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8 Posts authored by: JOHANN SCHEEPERS

STRIKE VIOLENCE  SA 2.png

 

 

INTRODUCTORY COMMENTS

 

 

 

In terms of the Section 23(2) of the Constitution of the Republic of South Africa, 1996 –“(2) Every worker has the right to - …strike”.

 

 

 

In an authoritative publication by Professor John Grogan “Collective Labour Law”, Juta (2010), at 12 to 13, the learned author observes that the extent to which labor rights have been entrenched in the South African Constitution is probably unique in that it reflects the drafter’s determination to avoid a repetition of the abuse to which trade unions were subjected to in the apartheid era.

 

 

 

It can be submitted that the SA Constitutional “right to strike” is one, if not the most important right, from a trade union perspective, chiseled in the SA Constitution and it is jealously protected by the SA trade union federations and its constituent members. After all, it took much effort and resolve by the SA trade union movement to secure a fundamental “right to strike” as an entrenched right in the SA Constitution.

 

 

 

However, and according to Grogan supra, Section 23 of the Constitution is even handed: “it confers on ‘everyone’ (including employers) ‘a right to fair labour practices’ and, leaving aside the right to strike, confers identical rights on trade unions and employers’ organizations. [Emphasis added].

 

 

 

Therefore, the right to strike should not be perceived as sacrosanct and necessarily as if of more significance or value, when compared or weighed with any of the other fundamental rights entrenched in the South African Constitution.

 

 

 

At this juncture it was deemed apposite to record the words of Samuel Taylor Coleridge (1772-1834), “There are no rights whatever…without corresponding duties.” [Samuel Taylor Coleridge, English poet and man of letters; Ottery St. Mary, Devonshire; one of the most brilliant, versatile, and influential figures in the English romantic movement].

 

 

 

Recent concerns around labour relations in South Africa have to a large extent focused attention on a significant increase in lengthy strike action; and especially the escalation in levels of unlawful conduct by strikers in the form of violence, intimidation, riotous behaviour that led to damage of property and all sorts of direct and indirect financial prejudice suffered by those affected as a consequence thereof.


 

Section 69(1) of the Labour Relations Act 66 of 1995 (the LRA) gives registered trade unions the right to authorise their members and supporters to picket “for the purposes of peacefully demonstrating” in support of protected strikes and against any lockout. Such demonstrations are invariably part and parcel of South African strikes, as they are in many other countries.

 

 

 

However and unfortunately so, in South Africa in particular, demonstrations by strikers often go far beyond conduct normally associated with picketing. Regrettably, industrial action frequently deteriorates into mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal acts.

 

 

 

In most cases, the public generally bears these antics, if not with a grin, then at least with the hope that they need endure them only until the strikers eventually lose their steam and the situation returns to normal, at least until the next labour flare-up. [See: John Grogan “Tone it down! Curbing union exuberance” Employment Law Journal, LexisNexis (December 2011)].

 

 

 

In the article by Grogan supra the learned author analysed and commented upon a judgment, that attracted much attention in the press, namely by the South African Supreme Court of Appeal (SCA) - South African Transport and Allied Workers Union v Garvis & others [2011] 12 BLLR 1151 (SCA).

 

 

 

The following passage[s] in Garvis was referred to in articles pertaining to a legal battle between a trade union SATAWU and a few Cape Town street vendors who claimed damages for losses suffered in 2006 during a riot by union members that worked itself up through the High Court, the SCA and, finally, the South African Constitutional Court:

 

 

 

“[46] During the pre-constitutional era, public protests and demonstrations against a denial of fundamental human rights were often met by brute force with resultant loss of life. The Sharpeville massacre and the 1976 Soweto student uprising are stark examples that are etched into the national psyche. In any event, the legislature, after an extensive consultative process, and following on the brutal experiences of the apartheid era, promulgated the Regulation of Gatherings Act 205 of 1993.

 

 

 

[47] Our Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and the advancement of human rights and freedoms. It is calculated to ensure accountability, responsiveness and openness.  Public demonstrations and marches are a regular feature of present day South Africa…The Constitutional Court has recognised that the rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organisations…Trade unions should ensure that a noble struggle remains unsullied. The Act was designed to ensure that public protests and demonstrations are confined within legally recognised limits with due regard for the rights of others.

 

 

 

[50]…The chilling effect that the provisions of the [Regulation of Gatherings Act] (RGA) should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob. [Emphasis added].

 

 

 

In South African Transport and Allied Workers Union and another v Garvas and others (City of Cape Town as Intervening Party and Freedom of Expression Institute as amicus curiae) [2012] 10 BLLR 959 (CC) the Court determined that Section 11(2) of the RGA did limit the right to assemble in terms of Section 17 of the Constitution, however, the limitation was reasonable and justifiable.

 

 

 

The victims of the violence that erupted after the SA Transport & Allied Workers Union convened a gathering in Cape Town, as part of the union’s effort to mobilise members during a strike in the transport industry could institute damages claims in the High Court against the union in terms of Section 11(2) of the RGA. The Court held that Section 11(2) of the RGA was not unconstitutional. Section 17 of the Constitution protects the right to assemble and demonstrate only insofar as the conduct of the protestors was peaceful and the participants unarmed.

 

 

 

Somewhat ironically, shortly after the Constitutional Court handed down the Garvis judgment, during August 2012, the Marikana Tragedy occurred, an event which has been described as a watershed event for the South African labour relations system.

 

 

 

The nature of the events that occurred at Marikana had been widely published in the media in SA and abroad. In short: pursuant to strike action by a trade union active at the Lonmin platinum mine scores of Lonmin workers were gunned down by police during unprotected strike action. The issues that precipitated the tragedy were incredibly complex and go way beyond the field of labour relations.

 

 

 

Suffice it to record the observations by some commentators as to the root causes of strike action in SA, not only with reference to lengthy strike in the mining sector, also the strike action that followed thereafter in the metal and engineering industry.

 

 

 

In an article by a senior journalist of a leading SA newspaper, Jan de Lange 'The resolution of the strike in the hands of Government' Rapport 2014/07/20, the observation was made 'we really need to look beyond production losses and even violence at the drivers of these strikes'. http://t.co/QhM018jr3N

 

 

 

In the article referred to above De Lange expressed an opinion that the underlying factors that caused the strike in the metal & engineering industry are in substance the same or similar factors or 'drivers' that caused a lengthy strike [5 months] in the mining sector. The strike was correctly labeled as a 'political strike'. 

 

 

 

Notwithstanding the labeling of the strike and according to Professor Karl von Holdt, a professor in Sociology at the University of the Witwatersrand (WITS) the root cause of the wave of strikes in SA is not primarily due to political aspirations of trade union leaders.

 

 

 

According to Professor Von Holdt the real reasons are socio-political and other concerns or issues such as the lack of access to basic amenities and housing. The increase in violence and other forms of unlawful conduct during strikes are symptomatic of increasing levels of frustration and anger in that a large sector of the SA population live in what is known as 'informal settlements' with no service delivery and without access to basic amenities.

 

 

 

Therefore, the socio-economic needs of a substantial number of SA citizens remained unfulfilled despite political reform.

 

 

 

It follows that South African employers are not in a position to remedy the situation and find them in the unenviable position of being in the midst of socio-economic cum political conflict that culminated in industrial strife.

 

 

 

Having regard to a number of orders handed down by the South African Labour Courts, it is very much apparent that the protest action resorted to, and favored by some strikers ever so often takes the form of mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal Acts. [See: article by Grogan supra].

 

 

 

The court orders referred to above were obtained out of necessity and on an urgent basis by employers in an attempt to curb strike violence, damage to property as well as other criminal acts committed by strikers in contravention of the Regulation of Gatherings Act 205 of 1993 and agreed picketing rules with the unions involved.

 

 

 

An alarming trend that developed is the non-compliance and contempt of court orders by strikers. Unfortunately the incidence of non-compliance and contempt of court orders emanate from the ‘Apartheid-Era’ where workers paid scant regard to interdicts or any other order of court based on political reasons as a form of protest and civil disobedience.

 

This notwithstanding, the ‘Apartheid-Era’ is long gone and buried – twenty or more years ago. The resurgence of contempt of court, the propensity to disregard the rule law and the reasons therefore could not by means of regression be labelled as a “problem inherited from apartheid - a ‘spawn’ of the ‘wicked’ regime in power at the time”. As a Law Professor once said to a student who arrived late for class and presented a flimsy excuse for being late, “Dear sir…that kite won’t fly”.

 

 

 

The tendency by strikers to disregard the rule of law and heedlessly act in contempt of court orders are a matter of great concern to the courts, the legislator and the South African public. At the fifteenth annual general meeting held by the South African Society for Labour Law (SASLAW), where Mr Justice Andre van Niekerk delivered the key note address the Judge observed, ‘The value and effectiveness of legal institutions is dependent entirely on an acknowledgment and commitment to the rule of law.

 

 

 

When citizens or a group of citizens decide that their interests are better advanced by flouting the law, then there is very little to say about the role and perspectives of courts… the basic foundation of law is present when citizens are concerned about maintaining the integrity of the legal system, while recognising the inevitability of conflict… When this is not present, and when citizens reject the law as a means of settling normative conflict, then the social good of the law, which includes its capacity to provide a framework of cooperation despite disagreement, disintegrates.’

 

 

 

Judge van Niekerk also referred to the role of the court in unprotected strikes and specifically commented on urgent applications to interdict acts of strike related violence.

 

 

 

In this regard, he said: ‘The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them. At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’ [Emphasis added].

 

 

 

At a seminar held at the University of Pretoria, on 28 October 2014, presented by SASLAW the key note speaker was Advocate Anton Myburgh SC with the seminar topic, “Ensure compliance and contempt of court orders: a viable means to control strike violence?”

 

 

 

[Advocate Myburgh SC also authored a comprehensive article on the subject matter addressed at the SASLAW seminar, published in the authoritative publication Contemporary Labour Law – Anton Myburgh SC, “Contempt of court in the context of strikes and violence” Contemporary Labour Law (July 2014) Volume 23 No. 12].

 

 

 

In the comments that follow hereunder referral would interchangeably be made to the published article supra by Myburgh SC, as well as some of the issues raised and observations made at the SASLAW seminar.

 

 

 

CONTEMPT OF COURT IN THE CONTEXT OF STRIKES AND VIOLENCE – RECENT JUDGMENTS BY THE LABOR COURTS

 

 

 

At the outset it should be noted that one could not submit a quasi academic article or posting as to the subject matter under discussion, in the first instance due to the legal complexity thereof, and in the second instance postings on the LinkedIn network should preferably be brief and not drafted as a law review.

 

 

 

Four notable judgments by the Labour Courts were dissected by Myburgh SC and the importance of the judgments; especially the ‘message therein recorded’, if not an admonition by the courts as to what could be expected by maverick parties who fail to comply with orders of court, in the context of violent or riotous behaviour, who persist with unlawful conduct under the guise of strike action, albeit unprotected or protected strike action.

 

 

 

Also noteworthy in the judgments are the real possibility that those who blatantly disregard court orders would be ‘corrected’ by means of a quasi-criminal sanction, to wit to be found in contempt of court. One well known example is a judgment by the Labour Court where the court imposed a fine of R 500.000 against a union for contempt, namely In2Food (Pty) Ltd v Food & Allied Workers Union & Others (2013) 34 ILJ 2589 (LC). On appeal to the Labour Appeal Court (LAC) the union succeeded, on a technical point, as to the wording of the order wherein the union was interdicted and restrained from “continuing” with the strike and access prevented to the company premises by persons not involved in the strike, referred to by some commentators as ‘strike sympathisers’ or ‘self appointed moral supporters’ or even ‘concerned community members’ (CCM’s).

 

 

 

Of importance is a key passage by the court a quo in the In2Food judgment, which the LAC amplified, endorsed and adapted - quoted hereunder where Steenkamp J (at 2591H-2592B) pronounced:

 

 

 

“The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members...[The LRA] makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right. However, that right is not without limitations. Firstly, the proper procedures set out in s 64 of the LRA should be followed. And secondly, it must be in line with the constitutional right to assemble and to picket peacefully and unarmed, as entrenched in s 17 of the Bill of Rights... Very simply, there is no justification for the type of violent action

 

that the respondents have engaged in, in this instance. And alarmingly, on the evidence before me, the union and its officials have not taken sufficient steps to dissuade and prevent their members from continuing with their violent and unlawful actions... These actions undermine the very essence of disciplined collective bargaining and the very substructure of our labour relations regime.” [See detailed discussion: Myburgh SC - Contemporary Labour Law, 110 to 113 supra].

 

 

 

Of significance is that the LAC in In2food referred to FAWU v Ngcobo NO & Another (2013) 34 ILJ 3061 (CC), where FAWU was held liable to its own members for failure to prosecute the members’ interests properly in litigation (at paras 18-19):

 

 

 

The respondent’s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions are beginning to gain recognition… The sentiments expressed by the court a quo

 

which are cited above [see Steenkamp J, above] have been rightly described by Alan Rycroft as a ‘…’significant moment of judicial resolve’. Indeed, the sentiments deserve endorsement, and are adopted by this Court.”

 

 

 

[See: Rycroft, A “Being held in Contempt for Non-compliance with a Court Interdict: In2food (Pty) Ltd v FAWU & Others” (2013) 34 ILJ 2589 (LC)” 2013 34 ILJ 2499].

 

 

 

Referral was made to three other important judgments handed down by the courts where the courts had to pronounce on the question whether the Respondent was in contempt of court pursuant to an interim order obtained against unruly strikers ad factum praestandum and upon non-compliance with the order, an ensuing application declaring the non-compliant party[s] in contempt of court and imposing of a sanction.

 

 

 

For the sake of brevity the three judgments would not be addressed in this posting, however, they would be cited for those who wish to peruse them. They are Xstrata SA (Pty) Ltd v AMCU & Others (case no. J1239/13, 25/2/2014, per Tlhotlhalemaje AJ, Ciro Beverage Solutions (Pty) Ltd v SATAWU & Others (case no. J2630/13, per Shaik AJ) and Anglo American Platinum Ltd & Another v AMCU & Others (case no. J158/14, 6/3/2014, per Van Niekerk J).

 

 

 

It is important to mention that facts and circumstances which led to applications made for urgent relief were almost identical in that it involved strike violence as well as a disregard of interim orders obtained. Therefore, the applications made were based on contempt of court. In each of the judgments, the unions and their members escaped sanction based on being found in contempt of court on technical grounds.

 

 

 

Of concern was that Myburgh SC at the SASLAW seminar referred to study conducted during 2012 by the Congress of South African Trade Unions (COSATU), in the form of a poll amongst its members [2.2 million - 2012], wherein it was found that, "60% of members polled believe that strike demands will not be achieved without violence."

 

 

 

Myburgh SC identified two flash points of violence during strikes namely:

 

 

 

“- Early on in the strike > directed against the employer;

 

 

 

- When support wanes > directed against employees."

 

 

 

Violence during strike action could be classified as a form of economic duress and has the following effect:

 

 

 

"> It skews collective bargaining power;

 

 

 

> It disturbs the forces of demand and supply;

 

 

 

> It places undue pressure on employers to settle; and

 

 

 

> It frightens employers into settlement."

 

 

 

 

 

It was deemed apposite to quote from the article by Myburgh SC supra, “But unions would be well advised to take heed of these judgments, as the judicial net is clearly tightening around those of them who are prepared to run the risk of disobeying court orders”.

 

 

 

It could be taken as a given that employers and their legal representatives would take due notice of the technicalities that prevented a successful order of contempt against a union and its members and ensure that the drafting of applications for interdicts, and ensuing contempt applications would address the technical shortcomings identified in the judgments cited above.

 

 

 

Of critical importance from a trade union perspective would be an awakening that the courts have had enough of strike violence and contemptuous conduct upon being served with interdicts. As was stated at the SASLAW seminar, “The courts are looking for ways to hold unions accountable.”

 

 

 

 

 

CONCLUSION

 

 

 

The words by Van Niekerk J, at the 15th SASLAW annual general meeting held by the South African Society for Labour Law (SASLAW) are of importance - and are repeated hereunder for edification - especially to strikers who after being dismissed for violence or any other unlawful conduct during a strike, where the dismissal was preceded by an application for an interdict, an ensuing successful application for contempt of court and were found to be in contempt followed by a quasi-criminal sanction:

 

 

 

“The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them.

 

 

 

At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’ [Emphasis added].

 

 

 

 

 

Johann Scheepers

 

16/12/2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


                                                                                                                                                                                                                                                                                         

CONSTRUCTIVE DISMISSAL.jpg

The modern workplace is characterised by all sorts of conflict. The extent of operational demands on the employer and employee is ever increasing. Traditionally competitors were confined to a limited and easily identifiable group. However, as it is often mentioned by very important persons, ‘The world has become a global village’, or words to that effect.

 

 

Writer’s limited grasp of ‘the global village’ argument, which apparently has its roots in scientific research and findings by renowned economists, is that companies compete internationally for a slice of the ever shrinking proverbial cake.

 

 

As a consequence and in order to remain a viable and profitable entity the captains of industry expect employees to perform or perish. The potential for conflict within the workplace is perpetually on the increase and ever so often unfortunate incidents occur that eventually lead to the dismissal of employees for various reasons, albeit for misconduct, poor work performance/incompetence and ‘retrenchments/lay-offs’, as well as other reasons. 

 

 

Dismissed employees often contest the dismissal by lodging a claim, in accordance with relevant labor legislation in the form of an ‘unfair dismissal’ based on various grounds, for example unfair discrimination, victimisation, harassment, ‘bullying’ and within the South African context a ‘constructive dismissal’ [which ‘dismissal’ would be addressed more fully hereunder]. 

 

      

 

 

Suffice it to at this juncture disclose that in terms of Section 186(1)(e) of the SA Labour Relations Act, 66 of 1995 (the LRA) a ‘Dismissal’ means that – ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’ [Emphasis added].

 

 

The phenomenon of an ‘intolerable’ or unbearable workplace is not confined to South Africa. In an article by Brenda Craig ‘Microsoft to pay $2 Million in Workplace Bullying Case’ (2014) Lawyers and Settlements.com ‘The judge in the Texas employment labour law case, Tim Sulak, has issued a Final Judgement ordering Microsoft to pay $2 million in compensatory and punitive damages and legal fees. Judge Sulak found the tech giant guilty of “acting with malice and reckless indifference” in organized office retaliation against salesman Mercieca.’ [Emphasis added].

 

 

At this juncture it is important to record that from a SA legal perspective it is notoriously difficult for an employee to prove constructive dismissal. The reported judgments handed down by the Courts and arbitration awards by Commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) show that an Applicant rarely succeed by discharging the onus that the workplace became ‘intolerable’. [See: Section 186(1)(e) of the LRA referred to supra].


Furthermore, the Courts and Arbitrators have on occasion recognised or to an extent took ‘judicial notice’ of the operational demands and potential for conflict inherent within the modern workplace.

 

 

Marcus C commented as follows on the “stressful nature” attributed to the “modern workplace” in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA): “A modern workplace is not heavenly garden of smiling Buddhas focused on the welfare of others. More often than not it represents the contrary picture of a highly stressful and robust environment in which the pressures to perform on staff and even more so, members of management who carry the can, can on occasion contribute to managers conducting themselves in a manner that is less than desirable... managers are after all infallible. They are subject to human limitations like the rest of us and cannot reasonably be expected to perform to the standards of a saint in their conduct towards staff...”

 

 

Unfortunately and due to many reasons, some which may be attributed to poor legal advice, misleading advertisement on television wherein a distorted message is projected as if a constructive dismissal claim would with relative ease succeed or simply due to opportunism on the part of an employee, in that the employee would terminate the contract impetuously in response to an argument with a supervisor or as a ‘pre-emptive move’ or stratagem designed to avoid the possibility of a dismissal due to misconduct or poor work performance. What normally follows the pre-emptive resignation is a claim of constructive dismissal in that the workplace supposedly became ‘intolerable’.

 

 

LEGAL CONSIDERATIONS  

 

 

As was mentioned above, the SA Courts on occasion by means of admonition alerted employees that the decision to tender resignation should not be done in undue haste or in response to the slightest experience of conflict within the workplace. 

 

 

In Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others [2012] JOL 29127 (LC); also reported (2012) 33 ILJ 363 (LC), Steenkamp J held and made the following observation:

 

 

“It may be that Van Rooyen subjectively felt that his continued employment had become intolerable. Rahmann had lost trust in him and said so. He had been suspended. Rahmann overreacted by sending the SAPS to his house to recover the documents he had removed from the cellar. But I do not think that these actions by the employer, objectively speaking, were enough to make it culpably responsible for the termination of the employment relationship. The test remains an objective one.

 

 

To use a winemaker's analogy, the court cannot consider whether, subjectively speaking, an employee with a thin skin like the Pinot Noir grape may have found employment intolerable. It has to look at the situation objectively, and an employee has to be somewhat more robust and vigorous when there are still options open to him – more like the Cabernet Sauvignon cultivar”. [Emphasis added].

 

 

In Asara Wine Estate & Hotel at 34, Steenkamp J, held that in order to discharge the onus that there was a constructive dismissal the employee must show that there were no reasonable alternatives to resignation in existence.

 

 

The sentiments expressed by Byrne, C in Arries // The Effectiveness Company [2012] 4 BLLR 373 (CCMA) at [12] are apposite in that the Senior Commissioner succinctly noted that to prove constructive dismissal, an employee must show that conditions were not merely “uncomfortable”, but that they were “intolerable”. 


In a recent important, and as of yet unreported judgment, Volschenk v Oragma Africa (Pty) Ltd (C414.13) Delivered: 27 May 2014, Steenkamp J. [Courtesy: LexisNexis BLLR - November Preview] the Applicant chose, what could be described as ‘the road less travelled’, by referring a constructive dismissal dispute, couched in the form of a breach of contract, for adjudication to the SA Labour Court.

 

 

After an argument with his employer, Volschenk [the Applicant] resigned from the company on two months’ notice, although he was employed on an indefinite contract requiring one month’s notice. “Applicant claimed ‘constructive dismissal’. He did not refer a dispute the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section 186(1)(e) of the Labour Relations Act, as one might expect. Instead, he referred a contractual claim to this Court, apparently in terms of s 77(3) of the Basic Conditions of Employment Act, relying on breach of contract” [at 2].

 

 

The Applicant relied on five contractual damages claims: [3.1] Commission payable; [3.2] Leave pay; [3.3] Future loss of earnings; [3.4] Performance bonus; and [3.5] Shares in an employees’ share unit scheme. The Respondent raised five exceptions. It claimed that the Applicant’s statement of case did not set out a cause of action for his various claims.

 

 

After an argument with the Respondent, the Applicant gave two month’s notice of termination [the contract only required one month’s notice] and approached the LC for relief. The Judge noted that the Rules of the Labour Court required statements of claim to contain clear and concise statements of the facts on which the applicants rely, as well as of the legal issues raised. Applicant failed to set out legally relevant facts which disclosed a cause of action. To make matters worse, the Applicant equated a claim for “damages” with that of compensation as if the same [sort of claim].

 

 

Then a further problem was that he failed to quantify the claim for “future loss of earnings”. The Court held that a claim for compensation for an alleged constructive dismissal was a remedy afforded under the LRA, not a contractual claim. 

 

 

Finally - Applicant could not persuade the Judge that he was “constructively dismissed”; especially in that he graciously gave two month’s notice, instead of the contractual one month’s notice period. The Judge found the two month’s extended notice irreconcilable with a claim that the employment relationship had been rendered intolerable.

 

 

The Court upheld all the Respondent’s exceptions, and dismissed the matter with costs.

 

 

 

 

UPDATE

 

 

In a judgment delivered on October 16, 2014 in the matter Metropolitan Health Risk Management v Majatladi and Others (CA15/2013) [2014] ZALAC 56 (16 October 2014) the SA Labour Appeal Court (LAC) held that the conduct by the Appellant [employer] rendered the employment relationship intolerable. The resignation by the employee was found to constitute a 'constructive dismissal’.

 

 

[See: http://www.saflii.org/za/cases/ZALAC/2014/56.html]

 

 

The proven conduct of the employer in Metropolitan Health that led to the resignation of the employee 'were enough to make it culpably responsible for the termination of the employment relationship'. [See: Steenkamp J, Asara Wine Estate & Hotel supra].


In Metropolitan Health the employee agree to act in a certain capacity for a fixed term and a written contract was ratified to that effect. Prior to the pre-determined termination date of the contract the employee indicated to the employer that she no longer wished to act in said position after the expiry of the termination date. Following thereon the employee took annual leave and upon commencement of leave the employer's HR manager transmitted an e-mail to the employee notifying that the leave was revoked and an instruction to report for duty.

 

 

Upon arrival at work an unfortunate series of events occurred. Employer's HRM attempted to persuade the employee to agree to an extension of the acting contract; however the employee would have none of it. The HRM then gave the employee what is known as a 'Hobson's choice' [an option of either accepting what is offered or nothing]. The 'choice' in casu was 'agree to a further temporary contract or face dismissal'. The employee remained unwilling whereupon the employer deduced that such conduct was tantamount to refusal of an instruction. The employee was suspended pending the outcome of a disciplinary enquiry.

 

 

The employee in response thereto lodged a grievance which was not entertained and the enquiry proceeded where the chairperson showed remarkable wisdom in that a finding of 'not guilty' was made. However, the employee was found to have committed an offence termed as 'conduct unbecoming' and received a final warning.

 

 

Following thereon an appeal was lodged and the grievance was referred to the CEO. The outcome of the grievance was an instruction by the CEO that the employee should continue in the acting position until a replacement was found. Following a period of absence due to ill health and upon her return another suspension was instituted pending a second disciplinary enquiry. On this occasion the allegation was couched as 'gross insubordination for refusing to obey a reasonable and lawful instruction to report for duty'.

 

 

The employee wrote to the employer and contended that the instruction under the guise of operational requirements was not reasonable or valid and the company was unlawfully forcing her to accept a demand under the threat of being disciplined.

 

 

When the employer informed that the enquiry would proceed the employee tendered resignation and lodged a constructive dismissal claim. Although an Arbitrator found that she was the author of her own misfortune, the SA Labor Court held that the charges brought at the second hearing were the same as the charges in the first hearing and the hearing would have been so obviously unfair that the work environment as a consequence became intolerable. In the circumstances, the court awarded compensation in the amount of six months’ salary to the employee.

 

 

On appeal the LAC inter alia found that there was a pattern of harassment of the employee. The LAC also found that it was hardly surprising that this harassment resulted in a second charge on the very same issue on which the employee had been found not guilty. The conduct of the employer made the continued employment relationship intolerable and the resignation amounted to a constructive dismissal. The appeal was accordingly dismissed.

 

 

 

CONCLUSION

 

 

One could only express the hope that South African employees, if not all employees should keep in mind that a termination of an employment contract is generally regarded as a unilateral act by the employee and could not be retracted ex post facto by contending that it was done ‘in the heat of the moment’ or by lodging a claim based on the ground of a ‘constructive dismissal’. As was set out above the test of ‘intolerability’ would not easily be satisfied.  

 

 

 

 

Johann Scheepers

17/11/2014

 

 

IMPORTANT ISSUES AND QUESTIONS?

 

The South African Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014, ‘with barely a ripple in the human resources community…surprising, since this was the date on which still harsher human resources legislation came into effect in the form of amendments to the Employment Equity Act. [Tony Pace, ‘Amendments to the Act make Job Grading Vital – Remuneration Nightmare Begins’ (2014) Workinfo.com, Newsletter August 2014].

 

Reference in the title of the article supra namely, ‘Remuneration Nightmare Begins’ and ‘Job Grading Vital’ may be regarded as a stratagem designed to ‘scare’ the person who may come across the article out of a state, what is commonly known as ‘REM – sleep to that of a ‘rude awakening’ or a state of acute awareness of the enactment of the extensive amendments to South African Employment Equity Legislation and the important issues and questions that may arise from the ‘new laws’.

 

After all, prior to the enactment of the amended legislation many articles on the subject matter have been published by well known and respected authorities as well as labor law practitioners of leading attorney firms. Furthermore, the Department of Labor held numerous ‘Road Shows’ some in all the major cities within the provinces of SA where the amendments to the legislation and the possible effects  thereof were explained to all who took the time to attend. For example, at a ‘Road Show’ held at the Sandton Convention Centre in Johannesburg, Gauteng Province on 13 August 2014, the Department of Labour Director for Employment Equity (EE) Director Ntsoaki Mamashela has confirmed that the principle of ‘equal pay for work of equal value’ applies 'irrespective of the status of employment'.

 

The Director referred to employees 'hired on a contract basis', whose 'rights' under the new regulations are evidently the same as those of 'full-time' employees. Specific reference was made to EER - Regulation 3 (Eliminating unfair discrimination) that requires that an employer [must] to take steps ‘to eliminate differences in the terms and conditions of employment of employees performing work of equal value if those differences are directly or indirectly based on a listed ground or any arbitrary ground ... prohibited by section 6(1) of the Act'.

In a paper presented by Talita Laubscher et al, ‘Equal pay for equal work’ (2014) Bowman Gilfillan Attorneys the learned author advised employers ‘to carefully scrutinize their pay practices in order to ensure that any disparity [remuneration – including employment benefits, terms and conditions of employment] is objectively justifiable and does not give rise to an attack based on any of the listed grounds, or other arbitrary grounds’.

 

A possible reason for the perceived inactivity on the part of employers, as referred to in the article by Tony Pace supra, may be that employers and to a lesser extent employees [trade unions] are in the process of analysing the amendments with the purpose of eliminating unfair discrimination by taking corrective measures in order to eliminate differences in terms and conditions of employment, benefits and remuneration. [See: Section 5 of EEA & Regulation 3 EER].

 

One hopes that employers are not adopting a ‘wait and see’ approach as to compliance with the legislation, for example to await a ‘test case’ or legal precedent to be set by the Courts or even the CCMA.  

 

Equal Pay for Work of Equal Value: How do We Get There?

 

[See: ILO – UN Global Compact Webinar Equal Pay of Equal Value: How do We Get There?’ March 2011].

 

Having perused the introductory part to this article various questions and problems come to mind such as:

 

  1. What is an ‘arbitrary ground’? [See: excerpt article by Talita Laubscher – Section 6(1) EEA  & Regulation 3 EER];
  2. The definition and meaning of ‘equal pay for work of equal value’? [See: Section 6(4) EEA & Regulation 4 EER];
  3. The methodology for determining ‘equal value claims’? [See: Section (6)(4) EEA & Regulation 4 to 6 EER];
  4. The assessment whether work is of ‘equal value’? [See: Regulation 4, 6 EER & excerpt  article by Tony Pace];
  5. ‘Equal pay claims’ v. ‘equal benefits, terms and conditions of employment’? [See: Section 6(4) EEA & Regulation 6 & 7 EER];and
  6. Grounds or ‘Factors justifying differentiation in terms and conditions of employment’? [See: Section 11 EEA & Regulation 7 EER].

  

                     

Due to the extent of, and legal technicalities/questions arising from the amendments to the former EEA, 55 of 1998, now the EEA, 47 of 2013 as well as the Regulations, EER, 2014 it was deemed appropriate to submit brief comments, as to the questions and problems, to (vi) supra. Some of the issues listed above have been analyzed and addressed by Professor PAK le Roux in a recent article published in the authoritive publication Contemporary Labor Law. [See: PAK le Roux, ‘The Employment Equity Act: New amendments set problems and posers’ (2014) Contemporary Labor Law Vol. 24 No. 1]. 

 

ARBITRARY GROUND?

 

Section 6 (1) of the EEA includes “Prohibition of Unfair Discrimination, direct and indirect…race, gender… [Listed grounds] ‘or any other arbitrary ground’. The ‘Listed grounds’ contained in Section 6(1) are not a closed list by virtue of the wording ‘on one or more grounds, including…’. Therefore, in addition to the listed grounds as ‘codified’ in Section 6(1) ‘other [analogous] grounds’ as well as ‘any arbitrary ground’ may constitute unfair discrimination.

 

According to Le Roux supra, the EEA contains three sets of grounds whereupon a claim of unfair discrimination may be brought, to wit listed grounds; (ii) unlisted analogous grounds; (iii) arbitrary grounds. Therefore, the traditional grounds for potential litigation are extended and include inequality in benefits, terms and conditions of employment and remuneration, as is addressed more fully hereunder.

 

As to the burden of proof another interesting distinction is to be found in the EEA in that if unfair discrimination is alleged on a ground listed in section 6(1) supra the employer against whom a claim is brought must prove, on a balance of probabilities, that:

 

discrimination did not take place; or

 

(ii) discrimination is rational, not unfair or is justifiable.

 

If discrimination is alleged on an arbitrary ground the claimant [employee(s)] must proof, on a balance of probabilities, that:

 

conduct complained of is not rational;

 

(ii) conduct amounts to discrimination; and

 

(iii) discrimination is unfair.

 

EQUAL PAY FOR WORK OF EQUAL VALUE’?

 

Regulation 1 of the EER defines - "work of equal value" includes works that is the same, substantially the same or of the same value as other work, as contemplated in regulation 4 of these Regulations.

 

Regulation 4 – “Meaning of work of equal value”:

 

Regulation 4(1) – Performing the same work, that is identical or interchangeable;

 

Regulation 4(3) - Job title not determinative, an objective assessment of the actual duties performed required.

 

Therefore, it could be deduced:

 

  1. The test is not whether the same or similar work is performed; rather it involves an objective analysis or assessment of equal value. The work performed may in nature be entirely different, however intrinsically of equal value;
  2. Job evaluation systems or methods would be scrutinized as to objectivityin that the criteria for evaluation would in all probability be subject to challenge as discriminatory or subjective in substance and nature.

     

    According to Le Roux supra, it is of importance to keep in mind that in general reference is made to ‘equal pay’ claims, however, discrimination claims are not limited to salaries or wages and will cover all benefits, terms and conditions of employment, for example leave and pension/provident fund arrangements. These claims also include a cause of action where ‘indirect discrimination’ is alleged.

     

    DETERMINING EQUAL VALUE CLAIMS?

    This question has to a large extent been addressed above. This notwithstanding, Regulations 4 to 6 of EER provide guidance as to how two different jobs should be accorded the same value. Regulation 6 sets out, in peremptory terms the criteria for value assessment:

    Regulation 6(1)(a) – Responsibility for, people, finances and materials;

    Regulation 6(1)(b) - Skills, qualifications and prior learning required to perform the work;

    Regulation 6(1)(c) – Effort, physical, mental and emotional effort required to perform the work;

    Regulation 6(1)(d) - Work context, i.e. conditions under which the work is performed, physical environment, psychological conditions, time when and geographic location where work is performed.

    According to Le Roux supra the stipulations contained in Regulation (6)(3) are of specific importance in that the assessment process of the value of work must be conducted in a manner devoid from bias on the grounds of race, gender or disability or any other listed or arbitrary ground.

    Regulation 6(4) makes allowance for justification of value assigned on the ground of the provisions contained in a sectoral determination pertaining to classification of a specific job.

    At first glance Regulation 6(3) opens the way for judicial innovation in that the employer’s pay structures, job evaluation or job grading schemes, performance appraisals and collective agreements may be challenged as subjective, scientifically unreliable or invalid, and biased against an employee or group albeit on the grounds of [unfair] direct or indirect discrimination.

     

    FACTORS JUSTIFYING DISCRIMINATION IN TERMS AND CONDITIONS OF EMPLOYMENT

    Regulation 7(1) contains a list of factors that justify differentiation in terms and conditions of employment, including remuneration notwithstanding that the work performed is of equal value, with the proviso that the differentiation does not constitute unfair discrimination and that the difference is rational and based on any of the grounds such as seniority, length of service, qualifications and performance.

    In the first instance the above factors may give rise to an inconsistency or objectivity challenge.

    In the second instance some of the factors prima facie justify discrimination, however upon closer scrutiny may constitute indirect discrimination, for example seniority and length of service.

    The employee may contend that seniority as a factor in justification of discrimination is inherently unfair in that the employee, due to an earlier discriminatory practice, has been excluded from certain positions and therefore not had the same opportunity to accrue seniority or experience.

    In conclusion the observation by Le Roux supra is apposite in that preparation for any litigation, including CCMA arbitration would have to be thorough and detailed.

    It is envisaged that the testimony of expert witnesses may on occasion be necessary in order to be successful in litigation.

      

 

A very important person once said, South African "Commissioners [CCMA Labor Arbitrators] have a lot to think about". Attached hereto is one of the many examples of innumerable duties of a Commissioner that the SA Labor Courts pronounced upon and to a large extent clarified the reach, so to speak of the duty of a Commissioner to assist a party in terms of the "Helping Hand" principle cum duty.

 

The duty to offer assistance during arbitration proceedings, normally to a "layman, or rather 'layperson'", has been an issue of great concern especially the thin [blue] line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of another. [See: Coin Security Group (PTY) Ltd v Machago (2000) 5 LLD 283 (LC) at 1505].


The SA Labor Court in Anglo Operations (Kriel Colliery) confined the boundaries of the "Helping Hand". La Grange J, held that whether an arbitrator is obliged to lend a helping hand to a party depends on the circumstances. After considering relevant case law, the Court noted that in this case the employer’s representative had never stated that he was unfamiliar with the arbitration process. He represented a major corporation which should ensure that it sent adequately trained representatives to the CCMA.

 

‘HEAD NOTE:

 

Application in terms of section 145 of the LRA

 

Commission for Conciliation, Mediation and Arbitration – Arbitration proceedings – “Helping hand” – Commissioner not obliged to remind representative of large corporation to meet inconsistency challenge which had been raised at outset and for which factual basis laid.’ [Courtesy of LexisNexis - BLLR].

 

The SA Labor Appeal Court (LAC) in, GOLD ONE AFRICA LIMITED MODDER EAST OPERATIONS and JOHANNES PETRUS DIEDERIK VAN DER WESTHUIZEN & COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (Case no: JA 53/13) Delivered: 03 July 2014 (LAC) Davis AJA found that one of the three issues that emerged as central to the disposition of the dispute was that the Commissioner failed in his duty to provide assistance to the Applicant/Employee [The First Respondent in the Appeal] given that the Applicant/Employee was unrepresented at the arbitration proceedings.

The (LAC) at [14] found:

Assistance to first respondent by second respondent

[14] First respondent contended that as he was not represented, second respondent had not provided sufficient assistance to him during the hearing. In his supplementary affidavit, first respondent averred as follows:

‘The second respondent failed, refused and/or neglected to assist me, an unrepresented lay person, to place his case properly before the CCMA, i.e.

i. assisting me in explaining to me what evidence should be led;

ii. assisting me in what allegations should be made;

iii. assisting me in explaining to me how to place my version before the CCMA.      

The 2nd respondent failed, refused and/or neglected to assist me, a lay person, in cross examination of the respondent’s witnesses.

The 2nd respondent failed, refused and/or neglected to assist me in putting my case properly before the CCMA.’ At [16] the Court held:

  ‘[16] If a reviewing court must avoid ‘judicial overzealousness’ in setting aside administrative decisions that do not coincide with the courts own view, it must also be careful not to impose its conception of the manner in which an institution such as third respondent [the CCMA] organizes a hearing. Before a court interferes with a decision made by a representative of third respondent [the Commissioner], the least that is required by a complainant as first respondent [the Applicant /Employee] is a clear exposition as to how an arbitrator should have come to the assistance of the complainant. In this case, an examination of first respondent’s cross examination of Ms Mokoena reveals that he put his version to Ms Mokoena and asked all of the questions which could reasonably be expected by a cross examiner. The cross examination of Mr Ciko was somewhat shorter. The reason appears to be that the essential point first respondent made was that Mr Ciko had waited for ‘a month and six days before you lodged a complaint’.

 

‘[17] For these reasons in particular, it is difficult to see on this record precisely where the second respondent [the Commissioner] failed to conduct a fair hearing. Were this court to come to the aid of every unrepresented person who, after receiving ex post facto legal advice, claims that there was procedural unfairness at the hearing conducted by a member of third respondent [the CCMA] but does so vaguely at best, or in general terms without any specification, the very process of arbitration hearings before so vital an institution as third respondent would grind to a litigious halt. Almost every case in which an adverse finding against an unrepresented person has been made would then be the subject matter of a review. On these papers and on these facts, there is no merit in the argument of first respondent’.

 

The (LAC) in Gold One Africa in effect found that a mere unsubstantiated allegation 'so vaguely at best, or in general terms without specification' that the Commissioner failed to provide assistance in terms of the 'Helping Hand' principle would not suffice.

 

In such event the effect would be that every adverse finding against an unrepresented person would then be taken on review based on a vague allegation that assistance should have been offered by the Commissioner to the Applicant.

 

As a consequence the Commission would not be able to comply with the 'Purpose of this Act', Section 1(d)(iv) of the LRA, 'the effective [expeditious] resolution.

 

Employment Equity Amendment Act, Act No 47 of 2013 (the EEAA) came into operation by means of promulgation with effect from 01 August 2014.

 

The EEAA as well as other amendments to SA Labor Legislation, to wit the Labor Relations Act, 66 of 1995 (the LRA) and the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon 'consensus' was reached as to most of the amendments required in order to reform SA Labor Legislation.

 

To date only the EEAA has become law and it is expected that the amended LRA and BCEA would be enacted in the very near future.

 

This article is intended to be 'PART-ONE' of possible follow-up articles wherein the focus would be on the EEAA, Sections 6(4) & (5) - the amendments to the principal Act, namely the Employment Equity Act, 55 of 1998, and more specifically the Sections in the EEAA that deals with 'Equal Pay for Work of Equal Value'.

 

At the outset it should be recorded that the subject matter 'Equal Pay for Work of Equal Value' is by its very nature complex in substance, legally technical in nature insofar as it raises all sorts of legal questions, as well as concerns pertaining to issues such as the practical implementation of measures in compliance with the law; and other more controversial issues based on the economic or financial realities of employers that may inhibit legal compliance - to name a few of the many variables.

 

It was deemed apposite to refer to a panel discussion by Labor Law Experts, P Benjamin, S Gaibie & C Todd, '24th ANNUAL CURRENT LABOUR LAW SEMINAR' LexisNexis (2013) where the observation was made that Sections 6(4) & (5) clarify rather than change SA Equity Laws. The question posed was will the EEAA lead to an increase in litigation? The World Economic Forum gave SA a score of 0,65 for wage equity, namely that male workers receive 30% more than females doing the same work.

 

In an authoritative article by J Grogan, 'The New Dispensation, Part 2: The Amendments to the EEA and the BCEA' Employment Law Journal LexisNexis (2014) Vol. 30 Part 3, the learned author observes: 'As is now well known, the EEA attempts to strike the delicate balance enjoined by the Constitution between the individual’s right to equality and the promotion of equality by legislative measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination” (Constitution of the Republic of South Africa, 1996, sections 9(1) and 9(2)). The Employment Equity Act 55 of 1998 is the legislative measure designed to promote equality in the workplace. Employment equity plans adopted in terms of that act are the “measures”.


The overall aim of the amendments to the Employment Equity Act 55 of 1998 is “to further regulate the prohibition of unfair discrimination against employees” and “to provide afresh for the assessment of compliance by designated employers”. As will appear from the review of the amendments set out in this article, the former aim seems to have been made decidedly subservient to the latter.'

 

Insertion of new sections 6(4) and 6(5) – Work of equal value

 

The new Section 6(4) has been introduced to deal explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value. A differentiation based on a proscribed ground listed in Section 6(1) or any other arbitrary ground will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like.In terms of Section 6(5), the Minister of Labor will be empowered to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value.

 

Suffice it to record that the EEA Regulations, 2014 has been published and the contents thereof as well as other pertinent issues and questions as to the subject matter would be addressed in PART-TWO.

On the 1st of October 2013 dispute resolution in South Africa entered into a new era with the accreditation of Equillore , a private dispute resolution agency, by the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the provisions of section 127 of the Labour Relations Act, Act 66 of 1995 (the LRA) to perform statutory dispute resolution functions as stipulated in the LRA.as a an accredited service provider by the Conciliation, Mediation and Arbitration (CCMA).


The importance of this occurrence is that Equiillore may perform dispute resolution functions as stipulated in the LRA, a move that will dramatically increase and improve access to professional Dispute Resolution by employees and employers, and assist to build stability in the South African labour market.


The accreditation allows Equillore to conduct Conciliation, Mediation and Arbitration processes (which include Pre-dismissal Arbitration / Enquiry by Arbitrator) in relation to disputes emerging from the workplace. It is noteworthy that the EQUILLORE PANEL PROFILE OF LABOUR EXPERTS consist of 35 Senior Commissioners/Arbitrators/Mediators and Labour Experts, selected by virtue of their extensive experience and proven skills in labour law, labour relations and conflict resolution.

 

Established in 1997, Equillore is a leader in Commercial Dispute Resolution services with a nationwide panel of over 200 qualified Commercial Mediators.

Equillore Services:

• Disciplinary Hearings

• Grievance Proceedings

• Pre-dismissal Arbitration / Enquiry by Arbitrator

• Appeal Hearings

• Conflict / Crisis Mediation

• Mediations in Collective Bargaining

• Training & Consulting

• Dispute Prevention Design

• Employment Policy and Contract Design

T: 0861 258 852 | E: labour@equillore.com | W: www.equillore.com W:

In a recent judgment by the South African Supreme Court of Appeal, the Court pronounced on a labour dispute which some of the readers may find of some interest. Following hereunder a posting by the writer in which he dealt with the judgment and its potential consequences for SA employers:

 

 

THE LEGAL STATUS OF A TRADITIONAL HEALER'S CERTIFICATE v. MEDICAL CERTIFICATE - QUESTIONS ARISING FROM KIEVITS KROON COUNTRY ESTATE v. MMOLEDI & OTHERS (875/12) [2013] ZASCA 189 (29 NOVEMBER 2013) 

 

By now most zealous readers of Labour Court judgments have come across the as of yet unreported Kievits Kroon judgment delivered by the SCA on 29 November 2013. The judgment has caused a stir amongst employers for what appears to be all the wrong reasons. The perception is that the Court elevated a "certificate" or "letter" from any traditional healer to the same status as that of a medical practitioner as defined in sec 1 of the BCEA, 75 of 1997. In Kievitskroon the employee was dismissed due to unauthorised absence from work in that she attended a course to become a traditional healer. She requested permission to be absent from work for a month and submitted a letter, as well as certificate from a traditional healer in substantiation of the necessity to be trained as a traditional healer. The training and eventual graduation as a healer was a ancestral calling which she was obliged to honour failing whereto she would face all sorts of evil including death. The employer refused permission; however, the employee in defiance attended the training and upon return to work was dismissed. Subsequent to a dispute referral to the CCMA she was reinstated without back pay. The employer took the matter and review and appeal and was unsuccessful. The LAC held that "Section 23 of the BCEA, therefore, finds no application on the issue in this case. Similarly, the argument [by the employer] that by enacting section 23 of the BCEA the legislature in express terms opted for standards in line with Western standards as opposed to African culture is misplaced as well. I am as a result unable to find, as we are urged to do, that the Commissioner usurped the function of the legislature by elevating the role of traditional healers to that of medical practitioners". It was contended further that the effect of the Commissioner’s findings and award was to open the floodgates to “malpractices that operate towards turning the work environment into total disarray, contrary to the latter and spirit of labour legislation”. The LAC rejected the argument, "It would be disingenuous of anybody to deny that our society is characterized by a diversity of cultures, traditions and beliefs.

 

 

That being the case, there will always be instances where these diverse
cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The Constitution of the country itself recognizes these rights and practices. It must be recognized that some of these cultural beliefs and practices are strongly held by those who subscribe in them and regard them as part of their lives". The arbitration award and the two court decisions, which were upheld by the SCA, despite references made to illness, Kievitskroon was not a case dealing with absence from work due to illness. The case turned on whether an employee's unauthorized absence from work justified dismissal. The Commissioner found that the employee had a justifiable reason for being absent. Regarding the "opening of floodgates" the LAC referred to what Langa CJ said in MEC for Education, KwaZulu-Natal and others v Pillay 2008 (1) SA 474 (CC) at par [107] [also reported at [2008] JOL 20810 (CC) – Ed] "...Firstly, this judgment applies only to bona fide religious and cultural practices. It says little about other forms of expression. The possibility for abuse should not affect the rights of those who hold sincere beliefs..These authoritative remarks are equally relevant in this case. It must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges".

 

A reader of the posting posed the following question: “Are we really expected to conduct business on this basis. Surely there needs to be more stringent guidelines. What about all the other beliefs of all the various religions that exist?
There is a little too much emphasis being placed on cultural beliefs and rights to the detriment of the rights of the employer”.

 

 

 

 

The Reply:

 

“Dear Sir, as is the case in all judgments it is important to first read the facts and then ascertain from the reasons contained in the judgment, the findings of the Court and the legal principles established, if any. Of importance was that in the LAC judgment which preceded that of the SCA, the LAC specifically made reference to the decision of the Constitutional Court in MEC for Education, Kwazulu-Natal and Others v. Pillay 2008 (1) SA 474 (CC), wherein the CC pointed out that protection would only be granted to bona fide cultural and religious practices, that diversity was something to be celebrated and not feared. The acceptance of one practice would not require an employer to permit all practices. If accommodation would impose an unreasonable operational burden on an employer it need not make such an accommodation. Employers should consider "Kievits Kroon - scenarios" with care and, where possible, to seek to accommodate the employee in this regard, taking into account its own legitimate operational and other requirements.

 

In the LAC and SCA judgments the Courts identified that there will always be instances where diverse cultural and traditional beliefs and practices create challenges within our society. Employers should study the arbitration award and the High Court judgments wherein reference was made, in passing, as to a legitimate and fair manner which a Kievits Kroon-scenario should be managed. However, employers should not expect the Courts to assume an advisory role in Industrial Relations Management. It is the duty of responsible management to engage employees in a joint consensus-seeking process in an attempt to reach an agreement on a policy and procedure in order to manage the issue”.

 

In conclusion one could use the expression, “Never a dull moment for SA managers”! However, solace is to be found in the knowledge that from the contents of the postings on the various blogs it is very much apparent that SA managers should not get despondent due to the prevalence of workplace strife. In an article by Mr Ed Sweeney, chairman of ACAS, a UK based organization wherein he observed, "There are signs that the difficult economic climate in recent times has seen an increase in individual disputes, as employers look to cut costs and improve performance. For example, the CIPD's 2011 conflict management survey reported that 'the scale of workplace conflict is remarkable and has increased in the recession' - importantly, one message has emerged loud and clear - senior management in organizations needs to start thinking about conflict as a strategic issue". Innovative approaches to conflict management need to be integrated with broader strategies related to employee health, wellbeing and engagement. There is growing evidence that workplace mediation can help to resolve issues that might otherwise result in long-term absence and litigation, offering substantial savings in terms of staff time and cost.

 

 

 

 

Comment by Richard Cohen on December 24, 2013 Posted in General Employment Discrimination, “Employment Discrimination Report”, Fox Rothschild LLP - Attorneys at Law.

 

We recently posted about this legislation proposed by Senator Elizabeth Warren that would prohibit inquiries into the credit histories of job applicants.

 

Johann Scheepers, Commissioner at the Commission for Conciliation, Mediation and Arbitration in the Johannesburg Area of South Africa, provided an interesting perspective:

 

“I fail to see the nexus between a ‘bad credit history’ vis-a-vis trustworthiness or reliability as selection criteria used in making appointments. In the current unfavorable economic climate most employees, who could be categorized as from the middle class, struggle to make ends meet. It has been said that many employees ‘are one pay cheque short of bankruptcy.’  If the criterion of ‘bad credit’ is used as a yardstick for employment, employers may find it difficult, if not impossible to fill vacant positions. The said criterion is in substance and nature based on a subjective employment practice such as recruitment decisions based on the exercise of personal judgment or the application of subjective criteria. It therefore constitutes indirect discrimination in employment practice.

 

In terms of South African legislation, an employer has a statutory defence in that if the employer could prove that the discriminatory act is the result of ‘an inherent requirement of the job,’ the act would be fair. This notwithstanding, the Courts and tribunals adopted a narrow construction of the ‘inherent requirement of the job defence,’ and stressed that the defence ought to be construed narrowly, ‘[A]ny legislatively formulated justification of discrimination constitutes, in effect, a limitation on the constitutionally entrenched right to equality and this militates against an expansive reading of the phrase “an inherent requirement of the job.’

 

It would be interesting to know if the US Legislator included a similar ‘escape clause’ in the Act under discussion based on the wording of other US legislation, for example, ‘business necessity’ or ‘bona fide occupational qualification’ or prerequisite for employment?”