CCMAil
December 2006
CONTENTS
CASE ALERTS .....................................................................................................................................................................................2
LABOUR COURT & LABOUR APPEAL COURT DECISIONS ...........................................................................................................4
DECISIONS: OTHER DISPUTE RESOLUTION FORUMS ..................................................................................................................7
LABOUR WATCH
 Race discrimination and bias claims ...............................................................................................................................................9
 The retrenchment guidelines: are they getting any clearer? .........................................................................................................11
 Confusion borne out of public holidays..........................................................................................................................................13
 Inherent requirements of the job ...................................................................................................................................................16
GLOBAL TRENDS
International Labour Organisation calls for “ambitious reforms” in labour inspection ..........................................................................18
The International Labour Organisation and collective bargaining .......................................................................................................20
EDITORIAL TEAM
Alucia Mdaka
Dorothy Khosa
Lucky Moloi
Nersan Govender
December 2006 – Page 1
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By Alucia Mdaka
NW4657-04 Bothomane v TUFUSA – Commissioner:
Eberdohn
Dismissal – Procedural fairness – Bias – Presiding officer in
disciplinary hearing involved in pre-investigation.
Dismissal – Substantive fairness – Breach of trust – Employee
dismissed for arranging amalgamation with another union and
breach of employer’s constitution.
The applicant was dismissed for unlawfully signing an
amalgamation agreement with another union (Mouthpeace
Workers Union), and for breaching the employer’s constitution.
The applicant claimed that the executive committee had
approved the amalgamation agreement. He denied that he had
done anything contrary to the union’s constitution. The applicant
also claimed that he was not informed of the disciplinary
hearing.
Substantive fairness
Noted: That the applicant had never fulfilled his intentions to
call a witness to prove that the executive committee had
approved the amalgamation with the Mouthpeace Workers
Union. That the respondent’s evidence had proved that the
applicant had breached his duties and in so doing had
undermined the trust relationship between himself and the union
Held: That the
substantively fair.
applicant’s
dismissal
was,
therefore,
Procedural fairness
Noted: Turning to the applicant’s procedural challenge, the
commissioner noted that the applicant had been notified of the
disciplinary hearing.
Also noted: That the presiding officer who had chaired the
hearing was unsuitable because he was the one who handed
the notification of a disciplinary hearing and had also been
involved in the investigations. The commissioner also noted that
it was impossible for the presiding officer to approach the matter
with a balanced and open mind.
Further noted: That since the applicant had not attended the
hearing, he had been deprived of his right to state his case.
Held: That the applicant’s dismissal was procedurally unfair.
The respondent was, therefore, ordered to compensate the
applicant an amount equivalent to two months’ remuneration.
Mahlangu v CIM DELTAK, Gallant v CIM DELTAK (1986) 7 ILJ
346 (IC)
WE12675-05 Meleni & Others v Rohloff Administration: Commissioner: Wilson
Polygraph test.
The applicants were dismissed for refusing to undergo
polygraph test after the respondent had experienced a high
stock loss in one of its outlets. However, some of the employees
had agreed to undergo a test and had passed it and no action
had been taken against them. The respondent claimed that
several employees had admitted that they were part of a “theft
ring”.
Noted: That the respondent had led no direct evidence against
any of the applicants. The commissioner noted that all
applicants had refused to take a polygraph test without giving
any reason.
Also noted: That it is permissible to dismiss a group of
employees who have participated in a collective misconduct if
they have a common purpose or if they were aware of the
misconduct. The commissioner also noted that a number of
respondent’s witnesses had presented hearsay evidence based
on the information provided by the informer. However, the
probative value of that evidence was good and the employees,
upon whose hearsay evidence was based, had refused to testify
in spite of having been subpoenaed by the respondent.
Further noted: That the presiding officer had given two of the
applicants a second chance to undergo polygraph test and
when they refused to do so, they were charged with a new
offence.
Held: The dismissals of the applicants were upheld.
Case references
Hlatshwayo v Barrier Angelucci MENT 1283 (MEIBC)
Federal Council of Retail & Allied Workers v Snip Trading (2001)
7 BALR 669 (P)
NUMSA obo Ncongwane v Assmang Chrome Machadodorp
Works (MEGA 6803) MEIBC
Southern Sun Hotels (Pty) Ltd v SACCAWU & Another JA33/99
(LAC)
WE4541-06 X v W – Commissioner: Christie
Sexual harassment.
Case reference
The respondent, a part-time company doctor, was charged with
breaching the company’s sexual harassment policy by using
December 2006 – Page 2
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inappropriate method when examining female applicants during
pre-employment medical examination. The respondent claimed
that he had done nothing wrong during the examinations, but
conceded that some women might have felt uncomfortable
because of the nature of the examinations.
Held: That the application was dismissed. The applicant was,
therefore, ordered to pay the respondent’s the amount
equivalent five days of the loss of production.
Noted: That of the ten employees who had been interviewed
during investigations, five had found nothing wrong with the
manner in which the respondent had conducted the
examinations. The commissioner noted that the South African
Health Professions Council had no specific guidelines for
conducting examinations. Furthermore, both the company’s
code on sexual harassment and the statutory code defined
sexual harassment as misconduct of a sexual nature.
Amalgamated Pharmaceuticals Ltd v Grobler NO & Others
(2004) 6 BLLR 537 (LC)
Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC)
Board of Executors Ltd v McCafferty (1997) 7 BLLR 835 (LAC)
Boshoff v Slit Steel (Pty) Ltd (1996) 1 BLLR 42 (IC)
Buthelezi v Shoprite (2000) 12 BALR 1359 (CCMA)
Chamber of Mines of SA v Council of Mining Unions (1990) 11
ILJ 52 (IC)
CAN v CCAWUSA & Another (1991) 12 ILJ 340 (LAC)
Cronje v Bloemfontein TLC (1997) 18 ILJ 862 (CCMA)
Hoch v Mustek Electronics (Pty) Ltd (1999) 12 BLLR 1287 (LC)
Komane v Fedsure Life (1998) 2 BLLR 215 (CCMA)
Lahee Park Club v Garratt (1997) 9 BLLR 1137 (LAC)
Lekota v First National Bank of SA Ltd (1998) 10 BLLR 1021
(LC)
Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ
673 (LAC)
Maduna v Brollo Africa (Pty) Ltd (1995) 1 BLLR 33 (IC)
Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC)
Mncube v Cash Paymaster Services (Pty) Ltd (1997) 5 BLLR
639 (CCMA)
Moloi v Euijen & Another (1997) 8 BLLR 1022 (LC)
Mostert v Dorbyl Automotive (1999) 1 BALR 4 (CCMA)
NETU obo Upton & Another v Rustenburg Platinum Mine &
Another (2001) 4 BALR 378 (CCMA)
NUM & Others v Driefontein Consolidated Ltd (1984) 5 ILJ 101
(IC)
NUM v East Rand Gold & Uranium Co (1992) (1) SA 700 (A)
Primo v Pick n’ Pay Durban Hyper (2000) 7 BALR 794 (CCMA)
Reyneke v Pick n ’Pay (2000) 4 BALR 394 (CCMA)
SACCAWU v Foschini Group (Pty) Ltd (1998) 4 (6) SALLR 322
(CCMA)
SACCAWU obo Nyusela v Woolworths (Pty) Ltd (1999) 8 BALR
947 (CCMA)
SAMWU obo Damon v Cape Metropolitan Council Ltd (1999) 20
ILJ 714 (CCMA)
Schana v Control Instruments (Pty) Ltd (1991) 2 (3) SALLR 49
(IC)
Standard Bank of South Africa Ltd v CCMA & Others (1998) 6
BLLR 622 (LC)
Swiles v Pep Stores (Pty) Ltd (1997) 4 BLLR 503 (CCMA)
Twana v Weir’s Cash & Carry EC3455-01
Zungu v Steenkamp Transport (1998) 11 BALR 42 (IC)
Also noted: That the tests for heart and lung conditions should
be conducted when a patient is undressed.
Held: That some of the women who had felt uncomfortable
while these tests were conducted did not mean that the doctor’s
conduct constituted sexual harassment. The commissioner held
that by remaining passive during the examinations, the
complainants had all impliedly consented to the examinations.
Also held: That in the context of a medical examination of
intimate parts of the body, a doctor’s conduct only constitutes
sexual harassment if it is not conducted for a legitimate
purpose. However, the evidence provided by the complainants
did not prove that the respondent had an illegitimate purpose.
The respondent was, therefore, found not guilty of sexual
harassment.
ECPE714-05 – Simani v Coca-Cola Fortune - Commissioner:
Fouchè
Bribe.
The applicant was one of the drivers who were dismissed for
bribing guards to allow them to remove company stock without
authorisation, and sold the stock for their personal gain. The
applicant denied involvement in the scheme, and claimed that
he had passed a polygraph test during investigation.
Noted: That the fact that the applicant had passed the
polygraph test did not alter the fact that he was not a credible
witness. The commissioner noted that video evidence was also
used as another evidence which showed the applicant acting in
a suspicious manner. That the respondent’s evidence indicated
that the applicant had left the factory with an additional pallet
containing 56 cases of soft drinks which ware not accounted for.
Case references
December 2006 – Page 3
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By Poso Mogale
Labour Court: JS371/03
Van der Velde v Business Design Software (Pty) Ltd & Another (2)
Procedural fairness – Dismissals related to s197 transfers.
The Labour Court had to determine whether the applicant was automatically dismissed as listed in s187 (1) (g) of the LRA.
Alternatively, it had to determine whether he was dismissed for a reason related to the employer’s operational requirements.
Almost two years after the applicant was employed as the first respondent’s general manager and managing director in-waiting, the
first respondent was purchased by the second respondent. Subsequent to that, there were concerns that the first respondent had
many senior managers. The applicant lost the management buy-out bid to the first respondent’s managing director.
The applicant was then given an option to resign, stay on and face disciplinary action or retrenchment. When the applicant opted for
retrenchment the company refused and, instead, offered him the post of administration manager on reduced terms. The applicant
was, subsequently, dismissed after he rejected that offer.
Held: That the first issue for determination was whether the dismissal was related to the transfer.
Noted: That different approaches had been adopted to the question of the onus where employees claim that their dismissals were
automatically unfair. However, the position appears to be that such employees must establish that they were dismissed, that the
action concerned was related to a prohibited reason and that there is a causal link between the dismissal and the transfer. If the
employee makes out a prima facie case, the employer must then satisfy the court that the dismissal was for an acceptable reason.
Also noted: That the reason and the transfer must be closely related. To balance the interest of employees and employers,
employees who claim that their dismissals fall within the scope of section 187 (1) (g) must prove the casual link to the transfer as
contemplated by section 197. If the employee discharges that burden, the employer must establish that the true reason for the
dismissal was not related to the transfer.
Turning to the facts
Held: That the applicant had adduced sufficient evidence to prove that his dismissal and the transfer of the business were probably
causally linked.
Also held: That there was no evidence to suggest that the applicant would have been dismissed were it not for the transfer. The
transfer was, therefore, the real and proximate reason of the dismissal. The applicant’s dismissal was, accordingly, automatically
unfair and 12 months compensation was ordered.
Case references
Halgang Properties CC v Western Cape Workers Association (2002) 10 BLLR 919 (LAC)
Kroukam v SA Airlink (Pty) Ltd (2005) 12 BLLR 1172 (LAC)
NEHAWU & Others v University of Cape Town & Others 2003 (2) BCLR 154 (CC)
Labour Court: C334/2005
Wallace v Du Toit: Judge Pillemer (Acting)
Discrimination – Automatically unfair dismissal - Dismissal based on pregnancy.
The applicant was employed as an au pair. Two years later she fell pregnant and was, subsequently, dismissed. She claimed an
automatically unfair dismissal and sought compensation. The employer’s contention was that the applicant was informed during the
December 2006 – Page 4
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interview that her employment would be terminated if she fell pregnant. The applicant, however, disputed that she had been told that
being childless was a condition of employment.
Held: That on the balance of probabilities, the verbal agreement between the parties did not contain a term that the employment
would terminate automatically if the applicant fell pregnant. The Court, accordingly, held that the applicant had been dismissed.
Also held: That since it could not be accepted that not being pregnant or a parent was an inherent requirement of the job of an au
pair, the dismissal amounted to unfair discrimination and was an automatically unfair dismissal.
Turning to the relief
Noted: That the employment relationship has broken down and, therefore, reinstatement was not an option.
Also noted: That simultaneous claims for damages under the EEA and compensation under the LRA could create an unfair
duplication to the respondent.
Held: That the applicant should be awarded R25 000 as a solatium and the equivalent of a year’s salary, less the amount that she
was given at termination of employment, as compensation for her patrimonial loss.
Case references
Christian v Colliers Properties (2005) 5 BLLR 479 (LC)
Mashava v Cuzen & Woods Attorneys (2006) 6 BLLR 691(LC)
Ntsabo v Real Security CC (2004) 1 BLLR 58 (LC)
President of the Republic of South Africa & Another v Hugo 1997 (6) BCLR 708 (CC)
Labour Court: JR251/06
Cell C (Pty) Ltd v Finger & Others
Perception of racial bias – Commissioner asked to recuse himself.
This was an application to have the commissioner’s decision to recuse himself set aside. The applicant also sought a punitive cost
order against the respondent.
The employee had, at arbitration, asked for the commissioner’s recusal. His reasons were that he perceived the situation as being
“racially imbalanced” against him because the commissioner and the employer’s representative were Indians. The commissioner
reluctantly recused himself and ordered a punitive cost order against the employee.
Noted: That according to law, a decision by a presiding officer not to recuse himself is appelable. However, the converse will seldom
apply, and then only when the review relates to unterminated proceedings where grave injustice might result or where justice might
not by other means be attained.
Also noted: That to force an arbitrator who has recused himself from a matter, to continue with it, particularly in a case such as this,
where the arbitrator was provoked into recusing himself, would be imprudent.
Held: That although the commissioner should not have recused himself, it would be inappropriate to set aside his decision. It was
also held that the commissioner could have deprived the employee of a remedy until he has apologised and/or retracted his
allegations. No costs order was made. The application was dismissed.
Case references
S v Collier 1995 (2) SACR 648
Newell v Cronje & Another 1985 (4) SA 692 (E)
Wahlhaus & Others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD)
S v Suliman 1969 (2) SA 385 (AD)
Soller v Soller 2001 (1) SA 570 (C)
December 2006 – Page 5
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Labour Court: JR782/05
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others
Commissioner applying criminal law standards when assessing substantive and procedural fairness of dismissal.
The employee was dismissed after the employer had discovered that she was implicated in theft. At arbitration, the employer relied
on videotape, which revealed another employee committing theft in the employee’s presence. The commissioner made the following
findings:



That the video footage did not conclusively prove the employee’s involvement because her face could not be seen and her
movements did not necessarily indicate involvement,
That since the bag had been returned, the conclusion could not be drawn that theft had actually occurred, and
That the dismissal was procedurally unfair and ordered reinstatement.
Held: That while purporting to apply the balance of probabilities test, the commissioner had applied the test of proof beyond
reasonable doubt. That was in itself a ground for review.
As to the of procedural challenge
Noted: That while the LRA is silent on the content of the notion of procedural unfairness. The nature and extent of that right is
spelled out in the Code of Good Practice on dismissals. The rules introduced by the Code are based on the idea that true justice for
workers lies in a procedure for expeditious and independent review of the employer’s decision. The Court also noted that informal
disciplinary procedures in the workplace balance the interests of employees and employers.
Held: That there was no legal basis for a test for bias to be drawn from the criminal justice model, which the commissioner had
applied. That constituted a material error of law which was a further ground for a review. The award was set aside and remitted to
the CCMA to be heard by another commissioner.
Case references
Foschini Group (Pty) Ltd v CCMA & Others (2002) 7 BLLR 619 (LC)
Hira & Another v Booysen & Another 1992 (4) SA 69 (AD)
Markhams (a Division of Foschini Retail Group (Pty) Ltd) v Matji NO & Others (2003) 11 BLLR 1145 (LC)
MEC, Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2005) 2 BLLR 173 (SCA)
Mlaba v Masonite (Africa) Ltd & Others (1998) 3 BLLR 291 (LC)
National Commissioner of the SA Police Service v Potterill NO & Others (2003) 24 ILJ 1984 (LC)
NEHAWU v University of Cape Town & Others 2003 (2) BCLR 154 (CC)
NUMSA & Others v Bader Bop (Pty) Ltd & Another (2003) 2 BLLR 103 (CC)
OK Bazaars (a Division of Shoprite Checkers) v Commission for Conciliation, Mediation & Arbitration & Others (2000) 21 ILJ 1188
(LC)
Potgietersrus Platinum Ltd v Commission for Conciliation Mediation & Arbitration & Others (1999) JOL 5246 (LC)
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others (2003) 7 BLLR 676 (LAC)
December 2006 – Page 6
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By Dorothy Khosa
Metal & Engineering Industries Bargaining Council,
Johannesburg: MEGA10722
Greyling v IDC CC: Commissioner Gunase
Constructive dismissal – Employee resigned and raised litany
of complaints – Constructive dismissal not proved – Employee
failed to raise issues with employer before resigning.
General Public Service Sectoral Bargaining Council: PSGA
815-05/06
PSA obo Edwards v Department of Education:
Commissioner Goldman
Payments and benefits – Employee promoted - Employer’s
refusal to adjust employee’s salary – Unfair.
The applicant had raised several complaints about her
conditions of employment. She, subsequently, resigned and
claimed that the removal of her company vehicle was the final
straw. She alleged that she had been constructively dismissed.
The applicant applied for a higher post which had been
advertised at level 8. After the interview, she was appointed to
the post, but for more than two years she continued to be
remunerated at a level 7 salary. She contended that that
constituted an unfair labour practice, and sought compensation.
The respondent claimed that it had intended to appoint only
grade 8 employees to the posts in question, and that it was
entitled to pay the applicant at her previous grade until the post
in which she then served was re-graded to level 8. The
respondent claimed that that had ultimately been done.
Held: After analysing the applicant’s complaints, the arbitrator
held that most were without substance. The applicant’s mere
unhappiness about the manner in which she had been treated
was insufficient to prove a claim of constructive dismissal.
Objectively viewed, the respondent’s conduct had not been
calculated to drive the applicant away. Furthermore, the
applicant had failed to raise most of the issues with
management before she resigned. The application was
dismissed.
Case references
Amalgamated Beverage Industries v Jonker (1993) ILJ 1232
(LAC)
Jooste v Transnet Ltd t/a SAA (1995) 16 ILJ 629 (LAC)
Lubbe v ABSA Bank Bpk (1998) 12 BLLR 1224 (LAC)
Mafomane v Rustenburg Platinum Mines Ltd (2003) 10 BLLR
999 (LC)
Milady’s, A Division of Mr Price Group Ltd v Naidoo & Others
(2002) 9 BLLR 808 (LAC)
Pretoria Society for the Care of the Retarded v Loots (1997) 18
ILJ 981 (LAC)
Quince Products CC v Pillay (1997) 12 BLLR 1547 (LAC)
Riverview Manor (Pty) Ltd v CCMA & Others (2004) 2 BLLR
177 (LC)
Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & Others
(1998) 19 ILJ 1240 (LC)
Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 3
BLLR 344 (LC)
Van der Riet v Leisurenet t/a Health & Racquet Clubs (1998) 5
BLLR 471 (LAC)
Noted: That the six posts concerned had been advertised as
being on salary level 8. The core principle in the regulatory
framework created by the Public Service Act 103 (P) of 1994,
was equal pay for equal work.
Held: That, of the six appointees, the applicant alone had been
paid on grade 7 until her post was re-graded. That constituted
an unfair labour practice. The respondent was ordered to pay
the applicant the difference between the amount she received
and the one she should have received had she been
remunerated on the higher grade.
Dispute Resolution Centre, Western & Eastern Cape: MICT
1152
Marks v L & Z Auto Centre: Arbitrator Christie
Dismissal – Employee received retrenchment pay – Afterwards
employee claimed unfair dismissal for misconduct – Employee
to restore severance pay for misconduct case to be heard.
The respondent had advised the applicant of a possible
dismissal for operational requirements. Consultation meetings
were held between the parties but they could not reach
consensus. The respondent offered the applicant alternative
employment which he denied. The respondent paid out the
retrenchment pay to the applicant. After receiving the
retrenchment pay, the applicant claimed that he had been
unfairly dismissed for misconduct. The respondent denied the
claim.
December 2006 – Page 7
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Noted: That the applicant was not entitled to retrenchment pay
because he had refused reasonable alternative employment.
Held: That the applicant should restore the severance pay that
the respondent had paid him, if he wished to pursue his claim
for an alleged dismissal based on misconduct.
Constitutional Court: CCT 68/05
South African Police Service v Public Servants
Association: Judges Sachs & Yacoob
Interpretation and application – Employing incumbent
employee in higher post without advertising.
This was an application for leave to appeal to the Court against
a decision given in the Supreme Court of Appeal (SCA). The
issue concerned the interpretation to be given to the word ‘may’
in regulation 24(6) of the Regulations for the South African
Police Service (SAPS).
Noted: That the regulation provides that:
“If the National Commissioner raises the salary of a post, she
or he may continue to employ the incumbent employee in the
higher-graded post without advertising the post if the incumbent
–
(a) Already performs the duties of the post;
(b) Has received a satisfactory rating in her or his most recent
performance assessment; and
(c) Starts employment at the minimum notch of the higher
salary range.”
The High Court held that the use of the word ‘may’ in regulation
24(6) was unambiguous and should be given its ordinary
permissive meaning. A declaratory order was, accordingly,
issued to the effect that regulation 24(6) vests in the National
Commissioner a discretion either to advertise the post or
continue to employ the incumbent employee in the upgraded
post. The Public Servants Association then appealed to the
SCA. Three SCA judges held that interpreting the regulation
consistently with the right to fair labour practice and the right
not to be unfairly dismissed required the retention of the
incumbent in a post when it was upgraded. Two judges held
that the appeal should fail and that the word ‘may’ should be
given its ordinary permissive meaning.
Held: That the Commissioner did have a discretion whether to
advertise or not, but could not exercise that discretion in a
manner which could lead to the redundancy of a satisfactory
incumbent. Accordingly, the regulation had to be read in a way
that neither produced the rigidity of outcome that would flow
from the view of the majority in the SCA, nor carried the risk of
consequent redundancy implicit in the minority approach.
Accordingly, the provision should be read to permit the
Commissioner not to advertise a newly re-graded post, despite
the general obligation requiring that all vacant posts should be
advertised, in circumstances where an incumbent of a post has
been satisfactorily performing the tasks attached to it. Where
there is such an incumbent, the Commissioner is obliged to
appoint the incumbent to the newly re-graded post on the
minimum salary range attached to the new post.
Case references
Bernstein & Others v Bester NO & Others NNO 1996 (2) SA
751 (CC)
Bhana v Dönges, NO & Another 1950 (4) SA 653 (A)
Investigating Directorate: Serious Economic Offences & Others
v Hyundai Motor Distributors (Pty) Ltd & Others 2001 (1) SA
545 (CC)
Nel v Le Roux NO & Others 1996 (3) SA 562 (CC)
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA
217 (CC)
South African Railways & Harbours v New Silverton Estate, Ltd
1946 AD 830.
Schwartz v Schwartz 1984 (4) SA 467 (A)
The National Commissioner of the South African Police Service
v The South African Police Union & Others (TPD) Case No
28812/02, 31 October 2003, as yet unreported
The Public Servants Association v National Commissioner of
the South African Police Service SCA 573/04, 25 November
2005, as yet unreported
Van Rooyen & Others v The State & Others 2002 (5) SA 246
(CC)
December 2006 – Page 8
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RACE DISCRIMINATION AND BIAS CLAIMS
By Dorothy Khosa
Introduction
The Constitution Act 108 of 1996 is the supreme law of the
Republic of South Africa. One of the obligations that it imposes
is that of employees’ right not to be unfairly discriminated
against. This obligation is also imposed in labour legislation,
amongst others, the Employment Equity Act 55 of 1998 (EEA)
and the Labour Relations Act 66 of 1995. According to labour
legislation, there are different forms of discrimination that are
regarded to be unfair. The focus of the article is on unfair
discrimination based on race. Either party involved in the
employment relationship can translate such form of unfair
discrimination to biasness.
Unfair discrimination based on race
It is surprising to realise that racial discrimination in South Africa
still surface in employment relationships even though it is
prohibited by legislation. One would not expect such actions in
this era, but the reality is that it still persists. There are
situations in which employees, in applying for posts, are made
to suffer racial prejudice. The case of Stokwe v MEC,
Department of Education, Eastern Cape Province & Another
(2005) 14 (LC) addressed this issue. In this case, the applicant
applied for a promotional post of principal and she was
interviewed. In the interview, the applicant obtained equal
scores with the appointee. The panel then considered other
relevant factors in determining the appointment. Eventually, the
applicant became the best candidate. Her promotion was then
recommended to the school governing body. After perusing the
recommendations, the governing body indicated that the
candidate who was second best should be appointed to the
position. The governing body’s reasons were not clear, but it
was indicated that the applicant was not fluent in Afrikaans.
The Department of Education established an independent
review panel to consider the final recommendation made by the
school governing body. The panel insisted that the interview be
conducted in Afrikaans, but the applicant refused. The panel
indicated that the applicant should not have applied for the
position if she was not in a position to communicate in Afrikaans
because that was the medium of instruction at the school.
Eventually the interviewing panel decided in favour of the other
applicant, the appointee. The Labour Court (LC) found that the
issue of language arose at the school governing body meeting
when it realised that a black woman was to be appointed. The
governing body had assumed that a black woman would not be
proficient in Afrikaans. That, according to the LC, amounted to
racial stereotyping. That manifested bias and prejudice on the
part of the school governing body. The applicant was unfairly
discriminated against on the basis of race. Mischke (2006 (a))
argued that if proficiency in Afrikaans was a key requirement for
the post that should have been clearly set out in the
advertisement. To avoid disruptions, at the school in question,
an agreement was reached that the applicant should be
appointed to a level of principal within the metropolitan area in
question. The first respondent was ordered to pay the costs of
the applicant.
Employees are sometimes refused promotions because of the
employment equity targets that have been set in an
organisation. The EEA indicates that it is not unfair
discrimination for an employer to take affirmative action
measures consistent with its purpose. In the case of Baxter v
National Commissioner, Correctional Services & Another (2006)
9 BLLR 844 (LC), the respondent claimed that it did not appoint
the applicant to the position because of its employment equity
targets. In this case the applicant, a Coloured male, was
recommended for appointment to a position. However, the
recommendation was turned down on the basis that it did not
advance the respondent’s employment equity objectives. The
position was re-advertised and an African male was appointed.
The successful candidate was subsequently transferred to
another post, and another officer transferred to the post in
question. In querying the appointment, the applicant was
informed that his appointment would not have addressed the
respondent’s equity targets. The applicant contended that he
was unfairly discriminated because, had he been appointed, he
would have been the only coloured in that level in the province
concerned. Black males and a female filled the other posts. The
applicant established a prima facie case of discrimination based
on gender and race. The LC held that the reasons given by the
respondents for not appointing the applicant contradicted the
recommendations of the selection committee. The evidence
was, therefore, sufficient to prove that the decision not to
appoint the applicant was based on unfair discrimination. The
LC ordered the respondents to ensure that the applicant
received the salary and benefits to which he would have been
entitled had he been appointed to the post, with interest.
Allegations of bias
The Wikipedia, encyclopaedia, defines the word bias as a
“prejudice in a general or specific sense, usually in the sense
for having a preference to one particular point of view or
ideological perspective. However, one is generally only said to
be biased if one’s powers of judgment are influenced by the
biases one hold, to the extent that one’s views could not be
taken as being neutral or objective, but instead as subjective”.
Different forms of unfair discrimination could result into
biasness. For instance, the article has discussed cases
April 2005– Page 9
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whereby employers’ biasness had resulted in non-appointment
of candidates in promotional positions. Biasness can also
become an issue in disciplinary enquiries. Mischke (2006 (b))
argues that allegations of bias usually arise because a
chairperson is seen as having a vested interest in the outcome
of a case or if he or she has been involved, in some way or
another, in the investigation of the disciplinary charges and
events. “The rule against bias emanates from administrative
law, which requires that an officer presiding at a disciplinary
hearing must not only be impartial in fact, but also that there
should be no grounds for even suspecting that his or her
decision might be shaped by extraneous factors...”. That does
not mean that a manager of a company, chairing a disciplinary
hearing, would not be able to decide on guilt and sanction
objectively. This issue seemed to be relevant to an arbitration
case that was held at the Commission for Conciliation,
Mediation and Arbitration (CCMA), thereafter, referred to the
LC. The case was between Cell C (Pty) Ltd v Finger & Others
(2006) 10 BLLR 919 (LC). In this case, the applicant, a black
man, objected to the arbitrator on the basis of race. The
arbitrator was Indian. The respondent’s two representatives
were also Indian. The applicant alleged that the situation was
racially imbalanced against him. The arbitrator recused himself,
and the respondent referred the issue to the LC for review. The
LC ruled that an objection to one’s race could never be a
reason for a presiding officer to recuse himself or herself. An
objection on such grounds would make litigation in a multi-racial
country impossible. At the time the LC heard the matter, the
case had been postponed by the CCMA and it was to be heard
by another commissioner.
The case of Marley FloorWorx v MEWUSA (2005) 14 MEIBC is
similar to the Cell C one, except that the arbitrator refused to
recuse himself. In the Marley case, an application for recusal
was made because of a perceived bias on the part of the
bargaining council arbitrator against both the union and the
employee. The arbitrator stated that one should not give in to
the unfounded and ill-informed fears of bias expressed by
parties who either want a presiding officer of the choice to hear
the matter, or if the party concerned wants to bully the arbitrator
into accepting a point of view.
Conclusion
Discrimination is not always unfair according to legislation of the
country. It becomes unfair if certain practices are performed
outside the parameters of laws of the country. For example, the
EEA states that an appointment of a person that conforms to
the requirements of equity targets of the employer cannot be
regarded as being unfair provided there is evidence of such a
claim. Legislation list certain grounds that are regarded as
unfair discrimination, for example, an employer cannot refuse to
promote a person because of his or her race.
The article also discussed the issue of biasness as a result of
one’s race. It focuses mainly on biasness that prevails during
disciplinary enquiries. An employee may request a presiding
officer to recuse himself or herself if there are reasons to doubt
his or her impartially. Employees sometimes doubt the
impartiality of a presiding officer because they would like to
have someone of their choice to preside over their case.
Unfortunately that is not possible in statutory arbitration, like
those held at the CCMA.
Case references
Cell C (Pty) Ltd v Finger & Others (2006) 10 BLLR 919 (LC).
Stokwe v MEC, Department of Education, Eastern Cape
Province & Another (2005) 14 (LC)
Baxter v National Commissioner, Correctional Services &
Another (2006) 9 BLLR 844 (LC)
References
Grogan, J. Workplace Law, 7th Ed. Juta Law: Lansdowne.
Mischke, C. 2006(a). “Race discrimination is alive and well”.
IRNETWORK. www.irnetwork.co.za. Accessed in December
2006.
Mischke, C. 2006(b). “Bias and race”. IRNETWORK.
www.irnetwork.co.za. Accessed in December 2006.
Republic of South Africa. The Constitution, Act 108 of 1996.
Government Printers: Pretoria.
Republic of South Africa. The Employment Equity Act, 55 of
1998. Government Printers: Pretoria.
Republic of South Africa. The Labour Relations Act, 66 of
1995. Government Printers: Pretoria.
The Wikipedia. Encyclopaedia.
http://en.wikipedia.org/wiki/Bias. Accessed in December 2006.
April 2005– Page 10
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THE RETRENCHMENT GUIDELINES: ARE THEY GETTING ANY CLEARER?
Presented by Professor Alan Rycroft
Summarised by Alucia Mdaka
Introduction
Rycroft indicated that her presentation would focus on
reviewing the retrenchment cases that were reported since the
2005 Labour Law Conference. Rycroft mentioned that the
reason for reviewing those cases was because dismissals for
operational reasons remained highly contested.
Pre-retrenchment consultation
Section 189 of the Labour Relations Act, 66 of 1995 (LRA)
imposes on employers three main duties prior to retrenchment
process. The duties are as follows:
Consultation
As regards to consultation it has to take a “meaningful joint
decision seeking process”. However, the 2002 amendments
changed the wording of section 189 (2) from “the consulting
parties must attempt to reach consensus…” to “the employer
and the other consulting parties must in the consulting
envisaged by subsections (1) and (3) engage in a meaningful
joint consensus-seeking process and attempt to reach
consensus….”. The amendment was an attempt to give the
concept of consultation a deeper meaning. That was approved
in the case of Atlas Diesel Engines (Pty) Ltd v NUMSA (1995) 1
BLLR 1 (AD).
Rycroft explained that the consultation process is meant to be a
rational one. Section 189 (5) and (6) provide that the employer
must allow the other consulting party an opportunity to make
representations on any matter in which they are consulting.
Disclosure of information
Section 189 (3) requires an employer to present virtual
retrenchment scenarios. The following are the retrenchment
scenarios that should be presented:
a)
b)
c)
d)
e)
f)
Reasons for the proposed dismissal,
The alternatives the employer has considered,
The number of employees likely to be affected,
Proposed selection criteria,
The timing of the proposed dismissal, and
The proposed severance pay.
The problem an employer faces if it complies with the
disclosure requirement at an early stage is that, it appears as if
there is a “fait accompli”. After all, what is there to consult about
if the employer has gone through all the alternatives to
dismissal already? In NEHAWU & Others v University of
Pretoria (2006) 27 ILJ 117 LAC, the employer, during the
restructuring exercise, came to the consultation table with
“predisposition” towards solving its problems through
outsourcing. The Labour Appeal Court held that the employer
had not acted contrary to the requirements of section 189 (2).
Attempt to reach consensus
In the case of Robinson & Others v PriceWaterhouseCoopers
(2006) 27 ILJ 836 (LC), the employer’s letter was essentially a
specific retrenchment scenario in which it requested employees
to submit counter proposals. The problem was that, the very
details and specifics had the effect on the employees and they
believed that it was unnecessary to consult further because the
supported the employees’ attitude. The Labour Court gave little
weight to the obligation in section 189 (2) on employees to
jointly engage in the consensus-seeking process. The
employees’ absence to consultation was excused by the Labour
Court because of the tone of the letters given to them.
However, even if it was excused in the Robinson’s case, it is
important to realise that employees share in the responsibility to
consult. Rycroft stated that trade union officials and employees
should make creative proposals so that employees cannot later
complain that the employer was unfair in not considering, for
example, bumping, if they did not raise a possibility in the
consensus seeking stage. That has been recognised in the
case between SACCAWU & Others v Gallo Africa (2005) 26 ILJ
2397 (LC). It was held that pre-retrenchment consultation is a
two way process and if an employee withdraws from
consultation, it would not be unfair for the employer to finalise
the retrenchment process alone. Similarly, in the case of CWIU
& Others v Latex Surgical Products Pty Ltd (2002) 23 ILJ 1386
(LC), the union attempted to frustrate the process to avoid
reaching consensus. The employer implemented proposals
without reaching the consensus with the union, and the Labour
Court held it to be procedurally fair.
Issues for consultation
Section 189 (7) of the LRA requires that retrenchment must be
in accordance with selection criteria that have been agreed
upon or that is fair and objective. However, section 189 (6)
requires an employer to consider and respond to
representations made and to state the reasons for disagreeing.
In the recent case of CWIU & Others v Latex Surgical Products
April 2005– Page 11
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(Pty) Ltd (2006) 27 ILJ 292 (LAC), both these aspects were in
dispute. The Court confirmed the following principles:




If shortly after retrenchment aimed at downsizing an
employer employs casual employees to do the same
work as those retrenched, a presumption of the
unfairness of the retrenchment will arise,
An employer is obliged to give serious consideration
to a proposal of job-sharing as an alternative,
An employer or a union is free to agree upon
selection criteria that are or may be subjective, and
Where the employer does not use agreed selection
criteria to select the employee to be dismissed, it may
not use selection criteria other than “fair and
objective” selection criteria.
The case of Robinson also dealt with the issue of selection
criteria. In that case, the Court held that cost saving as the only
selection criterion was unfair. Criteria must not only be fair and
objective, but must also be fairly and objectively applied.
Bumping has been reaffirmed as an acceptable practice. In the
case of CEPPWAWU obo Gumede & Others v Republican
Press (Pty) Ltd (2006) 27 ILJ 335 (LC), the Court held that it
was unfair to apply the “last in first out” only on a departmental
basis.
Alternative employment: How much persuading must an
employer do?
The Code of Good Practice on Dismissal requires the employer
to consider alternative employment. However, in the case
where the employee unreasonably refuses to accept the
alternative employment, the employer can withhold the
severance pay. In L & C Steinmuller (Africa) Ltd & Others v
Shepherd (2005) 26 ILJ 2359 (LAC), the respondent was
offered an alternative employment in a newly created company.
The respondent offered to accept the alternative employment
subject to conditions which the company was unable to
accommodate. The respondent’s services were terminated on
the grounds of redundancy.
At the CCMA, it was found that the dismissal was unfair
because there were no meaningful consultations and the
employer had not made a reasonable effort to convince the
employee to accept the offer. However, the Labour Appeal
Court (LAC) found that there had been meaningful consultation.
The L AC noted that, in terms of the labour law the employer
who offers an alternative employment is not obliged to convince
the employee to accept the alternative offer. Even if there is no
question of convincing involved, there must be compliance with
an internal policy dealing with the alternative employment. The
case of Absa Investment Services (Pty) Ltd v Crowhurt (2006)
27 ILJ 107 (LAC) dealt with the issue. In this case, the employer
had failed in terms of its own policy to offer the option of
resignation to an employee as an alternative employment when
her position had become redundant. The LAC held that the
dismissal was both procedurally and substantively unfair.
When is it retrenchment or resignation?
Rycroft stated that there is confusion in a situation where an
employee has volunteered to resign and when an employee
has been retrenched. In NUMSA obo Members v Bavcan
(2006) 27 ILJ 414 (BCA), employees who had accepted
voluntary retrenchment together with severance package, were
found to have terminated their contracts with agreement and
had not been dismissed for operational reasons. They were,
therefore, not eligible for re-employment in terms of the
collective agreement.
Reference
Rycroft, A. 2006. The Retrenchment Guidelines: Are they
getting any clearer? Presentation made at the 19th Annual
Labour Law Conference, 5-7 July 2006. South Africa
April 2005– Page 12
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CONFUSION BORNE OUT OF PUBLIC HOLIDAYS
By Lucky Moloi
Introduction
The Public Holidays Act 36 of 1994 is aimed at making
“provision for a new calendar of public holidays, to provide that
the public holidays be paid holidays, and for matters incidental
thereto”. In this Act, “public holidays” means the days
mentioned in Schedule 1 of this Act which are:












New Year's Day 1 January,
Human Rights Day 21 March,
Good Friday before Easter Sunday,
Family Day Monday after Easter Sunday,
Freedom Day 27 April,
Workers' Day 1 May,
Youth Day 16 June,
National Women's Day 9 August,
Heritage Day 24 September,
Day of Reconciliation 16 December,
Christmas Day 25 December, and
Day of Goodwill 26 December.
The Public Holidays Act also stipulates “any reference in any
law to public holidays, shall be deemed to be a reference to the
public holidays as defined in this Act”, and continues in section
2 (1) to stipulate that “the days mentioned in Schedule 1 shall
be public holidays, and whenever any public holiday falls on a
Sunday, the following Monday shall be a public holiday”.
Therefore, any of the public holidays mentioned in Schedule 1
of the Public Holidays Act, whether falling on a Sunday or not,
should be regarded as non-business day(s) within the meaning
of any law relating to bills of exchange or promissory notes.
Contending the interpretation and application of section 2
(1) of the Public Holidays Act
It has always been acknowledged or construed that the public
holiday on the Monday is in substitution for the public holiday on
the Sunday. As in the recent judgment of Randfontein Estates
Ltd v National Union of Mineworkers (case number JR1218/05),
handed down by the Labour Court on 14 February 2006, the
issue of the interpretation of section 2 (1) of the Public Holidays
Act came to the fore. The employer contended that this
statutory provision should be interpreted to mean that where a
public holiday falls on a Sunday, the following Monday is
substituted for that public holiday. The Sunday would then be
treated as a normal working day in terms of its collective
agreement governing continuous process operations with NUM.
The employer claimed that any other interpretation would result
in such employees achieving a double benefit in that they would
receive two paid days off work instead of one.
NUM also contended that section 2 (1) of the Act meant that
where a public holiday falls on a Sunday, the following Monday
shall also constitute a public holiday. The Labour Court was,
therefore, required to determine the proper interpretation of the
contended section, that is, where the Monday is substituted for
the public holiday, which falls on a Sunday, or whether the
Monday constitutes a public holiday in addition to the Sunday.
Interpreting statutes in terms of Interpretation Act
The process of statutory interpretation begins with an
assessment of the ordinary or plain meaning of the language
employed. It is only if there is an ambiguity in the plain
language that an additional approach to interpretation becomes
relevant. The Labour Court noted that section 2 (1) of the Public
Holidays Act 36 of 1994 provides that where a public holiday
falls on a Sunday, the following Monday shall be a public
holiday. The Labour Court have attributed to these words their
“ordinary literal grammatical meaning”, which is the first
principle regarding the interpretation of statutes.
The rationale for this provision is to ensure that employees who
do not ordinarily work on Sundays obtain benefits of a paid day
off by transferring the benefit to the following day, which would
ordinarily be a working day. The transfer of this benefit to the
following day is not required in the case of employees who
would ordinarily work on a Sunday because those workers
obtain the benefit of a paid day off. To allow such employees an
additional public holiday on the Monday would mean that they
would receive two paid days off.
The Labour Court also noted that section 2 (1) of the Public
Holidays Act consists of a primary and a subordinate clause.
The subordinate clause “and whenever any public holiday falls
on a Sunday, the following Monday shall be a public holiday”
stands as an additional and distinct clause and does not qualify
the primary clause. Since the primary clause defines “public
holidays” as inter alia “the days mentioned in Schedule 1”, the
date determined to be a public holiday does not change its
character merely because it happens to fall on a Sunday. The
Court stated that the second clause is in addition to, and distinct
from, the first clause, and, in the view of the Court, is not a
qualifying clause and is not in substitution of the primary or first
clause. Therefore, the celebrations can still take place on the
Sunday, even though the next day is deemed a public holiday.
The Court held that, since section 2 (1) is not ambiguous, its
plain meaning must be followed.
Entitlement or benefit to public holidays
April 2005– Page 13
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In terms of section 5 (1) of the Public Holidays Act every
employee shall be entitled to “at least the number of public
holidays as provided for in this Act”, and payment for every
public holiday, which payment should be at least as favourable
as the payment provided for by section 18 of the Basic
Conditions of Employment Act 75 of 1997 (the BCEA). Section
18 of the BCEA stipulates that an “employer may not require an
employee to work on a public holiday except in accordance with
an agreement”. That is, any public holiday shall be
exchangeable for any other day which is fixed by agreement or
agreed to between an employer and employee.
One should be bear in mind that when interpreting the BCEA, it
applies to all employers and employees except members of the
Defence Force, National Intelligence Agency, South African
Secret Service, and unpaid volunteers working for charity. It
should also be borne in mind that the section regulating working
hours does not apply to workers in senior management, sales
staff who travel and regulate their own working hours, workers
who work less than 24 hours in a month, workers who earn
more than R115 572 per year. Workers engaged in emergency
work are also excluded from certain provisions. Therefore, one
may conclude that section 5 (1) of the Public Holidays Act
provides for such an exchange of public holidays for other days
where the employer and the employees agreed to do so.
As in Tsambo v Ovestone Farms (Pty) Ltd (1996) 17 ILJ 418
(ALC), the respondent's employees had agreed to exchange
the public holidays, which fell in the respondent's busiest
harvest time, for days off. The applicant had refused to work on
21 March, a public holiday, and was given a final written
warning for the offence. After he again failed to work on 17
April, a disciplinary hearing was held. The applicant refused to
attend and the hearing was held in his absence. He was
dismissed and that sanction was upheld after an appeal
hearing. In an application in terms of section 17E (3) of the old
Labour Relations Act (LRA) read with the Agricultural Labour
Act 147 of 1993, the applicant had testified that he had decided
not to work on public holiday and that he had discussed his
decision with his fellow-workers, but that he had not done so
with management.
The Agricultural Labour Court (the ALC) had accepted that a
real need existed for the respondent to exchange the public
holidays for other days that fell outside the optimum harvest
period.
The ALC found that it was clear that the Public Holidays Act 36
of 1994 provides for such an exchange of public holidays for
other days where the employer and the employees agreed to
do so. Such an agreement did not require a unanimous
decision, a decision of the majority of workers was sufficient
and was binding on the minority.
The ALC was satisfied that the majority of the respondent's
workers had been in favour of the exchange of the holidays and
that an agreement had been reached. The agreement bound
the applicant. He nonetheless decided not to work on public
holidays but had never communicated his decision to
management nor did he follow the established grievance
procedure. The ALC, accordingly, found that the applicant's
misconduct was a valid and fair reason for his dismissal, and
that his dismissal was not an unfair labour practice.
The agreement should be mutual and unambiguously
communicated, within proper channels, in order for it to be
binding on all parties. In SA Chemical Workers Union & Others
v C E Industrial (Pty) Ltd T/A Panvet (1988) 9 ILJ 639 (IC), the
applicants had been dismissed for failure to work on Easter
Monday after the respondent company had issued an
instruction to the entire work force on the Thursday preceding
Easter Monday that it would be a working day. In an application
in terms of section 46(9) of the Labour Relations Act, the
respondent alleged that it was policy that non-factory holidays
were working days, which were given off only in exceptional
cases. It alleged that that the fact that Easter Monday had not
been worked in the previous two years did not create a custom,
and that a final warning had been issued in February that
further trouble would lead to dismissal.
The Industrial Court found that the crux of the matter was
whether the instruction to work on Easter Monday was lawful
and reasonable. That it was lawful was not doubted, but
whether it was reasonable and enforceable was another matter.
There had been doubt whether it was a clearly understood
policy of the company to ordinarily work on non-factory
holidays. There were reasonable grounds for workers to
assume they would have Easter Monday off. A sensitive
management would have taken the initiative to ensure that the
day was a holiday as had been the case for the two previous
years, would have discussed the matter with the trade union
which had only recently taken over from the liaison officers, and
would not only have given notice on the day before the long
weekend began.
The Court rejected the 'reasonable employer' test: fairness is of
a subjective nature in regard to which reason is not necessarily
applicable. Fairness must take account of human fallibility and
of the fact that reason is seldom the sole guide of human
behaviour. A sensitive response to deeply felt needs of his
work-force, even if objectively those needs are not reasonable
in all respects, should be expected of any manager. That did
not mean that he must abdicate his responsibilities and refrain
from imposing discipline or ensuring that fair rules are adhered
to and fair instructions carried out.
The Court found, therefore, that the manner in which work on
Easter Monday was handled had a distinct element of
unfairness. Since there had, however, been a history of
deliberate ignoring of instructions and other ill-disciplined
actions, the Court refused to reinstate the employees but
awarded wages for ten weeks.
Terms of payment of remuneration
In terms of section 5 (1) (b) of the Public Holidays Act “payment
for every public holiday, which payment shall be at least as
favourable as the payment provided for by section 11 of the
Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983)”.
April 2005– Page 14
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Interpreted in terms of the amended Basic Conditions of
Employment Act, it would read thus “every employee shall be
entitled to at least the number of public holidays as provided for
in this Act”, and payment for every public holiday, which
payment should be at least as favourable as the payment
provided for by section 18 of the Basic Conditions of
Employment Act 75 of 1997 (the BCEA). This should be so
read or interpreted because the Basic Conditions of
Employment Act of 1983 has been repealed.
In National Union of Metalworkers of SA & Another v Steel &
Engineering Industries Federation Of SA & Others (2000) 21
ILJ 1047 (W), the High Court declared that clause 11(3) of the
Industrial Council Agreement for the Iron, Steel, Engineering &
Metallurgical Industry was not invalid for being in conflict with
section 5 of the Public Holidays Act 36 of 1994. Clause 11 (3)
provides that an employee who is required by his employer to
work a shift immediately preceding or following a public holiday
and who is absent from work is not entitled to be paid for the
public holiday save in certain circumstances.
The Court examined the objects of the Public Holidays Act and
held that the prohibition in section 5 was not enacted in the
public interest and could be waived. The Court found that it had
been waived by the industrial council agreement which had the
force of law. The declaratory order that clause 11(3) was invalid
and of no force and effect was, accordingly, not granted.
It has been recently held in the Labour Court in the judgment of
Randfontein Estates Ltd v NUM (2006) 7 BLLR 683 (LC), that
those employees who work a five-day week, and are therefore
not required to work on a Saturday or Sunday, for which they
do not, in any case, get paid, they would not be entitled to be
paid for the public holiday on the Sunday. The reasoning here
is that the employee is entitled to the Sunday off without pay,
as part of these terms and conditions of employment. The
employee is contracted to work only five days per week, and
thus a public holiday on the Sunday is not a day on which the
employee would ordinarily work, therefore he/she is not entitled
to be paid for that day if he/she does not work. Therefore, that
is the reasoning of declaring a Monday a public holiday in order
to benefit such employees. Such employees would be entitled
to have the Monday off on full pay, since the Monday is a public
holiday, falling on a day on which he/she would have ordinarily
worked.
In the case of the seven-day week worker, the public holiday on
the Sunday would then fall on a day on which he would
ordinarily work, and he must be paid in terms of the BCEA or,
obviously, in terms of any collective agreement or main
agreement that may be in existence. This payment would
probably amount to double the normal wage rate, because it is
a public holiday. That is, should that same worker then also
work on the Monday, he/ she would again have to be paid
double the normal wage rate, because the Judgment states that
the public holiday on the Monday is in addition to the public
holiday on the Sunday. According to Jackson (1996) “the
answer there, in the case of 7-day per week employees, would
be for the employer to decide whether they are to work on the
Sunday at double the normal wage rate, and have the Monday
off work at normal pay, or the other way around, or whether he
will give employees both days off on normal pay, since both
days would be public holidays”.
Conclusion
Public Holidays Act 36 of 1994 is aimed at making “provision for
a new calendar of public holidays, to provide that the public
holidays be paid holidays, and for matters incidental thereto”.
Therefore, if a public holiday falls on a Sunday, then an
employee would have a day off on the Sunday, irrespective of
whether it was a public holiday or not - thus, if it was a public
holiday, that employee would be losing out on the benefit of a
day off work on full pay. Therefore, the legislature had ruled that
the Monday should be a public holiday so that those employees
could enjoy the benefits of a day off work on full pay.
Case references
National Union of Metalworkers of SA & Another v Steel &
Engineering Industries Federation Of SA & Others (2000) 21
ILJ 1047 (W)
Randfontein Estates Ltd v NUM (2006) 7 BLLR 683 (LC)
SA Chemical Workers Union & Others v C E Industrial (Pty) Ltd
T/A Panvet (1988) 9 ILJ 639 (IC)
Tsambo v Ovestone Farms (Pty) Ltd (1996) 17 ILJ 418 (ALC)
References
Jackson, D. 2006. Two holidays or one? Labour Guide.
www.labourguide.co.za Accessed in December 2006.
Republic of South Africa. Basic Conditions of Employment
Act 75 of 1997. Pretoria: Government Printers.
Republic of South Africa. Public Holidays Act 36 of 1994.
Pretoria: Government Printers.
April 2005– Page 15
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INHERENT REQUIREMENTS OF THE JOB
By Poso Mogale
Introduction

Section 6 (1) of the Employment Equity Act 55 of 1998 (EEA)
provides that no person may unfairly discriminate against an
employee in any employment policy or practice. The
discrimination will be deemed to be fair if it was intended to
promote affirmative action or it is an inherent requirement of the
job. The purpose of this article is to put the concept of inherent
requirement of the job under the microscope and analyse
whether it is being properly applied. Hoffman v South African
Airways (2000) 12 BLLR 1365 (CC) remains the leading
judgement on the issue of inherent requirements of the job. The
Constitutional Court held that South African Airway’s (SAA)
refusal to employ Hoffman as a cabin attendant because of his
HIV status constituted unfair discrimination. SAA was not able
to discharge its onus of proving that being HIV negative is an
inherent requirement of the job of a cabin attendant.

The Labour Court was faced with a similar call in the recent
cases of IMATU v City of Cape Town (2005) 11 BLLR 1084
(LC), Wallace v Du Toit (2006) 8 BLLR 757 (LC) and Dlamini &
Others v Green Four Security (2006) 11 BLLR 1074 (LC).
Employers continue to apply inherent requirements of the job as
an excuse or a reason to justify discrimination.
The meaning of the word “inherent”
The English Oxford dictionary defines “inherent” as “existing in
something as a permanent or essential attribute”. This concept
found its way into South African labour law through the EEA.
However, the Act does not define this concept. Section 6 (2) of
this Act provides that discrimination based on the inherent
requirement of a job may be regarded as fair discrimination.
The International Labour Organisation (ILO) in its consideration
of complaints has also considered the inherent requirement
exception. Article 1 (2) of the ILO Discrimination (Employment
and Occupation) Convention No 111 of 1958 affirms what is in
the EEA by providing that “any distinction, exclusion or
preference in respect of a particular job based on the inherent
requirements thereof shall not be deemed to be discrimination.”
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An inherent requirement is something that is essential to
the position rather than incidental, peripheral or accidental.
The onus is on the employer to determine the inherent
requirements of the particular position and consider their
application to the specific employee before the inherent
requirements exception may be invoked.
The inherent requirements should be determined by
reference to the specific job to be done and the
surrounding context of the position, including the nature of
the business and the manner in which the business is
conducted.
There must be a tight correlation between the inherent
requirements of the particular job and the employee’s
circumstances.
The inherent requirements exception must be interpreted
strictly so as not to defeat the purpose of the antidiscriminatory provisions.
Employers may decide to follow a similar recruitment
process. For example, financial institutions may decide
that offences of dishonesty and theft are relevant to jobs in
that industry.
Determining the inherent requirement of a job at the beginning
assists the employer to avoid problems and misunderstandings
halfway through the process of employment.
The starting point for identifying inherent requirements of the
job is to determine the tasks that the employee will be required
to perform, the circumstances in which the work is going to be
carried out and any organisational requirement of the job.
Inherent requirements of the job may be required during the
pre-employment process or during the course of employment.
When they occur during the course of employment, they may
lead to operational requirements dismissals.
In Qantas Airways Limited v Christie (1998) 43 AILR, the
Australian Court found that the inherent requirement of a job is
a requirement which is “fundamental, intrinsic or essential to
that position”.
In IMATU v City of Cape Town, the respondent refused to
employ Mr Murdoch to the position of fire fighter after he had
passed the physical fitness test with flying colours. The refusal
was on the basis that he was an insulin dependent diabetic.
The City’s employment policy and practice was that they do not
appoint insulin dependent diabetics as fire fighters. The union
argued that the City’s failure to appoint Murdoch constituted,
inter alia, unfair discrimination on the grounds of disability. The
City’s defence was that its blanket ban on employment of
diabetics is fair and justified on the basis of the inherent
requirements of the job of a fire fighter.
The following principles represent the current state of the law
on the aspect:
The Labour Court (LC) held that the risks inherent in
hypoglycaemia for diabetics, while real, they do not support the
What the courts says
April 2005– Page 16
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imposition of a blanket ban. The risk will vary from person to
person. The LC, therefore, held that the City had unfairly
discriminated against Murdoch and had, accordingly, failed to
discharge its onus of proving the fairness of the discrimination.
Wallace v Du Toit is another case where the concept of
inherent requirements of the job came under the spot light. In
this case, the employer argued that as a child minder, the
employee’s not being pregnant constituted an inherent
requirement of the job.
When the employee was employed she was single and
indicated to the employer that she had no intention of having
her own children. After some years she got married and when
she informed the employer of her pregnancy her services were
terminated. The employee denied the employer’s contention
that as a condition of employment, pregnancy meant
termination of the relationship. She further said that she did not
see any reason why her motherhood would affect her ability to
perform her job well.
The employer’s main argument was that a child minder who
had her own children would not put his children first.
The LC found that the employer’s conduct constituted an
automatically unfair dismissal. The employer was also found
guilty of contravening the EEA by unfairly discriminating the
employee on the basis of pregnancy.
Dlamini & Others v Green Four Security, is another example
where inherent requirements arose during the course of
employment. In this case the applicant and other employees
were dismissed because they refused to shave or trim their
beards for religious reasons. They alleged that their dismissals
were automatically unfair. The employer’s argument was that
they were contractually bound to be clean shaven. It further
argued that the applicants were beardless when they
commenced employment.
Over and above the fact that the rule was applied equally and
consistently to all employees, the LC noted that grooming
enjoys high priority in all security services, including the
SANDF, SAPS and Metro Police. The LC held that the
applicants failed to prove that the trimming of beards or hair
was central to their faith and absolutely prohibited by their
church. It, accordingly, held that their dismissals were fair and
that the clean-shaven rule is an inherent requirement of the job.
Conclusion
Surely an employer is entitled to dismiss or not employ an
employee on the basis of inherent requirements of the job.
However, the employer must be careful to ensure that this is the
real reason for the dismissal or non-appointment. It must also
ensure that the inherent requirements of the job cannot be
performed in a manner that would otherwise accommodate the
employee’s shortfall.
One can only hope that the escalating number of referrals on
this aspect will raise awareness, thereby alleviating its
inappropriate application.
Case references
South Africa
Dlamini & Others v Green Four Security (2006) 11 BLLR 1074
(LC)
Hoffman v South African Airways (2000) 12 BLLR 1365 (CC)
IMATU v City of Cape Town (2005) 11 BLLR 1084
Wallace v du Toit (2006) 8 BLLR 757
Australia
Qantas Airways Limited v Christie (1998) 43 AILR
References
New York. English Oxford Dictionary. 2001. Oxford University
Press
Geneva, ILO Discrimination (Employment & Occupation)
Convention No 111 of 1958
Republic of South Africa, Employment Equity Act 55 of 1998,
Government Printers, Pretoria
April 2005– Page 17
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INTERNATIONAL LABOUR ORGANISATION CALLS FOR “AMBITIOUS REFORMS” IN LABOUR INSPECTION
Summarised by Lucky Moloi
The world’s 120,000 labour inspectors face daunting
challenges: preventing 2.2 million fatal occupational diseases
and accidents each year and contributing to the fight against
HIV/AIDS, child labour and forced labour. The Governing Body
of the International Labour Office (ILO) has called for an
international strategy to modernise and strengthen labour
inspection.
GENEVA (ILO Online) – The hiring by the Ontario Provincial
government in Canada of 200 new labour inspectors over the
last two years has had stunning results: not only 9,000 fewer
injuries per year but also savings of an estimated 45 million
Canadian dollars in workers’ compensation costs.
“The example shows that strengthening labour inspectorates
not only prevents accidents and saves human lives but also
pays for all actors involved”, said ILO labour inspection expert
Gerd Albracht. “Following an innovative cooperation agreement
with the government, the provincial compensation fund paid the
28 million Canadian dollars in salaries for the new inspectors
who only targeted the firms with the poorest occupational safety
and health record”.
Germany provides another example. There, the prevention
inspectors of the mutual accident insurance HVBG identified
slipping and falling as a main source of accidents and launched
a nationwide awareness raising campaign. Between 2002 and
2004, work related accidents were reduced by 26 per cent and
compensation costs dropped by 80 million euros.
This kind of effective labour inspection could help to prevent
many other occupational accidents and diseases and contribute
to the fight against HIV/AIDS, child labour and forced labour,
says a new ILO report to the Governing Body.
According to the report, several countries have recently begun
to reinvigorate labour inspection. “That is the good news. The
bad news is that labour administrations in most Englishspeaking African countries receive, for example, no more than 1
per cent of the national budget. In some cases the figure is only
0.1 per cent”, comments Albracht.
According to the report, the quality of the overall labour
administration system is vital to the effectiveness of a labour
inspectorate. The ILO Labour Administration Convention, 1978
(No.150), and its accompanying Recommendation (No.158) set
out the overall duties of a labour administration as including
labour inspection. The ILO Labour Inspection Convention, 1947
(No.81) and its 1995 Protocol set out the specific measures for
the organisation of labour inspection.
Labour inspectorates understaffed
For the first time, the ILO has set “reasonable benchmarks” for
the number of labour inspectors in relation to workers in its
report. But many countries do not reach these benchmarks.
While the ILO benchmarks range between one inspector to
10,000 workers in industrial market economies and one to
40,000 in less developed countries, the actual ratios range
between one to 5,500 in Malaysia and one to 3,200,000 in
Bangladesh.
Many successful inspectors in developing and emerging
countries have joined the private sector attracted by higher
remuneration and better career prospects. Often, these officers
receive only limited initial training and have little opportunity to
receive any in-service training. This leads to a decline in the
quality of inspections undertaken, says the report.
“Other factors that challenge the authority and credibility of
labour inspection services include violence against inspectors
and corruption, weak networking structures and no possibilities
to establish the electronic databases that can generate annual
reports and help in identifying inspection priorities, particularly
high-risk workplaces”, says Albracht.
According to the report, labour inspectors also play an
important role in protecting workers in relation to the HIV/AIDS
pandemic, and limiting the spread and effects of the epidemic.
As such, a role is relatively novel for labour inspectorates in
many of the hardest hit countries, the ILO offers support for
training on HIV/AIDS prevention and impact mitigation for
labour inspectors based on a specially developed handbook for
labour inspectors.
The report calls for an Integrated Labour Inspection System
(ILIS) to integrate administrative, procedural and technical
elements into a holistic, coherent and flexible approach to
labour inspection: from the global policy level down to the
operational level in the enterprise where the quantity and quality
of inspections can be significantly improved.
“In essence, an ILIS is used to raise worldwide awareness of
the social dimension of the workplace, in addition to the
economic, financial and environmental aspects. The
implementation of core labour standards at the national level
can be significantly enhanced if the capacities and quality of
national labour inspectorates are strengthened by ambitious
reforms as already seen in some countries”, explains Albracht.
The bedrock for such reforms is ILO Convention No.81 on
labour inspection in industry and commerce. With 135
April 2005– Page 18
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ratifications, it is one of the ten most ratified ILO conventions to
date and serves as a good international guide to secure the
enforcement of the legal provisions relating to conditions of
work and the protection of workers.
References
A Handbook on HIV/AIDS for Labour and Factory
Inspectors, International Labour Office, Geneva, 2005
Strategies and Practice for Labour Inspection, report of the
Committee on Employment and Social Policy to the Governing
Body (GB.297/ESP/3), November 2006.
April 2005– Page 19
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THE INTERNATIONAL LABOUR ORGANISATION AND COLLECTIVE BARGAINING
Summarised by Lucky Moloi
Collective bargaining is fundamental to the International Labour
Organisation (ILO). Since the inception of the International
Labour Organisation (the ILO) in 1919, collective bargaining
has been acknowledged as an instrument of social justice. The
ILO Declaration of Philadelphia of 1944, part of the ILO
Constitution, recognises the obligation to further “the effective
recognition of the right of collective bargaining”. The 1998 ILO
Declaration on Fundamental Principles and Rights at Work
recalls that all member States have an obligation to respect,
promote and realise the principles concerning fundamental
rights, whether or not they have ratified the relevant
Conventions. These fundamental rights include freedom of
association and the effective recognition of the right to collective
bargaining.
States should promote voluntary collective bargaining, where
necessary. However it does not specify how this is to be done.
Convention No. 154 and Recommendation No. 163 shows how
it can be done in a practical way. Together they show how the
right to bargain collectively can be effectively exercised.
The Collective Bargaining Convention (No. 154) was adopted
by the International Labour Conference in 1981. It promotes
free and voluntary collective bargaining. However there are
several other ILO Conventions and Recommendations that
relate to collective bargaining. These are –
Collective bargaining is an important form of social dialogue.
Institutions for social dialogue and collective bargaining help
protect the fundamental rights of workers, help provide social
protection and promote sound industrial relations. Social
dialogue, in turn, is an important part of good governance.
Because social dialogue involves the social partners
(employers’ and workers’ organisations) it further encourages
accountability and participation in decisions that affect the lives
of all society. These factors directly contribute to better
government.
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The Right to Organise and Collective Bargaining
Convention, 1949 (No. 98);
The Collective Agreements Recommendation, 1951 (No.
91);
The
Voluntary
Conciliation
and
Arbitration
Recommendation, 1951 (No. 92);
The Labour Administration Convention, 1978 (No. 150);
The Labour Administration Recommendation, 1978 (No.
158);
The Labour Relations (Public Service) Convention, 1978
(No. 151);
The Labour Relations (Public Service) Recommendation,
1978 (No. 159); and
The Collective Bargaining Recommendation, 1981 (No.
163).
One of the most well known and widely ratified Conventions
that relate to collective bargaining is No. 98 – the Right to
Organise and Collective Bargaining Convention, 1949. This
fundamental Convention says that member States should
encourage systems of voluntary negotiations in order to
regulate terms and conditions of employment through collective
agreements. All the other Conventions and Recommendations
listed above complement Convention No. 98 through clarifying
concepts and supporting the principles that it defines. The
Collective Bargaining Convention (No. 154) and its
accompanying Recommendation (No. 163) are key to furthering
the promotion and implementation of the basic principles of
Convention No. 98. This convention provides that member
Because it is promotional in nature, Convention No. 154 is very
flexible. There are many ways of implementing it, respecting
each national context and local preference. It can be
implemented in countries with different economic and social
situations, in different legislative frameworks, and in a variety of
industrial relations systems.
Collective bargaining and social dialogue
The ILO defines social dialogue to include “all types of
negotiation, consultation or simply exchange of information
between representatives of governments, employers and
workers”, and involves “issues of common interest relating to
economic and social policy.” This definition brings together the
elements of various understandings of social dialogue into one
inclusive concept.
Convention No. 154 and Recommendation No. 163
acknowledge that information, consultation and negotiation are
inter-linked and reinforce each other. While focusing on
negotiations, both highlight the importance of a common
information base for meaningful negotiations, and the role of
consultation in deciding measures to encourage and promote
collective bargaining.
From the ILO perspective, collective bargaining is an important
way for workers, employers and their organisations to reach
agreement on issues affecting the world of work. While
collective bargaining can often be an adversarial process, it
should better be used to build trust between the parties. This
trust can be reinforced through dialogue which can continue
after bargaining ends.
April 2005– Page 20
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Solutions that are built on trust and enjoy the genuine support
of both sides are more likely to be respected. This is due to the
sense of participation and ownership inherent in the process.
As a result, unnecessary disputes, and disruptions through
industrial action, can more easily be prevented.

The practical means that can be used to develop effective
collective bargaining as set out in Convention No. 154 and
Recommendation No. 163 necessarily promote social dialogue.
In so doing they help to develop a broader culture of dialogue,
reinforcing better governance, participation and accountability.
Only collective bargaining in good faith is worth promoting.
Good faith bargaining requires the parties to make reasonable
efforts to enter into an agreement. Genuine, constructive
negotiations and the avoidance of unjustified delays are
essential if worthwhile collective agreements are to be reached.
Ways of promoting collective bargaining
Adapted to national conditions
Recommendation No. 163 outlines in more detail measures the
Government and the parties might take to promote collective
bargaining. These measures, adapted to national conditions,
should aim at –
Because the measures to promote collective bargaining are to
be adapted to national conditions, no one set of measures is
required. Convention No. 154 respects different national
conditions, including various industrial relations systems.
National law and practice also apply to collective bargaining in
the public service, as well as to the role of workers’
representatives in the process. The Convention also expressly
does not preclude collective bargaining within the framework of
voluntary conciliation or arbitration procedures.
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Facilitating the voluntary establishment and growth of free,
independent and representative employers’ and workers’
organisations;
Ensuring that such employers’ and workers’ organisations
are recognised for the purposes of collective bargaining;
Establishing objective criteria to determine the
organisations that may undertake collective bargaining.
The criteria should be decided in consultation with
representative workers’ and employers’ organisations, and
should relate to the representative nature of the
organisation that may be eligible;
Allowing collective bargaining to take place at any level,
from single workplaces, the organisation or firm, the
occupation, the industry, or at the regional or national
levels;
Ensuring that both parties have access to the information
required for meaningful negotiations; and
Establishing, if necessary, procedures for the settlement of
labour disputes that help the parties find a solution to the
dispute themselves.
The parties to collective bargaining should –
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
Ensure negotiators have the opportunity to obtain
appropriate training, and may ask the public authorities to
provide it; and
Ensure negotiators have the necessary mandate to
conduct and conclude negotiations.
Governments have a key role in promoting collective bargaining
through providing a legislative framework and establishing
supportive institutions. This includes dispute resolution
machinery that facilitates bargaining. Initiatives taken by a
number of countries include the following:
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Maintaining statistics on the number and type of collective
agreements and their coverage;
Providing training on collective bargaining and dispute
prevention and settlement; and
Offering dispute resolution services by labour authorities.
Progressive application of the Convention
The Convention states that collective bargaining should be
progressively extended to all the matters set out in the
Convention. The matters are the following: determining working
conditions and terms of employment; regulating relations
between employers and workers; and regulating relations
between employers or their organisations and workers’
organisations. Ratifying the Convention, therefore, means that
collective bargaining should apply to some of these areas
initially. Extending collective bargaining to all of these areas can
be done over a reasonable period of time.
Ways of giving effect to the Convention
There are several ways to give effect to the Convention. The
Convention gives priority to its application through collective
agreements, arbitration awards, or “such other manner as may
be consistent with national practice”. To the extent that the
Convention is not applied through these means, it is to be given
effect through national laws or regulations. This is consistent
with the central principle of the Convention: as far as possible,
collective bargaining should be the province of the parties
involved.
Reference
Olney, S, & Rueda, M. 2005. Collective Bargaining
Convention. Social Dialogue, Labour Law and Labour
Administration Department. International Labour Office.
Geneva.
Maintaining public databases on agreements concluded,
thus providing a valuable source of information for the
social partners;
April 2005– Page 21
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