.
The Constitutional Court stated that whilst the decision to dismiss belongs to the employer the determination of the
fairness of the dismissal does not.
The commissioner as an impartial, unbiased person is in a better position to determine the fairness of the dismissal,
bearing in mind all the circumstances that led to the dismissal.
In determining the fairness of the dismissal, the commissioner will exercise his own value judgment taking into account
the importance of the rule that has been breached and the reason why the employer imposed the sanction of
dismissal. Other factors that will be considered are the harm caused by an employee's conduct, whether additional
training will rectify the behaviour and the length of service.
September 2007– Page 24
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