CCMAil
Revolutionising Workplace Relations
October 2010
CONTENTS
CCMA CASE ALERTS..........................................................................................................................................................................2
LABOUR COURT AND LABOUR APPEAL COURT JUDGMENTS ...................................................................................................4
DECISIONS: OTHER DISPUTE RESOLUTION FORUMS ..................................................................................................................6
DECISIONS: AUSTRALIAN INDUSTRIAL COMMISSION ..................................................................................................................9
23rd ANNUAL LABOUR LAW CONFERENCE ..................................................................................................................................14
•
A discussion on the meaning of the concept of matter of mutual interest in the context of the right to strike .........................15
•
Dealing with racism and racial harassment .............................................................................................................................19
•
Income inequality: Executive salaries and pay discrimination ................................................................................................22
•
Incompatibility and difficult employee ......................................................................................................................................25
•
Strike avoidance – How to develop an effective strike avoidance strategy .............................................................................28
•
Unbound by precedent : Critical reflections on the decision of the Constitutional Court in Gcaba v Minister of Safety &
Security 2010 (1) SA 23 (CC) .................................................................................................................................................33
GLOBAL TRENDS
•
Child labour in Cambodia - A new direction ............................................................................................................................43
LABOUR RELATIONS IN AFRICA
•
Organising domestic workers in Kenya ..................................................................................................................................45
EDITORIAL TEAM
Alucia Mdaka
Nersan Govender
Samuel Denga
October 2010 – Page 1
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By Samuel Denga
FS6136 -10 Mofokeng v Highlands Panel Beater CC –
Commissioner van Aarde
Absent without leave - Desertion – Employee abandoning work
after receiving warning – Abandonment of employment
constituting resignation not dismissal – Application dismissed.
The applicant, a general worker, left work after being issued
with a written warning for failing to wash a vehicle that had been
repaired. He claimed that he was forced to resign as the
employer used abusive language and referred a dispute to the
CCMA. The respondent contended that he was not dismissed
and the CCMA lacked jurisdiction. It argued that the dispute
was supposed to be referred to the bargaining council. The
commissioner decided to arbitrate the matter as the CCMA was
empowered to do so in order to resolve the dispute swiftly.
Noted: That resignation occurs when an employee had a clear
intention not to continue with employment. The resignation
need not be accepted by the employer.
Also noted: That the applicant was upset by a warning and
decided to leave permanently.
Held: That there was no proof that the applicant was dismissed
and the case was dismissed. The employer was ordered to pay
the applicant outstanding wage.
Case references
CEPPWAWU v Glass & Aluminium (2002) 23 ILJ 895 (LAC)
Le Monde Luggage CC t/a Pakwells Petje v Commissioner
Dunn & Others (2007) 10 BLLR 909 (LAC)
Uthingo Management (Pty) Ltd v Shear NO & Others (2009) 18
LC 7.1.1
ECEL3900-09 Ganga v Grassroots Entrepreneurial
Development (Pty) Ltd t/a Grassroots Scape Facilities –
Commissioner Mare
Incapacity - Poor work performance – Employee dismissed for
failing to obtain driver’s licence – Dismissal unfair.
The respondent approached applicant to manage a particular
site. The applicant commenced rendering his service as a site
manager. It was agreed that the applicant would be responsible
for maintaining and improving the grounds at the site. The
respondent terminated the relationship a year later because the
applicant had failed to obtain a driver’s licence. The respondent
contended that there was no dismissal because the applicant
was not an employee and there was no employment contract
between them. It also contended that he did not employ the
applicant, but had approached him to assist.
Noted: That the applicant was under the control and was
remunerated by the respondent. The applicant was an
employee but not an independent contractor.
Also noted: That the applicant was employed by the
respondent without a driver’s licence and it was not a
prerequisite for employment.
’
Held: That the dismissal of the applicant was unfair. The
respondent was ordered to compensate the applicant
compensation equal to nine months salary.
GATW85 -10 Motsei v Vodacom (Pty) Ltd – Commissioner
Byrne
Unfair dismissal – Employee dismissed for poor work
performance – Employee claimed that manager used racist
language – Respondent ordered reinstate the applicant.
The applicant was dismissed for declaring that his manager
was racist and hate blacks after been issued with a warning for
poor work performance. After the applicant had received a
warning, he called a meeting and informed subordinates to get
support regarding the racist remarks made by his manager. He
was dismissed for poor work performance after a disciplinary
hearing. The applicant referred a dispute of unfair dismissal to
the CCMA.
Noted: That whether the applicant had used racist remarks was
immaterial. It was noted that to accuse someone of being racist
does not amount to racism.
Also noted: That in South African context, people are sensitive
to racism. The applicant had apologised to the manager for his
remarks.
Held: That the dismissal of the applicant was too harsh and
substantively unfair. The respondent was ordered to reinstate
the applicant retrospectively.
WECT12661 - 09 Martins v Maersk Marine Services Ltd –
Commissioner Glober
Jurisdiction – Employee demoted by respondent registered in
United Kingdom – CCMA lacks jurisdiction – Application
dismissed.
The applicant had been employed since August 2004. After an
incident on a ship sailing off China, the applicant was subjected
to a disciplinary inquiry and was demoted from second engineer
to third engineer, with a commensurate reduction of salary. He
claimed that he was a victim of an unfair labour practice. The
respondent raised a point in limine that it was not the
applicant’s employer. It contended that the matter fell outside
October 2010 – Page 2
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the CCMA’s jurisdiction. The applicant contended that he was
employed by the respondent
Noted: That the dispute had been referred previously and that
the commissioner had ruled that the CCMA lacked jurisdiction
as the wrong party had been cited.
Also noted: That the true employer of the applicant was based
in UK, but not in South Africa. The company was registered in
UK, therefore, all disputes were to be referred to the English
courts and be determined by English law.
Held: That the CCMA lacked jurisdiction to entertain the matter.
The application was dismissed.
October 2010 – Page 3
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By Samuel Denga
Labour Court: C733/08
Idwala Lime (A division of Idwala Industrial Holdings (Pty)
Ltd v CCMA & Others: Judge Steenkamp
Practice and procedure – Appeal and review – Applicant sought
review – Employee dismissed for gross negligence –
Commissioner found dismissal substantively unfair – Court
found dismissal fair – Award reviewed and set aside.
The employee acknowledged receipt of conveyor belts to the
value of R591 471.00. It was established that one of the four
conveyor belts was never supplied, but the employee paid for it.
The employee’s supervisor also acknowledged receipt of the
belts and was dismissed. He was dismissed for gross
negligence by making a representation that the goods had been
taken receipt when meanwhile they had not been received. The
employee referred the dispute to the CCMA for unfair dismissal.
The applicant argued that the employee had committed
previously similar offence. The commissioner found that the
employee had failed to carry out instructions but no trust
relationship was breached and that his dismissal was
substantively unfair. The applicant was ordered to reinstate the
employee. Both parties had applied for condonation for late
referral at the Labour Court and were granted. On review, the
applicant argued that the award was unreasonable that no
reasonable commissioner could have come to that finding. It
also argued that the employee was dismissed for gross
negligence.
Noted: That the employee deliberately misled the applicant even
after the non-delivery of conveyor belts came to light. The
applicant had suffered a loss due to the employee’s negligence.
Also noted: That employee had committed a similar offence
previously and was reprimanded.
Held: That the dismissal of the employee was fair. The award
was reviewed and set aside.
Case reference
Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405
(CC)
Labour Court: P309/09
Balasama v Motor Bargaining Council & Others: Judge
Molahlehi
Practice and procedure – Employee dismissed for fraud
Commissioner found dismissal unfair – Court found dismissal
fair – Award reviewed and set aside.
This was an application for review and set aside the award
issued by the arbitrator. The applicant was dismissed for fraud
relating to instructing a fellow employee to clock in on his behalf.
He contended that the fellow employee did that on his own
accord. The applicant referred the dispute for unfair dismissal to
the council. The arbitrator found that his dismissal was
substantively unfair and ordered for compensation. The
arbitrator found that there was a breakdown of trust relationship
between the parties. On review, the applicant contended that the
arbitrator’s award was gross irregular, irrational and
unreasonable. He argued that the arbitrator should have ordered
reinstatement instead of compensation. The second respondent
argued that the applicant had accepted to be compensated. The
award was granted on the 5 June 2009, compensation in
compliance with the award was made on 10 June 2009 and the
review application was made on 13 June 2009.
Noted: That there was no evidence to prove that after the he
had accepted compensation from the respondent he
approached his legal representative to challenge the award.
Also noted: That the amount of compensation was received in
cash and was not deposited into his bank account.
Further noted: That there was no evidence to support how the
arbitrator had reached to his decision.
Held: That the award was set aside and remitted to be heard
afresh by another arbitrator.
Case references
Fidelity Cash Management Service v Commission for
Conciliation, Mediation & Arbitration & Others (2008) 29 ILJ 964
(LAC)
Jusayo v Mudau no & Others (2008) 29 ILJ 2953 (LC)
Liberty Life Association of Africa v Kachelhoffer No & Others
(2001) 22 ILJ 2243 (C)
Venture Otto SA (Pty) Ltd v Metal & Engineering Industries
Bargaining Council & Others (2005) 26 ILJ 349 (LC)
Labour Appeal Court: JA34/09
National Union of Mineworkers & Others v Eskom Holdings
(Pty) Ltd & Others: Judge Davis
Practice and procedure – Appeal and review – Whether CCMA
had jurisdiction to determine minimum service agreement – LC
found CCMA lacked jurisdiction – LAC found CCMA had
jurisdiction.
October 2010 – Page 4
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This was an appeal to determine whether the failure to agree on
the terms of the minimum service agreement could be referred
to compulsory arbitration in terms of s 72 of the Labour Relations
Act 66 of 1995 (LRA). The respondent operates in an industry
that was an essential service in September 1997. The parties
were unable to conclude a minimum service agreement. In June
2007, the appellant referred a dispute to the CCMA for
conciliation and then to compulsory arbitration. The respondent
argued that the CCMA lacked jurisdiction to entertain the matter.
The commissioner had found that the CCMA had jurisdiction to
hear the matter. The appellant approached the LC for review.
The LC found that the CCMA lacked jurisdiction to deal with the
dispute.
Noted: That s 70(2) of the LRA provides that the functions of the
essential services committee are to o conduct investigations as
to whether or not the whole or part of any is an essential service,
and then to decide whether or not to designate the whole or a
part of that service as an essential service, to determine
disputes as to whether or not the whole or a part of any service
is an essential service, and to determine whether or not the
whole or a part of any service is a maintenance service.
Also noted: That s 73 of the LRA expands on the dispute as set
out in s 70 (2) (a) by providing that disputes over whether
particular employees or employers are engaged in an essential
service, which had already been designated as such would be
also determined by the Essential Service Committee (ESC).
Further noted: That s 65 of the LRA prohibits persons striking if
he or she is engaged in an essential service. The minimum
service agreement limits categories of employees designated as
rendering an essential service from restriction imposed by s 65
(1) on the right to strike.
Held: That the LAC found that the CCMA had jurisdiction to
entertain the matter.
Labour Court: JS11/2010
Chilwane v Carlbank Mining Contracts: Judge Bhoola
Practice and procedure – Appeal and review – Fixed term
contract – Employee given alternative position but declined –
Court found dismissal fair – Application dismissed.
The applicant sought relief arising from his alleged unfair
dismissal by the respondent on 13 November 2009. He sought
compensation in the sum of R99 840.00, which represented two
years’ wages. The respondent had made an offer to employ him
at a site other than the one at which he had been employed,
which he rejected. That offer was repeated on the day of the
proceedings and was again rejected by the applicant. The
respondent denied that the applicant was dismissed and alleged
that he was employed on a fixed-term contract which terminated
at the end of a stipulated period. The applicant denied that he
had a written contract and disputed the signature signed on the
contract. He implied that it might have been forged by the
respondent. The applicant claimed that he was dismissed
because he was absent from work attending his brother’s
funeral.
Noted: That the applicant had admitted that he signed the
employment contract under duress as he was desperate work
seeker.
Held: That it was clear that the applicant was on a fixed term
contract that specified expiry date and it terminated
automatically on the expiry date. The termination of a fixed term
contract does not constitute a dismissal.
Also held: That the applicant was not dismissed for absence as
he was attending his brother’s funeral.
Further held: That there was no proof for unfair dismissal,
therefore, the application was dismissed with costs.
October 2010 – Page 5
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By Alucia Mdaka
Constitutional Court: CCT01/09
Netherburn Engineering CC t/a Netherburn Ceramics v
Mudau NO & Others: Judges Langa (Chief Justice),
Moseneke (Deputy Chief Justice), Cameron, Mokgoro,
Ngcobo, Nkabinde, O’Regan, Sachs, Skweyiya, Van der
Westhuizen and Yacoob
Practice and procedure - Appeal and review - Employer seeking
leave to appeal against labour appeal court’s judgment on
constitutionality of Labour Relations Act 66 of 1996 (LRA) seven
years after repeal provision - Ten years after dismissal gave rise
to dispute – Not in interests of justice for court to entertain
appeal as constitutionality of repealed provision academic Dispute between parties moribund.
After her dismissal for misconduct, the respondent employee
referred a dispute to the CCMA. At the arbitration, the applicant
employer was represented by an attorney. The union official
representing the employee objected to legal representation, and
the commissioner upheld the objection. The applicant then
requested a postponement, and it was refused. After the
employer withdrew, the matter proceeded by default, and the
employee was reinstated. On review, the employer contended
that there was no rational basis for the commissioner’s decision
to disallow legal representation and that its constitutional right to
legal representation had been ignored. The Labour Court (LC)
ruled that the commissioner had not misdirected himself by
refusing legal representation, but that the commissioner’s refusal
to postpone the matter had constituted misdirection. The award
was set aside and remitted to the CCMA. On appeal, the Labour
Appeal Court (LAC) upheld the judgment without dealing with
the finding that the award had been set aside on the basis that
the commissioner should have granted a postponement.
The applicant then approached the Constitutional Court (CC) for
relief. The question for determination was whether s 140(1) of
the LRA was constitutional. Another issue was whether it was in
the interests of justice for the Court to entertain the application.
challenged, but since repealed, it may be in the interests of
justice to determine the constitutional challenge if it would have
any practical effect. Given the time that had elapsed since s
140(1) was repealed, determining its constitutionality would have
any effect on pending proceedings. Since rule 25(1) is not in
identical terms to s 140(1), any determination made relating to
the constitutionality of s 140(1) would not be determinative of a
challenge to rule 25(1). It was held that it was not in the interests
of justice for the constitutional point relating to legal
representation before the CCMA. The application for leave to
appeal was dismissed.
High Court: 1672/09
Sibeko v Premier for the Province of the Northern Cape &
Another: Judge Majiedt
Practice and procedure – Terms of reference/ jurisdiction –
Jurisdiction – Dismissed employee seeking to enforce fixed-term
contract that had been allegedly unlawfully terminated - Denied
pre-dismissal hearing – Court lacked jurisdiction - Dispute
essentially concerning unfair labour claim falling under LRA.
The applicant was appointed by the respondents on a fixed-term
contract for five years. Before the contract was signed, he was
suspended from duty pending disciplinary action. The applicant
was later informed that because the written contract had not
been signed, he had been employed on a “month to month”
basis, and that the respondents had decided to terminate his
services. The applicant contended that he had been employed
on a five-year fixed-term contract. He sought orders enforcing
the contract, setting aside the decision to terminate his
employment and interdicting the respondents from filling his
post. The respondent contended that the Court lacked
jurisdiction to entertain the matter. It had adopted the stance that
the applicant was alleging an unlawful dismissal and, therefore,
Court lacked jurisdiction in view of the provisions in ss 157(1)
and 158 of the LRA.
Noted: That more than 10 years had elapsed since the
employee was dismissed, neither the employee nor her union
was represented in the LAC, and neither had they sought to be
represented at the CC. It was noted that it was not clear from the
record before the Court where the blame for the delay lied.
Noted: That the main ground on which the applicant alleged that
his contract had been breached was that he had not been
afforded a hearing before his dismissal. The question, however,
was whether the dispute concerned an alleged unfair dismissal
or an alleged anticipatory breach of the applicant’s contract. The
Court noted that the dispute could be categorised as both.
Held: That s 140(1) was repealed nearly seven years ago and
was replaced by rule 25(1) of the CCMA Rules which gave
commissioners discretion to refuse legal representation in
matters concerning dismissals for misconduct or incapacity. The
Court held that where a legislative provision had been
Also noted: That until the judgment in Chirwa v Transnet Ltd &
Others (2008) 2 BLLR 97 (CC), was hand down, it appeared
settled that the HC had jurisdiction to entertain matters
concerning alleged unlawful terminations of contracts of
employment. However, in Chirwa the Court had taken issue with
October 2010 – Page 6
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the view expressed in Boxer Superstores Mthatha & Another v
Mbenya (2007) 8 BLLR 693 (SCA), in which it was held that if
employees’ actions were formulated as breach of contact claims,
the HC had jurisdiction even though the disputes could have
been referred as unfair labour practice claims. The Court also
noted that the Supreme Court Appeal (SCA) had ruled in
Makhanya v University of Zululand (2009) 8 BLLR 721 (SCA)
that the HC retained jurisdiction even if the claim is bad in law,
and that Chirwa did not preclude the HC from entertaining any
claim, if only to dismiss it. The Constitutional Court had since
endeavored to clarify these issues in Gcaba v Minister of Safety
& Security & Another (2009) 12 BLLR 1145 (CC).
Held: That the issue before the Court was whether jurisdiction
should be determined from the manner in which the applicant’s
claim was formulated, or from the nature of the relief sought. The
applicant had himself stated that the issue of his suspension
was best dealt with under the LRA. Therefore, why his dismissal
should not similarly have been dealt with under the LRA was not
satisfactorily explained. Chirwa had made it clear that dismissed
public servants do not have two causes of action, one arising
under the LRA and the other arising under the PAJA. That view
had been endorsed in Gcaba. The applicant’s cause of action
was the respondent’s failure to afford him a pre-dismissal
hearing. Therefore, he was asserting a claim that he was unfairly
dismissed. The pleadings themselves indicated that the dispute
belonged in the LRA fora, not in a civil court. Furthermore, the
applicant had himself submitted to an internal disciplinary
process, governed by the LRA before turning to the courts. It
was held that the HC, accordingly, lacked jurisdiction. The
application was dismissed with costs.
Case references
Boxer Superstores Mthatha & Another v Mbenya (2007) 8 BLLR
693 (SCA)
Chirwa v Transnet Ltd & Others (2008) 2 BLLR 97 (CC)
Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA)
Fredericks & Others v MEC for Education & Training, Eastern
Cape & Others 2002 (2) SA 693 (CC)
Gcaba v Minister of Safety & Security & Another (2009) 12 BLLR
1145 (CC)
Makhanya v University of Zululand (2009) 8 BLLR 721 (SCA)
Mannya v Premier for the Province of KwaZulu Natal & Another,
case number 6309/2009
Modutte v The Municipal Manager: Sol Plaatje Municipality &
Others, unreported, case number 1637/08
National Union of Mineworkers of SA v Vetsak Co-operative Ltd
& Others 1996 (4) SA 577 (A)
Constitutional Court: CCT33/09
Strategic Liquor Services v Mvumbi NO & Others: Judges
Langa, Moseneke, Cameron, Mokgoro, Ngcobo, Nkabinde,
O’Regan, Skweyiya, van der Westhuizen and Yacoob
Practice and procedure – Appeal and review – Commissioner’s
conclusion that employee was constructively dismissed was
based on employee’s version alone - Employer failed to testify –
Commissioner’s decision unimpeachable on that version - No
grounds of review – Application dismissed.
After receiving complaints from one of its clients about the
respondent employee, the applicant employer gave him a choice
between resigning or being warned and placed on a poor work
performance training programme. The employee chose to resign
because he felt that there was no point to stay as he felt he
would be still dismissed. Three months later, the respondent
commissioner issued an award in which he ruled that the
employee had been constructively dismissed, and awarded him
compensation equal to 10 months’ salary. The employer
promptly filed a review application in the Labour Court (LC),
which was set down for hearing two years later. The presiding
judge dismissed the review application, giving ex tempore
reasons. The applicant asked for written reasons six weeks later,
and filed an application for leave to appeal without having
received them. After that, the employer received a directive to
file written submissions for leave to appeal, with which it
complied. The application for leave to appeal was dismissed 10
months after the ex tempore judgment was handed down. The
employer then petitioned the Labour Appeal Court (LAC) for
leave to appeal. The petition was turned down without reasons
being furnished. The employer then petitioned the Supreme
Court of Appeal (SCA) for leave to appeal to that Court. Despite
its practice of not giving reasons in petitions that were not
argued, the SCA gave reasons because it was concerned that
the petitioner had not had sight of the judgment that was the
subject of the petition. For the employer’s benefit, the SCA
explained that the test for review was narrow, and that having
studied the record the judges were not satisfied that the
commissioner had committed any reviewable breach. The
applicant then sought leave to appeal to the Constitutional Court
(CC).
Noted: That the extraordinary delays the employer had suffered
were cause for concern. The SCA had deplored the “systemic”
delays in the LC. Furthermore, the CC had dealt with a matter in
which the LAC had handed down judgment more than two years
after the matter was argued. The LC’s failure in casu to supply
written reasons for its decision was also lamentable. It was also
noted that parties are entitled to written reasons to assist them to
decide whether to appeal or not. While there was no express
statutory provision requiring judges to hand down written
reasons, their failure to do so frustrated the appeal process and
possibly violated the losing party’s constitutional right of access
to the courts. It was also regrettable that the LAC had failed to
give reasons for dismissing the petition without considering the
reasons of the judge a quo. The Court expressed the hope that
the incidents that marked the course of the applicant’s efforts to
litigate would be “extremely rare”.
Held: That the matter could be swiftly disposed of on the merits.
The applicant’s argument that the employee had freely chosen
to resign could not be accepted because the only version before
the commissioner was that of the employee. On that version, he
had no choice. It was held that the test for constructive dismissal
does not rest on whether the employee had a choice of
resigning or remaining, but on whether the employer had made
the continued employment intolerable. Since the application for
review was misconceived, the application for leave to appeal
October 2010 – Page 7
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had to fail. The application for leave to appeal was dismissed
with costs.
National Bargaining Council for the Clothing Manufacturing
Industry: MEGA23337
UPUSA obo Mpanza v Spectra Creations Worker Cooperative Limited: Panellist Lyster
Substantive fairness in dismissal - Definitions - Member of cooperative deemed employee - Co-operative formed merely to
escape obligations under labour legislation – Found applicant
was employee at time of dismissal.
At the commencement of the hearing, concerning the dismissal
of the applicant employee, the respondent raised the point that
the bargaining council lacked jurisdiction to arbitrate the matter
because the respondent, being constituted as a “worker cooperative” in terms of the Co-operatives Act 14 of 2005 (Cooperatives Act), was not covered by the Labour Relations Act 66
of 1995 (LRA). The employee claimed that she had worked for a
close corporation before the co-operative was formed, and that
she had continued doing the same work, in the same place, for
the same pay. Although she had signed a document in which
she accepted that her former employer would be taken over by a
co-operative, she had no idea what a co-operative was.
Noted: That Co-operatives Act stated that members of cooperatives are not employees as defined in the LRA and the
Basic Conditions of Employment Act 75 of 1997. However, s
200A of the LRA stated that a person is presumed an employee
if he/she satisfies any one of a number of criteria.
worked regular hours and formed part of the respondent’s
structure. They were provided with tools by the respondent, and
were also financially dependent on it.
Held: That the onus rested on the respondent to prove that the
presumption did not apply. All it had done in that regard was to
rely on the fact that it was a co-operative and that the employee
had signed a form acknowledging that the provisions of the LRA
did not apply to her. That was nothing more than prima facie
proof that the council lacked jurisdiction. The form that the
employee had signed only stated that the employee was from a
certain date deprived of the protection of labour legislation. The
commissioner, therefore, accepted that the employee did not
understand the document.
Also held: That a contract which purports to deprive employees
of statutory rights may be declared void ab initio. Since the
respondent had raised the Co-operatives Act, it was desirable to
pierce the corporate veil to establish the true nature and identity
of the employer. It was, therefore, clear that the employer was a
“worker co-operative” in name only and that the sole motive for
its formation was to evade its obligations under labour
legislation. The commissioner found that the applicant employee
was an employee at the time of her dismissal, and was entitled
to refer her dispute to the council. The point in limine was
dismissed.
Case reference
Esterhuizen v Million-Air Services CC (in liquidation) & Others
(2007) 28 ILJ 1251 (LC)
Also noted: That the applicant employee and her fellow
members were subject to the control of their supervisors, they
October 2010 – Page 8
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By Alucia Mdaka
(U2010/8440) Lindsay Wade v Murray Security Services:
Commissioner Roberts
Application for unfair dismissal remedy.
This decision concerned an application lodged on 28 April 2010
by Mr Wade pursuant to s 394 of the Fair Work Act 2009 (the
Act).
Mr Wade entered employment with Murray Security Services
(MSS) as a security guard on 1 May 2008. He was initially
employed on a part-time basis before taking up full-time
employment. Mr Wade was summarily dismissed on 19 April
2010 following alleged threats made by his wife to Mr Lawrence
in a telephone exchange. Mr Lawrence also relied on various
alleged performance issues arising from Mr Wade’s
employment. Mr Wade claimed that he was not guilty of
misconduct and that the termination of his employment was
unfair. Mr Wade did not seek reinstatement to his former or
similar position with the company.
The gist of the case was that a dispute arose over payment by
MSS for the use by Mr Wade of his personal vehicle for work
purposes. That led to a telephone altercation between Mr
Lawrence and Mr Wade’s wife. Mr Wade claimed that he had
been dismissed because his wife stood up for his rights as a
worker. He claimed that he was advised by the Fair work
ombudsman that he had a right to send Mr. Lawrence a bill for
the use of my car at 0.74c km.
Legislative framework
Noted: Section 385 of the Act provides that:
A person has been unfairly dismissed if Fair Work Australia
(FWA) is satisfied that:
•
•
•
•
The person has been dismissed,
The dismissal was harsh, unjust or unreasonable,
The dismissal was not consistent with the Small Business
Fair Dismissal Code (the Code), and
The dismissal was not a case of genuine redundancy.
Summary dismissal
Noted: That it is fair for an employer to dismiss an employee
without notice or warning when the employer believes on
reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct
includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. For a dismissal to be
deemed fair it is sufficient, though not essential, that an
allegation of theft, fraud or violence be reported to the police.
Other dismissal
Noted: That in other cases, the small business employer must
give an employee a reason why he/she is at risk of being
dismissed. The reason must be a valid one based on the
employee’s conduct or capacity to do the job. The employee
must be warned verbally or preferably in writing in order to justify
dismissal if there is no improvement. The small business
employer must provide the employee with an opportunity to
respond to the warning and give the employee a reasonable
chance to rectify the problem, having regard to the employee’s
response. Rectifying the problem might involve the employer
providing additional training and ensuring that the employee
knows the employer’s job expectations.
Procedural matters
Noted: That in discussions with an employee in circumstances
where dismissal is possible, the employee can have another
person present to assist. However, the other person could not be
a lawyer acting in a professional capacity. A small business
employer will be required to provide evidence of compliance with
the Code if the employee makes a claim for unfair dismissal to
FWA, including the evidence that a warning had been issued
(except in cases of summary dismissal). The evidence may
include a completed checklist, copies of written warning(s), a
statement of termination or signed witness statements. It was
noted that it was not disputed that MSS was a small business as
described in the Act, employing fewer than fifteen full time
equivalent employees. Therefore, the commissioner had to
decide if MSS had complied with the Code.
On the merits of the case
Noted: That two witnesses (MSS’s clients) gave evidence that
Mr Wade’s work was satisfactory for the majority of his
employment and that they had never experienced any problems
while working with him.
Also noted: That it does not appear to be in contest that MSS
was a small business employer. It was also not contested that
Mr Wade was a person protected from unfair dismissal in that
October 2010 – Page 9
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his employment exceeded one year and his annual earnings
were less than the high income threshold.
As to when FWA may order remedy for unfair dismissal
Noted: That:
Held: That based on the evidence and materials before the
commissioner held that since Mr Wade was dismissed for
misconduct, he was unable to conclude that misconduct
justifying summary dismissal had occurred. It was held that the
core reason Mr Lawrence terminated Mr Wade’s employment
was the telephone altercation between Mr Lawrence and Mrs
Wade. The alleged performance issues of Mr Wade appear to
have been resolved after he was issued with verbal warnings.
Nothing in the evidence proved on the balance of probabilities,
that Mr Wade was a party to his wife’s regrettable behaviour.
Accordingly, no misconduct by Mr Wade occurred and,
therefore, there was no valid reason for the termination of his
employment.
1.
Subject to subsection(3) of s 390 of the Act, FWA may
order a person’s reinstatement, or the payment of
compensation to a person if:
•
FWA was satisfied that the person was protected from
unfair dismissal at the time of being dismissed, and
The person had been unfairly dismissed,
•
2.
3.
Also held: That the Code was not followed by MSS.
•
As to whether Mr Wade’s dismissal was harsh, unjust or
unreasonable
•
Noted: That s 387 of the Act sets out the criteria for considering
harshness. In considering whether it is satisfied that a dismissal
was harsh, unjust or unreasonable, FWA must take into account:
•
•
•
•
•
•
•
•
Whether there was a valid reason for the dismissal related
to the person’s capacity or conduct (including its effect on
the safety and welfare of other employees),
Whether the person was notified of that reason,
Whether the person was given an opportunity to respond to
any reason related to the capacity or conduct of the person,
Whether there was any unreasonable refusal by the
employer to allow the person to have a support person
present to assist at any discussions relating to dismissal,
If the dismissal related to unsatisfactory performance by the
person, whether the person had been warned about that
unsatisfactory performance before the dismissal,
The degree to which the size of the employer’s enterprise
would be likely to impact on the procedures followed in
effecting the dismissal,
The degree to which the absence of dedicated human
resource management specialists or expertise in the
enterprise would be likely to impact on the procedures
followed in effecting the dismissal, and
Any other matters that FWA considers relevant.
Held: That it was apparent from the materials and evidence that
Mr Wade was notified of the reason for the termination of his
employment. However, he was not given an opportunity to
respond to the allegations. The degree to which the size of the
employer’s enterprise would be likely to impact on the
procedures followed in effecting Mr Wade’s dismissal was a
significant factor. Therefore, the commissioner was satisfied that
the dismissal of Mr Wade by MSS was harsh and unjust.
FWA may make the order only if the person has made an
application under s 394.
FWA must not order the payment of compensation to the
person unless:
FWA was satisfied that reinstatement of the person was
inappropriate, and
FWA consideration of an order for payment of
compensation was appropriate in all the circumstances of
the case.
Held: That since Mr Wade had not sought reinstatement, the
respondent was ordered to pay him compensation amounting to
$4 000. It was held that considering the fact that the respondent
was a small enterprise, the amount was to be paid in four
instalments in terms of s 393 of the Act.
(B2010/3328) National Union of Workers v SKF Australia
(Pty) Ltd: Commissioner Lewin
Proposed protected action ballot by employees of SKF Australia
(Pty) Ltd – Good faith bargaining – Had been and was genuinely
trying to reach agreement.
The decision was related to an application by National Union of
Workers (NUW) for a protected action ballot order pursuant to s
437 of the Act in relation to employees of SKF Australia Pty Ltd
(SKF).
SKF submitted that there was a gap of five weeks from 13 July
2010 to 17 August 2010, between a communication in relation to
negotiations between the parties for an enterprise agreement
from SKF to NUW. It also submitted that NUW did not comply
with the good faith bargaining provisions of the Act. It argued
that because of that gap, NUW could not discharge the onus to
satisfy the requirement of s 443(1) (b) of the Act.
The hearing was adjourned and recommenced on Monday 23
August 2010. Between the dates of the first and second
hearings, NUW, on 19 August 2010, responded in writing to the
letter of SKF of 13 July 2010. At the second hearing on 23
August 2010, SKF submitted that not only was the reply
inadequate, but that the reply did not alter the fact of the five
weeks gap of silence between the issuance of their letter of 13
July 2010 and the filing of the application.
SKF further submitted that in those circumstances, it could not
be said that the statutory requirements of s 443 of the Act had
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been met because an order pursuant to s 443 of the Act must
only be issued if NUW had been and was genuinely trying to
reach an agreement with the employer of the employees to be
balloted.
NUW had provided information concerning the history of the
relevant bargaining between them and SKF for a proposed
enterprise Agreement. NUW stated that they had communicated
with SKF concerning the letter of 13 July 2010 by telephone but
did not deny that no written response to the letter had been
made prior to the filing of the application for the protected action
ballot order. However, SKF contended that the communication
by telephone referred to by NUW did not comply with the
requirements of s 228 of the Act because it constituted an
expression of intention to seek a protected action ballot order
and a willingness to meet for negotiations rather than a
considered and reasoned response to the letter of 13 July 2010.
Noted: That FWA must make a protected action ballot order in
relation to a proposed enterprise agreement if:
•
•
An application had been made under s 437, and
FWA was satisfied that each applicant had been, and was,
genuinely trying to reach an agreement with the employer
of the employees who are to be balloted.
It was noted that FWA must not make a protected action ballot
order in relation to a proposed enterprise agreement except in
the circumstances referred to in subsection(1).
Also noted: That in Total Marine Services Pty Ltd v Maritime
Union of Australia (C2009/10480), the Full Bench of FWA had
determined that while the conduct of an applicant for a protected
action ballot order in relation to good faith bargaining was a
relevant consideration for the purpose of s 443(1) (b) of the Act,
it was not appropriate to equate the concepts of “good faith
bargaining” and “genuinely trying to reach agreement”.
Further noted: That the words “has been and is genuinely trying
to reach agreement”, should be given their ordinary everyday
meaning and should not be equated with the terms of a statutory
concept and prescription of the requirements of “bargaining in
good faith”, in the manner in which the respondent was
contending. The question was whether what NUW was trying to
do as an employee bargaining agent was to reach an agreement
in relation to the terms of a proposed enterprise agreement
between SKF and its employees and whether it was genuine in
that regard.
Furthermore, an applicant for a protected action ballot order
must be genuinely trying to reach agreement with the relevant
employer at the time an application for an order is made and at
the time the Tribunal determines whether or not the applicant is
genuinely trying to reach agreement. An applicant for a
protected action ballot order cannot rest on their laurels as at the
time the application for the order is made and must, up until the
Tribunal is required to determine the application, continue to be
genuinely trying to reach agreement. That means the application
must be determined taking into account the pre-application
history of the applicant’s attempts to reach agreement and any
relevant consideration between the time the application is made
and the determination of the application.
Held: That notwithstanding the lack of response complained of
by SKF in relation to its letter of 13 July 2010 until 19 August
2010, NUW had been and was genuinely trying to reach
agreement with SKF in relation to a proposed enterprise
agreement. The commissioner had arrived at that conclusion
having regard to all the circumstances of the negotiations and
communications between NUW and SKF including the alleged
deficiencies in the good faith bargaining conduct of NUW
between the letter of SKF dated 13 July 2010 and the date of
filing of the application.
Further held: That notwithstanding the alleged imperfection of
good faith bargaining relied upon by SKF, even if properly
characterised as a failure or lapse of good faith bargaining by
NUW under the provisions of s 228 of the Act, taking all the
relevant circumstances into account, both as at the time the
application was made and up and until 23 August 2010, NUW
had been and was genuinely trying to reach agreement with
SKF.
Case reference
Total Marine Services Pty Ltd v Maritime Union of Australia
(C2009/10480)
(B2010/3177) Australian Municipal, Administrative, Clerical
& Services Union v AIDS Housing Action Group of Victoria
Inc: Commissioner Gooley
Application for a majority support determination.
On 6 July 2010 the Australian Municipal Administrative Clerical
and Services Union (ASU) applied pursuant to s 236 of the Fair
Work Australia Act 2009 (the Act) for a majority support
determination. It sought a determination that majority of the
employees who will be covered by a proposed single-enterprise
agreement to be made with AIDS Housing Action Group of
Victoria Inc (AHAG) wish to bargain with their employer. The
application was not opposed by the employer.
Noted: That ss 236 and 237 of the Act set out the requirement
for the making of a majority support determination as follows.
Section 236, Majority support determinations
(1) A bargaining representative of an employee who will be
covered by a proposed single-enterprise agreement may
apply to Act for a determination (a majority support
determination) that a majority of the employees who will be
covered by the agreement want to bargain with the
employer, or employers, that will be covered by the
agreement.
(2) The application must specify:
October 2010 – Page 11
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•
•
The employer, or employers, that will be covered by the
agreement, and
The employees who will be covered by the agreement.
Section 237, When Fair Work Australia (FWA) must make a
majority support determination
Majority support determination
(1) FWA must make a majority support determination in
relation to a proposed single-enterprise agreement if:
•
•
An application for the determination had been made, and
FWA was satisfied of the matters set out in subsection (2)
in relation to the agreement.
Matters of which FWA must be satisfied before making a
majority support determination
(2) FWA must be satisfied that:
•
(i)
(ii)
a majority of the employees,
Who are employed by the employer or employers at a
time determined by FWA, and
Who will be covered by the agreement,
Want to bargain
•
•
•
The employer, or employers, that will be covered by the
agreement have not yet agreed to bargain, or initiated
bargaining, for the agreement, and
That the group of employees who will be covered by the
agreement was fairly chosen, and
It is reasonable in all the circumstances to make the
determination.
(3) For the purposes of paragraph (2) (a), FWA may work out
whether a majority of employees want to bargain using any
method FWA considers appropriate. If the agreement will
not cover all of the employees of the employer or
employers covered by the agreement, FWA must, in
deciding for the purposes of paragraph (2) (c) whether the
group of employees who will be covered was fairly chosen,
take into account whether the group is geographically,
operationally or organisationally distinct.
Also noted: That on 22 September 2009, ASU wrote to AHAG
to initiate bargaining for an agreement. ASU wrote again on 7
April and 24 May 2010 noting that there had not been a
response to the earlier correspondence and advised them of the
views of the employees. Attached to the letter was a petition
signed by four employees dated 15 May 2010 which stated as
follows:
“We the undersigned workers of the AHAG respectfully
requested that it immediately begin Enterprise bargaining with
the ASU”.
On 7 June 2010 AHAG advised ASU that the committee of its
management would discuss their request at their meeting on 8
June 2010. Having received no further response from AHAG the
application was launched.
Further noted: That at the hearing, Mr Price, on behalf of
AHAG, had advised that having considered ASU
correspondence, the committee decided to seek to transition
their staff to another agency because their governance capacity
was limited.
Held: That from the petition, it was clear that a majority of
employees wished to bargain and there was no dispute that
AHAG had not agreed to bargain, or initiated bargaining, for an
agreement. Furthermore, as there were only four employees,
there was no issue that the group who will be covered by the
agreement was fairly chosen. Accordingly, on the basis of the
material submitted before the commissioner, it was held that
there was majority support of the employees and, therefore, a
determination had been issued.
(RE2010/3518) The Australasian Meat Industry Employees
Union, v Somerville Retail Services: Commissioner Roe
Section 505 of Fair Work Australia Act 2009 (the Act) Application to deal with a right of entry dispute - Alleged dispute
concerning meeting venue for bargaining discussions.
The dispute was related to the requirements imposed by the
employer when an Australian Meat Industry Employees Union
(AMIEU) organiser who was a permit holder under the Act
entered the premises of the employer for the purpose of holding
discussions with members of AMIEU, or those eligible to
become members of AMIEU.
AMIEU contended that the employer’s arrangements were not
reasonable and fair. The union argued that the training room was
not big enough to accommodate their members as it
accommodated only 12 people seated and was, therefore, not fit
for the purpose of their meetings with the number of employees
potentially involved. However, the employer argued that the
arrangements were reasonable and fair as the training room
accommodated 25 to 30 people “comfortably” of whom
approximately 15 would be able to be seated.
The employer argued that it had rejected the request of AMIEU to
use the meal room because it regarded the training room as a
reasonable location and that non-union employees did not want
AMIEU to meet with non-unionised employees in the lunch room.
However, there were no details given of the objection of
employees. The employer submitted that if the discussions were
held in the meal room, that might deny employees who do not
wish to meet with the union organiser the ability to enjoy the use of
the meal room.
Noted: That the Fair Work Australia must not confer rights on a
permit holder that are additional to, or inconsistent with, rights
exercisable in accordance with Division 2 or 3 of this Part,
unless the dispute is about whether a request under ss 491, 492
or 499 of the Act is reasonable.
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Also noted: That the training room could accommodate between
12 to 15 people seated and 20 to 25 people in total although the
room would be crowded. Based on the observations made during
the inspection, it was held that the area of the meal room was
bigger than that of the training room. There was no doubt that the
50 employees who would be the maximum who would be in the
meal room at any meal time could be comfortably accommodated
and that the organiser could hold discussions with employees
without causing undue disruption. It was noted that both the
training room and the meal room had adequate facilities for the
holding meetings. It was noted that meal room had in the past
been used for management briefings to the entire workforce
present on a shift.
Held: That there was no sufficient basis to conclude that access to
the meal room for right of entry discussions would cause or would
be likely to cause any significant inconvenience or disruption to the
business. The commissioner also held that there was no basis to
conclude that AMIEU would not respect the wishes of employees
who stated when approached by AMIEU organiser that they did
not wish to have discussions with AMIEU organiser. The union
organiser gave evidence that he would respect the wishes of
employees as to how he conducted himself during right of entry
access to the meal room if it was granted.
Also held: That having found that the request was reasonable
and that the parties had agreed that there was only one
alternative location which was the lunch or meal room, the
commissioner ordered that the access be in the lunch or meal
room. The commissioner also held that since the employer had
argued that the access in the lunch or meal room was likely to
cause inconvenience or disruption to non-unionise employees
he had advised that the employer can seek variation to these
orders or relisting of the matter in the event that undue
inconvenience to the business could be demonstrated in the
future.
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23rd ANNUAL LABOUR LAW CONFERENCE:
11 – 13th AUGUST 2010 (HELD AT THE SANDTON CONVENTION CENTRE, JOHANNESBURG
By Alucia Mdaka
This year, the 23rd annual labour law conference held at the Sandton Convention Centre, Johannesburg on 11 to 13 August 2010,
focused on “Justice on the Job”. The reason for focusing on this theme, according to the organising team, was due to the fact that it
seems as there is an anxiety and frustration in many workplaces about the fairness of the employment relationship. It was indicated
that high executive salaries, drastic restructuring, uncertainty about the future, energy and other resources shortages are amongst
other things that create general discontent and concerns.
The conference was jointly organised by the institute of Development and Labour Law (University of Cape Town), Centre of Applied
Legal Studies (University of Witwatersrand), The Faculty of Law (University of Kwazulu-Natal and facilitated by Butterworths, a
member of LexisNexis group. The honourable Mr Justice Dustan Mlambo, Judge President of the Labour Appeal Court (LAC), made
an official opening and welcomed everyone at the conference.
The topics presented at the conference covered aspects such as:
•
•
•
•
Energy crisis: The impact on employment,
NEDLAC’s role in achieving justice on the job,
Job insecurity and Business Distress, and
Striking a Chord in the Quest for Organisational Rights: the SACCAWU v Woolworths.
The above presentations were delivered by various speakers including, Mr Herbert Mkhize from National Economic Development
and Labour Council,(NEDLAC) Dr Mariam Altman, Ms Nerine Kahn and Mr Afzul Soobedaar, Mr Jeremy Daphne and Mr Kaizer
Thibedi, where they made their presentation jointly. The Honourable Membathisi Mdladlana, the Minister of Labour also addressed
the delegates on the second day of the conference, focusing on what is currently happening on labour market, including issues such
as labour brokers, the role of labour inspectors etc.
During the course of the conference, various workshops were held, with delegates attending those that were of their interest. Topics
that were presented included:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Collective bargaining and the right to strike: What is a matter of mutual interest?
Public Sector: Case and Legislative update.
Second-generation outsourcing: Did the LAC get it right?
After Edcon case: How do you determine a fair sanction?
Incompatibility and the “difficult” employee.
Fairness in appointments, promotion and probation.
Strike, avoidance: How to develop an effective strike avoidance strategy.
Representing a colleague at a disciplinary hearing: limits, danger and rights.
Getting clarity: The difference between compensation, damages and back-pay.
Income inequality: Executive salaries and pay discrimination.
Outsourcing: Where does justice lie?
The Role of Employment Service in Employment Promotion.
Dealing with racism and racial harassment, and
Challenging the employer’s discretion, with a case study on performance appraisal.
For the benefit of our readers, some of the presentations from the conference have been summarised in this publication.
October 2010 – Page 14
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A DISCUSSION ON THE MEANING OF THE CONCEPT OF MATTER OF MUTUAL INTEREST IN THE CONTEXT OF THE
RIGHT TO STRIKE
Presented by Khadia Quick
Summarised by Alucia Mdaka
Introduction
The presenter, in presenting her paper indicated that the right to
strike is one of the various rights that an employee may exercise
in terms of the Labour Relations Act 66 of 1995 (LRA). This right
is in part based on the fundamental concept of a matter of
mutual interest. The concept of a matter of mutual interest goes
to the heart of the definition of a strike, as it effectively creates
the parameters for the type of disputes or grievances that an
employee may strike on or refer to conciliation. Its meaning is,
therefore, central to the entire dispute resolution process as
contemplated in the LRA. The LRA does not provide for a
definition of this concept and one is left to interpret it in the
context in which it is found. The definition of a strike refers to this
concept and it is defined as:
“Partial or complete concerted refusal to work, or the retardation
or obstruction of work, by persons who are or have been
employed by the same employer or by different employers, for
the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between employer and
employee”.
An employee could, therefore, exercise his/her right to strike in
respect of a grievance or dispute relating to a matter of mutual
interest, provided the dispute cannot be resolved by way of
arbitration or adjudication. Not only does this concept underpin
the grievances or disputes that an employee may strike on but it
also limits the matters that may be referred to conciliation as
contemplated in s 134 of the LRA. It is, therefore, imperative for
both the employer and the employee to understand its meaning
in order to follow the correct dispute resolution process.
She also indicated that the legislature drafted this concept in
very wide terms which has had the effect of varying
interpretations by courts. The unfortunate effect of a wide
concept of this nature is that employees may then strike on
irrational or unattainable demands that do not directly arise out
of the employment relationship. It has been said that one of the
purposes of the inclusion of this concept in the definition of strike
is to separate matters that are distinct to the employment
relationship from those that are socio-economic or political in
nature. An employer should not be in a situation where it is faced
with a strike as a result of a political decision. However, the wide
interpretation of this concept could potentially lead to an
interpretation by a court that includes socio-economic or political
issues. The lack of a concrete definition would then have the
effect of hindering an employer’s ability to run its business
without having to deal with unreasonable and irrational disputes
for which an employee can strike, as their dispute would fall
within the wide interpretation of a matter of mutual interest.
Until such time that a definition of this concept is included in the
LRA, the courts will be forced to come up with various
interpretations that may be based on subjective ideas of what
should be included in the definition of a strike. At the end of the
day, the right to strike should not be exercised by an employee
or condoned by a court without due consideration for the rights
of both the employee and the employer. It is, therefore,
imperative that a court, more specifically the Labour Appeal
Court (LAC), consider adopting a test (the mutual interest test)
that seeks to create a distinction between what were traditionally
considered “mutual interest” rights and mutual interests that are
contemplated in ss 213 and 64 of the LRA.
In applying the mutual interest test, the Court would then ask
itself whether the dispute related to a dispute in respect of socioeconomic or political issues or whether the dispute was a matter
of mutual interest that directly concerns the employment
relationship. By passing the dispute through the socio-economic
and political phases of the test the Court would decrease the
prejudice to the employer and ultimately give effect to what was
contemplated in s 64 of the LRA. A socio-economic issue
should, therefore, not be considered a matter of mutual interest
and should not be an issue that an employee may exercise
his/her right to strike. Should the matter not be considered one
that is socio-economic or political in nature and it concerns the
employment relationship, then it will be a matter of mutual
interest but not necessarily a strikeable matter of mutual interest.
The Court would then apply the overall consideration of whether
the demand is attainable by the employer. This consideration
would then assist the court in determining whether the
employees may embark on a strike in respect of a matter of
mutual interest. It is important to note that a dispute that is one
of mutual interest, as determined by this test, may still have
socio-economic or political undertones. This would, however, be
something the Court would consider in the phases of this test.
A reflection on the various decisions of the Courts before and
after the enactment of the LRA will highlight the need for a test
October 2010 – Page 15
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or approach for dealing with matters of mutual interest as
contemplated in s 213 of the LRA.
Judicial interpretations, Pre and Post of the LRA
She mentioned that even prior to the enactment of the LRA, the
courts were not guided by the legislature in so far as the
meaning of the concept of a matter of mutual interest is
concerned. During the era of the 1937 Act the Court interpreted
this concept in the context of an application for a declaration of
rights in terms of an industrial agreement in respect of the motor
industry. In Rand Tyres & Accessories (Pty) Ltd v Industrial
Council for the Motor Industry Transvaal (2005) 14 HC 9.5.1, the
second applicant argued that the regulation of trading hours was
not a matter of mutual interest but a trade policy and should,
therefore, not form part of the industrial agreement concluded
between employer and employee. The Court held that there was
no reason why a matter of trade policy should not be of mutual
interest to employers and employees. Whatever can fairly and
reasonably be regarded as calculated to promote the well-being
of the trade concerned must be of mutual interest to them, and
there can be no justification for restricting in any way powers
which the legislature had been at the greatest pains to frame in
the widest possible language.
This is in itself a very broad interpretation but would at least give
the parties some of direction when referring a dispute. This
appears to be the correct interpretation based on the facts of the
case, as an issue with regard to the working hours of any
employee will all most always be a condition of employment and,
therefore, a matter of mutual interest to the employer and
employee.
As discussed above, the LRA refers to the concept of a matter of
mutual interest in respect of the right to strike and it is this
concept that forms the basis for which an employee can refer a
dispute and possibly embark on a strike. It is, therefore,
essential that both the employer and the employee and any
adjudicating body, especially the CCMA, understand what a
matter of mutual interest is in order to deal with a dispute in the
correct manner. It appears that the courts have been unanimous
in their approach with regard to the wide interpretation of this
concept. The example that she gave was the cases of Gauteng
Provinsiale Administrasie v Scheepers & Others (2000) 7 BLLR
756 (LAC), HOSPERSA & Another v Northern Cape Provincial
Administrator (2000) 21 ILJ 1066 (LAC) and Ceramic Industries
Ltd t/a Betta Sanitary Ware v National Construction Building &
Allied Workers Union & Others (1997) 18 ILJ 716 (LC).
The consensus amongst the courts to have interpreted this
phrase widely did not necessarily mean that the outcome of such
interpretation was similar in any manner. It would appear that
there is a false sense of uniformity in the decisions of the courts
when the outcome and interpretation of their decisions are vastly
different. One is, therefore, challenged with applying the laws by
making use of judicial precedence that are, with respect, not
always correct. Perhaps if the courts had an established test or
approach to employ, there would be more uniformity in the way
this concept is and has been interpreted.
In Greater Johannesburg Transitional Metro Council & Others v
IMATU & Another (2001) 9 BLLR 1063 (LC), the Court was
required to determine whether one of the several disputes for
which the trade union sought to strike was a matter of mutual
interest as contemplated in s 213 of the LRA. In this instance,
the union had taken issue with the Metro Council’s privatisation
plan called “Egoli 2002” in that, that plan ignored the socioeconomic impact and effect of job security on its members.
Furthermore, the union demanded that all employees,
transferred as a result of the plan and in terms of s 197 of the
LRA, be guaranteed employment until they reach pensionable
age. The employer argued that some of the union’s members
were already transferred to other employers and that the
demands that the union tabled did not relate to job security but
were issues of a socio-economic or political nature and,
therefore, not a matter of mutual interest. The applicants went
further to argue that the union’s demands were not capable of
being met and were irrational, impermissible or potentially
impossible and should therefore be prohibited.
The Court held that the LRA does not contain a definition of
mutual interest. Therefore, the two demands in question
(transfers and job security) fell within the meaning of mutual
interest, since they are related to the terms and conditions of the
contracts of employment of the respondents’ members with the
applicants.
She emphasised that the Court had ultimately came to this
conclusion because the demands were severable from the
underpinning socio-economic issues. However, if the Court
applied the mutual interest test this dispute may have failed in
phase one as it would have been considered a dispute that is
socio-economic in nature. It cannot be correct that a dispute falls
within the concept of a matter of mutual interest just because it
relates to a term and condition of employment. There are various
socio-economic obligations that an employer may have that
ultimately affect an employee’s condition of employment.
The Court also held that apart from s 65(1)(c) of the LRA, there
are no express limitations on the kinds of disputes of mutual
interest in respect of which employees may engage in strike
action. This might be a cause of concern as one can imagine
many situations where employees may put forward absurd and
unreasonable demands.
She mentioned that the concerns raised by the Court go to the
heart of the point that she was trying to illustrate in this paper.
The fact that there is no real limitation on the right to strike
coupled with the lack of a definition of what is a matter of mutual
interest may lead to instances where the employer is prejudiced.
Whilst the right to strike is a constitutionally enshrined right, it
should not be as easily accessible as it is now due to the unclear
interpretation of the concept of a matter of mutual interest.
Despite the courts concerns mentioned above, it still interpretes
the concept widely which ultimately lead to the employees being
allowed to strike on an issue that was most probably not a
matter of mutual interest.
October 2010 – Page 16
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It is clear from the courts own analysis that an established
approach or test with regard to disputes of mutual interest would
have provided the Court with a clearer understanding of this
concept and that it would have qualified its view in respect of the
absence of a limitation on the kinds of disputes that are of
mutual interest and that an employee may strike on. As a result,
the employee would not be in a position to strike on issues of
political or socio-economic in nature. Moreover, in instance
where an employee declares a dispute that is irrational or
incapable of performance the court would consider the
overriding consideration of the employer’s attainability and
prohibit the strike. The fact that a dispute in which a union
wishes to strike can be considered irrational and absurd should
also form part of the court’s consideration in granting an interdict
to an employer faced with a strike.
The Court was more recently challenged with correctly
interpreting the concept of “a matter of mutual interest” in
Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport
& Allied Workers Union & Others(2009) 30 ILJ 1099 (LC). The
issue before the Court was whether employees could strike in
support of a demand for an increased equity shareholding in
their employer which was being offered to them in terms of an
employee share ownership plan. The Court also had to consider
whether their demand was lawful and whether it constituted a
matter of mutual interest between the employer and the
employee. The Court had considered the definition of the word
“mutual”. The Court was of the view that where the employer
offers a percentage equity shareholding in itself to its employees
to be acquired by the employees at an agreed price, subject to
very clearly specified conditions for such acquisition, and the
employees accept such offer the whole scheme of arrangement
becomes a matter of mutual interest between the employer and
the employee.
The Court went on to reject the applicant’s argument that for a
dispute to be one of mutual interest it would have to do with the
employment relationship, in that it was concerned with the terms
and conditions that governed the performance of work and
reward. The Court also viewed that that concept needed to be
interpreted broadly in light of the wide and open definition of
term issues in dispute. It was further of the court’s view that a
demand may still be a matter of mutual interest even if it was not
a term and condition of employment and that such a demand
would create new employment rights. It should, therefore, not
matter whether it was offered as part of an employee’s
conditions of employment.
The presenter argued that she was not entirely convinced that
the Court dealt with this matter correctly. Her argument was
based on the fact that the implications of an interpretation of the
concept, that included a demand for shareholding in an
employer, were far reaching especially in instances where the
offer is not made as a condition of employment. In her view this
is a clear example of a matter that is socio-economic in nature
being incorrectly classified as a matter of mutual interest. The
adoption of the mutual interest test would in all likelihood have
lead the Court to a different decision and the employees would
not be in a position to embark on a strike. The employer made
an offer for the acquisition of shares to its employees as a result
of a social obligation that they were trying to fulfill. According to
the presenter, the offer was meant to form part of their
employee’s remuneration or be incorporated into their contracts
of employment. She accepted that the offer was made to them
by virtue of the employment relationship but argued that that
factor alone is not sufficient for this issue to be considered one
of mutual interest.
Effects of the broad interpretation
Quick indicated that that the above cases are illustrative of the
outcome of a court’s decision to interpret the concept of a matter
of mutual interest in wide terms. While is being appreciated that
the fact that the concept is phrased quite broadly, there should
be some form of limitation on it in the context of the employer’s
right not to have to unreasonably suffer from a strike. The
distinction between disputes relating to a matter of mutual
interest and those relating to socio-economic or political issues
should always be considered by the courts. A test must,
therefore, be adopted to ensure that matters that are not matters
of mutual interest are not incorrectly catergorised as matters of
mutual interest. For example, in Greater Johannesburg
Transitional Metro Council, the Court did not give sufficient
weight to the socio-economic reasons for which the employer
embarked on Egoli 2002 and perhaps if it did so it would not
have considered the dispute one of mutual interest.
With regard to Itumele, the company was trying to attain the
social objectives as required by the Broad Based Black
Economic Empowerment governmental objectives by offering a
share scheme to its employees. The facts of this case are not as
clear as made out by the Court when the basis for offering the
shares was not to improve the rewards for employment. One
cannot equate shares offered in this manner or for the reasons
that they were offered the shares as part of remuneration. In
most instances, if shares are offered as part of remuneration it is
specifically stated in the employment contract or it may become
a term of employment after the conclusion of the employment
contract but is usually linked to performance. The point is that
both the employer and the employee wish to deal with the offer
as a term of the employee’s employment contract.
There have been various examples of how the absence of a
definition and the existence of a broad interpretation of this
concept have lead to parties being subject to the incorrect
dispute resolution process. In De Beers Consolidation Mines Ltd
v Commission for Conciliation, Mediation & Arbitration (2000) 5
BLLR 587 (LC). the conciliator incorrectly completed the
certificate of outcome of dispute referred to conciliation to
indicate that the dispute was a matter of mutual interest.
Although the union was not given the right to strike as the Court
ruled that the certificate be corrected the interpretation given to
the phrase by Pillay AJ is indicative of the problems in the wide
interpretation of this concept, as according to her interpretation
of this concept a matter of mutual interest relates to any issue
concerning employment.
October 2010 – Page 17
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The LC in the matter of TSI Holdings (Pty) Ltd & Others v
NUMSA & Others 2004 13 LC 9.5.1 dealt with the issue that was
recorded incorrectly as a matter of mutual interest when the
union claimed the dispute referred to victimisation. Although the
issue in this case revolved around whether a demand to have a
manger dismissed was lawful the Court briefly reiterated the
position in Rand Tyre and relied on a broad interpretation of the
concept of a matter of mutual interest.
provided the dispute cannot be referred to arbitration or
adjudication in terms of the LRA. The adoption of a test or
approach that assists the Court in distinguishing between
disputes pertaining to those socio-economic or political in nature
and those that are matters of mutual interest is important to
create uniformity and clarity in the view held by the courts in
respect of the meaning of matters of mutual interest. The
alternative would be for the legislature to define this highly
contentious concept.
Conclusion
Reference
The drafters of the LRA included the words a matter of mutual
interest in the definition of a strike purposefully in order to limit
the disputes or grievances that an employee may strike on. To
state that a matter of mutual interest relates to any issue
concerning employment would create a system where
employees can strike on all issues irrespective of their nature
Quick. A: A discussion on the meaning of the concept of a
matter of mutual interest in the context of the right to strike.
Presentation made at the 23rd Annual Labour Law Conference, 1113 August 2010. South Africa.
October 2010 – Page 18
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DEALING WITH RACISM AND RACIAL HARASSSMENT
Presented by Professor Rycroft & Mudely
Summarised by Alucia Mdaka
Introduction
The presenters introduced the papers by mentioning that the
presentation will cover the following:
•
•
•
•
•
•
•
The meaning behind the terminology: racism and racial
harassment,
The underlying constitutional principles: Equity, dignity, and
freedom of expression,
The legislative background,
Forms of racism and racial harassment,
The liability of the employer,
Establishing racial harassment, and
Appropriate employer responses.
The meaning behind the terminology: Racial discrimination
The presenters indicated that the United Nations Conventions
for the Elimination of all Forms of Racial Discrimination, defines
racial discrimination as any distinctions, exclusion, restriction or
preference base on race, colour, descent, or national or ethnic
origin which has the purpose of effect of nullifying or impairing
the recognition, enjoyment or exercise on an equal footing of
human rights and fundamental freedoms in the political,
economic, social, cultural and any other field of public life. Issues
such as disproportional wage differentials, non-appointment due
to race, misapplication of affirmative action policies, racist
remarks, racist cartoons etc, are some of the allegations of racial
discrimination being alleged recently.
Distinction between racial discrimination and racial
harassment
They indicated that the different between racial discrimination
and racial harassment is that, racial discrimination involves an
act or omission, whether official or uniformed which differentiate
on the basis of race, whilst racial harassment a form of social
behaviour, either by employer or employee, that is intended to
belittle, marginalise, coerce, manipulate, intimidate or take
advantage of persons belonging to a particular race.
Racial harassment: The legislative background
Rycroft and Mudely indicated that they will focus on the
Employment Equity Act 55 of 1998 (EEA) and Promotion of
Equity and Prevention of Unfair Discrimination Act 4 of 2000
(PEPUDA) to understand the legal framework for the protection
of employees and non-employees from racism.
EEA (applies to workplaces)
Section 6(1) of the EEA prohibits unfair discrimination whether
directly or indirectly on grounds of race, ethnic or social origin,
colour, culture, language etc. Section 6(3) provides that
harassment of an employee is a form of unfair discrimination and
is prohibited on any one, or a combination of grounds of unfair
discrimination listed in s 6(1).
PEPUDA (applies outside workplaces)
Prohibition of unfair discrimination on ground of race
Subject to s 6, no person may unfairly discriminate against any
person on the ground of race, including(a) The dissemination of any propaganda or idea, which
propounds the racial superiority or inferiority of any person,
including incitement to, or participation in, any form of racial
violence,
(b) The engagement in any activity which is intended to promote,
or has the effect of promoting, exclusivity, based on race,
(c) The exclusion of persons of a particular race group under any
rule or practice that appears to be legitimate but which is actually
aimed at maintaining exclusive control by a particular race
group,
(d) The provision or continued provision of inferior services to
any racial group, compared to those of another racial group, and
(e) The denial of access to opportunities, including access to
services or contractual opportunities for rendering services for
consideration, or failing to take steps to reasonably
accommodate the needs of such persons.
Prohibition of harassment
No person may subject any person to harassment. The
presenters gave the definition of harassment as unwanted
conduct which is persistent or serious and demeans, humiliates
or creates a hostile or intimidating environment or is calculated
to induce submission by actual or threatened adverse
consequences and which is related to:
October 2010 – Page 19
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(a) Sex, gender or sexual orientation, or
(b) A person's membership or presumed membership of a group
identified by one or more of the prohibited grounds or a
characteristic associated with such group.
Forms of racism and racial harassment
Derogatory language
The presenters indicated that in being required to uphold the
Constitution of the Republic of South Africa Act 108 of 1996
(Constitution) and the human rights entrenched in it, the courts
are enjoined to play a particularly critical role, among others, the
fight against racism, racial discrimination and the racial abuse of
one race by another. The role of the LC and the LAC court is
particularly important in the field of labour and employment.
These two courts have a significant impact in almost every
workplace throughout the breadth and the length of the countryin offices, in shops, in factories, on farms and elsewhere. Within
the context of labour and employment disputes the LAC and the
LC will deal with acts of racism very firmly. This was so because
the decisions of Lebowa Platinum Mines Limited v Hill (1998) 19
ILJ 1112 (LAC), and Crown Chicken (Pty) Limited t/a Rocklands
Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC). It was held
that this will show not only the LAC and the LC's absolute
rejection of racism but it will also show the revulsion at acts of
racism in general and acts of racism in the workplace in
particular. This approach will also contribute to the fight for the
elimination of racism in general, and racism in the workplace in
particular, and will help to promote the constitutional values
which form the foundation of the society.
Labelling certain groups of people
This arose in the case of Oerlikon Electrodes SA v CCMA &
Others (2003) 24 ILJ 2188 (LC). In this case, the respondent
employee had been dismissed after being found guilty of using
abusive language. He had verbally abused a repairman by, inter
alia, calling him a “fucking dutchman”. The CCMA commissioner
found that, although the infraction committed by the employee
had racial overtones, his dismissal did not fit the offence. The
commissioner, accordingly, found his dismissal to be
substantively unfair and reinstated the employee retrospectively.
On review, the LC noted that the employee had conceded that
he had called the repairman a “dutchman” and that the word was
derogatory. He contended at the arbitration that he had been
provoked when the repairman had called him a “koelie”.
However, it was clear that at the disciplinary hearing, the
employee had admitted that the repairman had only called him a
“koelie” after he had called him a “dutchman” and a “white
supremacist”. In determining the issue, the Court adopted the
approach followed by the LAC in Crown Chickens (Pty) Ltd t/a
Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC),
that any use of racial epithets in the new South Africa should
lead to the dismissal, and the employees was found guilty of
such conduct. The commissioner’s award was, therefore,
reviewed and set aside and it was found that the dismissal was
for a fair reason.
Name calling
Words and phrases that imply or infer certain characteristics or
negative perceptions were dealt with in the case of South African
Transport & Allied Workers Union obo Finca v Old Mutual Life
Assurance CO (SA) Ltd & Another (2006) 27 ILJ 1204 (LC) and
also in Fester v AVR Labour Outsourcing (2007) 28 ILJ 1349
(CCMA). In SATAWU’s decision, the second respondent,
following the rearrangement of workstation, she had complained
to her supervisor about being placed next to “Kafir”. The union
sought relief in terms of s 50(2) of the EEA to compel the
company to take steps to prevent similar discrimination occurring
in the future and to report thereon to the LC within a specified
time. The Court noted that the undisputed evidence was that
there was no lack of training in this particular area of human
relationships within the company. Since some mindsets would
not respond to training, swift disciplinary action and damages or
compensation as punitive measures had to be imposed when
training had failed. Having found that the company had
discriminated against by failing to protect him against racism in
the workplace, the Court found that he was entitled to
compensation.
In Fester, the applicant, after an argument with an African
colleague, he responded by saying “Since you people took over,
it's difficult on our side”. He was charged at a disciplinary
hearing with making racist remarks and was dismissed. The
commissioner held that the applicant’s labelling to his colleague
as “you people” was a veiled reference to his low opinion of the
group of people to which he belonged.
The case of SA Chemical Workers Union & Another v NCP
Chlorchem (Pty) Ltd & Others (2007) 28 ILJ 1308 (LC) also dealt
with the issue of name calling. The applicant employee was
dismissed for saying to a colleague that he demonstrated a
racist attitude and that he was a racist (“You are racist”).
Another case was one of National Union of Mineworkers &
Another v CCMA & Others (2010) 31 ILJ 703 (LC). In this case,
the employee was dismissed for uttering “You know what, I hate
white people” in response to a query by a white colleague. It was
held that that had amounted to a hate speech, therefore,
dismissal was appropriate.
Cartoons/Satire
Example that the presenters used to address the issue was the
one of Edcon Ltd v Grobler No & Others (2007) 28 ILJ 2762
(LC). In this case, the employee was dismissed for using
“monkey” when describing an unidentified technician of the
service provider who had installed the panic buttons. The Court
held that where word used without malice or intention to insult,
the use was not abusive, insulting or derogatory. The dismissal
was found to be substantively unfair.
In Cronje v Toyota Manufacturing (2001) 22 ILJ 735 (CCMA),
the applicant had received certain graphic material via his email,
which he passed it to some of his colleagues. He also printed
out the email and showed it to other colleagues at a meeting.
October 2010 – Page 20
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The email consisted of a cartoon depicting an adult and a young
gorilla, both with the head of President Mugabe of Zimbabwe
superimposed on them. The caption stated “we want the farms
to grow more bananas”. He was charged with the distribution of
racist and/or inflammatory material, violation of the company's
internal policy, and behaviour unbecoming of a manager. He
referred a dispute concerning his dismissal to the CCMA. The
applicant stated in his evidence that he had received the cartoon
as an attachment to a petition to President Mbeki, requesting
him to intervene in the Zimbabwe crisis, and that he did not
regard the cartoon as racist. Rather, it depicted Zimbabwe as a
“banana republic”. The respondent's human resources manager
deposed that the respondent's internet and email usage code
specifically outlawed the display and/or transmission of any
offensive racial, sexual, religious or political images, documents
or messages on any company system. Black employees were
aware of the cartoon and were upset by it. The commissioner
found that the cartoon was racist and inflammatory, and that the
applicant had distributed it in contravention of the employer's
code. The decision was also affirmed by the LC in Cronje v
CCMA & Others (2002) 23 ILJ 1563 (LC).
Establishing racial harassment
The presenters indicated that in order to establish racial
harassment, an employer must prove on a balance of
probabilities that the conduct complained of was:
•
•
•
Unwanted conduct,
Persistent or serious,
Demeaned, humiliated or created a hostile or intimidating
environment,
•
•
Calculated to induce submission by actual or threatened
adverse consequences, and
Related to race or a characteristic associated with such
group.
The liability of the employer
In discussing this, they mentioned that the liability of the
employer lies in terms of s 60 of the EEA and common law as
well as the problem of how to compensate victims.
Appropriate employer response
In discussing the topic, they gave the following as an appropriate
measure that employers can take in response to racism and
racial harassment:
•
•
•
•
•
•
•
Creating and maintaining a working environment in which
the dignity of employees is respected,
General duties of employers and managers,
The duty to adopt a harassment policy,
Worker education,
The need for space to talk about race,
Zero-tolerance approach and consistent discipline, and
Reformative discipline.
Reference
Professor Rycroft. A & Mudely E: Dealing with racism and racial
discrimination. Presentation made at the 23rd Annual Labour Law
Conference, 11-13 August 2010. South Africa.
October 2010 – Page 21
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INCOME INEQUALITY: EXECUTIVE SALARIES AND PAY DISCRIMINATION
Presented by Debbie Collier & Kathy Indensohn
Summarised by Samuel Denga
believed that she was being paid less than her white colleagues
because she was also black.
Introduction
As the South African government is committed to reduce income
inequality, the wage gap still exists in South Africa. The wage
gap today remains among the highest in the world. Excessive
inequality has both social and economic costs. The presentation
was based on income inequality, its context and impacts. The
main focus was on wage setting, unfair discrimination, equal pay
for equal work and law of income differentials. The presentation
includes wage increase between 2008 and 2009, labour law
mechanisms.
Wage increases between fourth quarter 2008 and fourth
quarter 2009
Private sector
% increase
Construction
16,7%
Mining
13.4%
Electricity
12.2%
Non
11.4%
government
transport
Source: SA Reserve Bank
Public
sector
SOEs
Provincial
National
% increase
26.6%
23.9%
18.0%
The table shows that there was high increase of salaries for
State Owned Enterprises (SOEs) as compared to private sectors
such as mining and construction.
Labour law mechanisms
The South African legislative framework is designed, not only to
prohibit unfair discrimination, but also to incrementally reduce
disproportionate income differentials. Section 6 of the
Employment Equity Act 55 of 1998 (EEA), prohibits unfair
discrimination on any employment policy or practice. It promotes
individual rights to equal pay for equal work. Employees have
the right to challenge pay differentials for equal work in the
workplace.
In the case of Mutale v Lorcom Twenty Two CC (2009) 30 ILJ
634 (LC), the applicant, a black employee, was instructed after
she had conducted interviews for the candidates to offer black
candidates a low salary, but to accept whatever salary any white
candidate wanted. That had grieved the applicant who perceived
her employer’s conduct to be real proof of racist attitude. She
The applicant held a meeting with the other employees to
discuss the issue, held a meeting with management at which
she aired her grievance and considered referring an unfair
labour practice dispute to the relevant bargaining council. The
relationship between the employee and the general manager
deteriorated, thereafter, until following a physical confrontation
between the employee and the general manager, she was
suspended and faced charges relating to failure to carry out an
instruction, insubordination and disruption in the workplace. The
employee was dismissed following a disciplinary hearing. After
conciliation had failed, she referred a dispute to the LC alleging
that the respondent had committed an unfair labour practice by
racially discriminating against her in the computation of her
salary and that she had been subjected to an automatically
unfair dismissal after she had made it known to the respondent
that she intended referring an unfair labour practice dispute to
the bargaining council. The LC found that the respondent had
used race as a yardstick to determine the salary to be offered to
the new employees. Furthermore, the Court found that the
employee was subjected to an automatically unfair dismissal.
The respondent was ordered to compensate the employee an
amount equivalent to twenty months’ salary.
Another case that dealt with equal pay for equal work was for
Louw v Golden Arrows Bus Service (Pty) Ltd (2001) (1) SA 218
(LC). The applicant, a coloured male, alleged that a white
warehouse supervisor receive a higher pay than him and other
employees doing the same work. He argued that he was
discriminated on race and contrary to equal pay for equal work.
The applicant also argued that the difference in salaries
constitutes indirect discrimination on race, colour or ethnic origin.
The respondent agreed that there was a wage differentials
between salaries paid to the applicant and a white colleague, but
argued that the two men were not of equal value. The LC noted
that the South African Constitution Act 108 of 1996 (the
Constitution), s 9(5) provides that discrimination on one or more
grounds listed in subsection 3 is unfair unless it is established
that the discrimination is fair. The grounds listed in subsection 3
of the Constitution include race, colour and ethnic origin. The
Court found that the job responsibilities of a buyer and a
warehouse supervisor were not of the same value, and there
was no proof of any unfair labour practice.
October 2010 – Page 22
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In the case of Mangena & Others v Fila SA & Others (Pty) Ltd
(2010) 31 ILJ 662 (LC), the applicants claimed that an employee
had been discriminated against in terms of the level of
remuneration based on race and or colour in comparison to
another employee. They argued that employees perform work of
equal value and one was paid a higher salary on account of her
race. The Court noted that s 6 (1) of the EEA prohibited
discrimination in any employment policy or practice on any
grounds listed. Employment policy or practice as defined in the
EEA includes remuneration, employment benefits, terms and
conditions of employment. To pay an employee less for
performing the same or similar work on a listed ground
constitutes less favourable treatment on a prohibited ground for
equal pay for work. Although the EEA made no specific mention
of claims of equal pay for work of equal value, the terms of the
prohibition against unfair discrimination established by s 6 of the
EEA were sufficiently broad to incorporate claims of that nature.
The LC found that there was no sufficient evidence to proof that
the work performed by the employees was of equal value. The
application was dismissed.
In Ntai & Others v South African Breweries (2001) 22 ILJ 214
(LC), the three applicants, all black males were employed as
trainers in the respondent’s training institute with two white
males. The white males were paid more than the applicants.
They alleged that constituted direct discrimination on racial
grounds. The Court noted that a mere differentiation in pay
between employees who do the same work or work of equal
value does not mean that there was discrimination. It is only
when discrimination is based or linked to an unacceptable
ground that it becomes discrimination within its pejorative
meaning. The respondent admitted that the discrepancy in pay
between the applicants and the white colleagues of 15% to 17%
was unacceptable and it was addressing it. It argued that the
gap was caused by a series of performance pay increments,
work experience of white employees and length of service. The
Court found that the large wage gap of wages was not caused
by race, therefore, the application was dismissed.
In the case of NUMSA & Others v Gabriels (Pty) Ltd (2002) 11
LC 6.12.4, the fourth applicants, all foremen, came into their
attention that they were being paid less than other foremen.
They claimed that the pay disparities amounted to direct unfair
discrimination. The respondent argued that the LC lacked
jurisdiction to hear the matter, as the alleged acts of
discrimination took place before the EEA came into effect on 9
August 1999. The applicants rely on s 6 (1) of the EEA that
states:
“No person may unfairly discriminate, directly or indirectly,
against an employee, in any employment policy or practice, on
one or more grounds, including race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or social origin, colour,
sexual orientation, age, disability, religion, HIV status,
conscience, belief, political opinion, culture, language and birth”.
The LC found that the applicants had failed to sustain the claim
of unfair discrimination within the meaning of s 6(1) of the EEA.
It was held that Court had jurisdiction to entertain the matter.
The applicants were granted one month to appeal to amend their
case, if not, the application would be dismissed.
Income differentials in South Africa
According to S 27 of the EEA, every designated employer is
obliged to report remuneration and benefits received by
employees in each occupational category on an annual basis to
the Employment Conditions Commission (ECC). In the case of
NUMSA obo members v Behr Climate & Control (2002) 13
CCMA 4.4.1, the applicant union and the respondent had been
bargaining over the benchmarking of wages in an attempt to
reduce wage gaps. The applicants argued that the respondent
had the duty to disclose certain information in order to assist in
effective collective bargaining. The information required by the
applicant included income differentials statement, details of
salaried employees’ income and auditors’ financial statements
for the past two years. The respondent only provided the income
differential statements, but refused to disclose other information.
It argued that the applicants had failed to substantiate the basis
on which they requested the details of salary packages of
monthly paid employees, who were large majority of employees
within a separate bargaining unit who were not their members.
The commissioner noted that the applicants had the duty to
demonstrate the need and relevancy of information that they
required to be disclosed and they had failed to do so. The
respondent was, therefore, not under an obligation to disclose
the information. The application was dismissed.
Corporate governance
The presenters emphasised corporate governance principles as
mentioned in King III report. The third report on corporate
governance in South Africa became necessary because of the
new Companies Act no. 71 of 2008 (the Act) and changes in
international governance trends. The Report, referred to as King
III, was compiled by the King Committee with the help of the
King subcommittees. The principles of good governance for
remuneration include:
•
•
•
•
Independence
Reasonableness
Performance based and
Transparency.
The presenters also emphasised that companies should adopt
remuneration policies aligned with its strategy and linked to
individual performance. The remuneration committee should
assist the board in setting and administering remuneration
policies. The committee should address base pay, bonuses,
employee contracts, severance pay, retirement benefits, share
based and other long term incentive scheme.
The company’s remuneration report should include:
•
•
•
All benefits paid to directors,
The salaries of the three most highly paid employees,
Employees who are not directors,
October 2010 – Page 23
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•
•
•
•
•
•
•
The policy on base pay,
Participation in share incentive schemes,
The use of benchmarks,
Incentive schemes to encourage retention,
Justification of salaries above the median,
Material payments that are ex-gratia in nature, and
Policies regarding executive employment.
Reference
Collier D & Idensohn K. 2010: Income inequality: Executive
salaries and pay discrimination. Presentation made at the 23rd
Annual Labour Law Conference, 11 – 13 August 2010. South
Africa.
October 2010 – Page 24
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INCOMPATIBILITY AND DIFFFICULT EMPLOYEE
Presented by Randall van Voore
Summarised by Samuel Denga
Introduction
Incompatibility means that an employee does not fit into the
culture of workplace or that he or she is unable to work with
fellow employee(s). It also includes an inability on the part of the
employee to work harmoniously with fellow employee(s) or
managers. Employers know and experience the difficult
employee on an almost daily basis. This knowledge does not
make it any easier to handle difficult employee. Difficult
employee exhibit behavioural traits that at one end of the
spectrum make them thought of as mildly eccentric and at the
other as impossible to get along with.
Voore’s presentation focuses mainly on:
•
•
•
•
•
Repudiation of employment contract requiring no more than
acceptance,
Senior managerial employee as the new broom,
The serial disputant,
The angry scribe,
The extreme eccentric.
Incompatibility can be a nebulous concept and its effect cannot
be explained and articulated in a clear and objective terms.
Employment contract may be terminated for incompatibility as a
valid ground for dismissal. In the workplace, there are a wide
variety of personalities, approaches and managerial styles.
Employers are required to tolerate mild eccentricity or
idiosyncrasies, but cannot be required to tolerate downright
impossible or unmanageable employees.
Incompatibility and difficult employee
In Joslin v Olivetti Systems & Networks Africa (Pty) Ltd (1993)
14 ILJ 227 (IC), the applicant walked around the workplace
carrying up to 36 pens in shirt pocket, on occasion a camera
around his neck and wearing a cricket cap, at times he also used
the photocopier to promote a certain political point of view. There
were a number of complaints from fellow employees about his
behaviour. Some thought he was making himself a figure of fun
and unkind words were used to describe him. There was no
concern about his work performance, but he was creating a
negative impression amongst co-employees. In other words,
what he did was not in the best interests of the employer. The
Court found that the employer had to distinguish between mild or
harmless eccentricity and extreme forms of unacceptable
conduct. It was mentioned that extreme forms of acceptable
conduct would include:
•
•
•
Arriving for work in a bathing costume or an outrageous
outfit,
Receiving clients whilst standing one’s head, and
Turning cartwheels in the corridor.
The reasoning of the Court was as follows:
“Dismissal may be appropriate only where the employee’s
eccentric behavior is of such a gross nature that it causes
consternation and disruption in the workplace, and then only
after he/she has been properly counseled or warned. A manager
should not indulge in whimsical conduct which may impair the
dignity of his office or cause the employer embarrassment…has
to be sufficiently serious to warrant dismissal.”
In the case of Wright v St Mary’s Hospital (1992) 3 (5) SALLR 11
(IC), the applicant had a friction with the hospital’s management
and executive committee. She proposed that the hospital be
upgraded so that it would extend the range of medical services
provided to the community. The friction escalated and the
relationship deteriorated, culminating with the meeting of the
executive committee and the resolution was adopted to
terminate the applicant’s employment. The employer argued that
it was necessary to remove her from the workplace as her
presence was undermining the proper and efficient
administration of the institution. The Court found that the
applicant was not afforded an opportunity to present her case. It
was also found that her dismissal was both substantively and
procedurally unfair, she was reinstated.
Another case that deals with incompatibility was for Lubke v
Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC). The
applicant, a managing director his employment contract was
terminated on the grounds of incompatibility after working for 56
days. He started to make sweeping reforms as part of his vision
to reinvigorate the company. The way in which the changes
were introduced caused annoyance amongst subordinate
employees. The subordinates employees were of the view that
the applicant sought to change the then existing corporate
October 2010 – Page 25
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culture. They blamed him of lacking interpersonal skills and one
of the subordinate resigned and others threatened to follow suit.
At the IC, the employer had a high praise for the work of new
managing director. The Court found that “it was a fact that new
broom do sweep clean, senior personnel who fell under the
supervision of a new executive appointee, such as a new
managing director, should learn to live with and adapt
themselves to changes and new work patterns, instead of crying
foul play simply because the bristles of the new broom happen
to be hard and irksome. Where a managing director had been
selected for appointment following an exhaustive screening, then
it was manifestly unfair to terminate the employment contract,
after a short period of time, because some employees could not
come to terms with the new regime and show signs of rebellion.”
The IC found that the termination of the employee’s contract was
unfair, the respondent was ordered to reinstate the applicant.
In the case of Lotter v South African Red Cross Society (2006)
27 ILJ 486 (CCMA), the applicant was appointed as a provincial
manager on a fixed-term contract for one year. He was required
to have a close working relationship with the provincial council.
The applicant distributed a letter containing disrespectful
remarks about the council, and left a meeting before its
conclusion. Their relationship deteriorated and the council voted
unanimously to terminate his services and he referred the
dispute of unfair dismissal to the CCMA. The commissioner
rreasoned that given the narrow definition of a dismissal for
operational requirements, “it had become accepted that because
incompatibility, in the absence of elements of misconduct, arose
out of the subjective relationship between the employee and
others in the organisation, it was best dealt with as a form of
incapacity”. The council did not have the right to take executive
decisions relating to suspension or dismissal of the employee
but only to make recommendation. The respondent’s decision to
terminate the employment relationship at the behest of the
council without pursuing the reasonable alternative of a
mediated solution was misguided, premature and ill-informed”.
The commissioner found that his dismissal was substantively
unfair, and he was awarded a compensation equivalent to a
balance of his fixed term contract.
What is not incompatibility?
In the case of Jardine v Tongaat Hullet Sugar (Pty) Ltd (2002) 4
BALR 426 (CCMA), the applicant was dismissed for
incompatibility after he had lodged a grievance against a senior
manager. The grievance was caused by an incident in which the
senior manager reminded the applicant of the time he was
required to start work. The applicant alleged that the senior
manager had rebuked him in the presence of other members of
management. The senior manager denied having done so. The
applicant also suggested in his grievance letter that the senior
manager had arrived late on that particular day. The respondent
found that there was no substance to the applicant’s complaint.
A disciplinary hearing was convened, and the applicant was
dismissed. The respondent contended that the dismissal was the
culmination of a series of unsuccessful counselling sessions.
The commissioner found that the dismissal may be appropriate
only when the employee’s eccentric behaviour is so gross that it
causes consternation and disruption in the workplace, and only
after he/she had been properly counselled or warned. To justify
dismissal, incompatibility must be entirely or substantially
attributable to the employee. The commissioner held that it was
clear that the applicant had a “maverick” approach to
interpersonal relations. Although the respondent was not above
criticism for the manner in which it had handled the matter, that
could not justify the extravagant terms in which the applicant had
couched his written complaint. The key issue, however, was
whether the respondent had discharged its duty to counsel the
applicant before the dismissal. As demonstrated by the incident
that culminated in his dismissal the strained relationship
between the applicant and the general manager was not entirely
the fault of the applicant. Earlier instances of incompatibility had
been resolved. There had been no counselling or warning for
incompatibility after that. As there were elements of provocation
for the applicant’s insubordination, dismissal was not an
appropriate sanction. However, because of the nature of the
applicant’s conduct, reinstatement was inappropriate. The
applicant was awarded compensation equivalent to six months’
remuneration.
Another case was that of Jabari v Telkom SA (Pty) Ltd (2006) 10
BLLR 924 (LC), the applicant, a specialist investigator, was
dismissed after the chairperson of a disciplinary inquiry found
that the employment relationship had irretrievably broken down
because he was incompatible with the respondent’s “corporate
culture”. The applicant contended that his dismissal was
automatically unfair because he was dismissed for initiating
grievance and legal proceedings against the respondent’s
management and for rejecting a voluntary severance package.
At the trial, however, the applicant declined to give evidence,
and called no witnesses on his behalf. The respondent alleged
that as a result of a deterioration of the trust relationship with the
applicant, he was approached to discuss an amicable means of
terminating the employment relationship. This course was
chosen because the applicant had persistently litigated against
the respondent, in most instances unsuccessfully. When
applicant finally refused a voluntary severance package,
disciplinary steps had been instituted.
After reviewing the incidents on which the respondent relied for
its claim of incompatibility, the Court noted that the respondent
had conceded that the applicant had not been accused of
misconduct and that he had at all times performed his duties in
terms of his contract of employment. If, as the respondent
claimed, the applicant had been arrogant, uncooperative and
insubordinate, it was inconceivable that disciplinary action would
not have been taken against him earlier. No evidence was
presented to support the respondent’s claim that the applicant
had demoralised his colleagues. The issue was therefore
whether the applicant was incompatible. Incompatibility is a
species of incapacity, relating essentially to the subjective
relationship of an employee to his/her colleagues. It is an
amorphous and nebulous concept, based on subjective value
judgments. However, an employer is entitled to set reasonable
standards pertaining to relationships in the workplace. When the
conduct of an employee creates disharmony, the employer must
October 2010 – Page 26
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evaluate the problem and attempt to assist the employee to
overcome his/her personal difficulties, effect remedial action
and, if necessary, place the employee in an alternative position.
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 inquiry entails
proof that the disharmony was the fault of the employee. 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 those steps had been followed, or that the applicant’s
conduct was the cause of any disharmony. His dismissal was,
accordingly, unfair.
The Court held further that the dominant reason for the
applicant’s dismissal was that he had initiated grievance
proceedings against management, and challenged its unfair
labour practices. A secondary reason was that he had refused to
accept a voluntary severance package. The respondent’s
contention that the employment relationship had irretrievably
broken down was not proven by the evidence. The applicant’s
dismissal, therefore, constituted victimisation and was
automatically unfair. The Court found that it would be contrary to
public policy to protect the respondent from its illegitimate and
unfair conduct by denying the applicant reinstatement. The
applicant was reinstated with retrospective effect to the date of
his dismissal.
Reference
Van Voore, R. 2010. Incompatibility and the difficult
employee. Presentation made at the 23rd Annual Labour Law
Conference, 11-13 August 2010. South Africa.
October 2010 – Page 27
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STRIKE AVOIDANCE – HOW TO DEVELOP AN EFFECTIVE STRIKE AVOIDANCE STRATEGY?
Presented by John Brand
Summarised by Samuel Denga
Introduction
The presentation refers to the vital importance to effective
collective bargaining of the protection that the South African
Constitution Act 108 of 1996 (Constitution) and the Labour
Relations Act 66 of 1995 (LRA) give to the fundamental right to
strike. It analyses what trade unions and employers who do not
embrace the values of the Constitution and non-adversarial,
good faith, mutual gain negotiation do to avoid strike action. It
also focuses on the violence which has accompanied recent
strikes and to adversarial nature of the negotiations which has
preceded them and notes how antiethical this is to the orderly
and peaceful collective bargaining envisaged by the
Constitution. The presentation examines what employers which
are faced with incorrigible adversarial opponents need to do
develop strategies to limit the risk of dysfunctional and violent
strike action.
Strike action can take two forms. The first is conventional, non
violent strike action which is preceded by good faith negotiation.
The second is violent strike action which is preceded by bad
faith negotiation. It is conceivable for violent strike action to
follow good faith negotiation and peaceful strike action to follow
bad faith negotiation but these permutations are less common. If
parties want to avoid strikes they need to be able to deal with
both forms of strike action and both forms of negotiation. They
need to be able to prepare for effective mutual gain negotiation
as well as for adversarial bad faith negotiation and they need to
be able to prepare for peaceful as well as violent strike action.
Obviously, preference should be given to good faith, mutual gain
negotiation but, if it is forced to, a party must be prepared to
counter adversarial and bad faith negotiation. Similarly
preference should be given to preparation for peaceful strike
action but again, if it is forced to, an employer needs to be
prepared to deal with violent strike action.
Mutual gain negotiation
In South Africa and elsewhere, some trade unions and
employers have found that the most effective way to advance
their interests and to avoid unnecessary strike action is to
participate in sophisticated mutual gain negotiation. They both
have to accept the pluralist idea of partnership between
legitimate entities with diverge interests in constitutional
democracy. Trade unions that recognise this also realise that the
strike action to win benefits is often futile in an economy in which
the imbalance of power between capital and labour is
pronounced. They appreciate that there are better ways to get
what workers need than by simply flexing their muscles.
Parties who negotiate for mutual gain acknowledge each other
as the legitimate stakeholders in a pluralist society rather than as
enemies that have to be defeated in an ongoing class war. They
recognise their dependence and accept that they have
overlapping and have different interests. Their recognition
agreements are characterised by mutual commitments to
freedom of association, good faith bargaining, exhaustion of
dispute procedures, democracy, picket rules and non violence.
These commitments do not exist on paper alone but are
complied with on a daily basis.
Employers take great trouble to eradicate conflict aggravators
from their operations and to introduce conflict moderating
processes and procedures such as consultation, training and
development. They seek to nip conflict in the bud and to prevent
it from escalating into heated disputes.
In order for parties to be committed to good faith bargaining,
their negotiating team undergo joint training in modern
negotiation theory and practice. In certain instances employers
have undergone this training without their union counterparts
doing likewise and they have it difficult to achieve optimum
outcomes if their union counterparts do not have similar
knowledge and skill. All major players on both negotiating teams
need to be present throughout the training for it to be successful.
If any major player is absent at the initial stages of the
engagement, it is very likely that that player will prove to be very
disruptive due to a lack of understanding and buy in to the new
process. It is also important to conduct refresher training so that
new members of the negotiating team familiarise with mutual
gain negotiation and existing members are reminded of its
fundamentals. Parties may use the services of an independent
and trusted facilitator who is impartial.
One of the greatest challenges in making the move away from
adversarial bargaining is, ideally, to ensure that the parties start
by putting a problem on the table and by analysing it before
moving on to seek, evaluate and choose solutions. The tradition
of starting with demands is so entrenched that, even with
training, it is difficult to get the parties to do things differently.
This is not only a matter of changing bad habits but also
because, even when the representatives of the parties have
October 2010 – Page 28
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been trained, they remain answerable to constituencies who
expect things to be done in the traditional militant way. It
therefore, requires some subtlety on the part of the facilitator and
the parties to recognise this and allow demands to be put on the
table but to convert them into proposals which are held over until
a proper problem analysis has been completed when they can
be treated as just one possible solution during the solution
search stage of the process.
The facilitator and the parties also need to be sensitive to a
negotiation paradox. On the one hand, a mutual gain approach
to negotiations is likely to deliver a strong outcome, but the
process of achieving this may be perceived to be weak by the
party’s principals. On the other hand, a tough and militant
adversarial stance may appear to be strong to the principals but
it usually delivers a weak outcome. The facilitator and the parties
need to manage this in a way which does result in a strong
outcome but without the representatives appearing to be weak.
As appreciation of the benefits of mutual gain negotiation is
cascaded down into organisations, the problem is easier to
manage. The facilitator must endeavour to change the traditional
mandating process in order to put problem analysis before
solution search.
It is useful for the facilitator to commence the negotiations with
problem analysis, issue identification, interest exploration and
solution search at a pre-negotiation meeting before the parties
go back to their principals for mandates on possible solutions.
These meetings can also be used to negotiate on how to
negotiate and to reach agreement on the aim of the
negotiations, negotiation guidelines and timetables. It is a
significant challenge for the facilitator to ensure that the parties
are thorough at the problem analysis stage.
and possible agreement. In the final stages of the negotiation it
will contain a series of draft agreements which are refined to
ensure that there is eventually an accurate record of what has
been agreed to and one which is unlikely to give rise to future
interpretation disputes.
Adversarial negotiations and strike violence
The recent strikes in South Africa have been marked by
negotiation tactics and by acts of violence that are anti-ethical to
functional collective bargaining. In the case of FAWU & Others v
Premier Foods (Pty) Ltd (2010) ZALC 61, Judge Basson said,
after referring to evidence of murder, vicious assault, shootings,
intimidation, firebombing, ransacking of homes and an
assassination fund related to the strike that:
“The strike was marred with the most atrocious acts of violence
on non-striking employees. The individuals who perpetrated
those acts had no respect for human life, the property of others
or the rule of law. What made the matters worse was the fact
that it appeared from the evidence that the police and the
criminal justice system had dismally failed those defenceless
non-strikers. Although criminal charges were laid against certain
individuals, nothing happened to these charges. The non-strikers
were completely at the mercy of vigilante elements who did as
they pleased and who had no regard for the life and property of
defenceless individuals. It must be pointed out that although a
certain measure of rowdiness and boisterousness behaviour are
expected or typical to most strike actions, the acts that marred
that particular strike were particularly violent and senseless and
stretched far beyond the kind of conduct that normally occurs
during a strike”
The Judge concluded that:
Once the process move into the solution search phase, it is very
important for the facilitator to find ways to encourage creative
lateral thinking in the generation of possible options. Even with
training, parties remain relatively uncreative in generating
solutions which, in combination with one another, will achieve a
mutual gain outcome. The use of small task teams can help to
make brainstorming to be effective. It is necessary to do the
brainstorming in separate party groups because creativity is
often stifled by mistrust and fear of exploitation in mixed groups.
A major challenge for both the facilitator and the parties is to
regularly stand back from the total negotiation and to think about
possible trades across issues. Whilst it is useful to work on
issues in separate task teams, it is important to avoid being
trapped in issue silos. If one party is prepared to address the
other party’s concerns on one issue, the other party may be
prepared to do likewise on another issue.
In order to record and reflect progress in the negotiations, it is
important for the facilitator to have a working document which
grows from the commencement of the negotiation into the final
agreement at its conclusion. At the early age of the negotiation,
the document will be more like minute and record issues, needs,
interests, fears, concerns and proposals and counter-proposals.
As it proceeds, it will progress into more of a single text
document reflecting areas of actual agreement, disagreement
“Strikes that were marred by that type of violent and unruly
conduct are extremely detrimental to the legal foundations upon
which labour relations in this country rest. The aim of a strike is
to persuade the employer through the peaceful withholding of
work to agree to their demands. As already indicated, although a
certain degree of disruptiveness is expected, it is certainly not
acceptable to force an employer through violent and criminal
conduct to accede to their demands. That type of vigilante
conduct not only seriously undermined the fundamental values
of our Constitution, but only served to seriously and irreparably
undermine the future relations between strikers and their
employer.”
This kind of strikes related violence is not uncommon, there
have been sabotage of railway lines resulting in train derailment,
the burning of trains, scattering rubbish in cities and organised
and systematic violence such as throwing replacement workers
from moving trains and hiring of hit squads. The threat of conflict
which Cheadle referred to is not conflict of a violent kind but
rather the threat of a peaceful withholding of labour to force an
employer to meet a demand and, if good faith negotiation fails,
then the use of peaceful strike action to assist in resolving a
dispute. Whatever the political merits might be of a violent class
war by workers against employers that kind of conflict is not
what the Constitution and the LRA intends to protect.
October 2010 – Page 29
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In conventional employment law, the right to strike is conditional
upon the strike being preceded by good faith bargaining and on
the strike being non-violent in nature. In South Africa, not
everything that is done in contemplation of, or in furtherance of a
protected strike is sanctioned by our law. The LRA expressly
excludes from protection acts that constitute an offence and it
only protects pickets that are for the purposes of peaceful
demonstration in support of a strike. Unfortunately, unlike in
other countries, the LRA does not go further and impose a duty
to negotiate in good faith and to act democratically nor, as in
those countries does it expressly provide for a strike to be
declared unprotected if it is accompanied by high levels of
violence.
There is much in conventional labour law from which South
Africa could learn about how to encourage good faith bargaining
and discourage violent strike action. The criminal justice system
is often unable to curb strike related violence and until the LRA
is amended, and the criminal justice system improved, an
employer who wants to maintain industrial peace in the face of
an incorrigible adversarial union, will have to develop its own
strategies to counter bad faith negotiation and to curb strike
related violence.
The typical dysfunctional strike
In the typical dysfunctional strike, the picket line has become a
major place of violent conflict. This may be, because few of the
strikes have been preceded by a proper ballot of union members
or of all employees in the bargaining unit whom the union
represents. This is despite what most union constitutions
require. The strike may, therefore, not be supported by all or
even the majority of workers in the bargaining unit. This makes it
necessary for strikers to pressure non-striking workers to
participate in the strike and often persuasion turns to
intimidation. This is aggravated by the fact that there has usually
been no shortage of unemployed workers to replace the strikers
and they too have to be discouraged by the strikers. The picket
line, therefore, often descends into a war zone in which strikers
and non-strikers clash and vehicles and property are damaged.
Employers have responded to this picket line violence by
obtaining court interdicts and orders which limit workers’ rights to
picket within the immediate vicinity of the employers’ premises.
Employers also often employ the services of private security
firms to assist them to secure their premises because of the
South African Police Services’ (SAPS) inability to assist
effectively. Once an employer has secured its premises, the
conflict has tended to relocate to the homes and transport of non
strikers and replacement workers. This kind of violence has
proved very difficult and expensive for employers to curb. The
unions have seldom overtly encouraged violence but they have
often appeared to do little to curtail it. They have tended to deny
that it has happened or have blamed undisciplined and criminal
elements for it. Union organisers and shop stewards had failed
to marshal the picket lines and help management to curtail the
violence.
The trade unions have found the strikes hard to sustain because
it is difficult for workers to lose pay for any protracted period.
Eventually, only when the overwhelming majority of the last
remaining strikers have decided to end it, does the strike comes
to an end. During the strike, the media has done little more than
to publish the propaganda that each side has supplied to it. An
analysis of the outcomes of these strikes reveals that the
workers often come off second best. They have sometimes lost
more in lost pay during the strike than they would have gained
by accepting the employer’s final offer before the strike began
and they have seldom gained more at the end of the strike than
they lost during it.
The typical negotiation
An examination of the negotiations that have preceded these
strikes revealed that they are usually characterised by some
features. The negotiators appear to have little understanding of
modern negotiation theory and practice and they display very
limited negotiation skills. Before negotiation commences, the
trade union delivers a letter to the employer containing a long list
of demands on a wide range of issues. The employer responds
by rejecting most of the demands out of hand and making
extremely low counter proposals on others. Central to both
parties’ thinking is the belief that the higher the demand and the
lower the counter offer, the more likely it is that the eventual
midway compromise will favour them. Employers seldom, if ever,
make any counter demands of their own.
In preparing for the negotiations, the parties primarily concern
themselves with determining what their opening, ideal and
fallback positions on each issue will be and how they will apply
and absorb pressure. Once the parties get to the bargaining
table, they motivate their extreme opening positions and demean
the other side’s responses. Trade unions often walk out or
threaten to walk out of the negotiations at the end of the
employer’s response and immediately declare a dispute with the
employer. The unions say that the employers’ response is an
insult and that they do not intend negotiating further until the
employer gets serious.
The trade unions assume that real negotiations will probably
only take place once the employer is faced with actual strike
action. Therefore, the unions believe that the sooner the parties
get to the Commission for Conciliation Mediation and Arbitration
(CCMA), the real negotiations will start. Alternatively, they hope
that the employer will take fright and make concessions to keep
the negotiations alive. Employers then often do respond with
concessions to keep the unions at the negotiation table. They do
this without requiring the unions to make reciprocal concessions
and they often get close to their bottom lines before the unions
have made any moves at all.
The further negotiations, whether at the CCMA or otherwise, are
usually characterised by slow moves from one concession to the
other. In making these moves, the parties tend to exaggerate the
value of their moves while minimising the value of the other’s
moves and calling into question the other sides’ good faith. They
manipulate information to hide what is harmful to their position
and to emphasise what undermines their opponents’ position.
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Adversarial, political rhetoric and increasing levels of anger and
frustration accompany the process. The further negotiations,
whether at the CCMA or otherwise, are usually characterised by
slow moves from one concession to the other.
Preparation for war
Employers who want industrial peace and who are faced with
opponents who consider themselves to be in a state of perpetual
class war need to develop strategies to limit dysfunctional
behaviour in contemplation of a strike, violent and destructive
behaviour during strike action. To do this, they need to keep in
mind the old military motto “si vis pacem, para bellum”, if you
want peace, prepares for war.” It is usually attributed to the
Roman military writer Pubilius Flavius Vegetius Renatus from his
work “Epitoma Rei Militaris”. The relevant passage reads
“Therefore, he who wishes peace should prepare for war; he
who desires victory, should carefully train his soldiers; he who
wants favourable results, should fight relying on skill, not on
chance.” If a party cannot persuade the other party to engage
constructively then, like an army general, it needs to invest a
significant amount of time and resource into a war strategy to
achieve peace.
The typical content of a comprehensive employer strike
prevention strategy includes very detailed action plans on at
least the following themes:
•
•
•
•
•
•
•
•
•
Negotiation strategies,
Continuous production,
Security,
Legal,
Internal communication,
External communication,
Financial information,
Human resource information, and
Human resource climate.
In order to develop detailed action plans under these themes, a
meticulous strategy formulation process needs to be followed. A
tried and tested process used to formulate such a strategy has
the following stages:
Stage 1 – Preparation,
Stage 2 – Environmental scanning,
Stage 3 – Facilitated workshop, and
Stage 4 – Review and monitoring.
Preparation stage
At stage one, it is necessary to convene a strategy formulation
group which is representative of relevant interests and which has
the necessary skills to formulate the strategy. It is useful to
appoint a facilitator to facilitate the strategy formulation process.
The role of the facilitator is to direct the process and not to act as
a consultant or contributor to the substantive contents of the
strategy. Other issues which need to be attended to in
preparation for the process are dates, venues, invitations to
guest presenters and the compilation of relevant pre-reading for
the strategy formulation workshop.
Environmental scanning
In the second environmental scan stage, it is essential to
conscientise the strategy formulation team about the
environment in which the negotiations and any potential strike is
likely to take place. The team needs to understand the
environmental forces which impact on the employer and the
union, to be exposed to as wide a variety of relevant information
and options as possible.
A variety of external and internal experts are, therefore, invited
to make a series of presentations to the strategy formulation
team on among other issues, the state of the macro economy,
the employer’s financial position, the parties strategic plans,
current wage settlements in the country and in the relevant
industry, the macro human resource, political environment and
the micro human resource environment.
Facilitated workshop
Stage three of the process is a facilitated workshop at which the
strategy team will carefully consider what the employer’s and the
union’s strengths, weaknesses, opportunities and threats are in
the negotiations. This helps to isolate the themes that need to be
considered and the action plans that need to be developed later
in the process. The strategy team also needs to consider
carefully what the key organisational objectives and challenges
are that need to be addressed in the upcoming negotiations and
to prioritise those objectives. Furthermore, the team needs to put
itself into the shoes of the other party and consider what its
primary needs, interests, fears and concerns are and, as far as
possible to estimate what priority the other party may place on
those needs.
It is also necessary for the strategy team to carefully consider
what the employer’s and the trade union’s best alternative to a
negotiated agreement would be. This consideration forces the
team to think about the pros and cons of comprehensive,
grasshopper and secondary strikes for both parties as well as to
weigh the advantages and disadvantages of offensive or
defensive lockouts, unilateral implementation, boycotts and the
like. Sophisticated decision tree and risk analysis techniques
need to be used at this stage of the process.
Thereafter, the strategy team needs to develop very detailed,
task orientated action plans to address each theme. Those
action plans need to define what has to be done by who and
when. The overall aim of the action plans is to improve one’s
own alternatives to a negotiated agreement and weaken the
other party’s. This greatly enhances the prospect of agreement
in the negotiations.
Review and monitoring
The final stage of the strategy formulation process is the review
and monitoring stage during which each action plan is tracked to
ensure that what needs to be done is done. This strategy
October 2010 – Page 31
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formulation process usually takes a number of days to develop
over a period of weeks. Done properly, it enables a party to
manage the human resource climate and the internal and
external communication in a way which strengthens its hand at
the bargaining table and weakens that of the other party. It also
equips the negotiating team with very detailed financial and
human resource information which can be used in the
negotiation and for internal and external communication
purposes.
The security and continuous production action plans should put
an employer in a position to protect its property and employees
and to maintain production during a strike. A detailed legal
strategy will assist an employer to compel compliance with the
LRA, the recognition agreement and the civil and criminal law.
This will include plans to enforce any duty to negotiate in good
faith and to ballot in terms of a recognition agreement. It will also
seek to ensure compliance with agreed negotiation and disputes
procedures, strike and picketing rules and the civil and criminal
law.
The detailed negotiation strategy should enable the employer to
foresee the most likely scenarios in the negotiation and to have
tactics which are flexible enough to be adjusted to meet the
needs of whichever scenario eventuates. In particular, tactics
can be developed to deal with difficult negotiators in an
endeavour to change the negotiations from highly adversarial
ones to more interest based and mutual gain ones. The action
plans should also ensure that members of the negotiating team
understand their roles, responsibilities and the ground rules for
the negotiation. The team should also have considered all the
information and questions it wishes to pose to the other party
and all of its motivations on all the issues that will be negotiated.
It should also have carefully worked out all the reasonable
settlement permutations. This process will also equip the
negotiating team to negotiate a reasonable and realistic
mandate with its mandate givers.
Every negotiator needs to be careful for not to be lulled into a
false sense of security by an untrustworthy opponent. If there is
any doubt about the good faith of an opponent, then there is a
need for caution. If all efforts to ensure a reciprocal mutual gain
approach fail then it is better to settle for a mutually mediocre
outcome than to risk being seduced into a terrible outcome. A
negotiator should not let a devious opponent get a great
outcome by exploiting their openness and honesty. Parties who
take the time and trouble to prepare in this way generally find
that the preparation for industrial war produces industrial peace
and that prevention proves better than cure.
Conclusion
Whether one is faced with an incorrigible adversarial opponent
or one which embraces freedom of association and good faith
mutual gain negotiation, the key to avoiding strike action is
meticulous preparation. In the former case that preparation is for
war to achieve peace and in the latter it is preparation for peace
in order to avoid war.
Reference
Brand, J. 2010. Strike avoidance - How to develop an
effective strike avoidance strategy? Presentation made at the
23rd Annual Labour Law Conference, 11- 13 August 2010. South
Arica.
October 2010 – Page 32
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UNBOUND BY PRECEDENT: CRITICAL REFLECTIONS ON THE DECISION OF THE CONSTITUTIONAL COURT IN GCABA v
MINISTER FOR SAFETY AND SECURITY 2010 (1) SA 238 (CC)
Presented by Tembeka Ngcukaitobi
Summarised by Alucia Mdaka
Introduction
For a while, the regulation of public sector employment contracts
through administrative law appeared permanent. However, this
was no more than an appearance and a tentative one too. Now,
the Constitutional Court (CC) has authoritatively pronounced in
Gcaba v Minister for Safety & Security 2010 (1) SA 232 (CC)
that administrative law and its progeny the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), have no application
to public sector employment. For legal puritarians, this decision
is vindication: law is not messy, it is neat. It is made up of
separate branches and sub-branches. Each branch or subbranch is autonomous. The orthodoxy of the inevitable overlap
between labour and administrative law tended to muddy the
clean waters of law, it was the very antithesis of law. Thus, the
decision in Gcaba restores order and purity, features essential to
law itself.
In Gcaba, when closely examined epitomises an awkward fusion
of textualism and judicial policy, those whom are engaged in the
debate prior to Gcaba failed to frontally confront the main issue.
When PAJA was enacted, the legislature was fully cognisant of
the existence of the Labour Relations Act 66 of 1995 (LRA) and
its application to public sector employees. Despite this legislative
knowledge, no attempt was made at excluding the public sector
from PAJA’s reach. If this is a manifestation of a deliberate
legislative policy choice, then defensible jurisprudential basis is
an absolute necessity for the finding (implicit in Gcaba) that what
in effect the legislature left intact is not, in juridical terms intact,
that in fact the legislative policy choice is wrong.
Gcaba’s foundations could be traced from the remarks of the
present Chief Justice, Ngcobo, in a minority judgment in Chirwa
v Transet Ltd & Others 2008 (4) SA 367 (CC). Faced with the
conflicting and irreconcilable legislative provisions between the
LRA and PAJA, the Chief Justice introduced the notion of
“judicial policy” as justification for excluding PAJA in public
sector employment disputes. Judicial policy was a judicial
mechanism to exclude public sector employees from the scope
of PAJA regardless of the fact such a conclusion has no clear
statutory foundation. So, judicial policy is radical idea, its reach
extends beyond the jurisdictional conflicts between the Labour
Court (LC) and the High Court (HC) It redefines the boundaries
between the judicial and the legislative branches and authorises
the encroachment into the legislative branch by the judiciary.
Ngcukaitobi indicated that his focus in this paper was the
examination of the decision of the CC in Gcaba. He stated that
from the judgment, he hope to extricate a defensible theory of
statutory interpretation. The question which confronted the Court
in Gcaba was a simple one: how does the Court deal with a
situation where two statutes are irreconcilable? In the past,
judges were meant to look for the meaning intended by the
Legislature in passing a particular piece of legislation. Now, the
constitutional project expressly calls for a rejection of the model
which searches for legislative intent. The model of interpretation
searches for meaning consonant with the spirit and tenor of the
Constitution but what happens where there are two or more
interpretations consistent with the Constitution?
The presenter structured his paper in the following manner:
•
•
•
•
•
He summarised the facts and the legal findings of the Court
in the Gcaba matter,
Trace the history of the contesting approaches on the
application of PAJA to public sector employment decisions,
He critically examined the decision of Gcaba with regard to
precedent,
He considered whether the decision was consistent with the
doctrine of separation of powers, and
Made some suggestions about the future of administrative
law in public sector employment disputes.
Gcaba in a nutshell
The factual and legal background
In discussing the topic, he indicated that academic commentary
on legal decisions tends to focus on the legal principle not on the
facts. In Gcaba, however, the facts are as significant as the legal
principle and so is the legal path travelled by the decision prior to
reaching the pinnacle of the judicial branch, the CC. The legal
path of any judicial decision often reveals two important aspects.
The basic facts do not change as the case travels through the
judicial channels. However, the characterisation of the facts
undergoes transformation through the judicial journey. For
instance, a case about unfair dismissal on the grounds of race
could commence at the Commission for Conciliation Mediation
and Arbitration (CCMA) as an unfair dismissal dispute. By
processing of the facts of the case, the case could be
fundamentally recast as one of unfair discrimination under
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section 9 of the Constitution of the Republic of South Africa,
1996 (the Constitution). The characterisation of the facts in a
particular dispute carries profound legal consequences for the
manner in which a dispute is litigated.
He indicated that none of this should come as a surprise to
many lawyers steeped in the traditions of the common law. For
example, a person whose vehicle has been stolen on a weekend
and the insurance repudiates the claim on the ground that the
cover excluded theft on weekends, and he/she alleges that
he/she was not advised by the insurance at the time of signing
that weekends are excluded, has an election to make. He/she
has two alternative causes of action, namely, contract or delict.
He/she can sue for enforcement of the contract because the loss
against which he/she is insured has eventuated. Alternatively,
he/she may claim damages in delict on the basis that the he/she
was negligently advised when he/she signed the contract. The
fact that a plaintiff elects to sue in contract when he/she could
have sued in delict is not a basis for criticism or a ground to nonsuit such a plaintiff provided the elements of the chosen cause
of action are satisfied. That was held in Police & Prisons Civil
Rights Union v Minister of Correctional Services & Others 2008
(3) SA 129 (E).
The background of the case was that, Mr Gcaba was employed
by the South African Police Services (SAPS) as a station
commissioner. The position of station commissioner was
upgraded that necessitated new applications. Mr Gcaba applied
for the upgraded post, but failed the interview, and another
person was appointed. He was aggrieved by the decision not to
appoint him, and in pursuit of internal remedies launched an
internal dispute about his non-appointment. On the prevailing
jurisprudence at the time, at this stage two alternative course of
action were open to Mr Gcaba. He could refer an unfair labour
practice dispute concerning a promotion to the relevant
bargaining council or approach the HC on judicial review based
on the provisions of PAJA. However, Mr Gcaba referred a
dispute, characterised as one of unfair labour practice relating to
a promotion, to the council. A pre-arbitration hearing, as required
by the rules of the council, was arranged and the employer
defaulted. Mr Gcaba then withdrew the referral for arbitration
and instituted judicial review proceedings at the HC.
From the facts narrated above, two observations can be made.
Firstly, the facts are straightforward: the case is about an
employee who is aggrieved by an employer decision not to
promote him to a position with a higher status. However, there is
no necessary correlation between the simple nature of the facts
and the judicial route to be pursued to resolve the dispute.
According Ngcukaitobi, the route followed by Mr Qcaba
illustrates the multiple judicial avenues, which intersect and
collide at various points available to employees. The second
observation is that, unlike in conventional litigation, the facts
themselves do not frame the legal dispute. The legal dispute
could either be a complaint about unfair labour practices or
about unfair administrative action. However, such a distinction is
not evident from the facts. The framing of the legal dispute,
therefore, can be a matter of choice on the party initiating the
dispute. The exercise of that choice must take into consideration
the inherent exigencies in litigation. For, once a choice has been
made, it is either irreversible or the reversal carries adverse
consequences. So, what are these adverse consequences? The
decision of the Court is a useful illustration of the connection
between the starting point and the end point. Before one delves
into the conclusions reached by the judges, it is imperative to
consider the framing of the legal question. This is fundamentally
important in the assessment of judicial outcomes.
Framing the dispute
The right questions often yield the right answers. This is
particularly true of legal decision making. It is futile to examine
the legal correctness of a particular judicial outcome without an
understanding of the manner in which the legal question itself
was posed. In Gcaba, the Court posed two questions, one in
broad terms and the other in specific and narrower terms. The
broader questions were whether the decision of the employer
not to appoint Mr Gcaba into the upgraded post was
administrative action in terms of PAJA, and whether the HC had
jurisdiction to determine the dispute. The narrower questions, in
reality subsets of the broader questions, were whether:
•
•
•
The appointment had any effect or consequence on any
other citizen other than Mr Gcaba,
An examination of the policy underlying the LRA and PAJA,
and
Employees will be left with no remedy if they cannot rely on
the provisions of PAJA.
The presenter indicated that he chose to separate these
questions because with regard to the judgment, one is left with
the impression that the Court treated them as if they were the
same. That approach of conflating PAJA application with
jurisdiction seems to leave the true ratio of the decision covered
in obscurity. An explication of the ratio requires a separation of
these questions. Langa CJ, in a trenchant critique of the majority
decision in Chirwa, explained the ratio of his decision in clear
and simple terms. As a consequence, discerning the rationale of
the minority decision in Chirwa is an easy exercise. By contrast,
Gcaba’s rationale is enveloped in mystery and complexity.
The decision and its rationale
The answer to the questions as framed by the Court was that the
decision by the SAPS not to appoint the employee was not
administrative action within the meaning of PAJA and
consequently, the HC had no jurisdiction to entertain the dispute.
Anyone familiar with the workings of the legal system will know
that it is not so much the outcome of the decision that matters,
but the reasoning behind the outcome. Reasoning is especially
significant when it is delivered by the final appellate court, like
the CC. This is heightened when the issue in question has
generated dissensus in society and within the judicature itself.
Reasoning also offers distinctive advantages in a country where
the judiciary is the guardian of the Constitution. For parties
affected by the decision, reasoning offers a sense that their
views were properly heard and considered. For society at large,
reasoning generates and reinforces confidence on the institution
October 2010 – Page 34
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of the judiciary. However, it is not just any reasoning that is
capable of achieving these objectives. The only reasoning that
does so is the one with particular attributes: cogency, lucidity
and accessibility. The reasoning process must not be
perfunctory or artificial. When ordinary people read a judgment,
its reasons must be clear from the judgment itself. It must not be
necessary to rely on secondary sources, such as legal
commentary or the media to gain an understanding of the
decision and its reasons.
Ordinarily, these remarks would have been unnecessary,
however, it has been considered the necessary foundation for
the nature of the criticism. Two questions were up for
determination in Gcaba, one of power or jurisdiction and the
other was a substantive one of the application of PAJA to the
facts. In his minority decision in Chirwa, Langa CJ explained that
an inquiry into jurisdiction is separate and distinct from the
substantive issues raised by a particular dispute. While Langa
CJ was undoubtedly correct, there is a substantial overlap
between the nature of the dispute and the jurisdiction and
competence of a court to determine the issue. Such overlap
does not occur at the margins, it occurs at the centre of the
dispute, but Langa CJ’s admonition remains useful. For him, it
was axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it. The mere
fact that an argument must eventually fail cannot deprive the
Court of jurisdiction. In Gcaba, while paying lip service to Langa
CJ’s judgment in Chirwa, failed to maintain the distinction
between the merits of the claim and the competence of a court
itself.
In Gcaba, the jurisdictional analysis of the Court begins by
noting that a finding that a complaint such as that presented by
Mr Gcaba is not administrative action will substantially reduce
the difficulties of competing jurisdictions between the LC and the
HC. However, as soon as the Court sets this as its objective
problems begin to emerge. An express goal of the Court is to
address the problems of competing jurisdictions, it is not to seek
a resolution to the primary question whether the HC has
jurisdiction to entertain the claim. An attempt at answering this
primary question has little to gain from the underlying policy
conceptions of either the LRA or PAJA. This question can
profitably be answered through an objective analysis of the
nature of the claim as pleaded. As Langa CJ noted in Chirwa
that the question was whether a claimant was asking a nonlabour court to decide a labour issue. The same proposition can
be framed in the alternative: is the claimant asking the HC to
determine a claim based on administrative action? It is only if the
answer to this is in the negative that a jurisdictional defence
proper should be upheld. The Court in Gcaba appeared to follow
this approach, but abandoned it without the necessary
appreciation of its logic. As a consequence, the Court confused
the merits with the jurisdiction. That is apparent from the
following remarks:
“An applicant like Mr Gcaba, who is unable to plead facts that
sustain a cause of administrative action that is cognisable by the
HC, should thus approach the LC”. In other words, the Court is
telling that in order to establish jurisdiction or the competence of
the Court, one must ask whether the pleaded facts sustain a
cause of administrative action that is cognisable by the HC. A
claimant must actually make out a case or a sustainable case for
the relief sought. If no sustainable cause of action is made, the
Court lacks jurisdiction. This reasoning, that jurisdiction depends
on a sustainable cause of action will strike many as odd,
particularly given the fact that Gcaba’s author had also penned
in the case between Fraser v ABSA Bank Ltd (National Director
of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC)
in which the following was held:
•
•
That an issue does not become a constitutional matter
merely because an applicant calls it one, and
That the applicant could raise a constitutional matter, even
though the argument advanced as to why an issue is a
constitutional matter, or what the constitutional implications
of the issue are, may be flawed.
The acknowledgment by the Court that an issue was a
constitutional matter does not have to result in a finding on the
merits of the matter in favour of the applicant who raised it. In
the latter passage Van der Westhuizen J is telling two things:
•
•
Firstly, the jurisdiction of the CC depends on whether the
issue raises a constitutional matter. That issue is often, but
not always, decided upfront without enquiring into the
merits of the claim.
Secondly, the fact that a court finds that a constitutional
issue has been raised has no bearing on the outcome of
the underlying merits of the claim. Thus, the jurisdiction of
the CC is invoked whenever a constitutional matter is
raised. That the constitutional claim lacks merit hardly
enters the debate.
This approach is sound, but was rejected in Gcaba. The
normative justification for the rejection is hard to find. O’Regan J
in Fredericks & Others v MEC for Education & Training, Eastern
Cape & Others 2002 (2) SA 693 (CC) had approached the
matter by separating jurisdiction from the merits. She was faced
with the argument that the HC lacks jurisdiction to determine the
question whether the State in its capacity as employer had acted
in a manner inconsistent with the right to equality and fair
administrative action as provided for in the Constitution. The
answer to this question is a two-stage analysis into the
jurisdiction of the Court and a determination of the merits of the
claim. An enquiry into the jurisdiction of the Court yields no
definitive answers for the merits of the claim. She decided that
the jurisdictional issue must be decided separately from the
merits. It was, however, her reasons that are most enlightening.
She began with an enquiry into the provisions of s 169 of the
Constitution. That section provides that the HC has jurisdiction in
respect of constitutional matters unless the matter has been
assigned by legislation to a different court of equivalent status.
In casu, the nature of the claim related to the proper
administration of a collective agreement, which was binding
between the employer and the employees. The employees
complained that the employer had acted in a manner which was
procedurally unfair and failed to afford them equal treatment.
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These complaints gave rise to constitutional issues in as much
as they impacted on ss 9 and 33 of the Constitution.
Furthermore, O’Regan J noted that s 169 of the Constitution
expressly forbids the ousting of the jurisdiction of the HC in
constitutional matters where the matter is not assigned to a court
of similar status. In Fredericks, the argument had centred on the
fact that s 24 of the LRA contains extensive procedures for the
resolution of labour disputes. That section requires all collective
agreements to contain dispute resolution mechanisms which
must be followed in the event of disputes about the enforcement
and application of terms of collective agreements. Where such
provisions are absent in collective agreements, s 24 of the LRA
requires disputes emanating from collective agreements to be
referred to the CCMA. It is here where the persuasiveness of
O’Regan J’ judgment is irresistible. She broke down the text of
the LRA analysing whether the overall effect of the LRA was to
exclude the jurisdiction of the HC. She avoided the temptation to
gloss over the difficult questions in an effort to fix policy holesreal or imaginary left by the legislative and executive branches of
government. She made it clear that the effect of s 24 of the LRA
was to assign disputes over collective agreements, ultimately, to
the CCMA. However, the jurisdictional ouster created in s 169
applies only where a matter is reserved for a court of equivalent
status. The CCMA commendable its function, is not a court of
law. That being so, s 169 cannot deprive the HC of its
jurisdiction in respect of claims about administrative action and
equality. She accepted that the LC, a court of equivalent status
to the HC has the power to review decisions of the CCMA. This
power, being one of review, is not the same as the power to
determine an issue. It is the power to correct irregularities in a
previous process. The presenter emphasised that this part of the
judgment explains why the HC can hear disputes which also
relate to the interpretation of collective agreements, and
potentially fall within the ambit of s 24 of the LRA. This tells that
provided the claims are brought as constitutional claims, the HC
must hear them. Moreover, this part speaks about the
inevitability of juridical recognition of policy choices made by the
legislature. It gives such choices an interpretation, which
accords with the provisions of the Constitution. It resists the
temptation to test the choices for wisdom as opposed to legal
correctness.
One might argue that by leaving choice of forum open to litigants
Fredericks left an unsatisfying outcome. That litigants could
increase their prospects of success by simply attaching a
specific label to their claims could be seen in a negative light.
Such criticism, however, flounders at the first hurdle. If the
outcome of Fredericks was unsatisfying, perhaps the criticism
should be directed at the source Fredericks: policy choices of
the legislature. It is quite remarkable that in Gcaba, there is nary
a mention of this important passage from Fredericks. It will be
recalled that Langa CJ refused to distinguish Chirwa from
Fredericks, on the narrow basis contended for by Skweyiya J,
that the question was in essence a labour matter. The important
question for Langa CJ was whether the LRA had assigned the
issue to a court of similar status to the HC.
In Fredericks the question asked was whether there was a
provision of the LRA which assigns the promotion of public
servants to a court of equivalent status. It was noted that
disputes about promotions are dealt with in ss 186 and 191 of
the LRA. Section 186(2) (a) defines an unfair labour practice to
include an unfair act or omission that arises between an
employer and employee involving unfair conduct by the
employer relating to the promotion. Section 191, in turn, deals
with the procedure to be followed where a dispute relating to
unfair labour practice arises. Section 191(1) (a) provides in
particular that:
“If there is a dispute about the fairness of a dismissal or a
dispute about an unfair labour practice, the dismissed employee
or the employee alleging the unfair labour practice may refer the
dispute in writing to a council, if the parties to the dispute fall
within the registered scope of that council, or the CCMA, if no
council has jurisdiction”.
As noted earlier, that the pivotal enquiry is directed at the
examination of whether there is a court of equivalent status to
the HC to which the issue in question is legislatively assigned
and that the CCMA is not a court of law. As a result, it is not
sufficient that a matter is assigned to the CCMA by the LRA.
Therefore, the jurisdictional propositions discussed in Gcaba
were neither novel nor controversial. They were old law and
settled legal propositions and Fredericks had decided these
propositions. The presenter mentioned that one may be
wondering why the Court revisited an issue which it had directly
resolved in its earlier decision. One theory, with some support of
the Gcaba is that Fredericks encouraged forum shopping with its
harmful consequences. But this is a curious theory. It is an
enquiry about the policy implications of the decision of the Court.
In determining whether a promotion is administrative action,
when drawing the lines between the various types of acts is a
complicated exercise. Langa CJ in Chirwa began the arduous
task of setting out the factors to be considered by the Court in
assessing whether employment decisions are administrative
action. One of them was whether the decision was taken in
terms of empowering legislation. He concluded that in that case,
it was not. However, the issue at stake was far too important to
be left hanging on the grounds of absence of clear statutory
basis for the dismissal. Thus, he set about the investigation of
whether the decision concerned the exercise of public power or
function. While acknowledging the embedded difficulties of
resolving whether something concerns the exercise of public
power, he nevertheless proposed factors to be considered when
assessing the nature and extent of public power in employment
related decisions. Determining whether a power or function is
public is a notoriously difficult exercise. There is no simple
definition or clear test to be applied. Instead, it is a question that
has to be answered with regard to all the relevant factors
including:
•
•
•
The relationship of coercion or power that the actor has in
its capacity as a public institution,
The impact of the decision on the public,
The source of the power, and
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•
Whether there is a need for the decision to be exercised in
the public interest.
The presenter further indicated that none of these factors will
necessarily be determinative, instead, a court must exercise its
discretion considering their relative weight in the context. Langa
CJ found that Mrs Chirwa’s job (as an administrator of
Transnet’s pension fund), was not significant for the broader
public. This was because she did not take decisions regarding
transport policy or practice. Accordingly, her dismissal was likely
to have a negligible impact on the public service provided by
Transnet, but at this stage one is to ask whether a station
commander of the SAPS is in the same position as an
administrator of the pension fund of Transnet. In other words,
are the decisions of the SAPS in appointing or dismissing station
commanders of no impact to the public? It is hard to accept the
notion that the public has no interest in the appointment of
station commanders of the SAPS, since the police are crucial in
society. The appointment of an incompetent station
commissioner has consequences which have impact beyond the
immediacy of the employer-employee relationship. Such
appointment is for the discharge of the public service in relation
to the fulfilment of constitutional functions at a particular station.
The entire SAPS are itself designed according to stations.
Stations are the face of the SAPS, the first port of call for
members of the public is the police station. That is why the State
is civilly liable for actions of the police where they violate the
Constitution despite the lack of proximity between the actions of
the police and the business of the employer. That was held in K
v Minister of Safety & Security 2005 (6) SA 419 (CC). The
appointment of the station commissioner is directly linked to the
exercise of public powers by the SAPS. The Court, however,
found that the decision did not concern the exercise of public
power. It provided two reasons. The first was that the decision
was a labour issue based on the right to fair labour practices and
the second was that ‘its impact had little or no direct
consequence for any other citizens.
On the second reason, the Court said that a decision on the
appointment of a station commander had no consequence for
any other citizen seemed that the opposite is true, that the other
citizens are affected by the decision to appoint a station
commander. A station commander is appointed to serve the
other citizens. When assessing their competence, a key factor
that must be considered is their ability to deal with the public. A
station commander with weak public relations abilities is hardly
likely to enable the SAPS to fulfil its constitutional
responsibilities. That is why the process of the appointment must
be procedurally fair. It can indeed be argued that the manner of
testing the fairness of the process is preferably under the LRA.
However, question is not relevant when the enquiry is directed at
establishing whether PAJA applies or not. Ultimately, that is why
Gcaba began with a promise, but ends on a thoroughly
unsatisfying note.
Stare decisis and Gcaba
The meaning and utility of stare decisis
Gcaba occurred against the backdrop of two decisions of the
Court: Fredericks and Chirwa. While Fredericks produced a
unanimous outcome, Chirwa sharply divided the Court. The
division replicated that which had occurred at the Supreme Court
of Appeal (SCA).
Stare decisis et non quieta movere, the Latin maxim from which
the doctrine of precedent emerges, means that one stands by
existing decisions and does not disturb settled legal questions.
Its shortened version—stare decisis, is used interchangeably
with precedent. Its value is encapsulated by the authors Hahlo
and Kahn in the following terms:
“In the legal system, the calls of justice are paramount. The
maintenance of the certainty of the law and of equality before it,
the satisfaction of legitimate expectations, entails a general duty
of Judges to follow the legal rulings in previous judicial
decisions. The individual litigant would feel himself unjustly
treated if a past ruling applicable to his case were not followed
where the material facts were the same. This authority given to
past judgments is called the doctrine of precedent”.
It enables the citizen, if necessary with the aid of practising
lawyers, to plan his/her private and professional activities with
some degree of assurance as to their legal effects. It prevents
the dislocation of rights, particularly contractual and proprietary
ones, created in the belief of an existing rule of law, it cuts down
the prospect of litigation, it keeps the weaker Judge along right
and rational paths, drastically limiting the play allowed to
partiality, caprice or prejudice, thereby not only securing justice
in the instance but also retaining public confidence in the judicial
machine through like being dealt with alike. . . . Certainty,
predictability, reliability, equality, uniformity, convenience: these
are the principal advantages to be gained by a legal system from
the principle of stare decisis.
The utility of precedent extends beyond the immediate interests
of the protagonists present in a court of law. It extends to parties
not directly affected by the litigation. There is also a manifest
public interest served by precedent. Members of the public must
know what the law is, in order to arrange their affairs according
to their prevailing legal regime. Not only does the precedent
serve a public interest, it also enables judges to make judicial
calls in difficult cases. In fact, stare decisis makes difficult cases
easy. That is because instead of testing novel legal propositions
which are likely to be upset on appeal, a judge can rely on
precedent. Precedent, therefore, serves a dual purpose. By
fulfilling these functions, precedent enhances confidence in the
legal system. It discourages resort to the use of force in order to
resolve disputes which can be resolved through the application
of legal rules. In the main the rule of law survives, not because it
is maintained by the force of the army or the police, but because
the public has confidence in the legal system.
According to the presenter, confidence in the legal system can
be a vague and imprecise concept. This is especially the case in
South Africa. Many factors have contributed to the loss of
confidence in the legal system. During the apartheid, many black
people justifiably developed the perception that judges applied
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different standards to them because they were blacks. That was
a major contributing factor to the loss of confidence by blacks in
the apartheid legal system. Therefore, precedent is that the
process of adjudication in a transient society stands to benefit
immensely from the application of the doctrine of stare decisis.
However, its application must take into consideration the
changed political and social underpinnings of South Africa. The
fact that the application of the doctrine must take these factors
into consideration does not change its nature and it transforms
its utility. Whereas in the past, the stare decisis doctrine could
have been deployed as a device to preserve archaic legal
traditions and entrenched social privileges, it can now be used to
ensure a fair and balanced application of the constitutionally
consonant principles. It is this attribute which reveals the true
value of stare decisis in the constitutional dispensation that its
ability to ensure that legal standards are applied fairly,
consistently and without discrimination. With the nature and
utility of stare decisis having been examined, the presenter
emphasised that Gcaba’s decission was a departure from
precedent.
A juridical intrusion into legislative choices: Chirwa v
Transnet (Pty) Ltd & Others2008 (4) SA 367 (CC)
The decision in Chirwa produced a divided outcome. This
division says less about the complexity of the case than it says
about the differing legal philosophies of the judges. Mrs Chirwa
had been dismissed from Transnet for poor work performance,
poor employee relations and incompetence. She referred a claim
for unfair dismissal to the CCMA. The CCMA attempted to
conciliate the dispute but failed. At this stage, Mrs Chirwa could
refer the claim for arbitration in terms of the LRA. She, however,
approached the HC on judicial review in administrative law
terms. She contended that in dismissing her, Transnet, a state
owned company, was exercising administrative action subject to
review for legality, rationality and the audi alteram partem rule.
The HC assumed, without deciding, that it had jurisdiction on the
matter and decided the case by the application of the rules of
natural justice and administrative law. It found that Transnet had
breached these rules, and ordered Mrs Chirwa’s reinstatement.
The case came before the CC after an appeal from the SCA.
The central question in this matter was whether parliament
conferred the jurisdiction to determine the applicant's case upon
the LC and the other mechanisms established by the LRA, in
such a manner that it either expressly or by necessary
implication excluded the jurisdiction of the HC. The presenter
argued that from this characterisation two observations should
be made. Firstly, the Court asked the correct question when it
said that the issue was whether Parliament had assigned the
issue to a different court of equivalent status. The framing of the
issue in these terms is consistent with the question posed in
Fredericks. Therefore, Chirwa is inconsistent with Fredericks.
According to the presenter’s view, the Court, in Chirwa
expanded the scope of the enquiry and in Fredericks the Court
limited its focus to the question whether another court of
equivalent status to the HC has powers to determine an issue.
The reference to a court is fundamental. According to s 169 of
Constitution, the jurisdiction of the HC is ousted only when the
issue is assigned to a court of equivalent status. It is not ousted
when the issue is to be determined by a forum other than a
court, determination, itself, bears its own meaning. In particular,
the power to determine a dispute is different from the power of
review. Despite that, the Court in Chirwa expanded the enquiry
to include the LC and the other mechanisms established by the
LRA. The introduction of the other mechanisms to the scope of
the enquiry was significant. It enabled the Court not to think only
of courts as defined in the Constitution, but to look at the overall
scheme of dispute resolution as set out in the LRA. That scheme
places the CCMA and not the LC at the coal face of labour
dispute resolution. It also favours mediation and conciliation, as
opposed to judicial intervention in labour disputes. Arguably, it is
preferable that labour disputes should be resolved through
mediation and not litigation. However, focus must not be on what
is preferable, one should focus on what is constitutionally
mandated. When the focus shifts to what is constitutionally
mandated, the natural conclusion from the provisions of s 169 of
the Constitution is that the HC retains its jurisdiction, unless the
matter has been assigned to a different court. Skweyiya J’s
conclusion demonstrates that little attention was paid to the
implications of the findings in Fredericks regarding the import of
the provisions of s 169 of the Constitution. The judge did not
deal with the suggestion that the LRA assigns the matter to the
CCMA and only gives the LC a limited power of review. In
Chirwa, the Court held that:
“Ms Chirwa's claim was that the disciplinary enquiry held to
determine her poor work performance was not conducted fairly
and, therefore, her dismissal following such enquiry was not
effected in accordance with a fair procedure. That was a dispute
envisaged by s 191 of the LRA, which provides a procedure for
its resolution: including conciliation, arbitration and review by the
LC. The dispute concerning dismissal for poor work
performance, which is covered by the LRA and for which specific
dispute-resolution procedures have been created, was,
therefore, a matter that must, under the LRA, be determined
exclusively by the LC. Accordingly, HC had no concurrent
jurisdiction with the LC to decide the matter”.
Given these comments, it is understandable that many would
read Chirwa as a clear departure from Fredericks. There can be
no mistaking the ultimate ratio of Fredericks: the jurisdiction of
the HC can only be ousted where the issue is assigned to the
LC. The fact that the LRA processes are preferable over the HC
processes because it is purpose-built is neither here nor there.
In Chirwa, the decision was that there was no jurisdiction
because employees in the public sector should pursue their
claims in the LC and not in the HC. Ngcobo J as he also wrote a
separate, but concurring judgment, for him, the problem of
competing jurisdictions could be resolved in the first instance by
a conscious judicial process of applying judicial policy whose
effect would be to discourage parties from initiating proceedings
in one forum (CCMA) and midstream switching to a different
forum (HC). He also said that in order to resolve the jurisdictional
complexity which had arisen, one had to look at the primary
objectives of the LRA, which were to establish a comprehensive
scheme of labour dispute resolution encompassing conciliation
and arbitration, and the LC as a court of review. However,
Ngcobo J was still confronted with the express wording of s 157
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of the LRA, which envisages the existence of concurrent powers
between the LC and the HC in relation to employment matters of
public sector employees. He did not frontally dealt with this
problem, but instead suggested that the legislative choice in
using the term concurrent was unfortunate. The immediate
implication of this finding is that it is permissible to ignore the
express wording of the LRA, it is possible to find that
notwithstanding the provisions of the LRA, the HC has no
concurrent jurisdiction with the LC in relation to acts of the State
as the employer. According to Ngcobo J, such a conclusion is
permissible if one examines the underlying policy purpose of the
LRA.
The presenter indicated that Ngcobo J was inviting one to ignore
the text in favour of policy considerations underpinning the
legislation. This invitation is tempting, however, is something that
can be avoided. The transmutation of the function of legal
interpretation into policy making creates more problems than it
resolves, it also pushes the judicial branch to the heart of the
legislative space. The enactment of law presupposes the
existence of policy choices. In fact, law is a reflection of the
choices already made. A court considering legislation primarily
concerns itself with finding a meaning of the words used in the
legislation. The words should not be criticised because they are
unwise. They should be criticised for inconsistence with the
Constitution. Subject to that requirement, courts must find
meaning to the words used, not the policy behind the words.
That should be left to the legislature, which is responsible for
policy formulation. That is why Langa CJ was critical of the
approach of the majority. His approach was that legislation
should be accorded due respect. The reason for respecting
words chosen by the legislature has its foundations on the
doctrine of the separation of powers which is constitutionally
entrenched in South Africa.
branch of government to concentrate on its business. Adam
Smith suggested the separation of the judicial from the executive
power seems originally to have risen from the increasing
business of society, in consequence of its increasing
improvement. From these perspectives, the doctrine of
separation of powers plays two paradoxical roles being a
constraint on power and enabler on the exercise of power.
The content of the doctrine can take many forms, some more
rigid than others, it can be express or implicit. In South Africa, it
is now authoritatively established that, while not explicit, the
separation of powers doctrine is an integral part of the
constitutional scheme. It is neither necessary nor desirable to
define the precise contours of the doctrine. What is, however,
clear is that a key feature of the doctrine is to confer autonomy
to the legislature with regard to legislation. In a country with a
supreme constitution and an apex court with a final say on
constitutional interpretation like the South African Constitution,
the autonomy of the legislature is limited. Legislation remains
primarily a domain for the legislature, not the judiciary.
Respect for legislation
The presenter highlighted that respect is not the same as
obedience. It is an appreciation of the special status of
legislation in society. Legislation is a mechanism by which
society organises itself. The selection of the term society is
deliberate. It is because he wanted to distinguish it from
legislature which it is regarded as a representative body or
assembly of the people. Although complaints about accessibility
to and role of Parliament abound, its role has never been in
dispute. It is an embodiment of the people, it is not the people
itself. Ngcobo J, however, perceives the idea of the people as an
assembly in a broader context. The fact of the existence of a
supreme constitution is not an abdication of the sovereign power
of the people. The Constitution is a manifestation of the power
delegated by the people to their representatives in Parliament.
Certain facets, however, of that delegated power, such as the
power to participate in legislative making is retained by the
people in the exercise of their sovereign power.
The idea of the division of powers between the legislature,
executive and judiciary has flourished in the United States of
America (USA). However, the idea did not originate in the USA,
it originated in continental Europe (France). It was the French
philosopher, Baron de Montesquieu, who developed the idea in
1748 some 40 years before Madison’s Federal papers.
Montesquieu, in his On The Spirit Laws, suggested that the
power of government must be divided into three different, but
equal branches. That way, the government can avoid placing too
much power on one individual. The need to avoid the
centralisation of power in an individual was not important for its
own sake. Liberty, essential to democracy, could only be
preserved through checks and balances that were guaranteed
by a government in which there is division of powers. An
independent judiciary, an aspect of the separation of powers, is
not only a machine to prevent undue encroachments by the
executive. It also serves a utilitarian function. It is useful to
conceive of separation of branches as a form of division of
labour, permitting a more efficient and better organised
government. That conception enhances the capacity of each
The people are not able to act as a multitude or a mob. They act
in a disciplined and rational way. Legislation, a product of a
rational and deliberative process, is a manifestation of the
exercise of people’s power. That is why legislation is important, it
is the voice of the people. That voice should not lightly be
tempered with because it is wrong or because it does not accord
with one’s expectation. It is only permissible to interfere
therewith because it is inconsistent with the Constitution. The
ability of the Court to strike down legislation which offends the
Constitution does not arise because the Constitution is a fetish.
It arises because the Constitution represents a higher voice, a
social compact by means of which society itself is founded. That
fact does not detract from the status of legislation as a voice of
the people. The ideas expounded herein are not new. “In The
Dignity of Legislation” Jeremy Waldron is able to deliver a
unique account of the place of legislation in the annals of
political and legal thought. His argument draws, for inspiration,
on the works of John Locke and John Rawls. In his
argumentation, he seeks to evoke, recover, and highlight ways
of thinking about legislation in legal and political philosophy that
Separation of powers and Gcaba
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present it as an important and dignified mode of governance.
Waldron chooses Locke because he was the founder of the idea
of a limited legislature. The limitation, however, did not lie, as it
has become accepted in Western understandings of democracy,
in the judiciary, and it lay in natural law. The law of nature stands
as an Eternal Rule to all Men, Legislators as well as others. If
natural law constrains legislative power, then what is the function
of legislation? A principal function, explains Waldron, of
legislation is to render natural law more determinate. For
example, natural law may require that when a motorist passes
through a heavily populated area, they ought to be considerate
to the pedestrians’ and thus slow down. Natural law is unlikely to
specify the speed limit. Legislation will in such an instance set
the speed limit, say for example, 60km per hour. Similarly, when
we consider property relations, natural law may prohibit arbitrary
deprivations. However, it will not define the term arbitrary
deprivation, leaving it to legislation to supply the definition.
Natural law may also contain certain prohibitions against certain
conduct such as it is wrong to steal. It will not contain penalties
for the breach. Legislation will supply the penalties for the
breach. The reason for allocating the role of setting penalties to
the legislature must by now be obvious. The legislature is a
representative body, it represents the interests of society. By
setting penalties, it is performing a function which in primitive
society would either have been performed by each man for
himself or by a mob. In respect to the function of the legislature,
Waldron noted that there is a significant degree of disagreement.
There is disagreement at the most basic level about whether
certain functions must be played by the legislature. There is also
disagreement as to the content of the laws passed by the
legislature. John Rawls, a contemporary philosopher, states that
the idea of natural law has disappeared if not mutated into
another idea: justice. Rawls says that people must conceive
justice, the equivalent of natural law, as something to which
legislatures are already committed to. The role of legislation is
the attainment of justice, something to which there is no
disagreement about. Legislation which fails to adhere to the
standard of justice is not good.
According to the presenter, natural law and justice seem to play
interchangeable roles. They both embody a set of norms against
which legislation is measured, something which the Constitution
also does. But the genius of Waldron’s argument is the
identification of the unique role played by legislation as a
concrete expression of the higher norms contained in
constitutions. By passing legislation, legislatures are not only
speaking, they are also resolving matters in which there is
difference of opinion in society. They are not asking the judicial
branch for answers, they are deciding the answers. They do so
because in a democracy, they represent the people. It is in this
respect that the outcome in Gcaba is open to criticism. The
failure to recognise that the mere fact that a statute may be
ambiguous is not an invitation to the judiciary to decide the
ambiguity. Sometimes the ambiguity is left on purpose, at times
it is a reflection of a deliberate policy choice. It is by respect of
legislation as a mode of governance that ambiguities in
legislation, such as those one encounters between the LRA and
PAJA can be left to the legislature to resolve.
Separation of powers
Ngcukaitobi stated that Gcaba was decided on policy grounds in
the following manner:
•
•
•
It is preferable to follow the specially crafted mechanisms of
the LRA rather than pursue claims in the HC in terms of
PAJA,
Forum shopping should be discouraged, and
The litigation of matters involving employment under the
PAJA will create parallel streams of law, which must be
avoided.
However, there is an answer to each one of these arguments.
The wisdom of pursuing labour claims through specially crafted
mechanisms is beyond dispute. What is in dispute is what
choices have been made by the legislature. The argument about
the undesirability of forum shopping has little purchase. As
Plasket J explained that in POPRCU & Others v Minister of
Correctional Services & Others (2006) 4 BLLR 385 (E),
constitutional rights must be given their full effect. The situation
where an employee pursues parallel claims simultaneously in
different forums can be dealt with under existing rules and
principles. Similarly, the argument about parallel stream of law
does not fully arise in the context of the present facts. The real
issue is that there are already parallel streams of law:
administrative law and labour law. These streams may develop
from the same facts. The harm sought to be avoided by the urge
to streamline the legal channels for challenging unfair decisions
is not altogether apparent in these circumstances.
The unquestionable fact is that the foundation of Gcaba is a
policy. While legal puritarians may baulk at this idea, they will
recall the judgments of Ngcobo J and Skweyiya J in Chirwa.
Both were naked application of policy. For Ngcobo J judicial
policy licenced judges to depart from explicit statutory provisions
to avoid difficulties of legal interpretation. Similarly, the effect of
Skweyiya J’s judgment was to supplant the policy choices made
by the legislature with the judges’ views. The provisions of the
LRA are clear as it states that the HC has concurrent jurisdiction
with the LC in employment disputes where the State is the
employer. Ngcobo J accepted this fact, but called it an
“unfortunate” state of affairs. It was on this basis that he believed
that a policy based interpretation was warranted in order to
excise the HC from labour matters altogether. Langa CJ, in a
powerful dissent, cautioned against the judicial zeal to trench
upon the legislative sphere by deciding policy issues. While
there may be certain advantages to be gained by dealing with
labour cases through the LRA, for Langa CJ, the policy choice
made by the legislature was that the HC would not be deprived
of its jurisdiction where such disputes also raise administrative
law concerns. The fact that a court may find that a policy choice
is bad is no justification for the court to depart from its role of
giving effect to the intention of the legislature provided that it is
constitutionally sound. After all, it is the legislature, not the courts
which carries the popular mandate of the people. It is for this
reason that policy choices fall within its exclusive preserve. The
legislature is not immune from making mistakes simply because
it is elected. While one may question that intention and may
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have preferred a legislative scheme that more neatly divided
responsibilities between the different courts that is not the path
the legislature has chosen. One must be careful as a court not to
substitute the preferred policy choices for those of the
legislature. The legislature is the democratically elected body
entrusted with legislative powers and this court must respect the
legislation it enacts, as long as the legislation does not offend
the Constitution.
The basis for the view articulated above, according to Langa CJ
lies in an important constitutional principle. The fact that rights
overlap does not mean they negate each other. They are
interdependent and indivisible. The strength to their protection
lies not in any form of reductionist thinking, but in approaches
consistent with the provisions of the Constitution. Rights exist to
fulfil the human condition, not the convenience of the branches
of government. It is the duty of the courts to ensure that the
rights serve the human condition. Such a duty is frustrated, not
facilitated by restrictive approaches whose purpose is the
creation of convenience for the courts and other branches of
government.
Langa CJ did not only consider the majority judgment as
trenching upon the legislative sphere, he also believed that the
judgment was inconsistent with the clear language of the LRA
and the Fredericks judgment. The presenter’s submission was
that, Gcaba had followed the majority judgment in Chirwa in both
respects. It is inconsistent with the clear language of the LRA
and amounts to a rejection of precedent. There is an important
principle at play. Both PAJA and the LRA protect important
constitutional rights and one should not presume that one should
be protected before another or presume to determine that the
essence of a claim engages one right more than another. A
litigant is entitled to the full protection of both rights, even when
they seem to cover the same ground. The presenter said he
agrees with Cameron JA that, while it may be possible for the
legislature to prefer one right over another, it must do so more
explicitly than it has in the LRA and PAJA. Cameron JA
concluded, by saying that, “We must end where we began, with
the Constitution”. Where more than one right may be in issue, its
beneficiaries should be confined to a single legislatively created
scheme of rights and that no intention to prefer one legislative
embodiment of a protected right over another, nor any preferent
entrenchment of rights or of the legislation springing from them.
The implication is that there is no constitutional reason to prefer
adjudication of a claim that may simultaneously constitute both a
dismissal and administrative action, under the LRA rather than
under PAJA. The presenter added by saying that the legislature
could resolve any potential problems of duplication by conferring
sole jurisdiction to deal with any disputes concerning
administrative action under PAJA arising out of employment
upon the LC. So far the legislature has not chosen this route.
The future of Gcaba
According to Ngcukaitobi, the case of Gcaba produced a
remarkable judgment. Two legal conclusions stand out for
emphasis. The first relates to the doctrine of precedent. No
serious analysis can escape the conclusion that Gcaba is a clear
departure from Fredericks. The question of the degree to which
a final appellate court can depart from its own precedent is
unexplored territory in South Africa. However, a few remarks
may be warranted. At its heart, the doctrinal import of the stare
decisis rule lies in its innate ability to create juridical order. The
order is created because decisions of higher tribunals are
binding and effective on lower tribunals. However, the same
logic applies in relation to previous decisions of the same court.
It is necessary and consistent with the rule of law that previous
decisions are followed. A final appellate court should enjoy the
power to depart from its previous decisions, but the ramifications
of departing from precedent can be profound. In certain cases, it
may shake the very foundations of the legal system. In the USA,
many aspirant judges to the Supreme Court are routinely asked
about their view of the case Roe v Wade 410 U.S. 113 (1973).
The purpose of posing the question is never to elicit an insightful
answer into the legal expertise of the applicant, but to
understand his/her political leanings. Regardless of the answers
given by candidates to this question, the fact is that the Roe
case has remained unchanged since 1973. There are good
reasons for that, reason being that law is not politics. It binds
society together where politics cannot. Societies can survive the
tinkering with the political order. They cannot, however, survive
the tinkering with the legal order. Judges, therefore, must
exercise the power to alter precedent sparingly. This bears
emphasis in the context of South Africa where the CC bench has
changed substantially since the first appointments were made
about 15 years ago. Previous judgments of the Court which are
clearly wrong and inconsistent with prevailing understandings of
the Constitution should be subjected to regular review, and
where they are no longer of value to society be jettisoned.
However, that will happen in very rare cases.
Another remarkable feature of Gcaba concerns respect for
legislation. It is unavoidable that judges will encounter legislative
choices which they disagree with. There could be valid and
cogent grounds for such disagreement. However, the Court,
being a court of last instance has a duty to respect choices of
the legislature. That requires an appreciation of the distinction,
which is often nuanced and not apparent between questions of
legal interpretation and policy choices. At its very core, the
problem identified by the Court in Gcaba was not one of judicial
interpretation. It was one of the undesirability of the
consequences of giving effect to a given legal regime. A
particular normative order brings about undesirable
consequences does not make it constitutionally bad. It may be
said that legislative intervention is warranted to facilitate the
workings of the system. The duty of an appellate at the CC lies
not in taking sides in the debate of who is right or wrong, but on
what is legally permissible. When a court enters the policy fray, it
reduces itself to a political organ. This is why, the following
counsel, from the Court itself is apposite. It was said in the case
between United Democratic Movement v President of the
Republic of South Africa & Others 2003 (1) SA 495 (CC) that the
case was not about the merits or demerits of the provisions of
the disputed legislation. That was a political question and was of
no concern to the Court.
October 2010 – Page 41
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Conclusion
Reference
The presenter concluded by stating that ironically Gcaba’s future
lies in the very doctrines that it sought to undermine, stare
decisis and separation of powers. Its survival depends on
whether a future court will defer to it on the basis that it was
decided after Fredericks or takes a view that it was wrongly
decided and, therefore, should be overturned. It is arguable that
a future court may take the view that Gcaba was an unwarranted
intrusion into the legislative arena and, therefore, should not be
followed.
Ngcukaitobi. T: Unbound by Precedence: Reflections on the
Decision of the Constitutional Court in Gcaba v Minister for
Safety and Security 2010 (1) SA 238 (CC). Presentation made at
the 23rd Annual Labour Law Conference, 11-13 August 2010. South
Africa.
October 2010 – Page 42
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CHILD LABOUR IN CAMBODIA – A NEW DIRECTION
By Moore and Dow
Summarised by Alucia Mdaka
Introduction
The story of Leap Beckons and Doung Paeaktra
Although Cambodia is emerging as one of the brightest
economic growth stories of Southeast Asia, over 313 000
children are trapped in the worst forms of exploitation such as
drug trafficking and prostitution. But the end of all worst forms of
child labour in the country is within reach, according to Moore, a
Phnom Penh based journalist, and Dow from the International
Labour Organisation’s (ILO) Regional Office for Asia and the
Pacific in Bangkok who sent the report.
It was on a hot afternoon in Cambodia’s capital city Phnom
Penh, 10 year old Leap beckons to tourists riding by on the
back of a lumbering elephant. Struggling to carry her basket of
snacks, she runs along a dusty road next to the golden Royal
Palace offering rice cakes and sweets from a container too big
for her small arms. Leap has already been working for five
hours and, most likely, will still be out there at midnight working
alone. She is a small vulnerable girl who has never been to
school and who will be lucky if she earns two dollars a day.
Leap says she has no choice but to work, if she were to stop
working, her mother and younger brothers would go hungry.
In another part of the city, seven year old Doung Paeaktra
crouches down near a riverbank sifting through a pile of
rubbish. He was looking for plastics that he can sell to a
recycler. With his father dead and his mother at home nursing a
new baby, Doung is the sole provider for his family.
Although access to education has improved in Cambodia, child
labour persists – Leap and Duong are two of the children still
left behind. While primary school enrolment has risen from 75%
in 1997 to 91% in 2005, most of the children attending school
are combining their studies with work. For many more, the
situation is truly desperate and the sad story of a happy
childhood being denied to Cambodia’s children is far too
common.
What is child labour?
The ILO most recent estimates suggest that there are still 215
million children involved in child labour, which violates
international standards. Child labour is work that is
unacceptable because the children involved are too young and
should be in school, or because even though they have attained
the minimum age for admission to employment, the work that
they do is unsuitable for a person below the age of 18. Many
children are victims of the worst forms of child labour, such as
bonded labour, slavery or practices similar to slavery,
production and trafficking of drugs or other work which is likely
to harm their health, safety or morals.
Across the country, children of the very poorest families are
engaged in hazardous activities that place them in constant
danger. Over 313 000 children are trapped in the worst forms of
exploitation such as drug trafficking and prostitution. Others
spend hours in salt fields, work in factories or load carts with
bricks to meet the demands of the booming construction
industry. An ILO supported survey in 2003 reported that one in
every ten children in the capital above the age of seven was
engaged in child domestic labour – working in the homes of
others.
ILO’s response on child labour
The ILO’s international labour standards specify only nonhazardous light work that should be carried out by those
between the ages of 15 and 17, but many Cambodian children,
their parents and often the employers are either unaware of this
rule or just ignoring it. The apparent paradox of Cambodia’s
rapid economic growth is a complicating factor, though one that
can also be used to advantage to get children off the streets
and into schools. Cambodia is one of the brightest economic
success stories of Southeast Asia. Just thirty years after the fall
October 2010 – Page 43
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of the Khmer Rouge regime, and its anti-urban policies,
gleaming new office blocks have opened in Phnom Penh.
Cambodia’s capital city, the country’s overall economy, is
growing rapidly.
Working with the Royal Government of Cambodia and its Social
Partners, the ILO has recognised that the only way children like
Leap and Doung can stop working is by replacing the income
they are bringing home.
It was reported that in many cases, families of child labourers
want to send their children to school but they find it hard to
survive when the money the child earns stops, especially if
there is an emergency at home such as a new baby or a death
in the family, says MP Joseph, Chief Technical Advisor of the
International Programme on the Elimination of Child Labour
(IPEC) in Cambodia. One of the ILO’s responses has been to
pioneer a livelihood scheme to help decrease, and eventually
eliminate a family’s reliance on its children for income. This
IPEC programme encourages parents and other adults from the
country’s poorest families to work together to create savings
groups.
Response from some Cambodian community
In a small village in southern Cambodia, local women explained
how their savings group had helped them set up small
businesses and supplemented that with training in finance and
administration. “Before the group, things were very difficult and
the children had to work”, says 60 year old Pan Phen. “If I had
problems I would have to go to the money lender who charges
20 per cent interest monthly. Now I make more money and in
our group, the interest rate is just three percent.” Pan Phen
borrowed 40 000 riel (USD$ 10) from the group and now makes
sweets which she sells outside a local factory each day. “All
(six) of the children I look after are now in school,” she added
proudly. Each of the 25 families in the group contributes
between one and five dollars per month. Once enough money
has accumulated, they can apply for loans of up to 200 000 riel
($50) to set up a micro business and increase their income.
Working with local None Governmental Organisations,
government ministries and the Women’s Enterprise
Development and Gender Equity Project, the IPEC project has
organised self help groups in seven provinces across
Cambodia. More than 160 groups had been set up and 18 280
child labourers or at risk children had been removed or
prevented from engaging in the worst forms of child labour and
are enrolled at schools like Anlong Kong Thmey.
Conclusion
The Cambodian government along with the ILO is working to
identify and rehabilitate all the children scavenging along the
riverbanks of the capital with the objective of eliminating those
worst forms of child labour by the end of 2012. The end of all
worst forms of child labour in Cambodia is within reach and the
Cambodian government has committed itself to take on the
challenge, but in order to stay, it will require continued support
of those inside the country as well as a continued financial
commitment from donors to ensure that every child in
Cambodia is given the start in life they deserve. The tourist
brochures called “Cambodia, a Kingdom of Wonder: And so it
is” perhaps soon would also become a “Kingdom Without Child
Labour”.
Reference
Moore. E & Dow. A. Child Labour in Cambodia - A New
Direction, 2010. ILO Department of Communication and
Public Information. International Labour Office, Geneva.
www.ilo.org. Accessed in August 2010.
October 2010 – Page 44
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ORGANISING DOMESTIC WORKERS IN KENYA
By Albert Njeru
Summarised by Samuel Denga
New legislation introduced in 2008 recognises more rights for
Kenya‘s domestic workers, according to Albert Njeru, general
secretary of the KUDHEIHA union that organise domestic
workers. Domestic workers in Kenya as still faced with many
forms of exploitations.
Some of the common problems are sexual harassment, no
employment contract, no freedom of association and very low
pay. As most of the domestic workers have a low educational
level, they are not aware of their rights. Domestic child labour is
common, sometimes other start to work at age of 10 although is
illegal.
A survey was carried out on domestic child labour in Mombasa
in collaboration with the AFL-CIO’s Solidarity Centre. Mombasa
attracts domestic workers from across the country because it
has a reputation for being better off, partly because there are
foreigners there who pay in dollars.
The survey showed that most domestic workers are not given
food by their employers, their identity documents are
confiscated, they are underpaid and many of them are locked in
the house when the employer leaves, with the risk of being
unable to escape if there is fire.
New legislation that came to 2008 provided for the registration
of employment agencies. However, others got the job through
the word of mouth that someone is looking for a maid in the
neighborhood. Most of girls who drop out of school are recruited
as domestic workers. Employers take advantage that domestic
workers came from poor family and exploit them.
The new legislation set out minimum wages for domestic
workers. Most of the employers are not able to pay the
minimum wages and social security charges. Many Somalians
came to Kenya looking for work in order to survive. Some work
just for their food and shelter, nothing more and they are not
worried about salary. The union had been organising domestic
workers since 1948 before Kenya got its independence. Nearly
5000 domestic workers had been organised. Domestic work is
a difficult sector to organise because the women are not aware
of their rights and there is no collective bargaining. The main
priority of the union is to teach them about fundamental rights.
Domestic workers are taught to report case of exploitation to
the authorities. Before beginning to train domestic workers, the
union selects a number of women in the area, arrangements
are made to meet them when they are free. Some domestic
worker claimed that their employers locked them in the house
on Sundays so that they must not attend union meetings. In
Kenya, trade unions are still regarded as trouble makers.
The adoption by the International Labour Organisation (ILO) of
international standard on domestic work will assist domestic
workers’ protection at the workplace. As trade unions,
employers and government are partners in the ILO, it easier to
raise awareness among employers if there is a standard. A
Convention will assist domestic workers a lot when trade union
campaign for the domestic workers’ remuneration, against child
labour and decent work.
Reference
Njeru .A. Organising domestic workers in Kenya.
International Trade Union Congress.
www.ituc-csi.org. Accessed in September 2010.
October 2010 – Page 45
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