2010 CASE LAW OVERVIEW

1. 2010 CASE LAW OVERVIEW • By Randall van Voore

2. Age: nothing but a number? • Lies, Videotape (pornography) • Theft: destructive? tolerable? “technical theft” • Fighting Words, Emotion • Gender: choice – should it matter? • The Lone Retrenchee rides again

3. SA Metal & Machinery Company (Pty) Ltd v Gamaroff [2010] 2 BLLR 136(LAC) • Gamaroff took employment with company in 1999, 53 years old at the time, employed as manager • when he was 67 he was old his services were terminated on 26 February 2006 on the grounds that he had reached retirement age • Prior to Gamaroff’s dismissal meetings took place on 6 and 12 December 2005, Gamaroff was a member of the pension fund, membership of the fund was compulsory for all employees of the company, the fund rules define normal retirement age as 65 years • Gamaroff took ill and was on sick leave for two months, Gamaroff was told that he must retire but refused to do so and continued to tender his services, claimeing he was entitled to work until the age of 70.

4. SA Metal & Machinery Company (Pty) Ltd v Gamaroff [2010] 2 BLLR 136(LAC) • Gamaroff took the view that the company was wanting to get rid of him and referred an unfair dismissal dispute • Labour Appeal Court: • it was common cause that the retirement age (being normal or agreed) was not stipulated in Gamaroff’s contract • however, the parties had in fact agreed a normal retirement age as reflected in the rules of the provident fund • further Gamaroff could not dispute the fact that 65 was the agreed retirement age after he conceded that yet being mistaken about the age of 70 being agreed retirement age

5. Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC) • Atkins accepted an offer of employment with the company as an IT technician • After accepting the offer Atkins informed the company that he was planning to undergo a sex change from male to female • The company contended that Atkins’ failure to inform it of his plan before accepting the offer of employment constituted dishonest misrepresentation and the company cancelled the contract • Atkins claimed that he had been discriminated against on the ground of sexual orientation and that termination of the contract constituted an automatically unfair dismissal and was unfairly discriminatory

6. Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC) • Company denied that Atkins’ intention to have a sex change operation had anything to do with its decision to terminate the contract and claimed that Atkins had been dismissed for dishonesty • Labour Court: • Atkins was transsexual, a recognized psychological condition whose only known remedy is surgery which aligns the body with the psychological gender • both the LRA and the EEA give expression to the constitutional protection against unfair discrimination, prohibited grounds of discrimination include sexual orientation and gender • company did not in its defense contend that it had fairly discriminated against Atkins but contended that Atkins breached his common law duty to disclose relevant information

7. Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC) • true reason for the dismissal was therefore the only issue in dispute and Atkins only had to raise a credible case that he was discriminated against on a prohibited ground and the company had to prove that the dismissal was not for a reason falling within the scope of section 187 of the LRA • company’s only reason for terminating the contract was Atkins’ disclosure that he was to undergo a sex change operation • Atkins was not under any duty to disclose that fact before concluding the employment contract, Atkins had been discriminated against on the basis of gender and was awarded compensation equal to 5 months’ salary

8. Bedderson v Sparrow Schools Education Trust [2010] 4 BLLR 363 (LC) • Bedderson worked as a teacher for 38 years and took early retirement at 57 • Three months before 65th birthday Bedderson was employed by the Trust at one of its schools, after 5 years and after being promoted to the position of head of department Bedderson was informed that a mandatory retirement age of 65 had been set for all staff but that serving staff older than that would be permitted to work on a ‘temporary’ contract until they reached 70 • Bedderson was further informed that because she was older than 70 her contract would not be renewed, Bedderson referred an automatically unfair dismissal dispute (on the basis of age)

9. Bedderson v Sparrow Schools Education Trust [2010] 4 BLLR 363 (LC) • Labour Court: • whilst employers are entitled to introduce new policies they must also comply with existing employment contracts • Bedderson’s contract contained no retirement date and the employer’s argument that it was entitled unilaterally to change fundamental terms and conditions of her contract was tantamount to asserting that employers are free to introduce terms to the effect that contracts will expire on the occurrence of any stipulated event • in the absence of evidence that the age of 70 was the agreed or normal retirement age, section 187(2)(b) of the LRA did not apply • Bedderson had not been consulted and her personal circumstances had not been considered, Bedderson’s dismissal was automatically unfair, Bedderson was awarded compensation

10. Chabeli v CCMA & Others [2010] 4 BLLR 389 (LC) • Employee tendered resignation on notice on 1 April 2008, on same day employer accepted the resignation and informed employee that he was not required to work out his month notice • On 29 May 2008 employee referred dispute to the CCMA, he was informed that the referral was out of time and that he was obliged to apply for condonation • In condonation application employee stated that the dispute had arisen on 1 April 2008, the day he tendered his resignation, and that the referral was accordingly 57 days late, condonation was refused • Employee challenged the decision on review contending he had given the incorrect date as he had ‘in truth’ remained in employment until 20 April 2008 • Labour Court: • the question before the Court was when the applicant had been dismissed and if the referral was late, whether the delay should have been condoned

11. Chabeli v CCMA & Others [2010] 4 BLLR 389 (LC) • Labour Court: • date of dismissal is the date on which the employment contract terminated or the date on which the employee left the employer’s service, whichever is the earlier. • employer accepted the employee’s resignation, that being the case, the date of dismissal was the day that the employee left his employment and not (as he contended) the date on which he received his final payslip • the referral was late and required an application for condonation • employee tendered no explanation for his delay and his prospects of success were poor, although he claimed constructive dismissal his letter of resignation gave no hint of a reason and only in his founding affidavit in the review application did the employee allege that he resigned because the respondent had made his employment intolerable by making unilateral decisions about his position • The application was dismissed with costs

12. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Employee employed as creative director, after contract was terminated he referred a dispute to CCMA • Company contended that a relationship of employment did not exist and a commissioner up held that point in limine, that ruling was set aside and the matter was remitted to the CCMA to be heard by another commissioner • Conciliating commissioner decided that the person was indeed an employee and then the parties agreed that the arbitrating commissioner would hear evidence to determine whether the person was in fact a employee and if so, whether he had been dismissed • After hearing the evidence, the arbitrating commissioner consulted a senior commissioner and expressed displeasure that the parties had not informed her of the conciliating commissioner’s decision (that the person was indeed an employee)

13. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Parties contended that arbitrator was not bound by conciliating commissioner’s ruling (that person was an employee) because no evidence was lead before this ruling was made • However, the arbitrator ruled that since no evidence had been lead to prove that the conciliating commissioner’s ruling was set aside, the arbitrator was bound by the ruling and the arbitrator then directed that the matter be referred to another commissioner to determine whether a dismissal had occurred • Both parties contended on review that the arbitrator’s ruling (that she was bound by the conciliating commissioner’s ruling that the person was an employee and that another commissioner should determine whether a dismissal occurred) should be set aside because the arbitrator failed to apply her mind to whether the person was an employee and whether he had been dismissed

14. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • On review both parties submitted that the Court should determine these issues (was the person an employee and if so whether he had been dismissed?) • Labour Court: • fact was that the commissioner had been requested to determine whether the person was an employee and if so whether he had been dismissed, the arbitrator’s failure to do so meant that she had not applied her mind to the issues before her and consequently arrived at a decision that no reasonable commissioner could have reached. • because the parties had also agreed that the matter should not be remitted to the CCMA for decisions on other issues, the commissioner should have decided • he had been appointed a creative director, responsible for handling the company’s business affairs and he also owned 20% of the company’s shares

15. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Labour Court • shareholders agreement provided that should a shareholder cease to be a director or have his employment terminated by the other shareholders, he would be obliged to resign as a director and to offer his shares for sale to the other shareholders • he had resigned as a shareholder, had offered his shares to the other shareholders, but tendered his services as an employee • shareholders then resolved that he be removed from his post as director as well as from his position as creative director • relying on its articles of association company contended that he terminated his employment when he resigned as director and cancelled his shareholder

16. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Labour Court: • no submissions had been advanced by company in support of its contention that he was not an employee, in any event the facts supported the contention that he was an employee • the view that a director employed by a company occupies two independent positions, that of director and that of employee is supported by ample authority • no reason in principle why a person who holds the position of director should be excluded from the statutory definition of employee on that ground alone: whether a person is an employee is a question of fact • no support for the submission that an employee is deprived of the protection afforded by the LRA simply because he happens to be a director, nor can an employee’s rights be limited by a company’s articles of association, because these regulate the relationship between directors and the Company, not between the company and its employees • to the extent that there may be a conflict between the Company’s Act and the LRA, the LRA prevails

17. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Labour Court: • Court accepted that the person, who had been brought into the company as part of a BEE arrangement, would play a crucial role in running the business • he had been paid a regular salary which had been increased in view of his performance • although the shareholders agreement supplanted the earlier contract in terms of which he was employed, there were also indications in the shareholders agreement itself that the company accepted that shareholders could be employees • he was an employee • The evidence indicated that there were in fact two separate acts of termination – one as director and the other as creative director

18. Chillibush v Johnston & Others [2010] 6 BLLR 607 (LC) • Even if the parties agreed that the termination of the shareholders’ agreement would lead automatically to the termination of the person’s employment, there were compelling reasons to accept that the parties may not agree in advance that contracts of employment will terminate on the occurrence of some events, such agreements cannot be accepted as valid because they infringe on the constitutional right to fair labour practices • Board of directors’ resolution removing the person from his post constituted a dismissal, even if the expulsion from the board was fair it did not follow that the dismissal was fair because different standards apply in company and labour law • Whether it would be unfair to a company to require it to continue employing an executive director who had been removed by the board was a question relevant to relief under the LRA, not to the fairness of the dismissal

19. SamancorTubatseFerrochrone v MEIBC & Others [2010] 8 BLLR 824 (LAC) • Employee held in police custody for 150 days on suspicion of involvement in armed robbery, employee dismissed while in custody • Employee informed of dismissal by a letter from company sent to police station at which he was being held, and a ‘post-dismissal’ hearing was convened after the employee’s release some four months later • At time of ‘post-dismissal’ hearing a criminal case against employee was still pending • dismissal was confirmed on the basis that company could not be expected to keep the employee’s post open indefinitely and because this was the second occasion on which the employee had missed work through being arrested • arbitrator found the dismissal substantively unfair as the employee had missed worked due to circumstances beyond his control, and procedurally unfair because the employee had not been heard before his dismissal – these findings were upheld by the Labour Court on review

20. SamancorTubatseFerrochrone v MEIBC & Others [2010] 8 BLLR 824 (LAC) • Company approached the Labour Appeal Court: • letter informing employee of dismissal stated that he had been dismissed for ‘operational incapacity’ as he was physically unable to tender his services • both the arbitrator and Labour Court found that the notion of ‘incapacity’ is confined to incapacity arising from ill-health, injury or poor work performance and both the arbitrator and the reviewing Court concluded that the charge against the employee fell outside the defined scope of ‘incapacity’ • LAC: so constricting the notion of incapacity was not in accordance with existing jurisprudence which regards inability to work through incapacitating cause as warranting dismissal in appropriate circumstances

21. SamancorTubatseFerrochrone v MEIBC & Others [2010] 8 BLLR 824 (LAC) • Whether dismissal for incapacity is unfair depends on facts of each case, in this case employer had no idea of how long the employee would be incarcerated and there was a commercial need to fill employee’s position • While greater tolerance may be expected of a large employer with ‘deep pockets’, there was no basis for elevating to an inflexible rule the proposition that incapacity for reasons outside an employee’s control cannot be a valid cause for dismissal • Because of this error the award was open to review, on the facts the arbitrator should have found that the dismissal was substantively fair • On procedure: while it may have been impracticable for employer to convene a disciplinary hearing while the employee was incarcerated, his being informed that he had been dismissed meant that he had been denied an opportunity to state his case • Employee was awarded compensation equivalent to 6 months’ remuneration

22. Bombardier Transportation (Pty) Ltd v Mtiya NO & Others [2010] 8 BLLR 840 LC • Employee employed in terms of a fixed term employment contact by Bombardier China, contract initially set to expire in June 2008 • Employee assigned to South Africa to work on Gautrain Project, and it was agreed that his remuneration would be paid through Bombardier Canada’s payroll into his bank account in Hong Kong, where he was a resident • Employment contract contained a clause providing that it was to be interpreted and enforced in accordance with the laws of Hong Kong • September 2008 Bombardier China advised employee that his contact would be extended for a further 6 months only, a period that included agreed notice • Employee referred an unfair dismissal dispute to the CCMA and the company filed an application challenging the CCMA jurisdiction, inter alia, because the laws of Hong Kong applied to the dispute and because the employee had not been dismissed

23. Bombardier Transportation (Pty) Ltd v Mtiya NO & Others [2010] 8 BLLR 840 LC • Before argument was heard the conciliating commissioner certified that the dispute remained unresolved because 30 days had elapsed since the referral of the matter, commissioner noted that the employer could raise jurisdictional points before an arbitrating commissioner • Company applied for an order setting aside the certificate of ‘non-resolution’ contending that the conciliating commissioner should have decided the jurisdictional points himself • Labour Court: • judges have taken either of two approaches to the validity of certificates of outcome issued in the face of jurisdictional challenge, on the first approach the conciliating commissioners are bound to determine jurisdictional challenges if they are raised or are apparent at that stage and arbitrating commissioners are bound once a certificate has been issued unless the certificate is set aside by the Court • on the second approach the conciliating commissioners may issue no more than an advisory ruling, if they wish, but even if there are jurisdictional challenges, certificate must be issued if the matter has not been settled and arbitrating commissioners must decide the jurisdictional issue after considering evidence, if necessary

24. Bombardier Transportation (Pty) Ltd v Mtiya NO & Others [2010] 8 BLLR 840 LC • Labour Court: Both these approaches raised problems and there is a third way of dealing with jurisdictional challenges • Third approach suggested by Labour Court: • recognize that not all jurisdictional challenges involved jurisdictional issues in the true sense, for example an employer’s denial that the applicant is an employee or that a dismissal has occurred, is more properly dealt with at arbitration stage • the only true jurisdictional challenges that can be raised in the CCMA are whether the dispute was referred within the time limits set by the LRA, whether the parties fall within the registered scope of a bargaining council or whether the dispute concerns an employment related matter

25. Bombardier Transportation (Pty) Ltd v Mtiya NO & Others [2010] 8 BLLR 840 LC • distinction to be drawn is between facts which the legislature has decided must exist before the CCMA acquires the power to act, and facts which must be proved by the applicant party (the latter should be decided at the arbitration phase) • Labour Court • status of certificate of outcome: does nothing more than confirm that a dispute has been referred and that it remained unresolved on a specified date, certificates do not confer jurisdiction on the CCMA and the jurisdiction of the body may be questioned whether or not a certificate has been issued • jurisdictional challenges must be handled by the CCMA as follows: • commissioners should consider the nature of the point and elect whether to deal with it there and then or defer it for the arbitration phase

26. Bombardier Transportation (Pty) Ltd v Mtiya NO & Others [2010] 8 BLLR 840 LC • if a conciliating commissioner decides to make a jurisdictional ruling, that ruling must stand unless set aside by the Labour Court • if no decision is made within 30 days of the referral the commissioner must issue a certificate because the LRA so prescribes • only legal significance of a certificate is to confirm that a dispute remained unresolved on a particular date • in the absence of any prior jurisdictional rulings, parties remain free to raise jurisdictional challenges before the arbitrating commissioner

27. EOHAbantu (Pty) Ltd v CCMA & Others [2010] 2 BLLR 172 (LC) • Employee referred an alleged unfair dismissal dispute to the CCMA, claimed constructive dismissal by the employer in failing to pay him for the months of August and September • During conciliation proceedings employer contended that the CCMA lacked jurisdiction because the referring party was an independent contractor and not an employee • Conciliating commissioner declined to entertain the preliminary point and certified that the dispute remained unresolved • Employer contended that the certificate should be set aside and launched a review application • CCMA opposed the application on the basis that, even if raised by the parties, conciliating commissioners are not required to determine jurisdictional issues but that such issues should properly be decided at arbitration

28. EOHAbantu (Pty) Ltd v CCMA & Others [2010] 2 BLLR 172 (LC) • Labour Court: • LRA requires that the CCMA attempt to resolve the dispute by conciliation within 30 days of the referral, failing which the dispute must be certified as unresolved unless the parties agreed to extend that period • CCMA rules required that if it appears to a conciliating commissioner that a jurisdictional issue has not been determined, the commissioner may require the referring party to prove that the commissioner had jurisdiction • A change in the CCMA rules has narrowed the jurisdictional requirement – all that is now required is for the referring party to prove that the CCMA has jurisdiction to conciliate

29. EOHAbantu (Pty) Ltd v CCMA & Others [2010] 2 BLLR 172 (LC) • A number of submissions made by Ms Kahn have been persuasive. They are that: • in the conciliation process, the parties try to find a solution to the dispute among themselves. The commissioner’s intervention extends only as far as is necessary to assist the parties in reaching such a solution. The commissioner plays a role of a facilitator and does not make any assessment as to which of the parties is correct on the merits. Conciliation is not by its very nature a process of adjudication • parties are not entitled to legal representation in conciliation proceedings • the Act provides for a short time period of 30 days within which attempts should be made to resolve a dispute by conciliation. After 30 days have expired since the referral date, the referring party may ask that the dispute be arbitrated upon. The determination of jurisdiction by hearing oral and documentary evidence may take longer than 30 days where the jurisdictional issue may be closely bound up with the merits of the dispute • the issuing of the certificate of outcome and its review have no legal consequence for the further determination of the matter by the Commission after 30 days have expired, since the date of referral. The Commission may grant appropriate relief

30. EOHAbantu (Pty) Ltd v CCMA & Others [2010] 2 BLLR 172 (LC) • The reviewing of the certificate of outcome delays the expeditious resolution of a labour dispute by possibly introducing numerous litigation processes. • Conciliating commissioners are required to help the parties reach agreement, not to assess the merits of the parties’ respective case, conciliation proceedings must be concluded within a brief period and the certificate of outcome has no legal consequence

31. Goldfields Mining SA (Pty) Ltd (Kloof Goldmine) v CCMA & Others [2009] 12 BLLR 1214 (LC) • Employee employed by the company until his dismissal on 13 June 2008 • Company contends that employee was dismissed because of participation in what it alleges was an unprotected strike, the employee denies participating in the strike and avers that he was absent from work on the day of the strike on account of ill-health • Employee contends that he does not know the reason for his dismissal, he referred allege unfair dismissal dispute to the CCMA • At the conciliation proceedings employer informed conciliating commissioner that dispute concerned a dismissal for participation in unprotected industrial action and that should the dispute remain unresolved, the CCMA would not have jurisdiction to arbitrate the dispute

32. Goldfields Mining SA (Pty) Ltd (Kloof Goldmine) v CCMA & Others [2009] 12 BLLR 1214 (LC) • Employee handed in a medical certificate for the period of the industrial action and it was agreed between the parties that the 30 day conciliation period be extended to provide the employer with an opportunity to consider the certificate • Subsequently employer advised the CCMA that dispute could not be resolved and requested that the conciliating commissioner issue a certificate of outcome to that effect, the employer reiterated that the employee’s dismissal related to participation in unprotected industrial action and that (in its view) the certificate of outcome should reflect that the dispute ought to be referred to the Labour Court for adjudication (if the employee wished to pursue the alleged unfair dismissal claim)

33. Goldfields Mining SA (Pty) Ltd (Kloof Goldmine) v CCMA & Others [2009] 12 BLLR 1214 (LC) • Conciliating commissioner issued a certificate of outcome stating that the dispute concerned an unfair dismissal relating to ‘reason unknown’, that the dispute remained unresolved and that it could be referred to the CCMA for arbitration • Employer launched an application to vary the certificate of outcome on the grounds that it contained an obvious error, the employer contended that the conciliating commissioner recorded a reason for dismissal that was factually incorrect • Thereafter the employee referred an alleged unfair dismissal dispute to arbitration and before the CCMA responded to the application for variation the employer sought an order setting aside the certificate and substituting it with an order that the dispute be referred to the Labour Court

34. Goldfields Mining SA (Pty) Ltd (Kloof Goldmine) v CCMA & Others [2009] 12 BLLR 1214 (LC) • Labour Court • LRA does not provide clear guidance as to how disputes over the reason for the dismissal should be resolved • two approaches have been followed: the first requires the conciliation commissioner to determine the true reason for the dismissal and the second is to treat the certificate of outcome as no more than proof that the dispute remains unresolved and to regard the manner in which the conciliating commissioner categorizes the dispute as having no bearing on the future conduct of the proceedings which are determined by what the employee alleges the dispute to be • the LRA requires conciliating commissioners to issue a certificate stating whether or not the dispute has been resolved when conciliation fails or 30 days after the date of the referral, unless the parties agree to a longer period • in the first instance the obligation to issue a certificate is treated by an event (failure of conciliation) and in the second instance it is trigged by the passage of time

35. Goldfields Mining SA (Pty) Ltd (Kloof Goldmine) v CCMA & Others [2009] 12 BLLR 1214 (LC) • the dispute resolution provisions of the LRA obliged the commission (or councils) to arbitrate dismissal disputes whether or not a certificate has been issued, at this stage the legal effect of a certificate is therefore minimal or non-existent, conciliating commissioners are therefore not required to investigate the nature of the dispute or to direct which forum must subsequently deal with the matter • the forum to which the dispute has been referred provisionally assumes jurisdiction until it is determined on the basis of evidence lead that the matter indeed falls within its jurisdiction • employees are entitled to frame unfair dismissal claims in the manner they deem appropriate without being dictated to by a commissioner or the employer • the employer’s conclusion or assumption that they conciliating commissioner had decided a jurisdictional point was misguided

36. Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) • Miyambo was employed by Portland Pretoria Cement (the company) as a security guard, at the time of his dismissal he had a clean disciplinary record and had worked for the company for 15 years • Whilst on night shift duty Miyambo found scrap metal which had been thrown into a skip, he was aware that scrap metal was not going to be thrown away, it would be sold by the company. • Miyambo decided to help himself to scrap metal (with the aim of fixing his stove) • Whilst leaving work after finishing his shift another security guard who was on duty at the gate found pieces of scrap metal in Miyambo’s bag during a routine search, a ‘past-out’ all clearance permit is required for removal of company property, this fact was known to Miyambo because he had on previous occasions obtained permission when removing company property, Miyambo could not produce the necessary clearance permit • Miyambo was suspended from duties, given a notice to attend a disciplinary enquiry, charged with theft of scrap metal and found guilty, Miyambo was dismissed

37. Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) • Miyambo referred an unfair dismissal dispute to the CCMA, after unsuccessful conciliation the dispute was arbitrated • Commissioner found Miyambo guilty of theft of scrap metal, however the commissioner found that the sanction of dismissal was unduly harsh and unfair and ordered that the company reinstate Miyambo with retrospective effect (to the date of his dismissal) without forfeiture of any benefits that accrue to him had he not been dismissed, save that he was not to receive any backpay • Commissioner substituted the dismissal with a sanction of a final warning valid for one year • Company approached Labour Court on review in terms of section 145 of the LRA • Labour Court found that the conclusions drawn by the commissioner were not rational because they were irreconcilable with his factual findings

38. Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) • Labour Court found that the commissioner made two important factual findings: • Miyambo gave three contradictory explanations regarding his failure to obtain take clearance permit (he forgot, he did not get the clearance permit because his supervisor was not present, he never believed that he even required the clearance permit) • Miyambo knew he had to obtain a clearance permit • Labour Court found that the commissioners conclusion that dismissal was inappropriate was one that a reasonable decision maker could not have reached • Miyambo appealed to the LAC contending that he was guilty of theft only in the ‘technical’ sense and that in the light of his long service and clean disciplinary record dismissal was too harsh • Labour appeal Court • In deciding an appropriate sanction a commissioner must consider all relevant circumstances • However the role of the trust relationship remains predominant

39. Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) • Labour Appeal Court: • Courts have affirmed the principle that dismissal for theft is not ‘an expression of moral outrage’, but has everything to do with operational requirements of the employer’s enterprise • It was also accepted that long service cannot serve as a mitigating factor if the employee is guilty of theft, Courts place a high premium on honesty in the workplace • Miyambo knew that scrap metal was of value to the company, although initially admitting guilt he thereafter showed no remorse • alleged distinction between theft and ‘petty theft’ was artificial and conceptually clouded • Dismissal was operationally justified and fair

40. Lithotech Manufacturing Cape, a division of Bidpaper Plus (Pty) Ltd v Statutory Council Printing, Newspaper and Packaging Industries and Others [2010] 6 BLLR 652 (LC) • MrMogamatLackay employed as a waste controller in production department, he was also a shop steward and 19 years of service with the company, at the time of his dismissal he was 63 years old and two and a half years from taking pension • Lackay involved in ‘altercation’ with his supervisor and was dismissed for using abusive language and swearing at his supervisor • Lackay referred unfair dismissal dispute to CCMA, arbitrator found that dismissal was not an appropriate sanction and reinstated Lackay with one month’s backpay • Arbitrator: there were contrasting versions about what was said even if these words were used they did not constitute abusive language per se, Lackay’s behavior was not acceptable but not as serious as it was made out to be

41. Lithotech Manufacturing Cape, a division of Bidpaper Plus (Pty) Ltd v Statutory Council Printing, Newspaper and Packaging Industries and Others [2010] 6 BLLR 652 (LC) • Labour Court • arbitration award, particularly the reasoning in respect of substantive fairness of the dismissal, is difficult to follow • arbitrator does not make a factual finding about the contents of the statement made by Lackay to his supervisor, however arbitrator clearly of the view that it doesn’t really matter what was said because the context within which it was said was relevant • despite not making a factual finding, the arbitrator concludes that Lackay was not guilty of ‘use of abusive language’ under the circumstance, arbitrator however concluded that Lackay was guilty of ‘tough behavior that is not acceptable and needs to be corrected’ (a lesser form of misconduct) • arbitrator further stated that even if Lackay is guilty of abusive language he might have found that dismissal was appropriate but that he still then had to assess the fairness of the dismissal in the light of Sidumo

42. Lithotech Manufacturing Cape, a division of Bidpaper Plus (Pty) Ltd v Statutory Council Printing, Newspaper and Packaging Industries & Others [2010] 6 BLLR 652 (LC) • Labour Court: • is the award unreasonable? Although it is somewhat difficult to follow the arbitrator’s reasoning, this does not render the award unreasonable per se (issue – based on material before her, can it be said that the conclusion was one that a reasonable decision maker could or could not reach) • even where the reasoning of the arbitrator may be criticized, this in itself does not render the award reviewable, particularly where the ultimate result arrived at by the arbitrator is sustainable in the light of the record (baring cases where, although the ultimate conclusion reached is reasonable, the reasoning adopted by the commissioner is so floored that it cannot be concluded that the arbitrator duly exercised his or her functions as an arbitrator) • in respect of an arbitrator’s discretion as to what would be an appropriate sanction, the review Court must consider whether or not the commissioner took all relevant factors into account in arriving at a decision, the arbitrator in casuhad regard to the nature and seriousness of the offence, its effect on the employment relationship and had taken into account that the employee was on the brink of retirement

43. Lithotech Manufacturing Cape, a division of Bidpaper Plus (Pty) Ltd v Statutory Council Printing, Newspaper and Packaging Industries and Others [2010] 6 BLLR 652 (LC) - There was no basis for interfering with the commissioner’s decision on sanction • The Court agreed that arbitrators may not find employees guilty on a lesser charge than that for which they were dismissed, but found that this did not constitute a sufficient ground of review

44. NUM & Others v Black Mountain Mining (Pty) Ltd [2010] 3 BLLR 281 (LC) • NUM is the majority union at the company’s workplace, Van den Heever and Vass were shop stewards, van den Heever was chairman of the union’s branch committee • Van den Heever and Vass were dismissed for acts of misconduct which occurred during the course of the strike, the union alleged that in dismissing them the company acted contrary to section 5 of the LRA and / or that the reason for dismissal was ‘that the employee participated in or supported, or indicated an intension to participate in or support, a strike or protest action that complies’ with the LRA • Vass (a full time shop steward) was alleged to have sent emails containing union notices and letters to employees in spite of an instruction not to do so, accusing management of theft and racism and intimidating management • Van den Heever was charged with intimidation and unlawfully instructing a security guard to supply him with the names of all employees passing through the mine gate

45. NUM & Others v Black Mountain Mining (Pty) Ltd [2010] 3 BLLR 281 (LC) • Labour Court • Although protected strikers may not be dismissed for striking, they are not protected against disciplinary action: the right to strike is not a license for misconduct • Less clear however is the extent to which shop stewards may be disciplined for strike related conduct • Shop stewards remain employees and as such are subject to the disciplinary authority of the employer, the immunity enjoyed by shop stewards extends only to bona fide Acts • A balance must be struck between the employer’s right to maintain discipline and the shop steward’s right to discharge his / her duty: where employers object to shop stewards condcut during negotiations or strike action the arbitrator or a Court must determine where the balance must be struck • The test is whether the shop steward’s conduct falls within the realms of fair and acceptable bargaining conduct and is reasonably related to the performance of their duties • The conduct of the two employees in this case, disobeying instructions not to use company property, insulting management, unfair allegations of racism exceeded the bounds of reasonableness

46. Samson v CCMA & others [2009] 11 BLLR 1119 (LC) • Samson sent an email with pornographic attachment to a colleague, he was charged with misconduct, at disciplinary hearing he pleaded guilty and expressed remorse and apologized to the complainant • Chairperson of the disciplinary hearing issued him with a final written warning, a week later the company’s, later the company’s executive vice – president for corporate affairs informed Sampson in writing that after reviewing the matter he had in the light of the chairperson’s duty ‘to apply the disciplinary code and standards set by the company’ decided to set aside the warning and impose the sanction of dismissal • Samson appealed against the ruling, arguing that the ‘double jeopardy’ rule had been infringed, the appeal failed • Sampson referred an alleged unfair dismissal dispute to the CCMA

47. Samson v CCMA & others [2009] 11 BLLR 1119 (LC) • CCMA • distribution of pornography was a serious offence that in general warranted the sanction of dismissal • on the issue of overturning the sanction of a final written warning: this was recognized and permitted by practice and the applicant’s dismissal was procedurally fair • Labour Court • the test is one of fairness, the LAC (Branford v Metrorail Service) – rejected an argument to the effect that further disciplinary action was permissible only in exceptional circumstances) • the law as it presently stands is that an employer is entitled, when it is fair to do so, to revisit a penalty already imposed and substitute it with a more sever sanction • it does not follow that a failure to afford a hearing before a decision taking is unfair, a failure to afford a hearing may in some circumstances at least be remedied by a hearing given after the event

48. Bracks NO & Another v Rand Water & Another [2010] 8 BLLR 795 (LAC) • Martha Swart was retrenched by Rand Water, Swart referred an alleged unfair dismissal dispute to the CCMA contending that she had been unfairly retrenched • Swart contended inter alia, that Rand Water failed to comply with the procedural requirements set out in section 189 of the LRA • After failed conciliation Swart requested arbitration, commissioner arbitrated the matter and found in favour of Swart and directed that Rand Water reinstate her • Rand Water launched a review application in the Labour Court on several grounds including its contention that the CCMA lacked the requisite jurisdiction to hear a dispute which concerned the retrenchment of a single employee in circumstances where such single employee alleged that the dismissal is unfair, inter alia, for want of proper compliance by the employer with the consultation requirements set out in section 189

49. Bracks NO & Another v Rand Water & Another [2010] 8 BLLR 795 (LAC) • Rand Water argued that on a proper construction and interpretation of section 191 (12) the CCMA lacked jurisdiction to arbitrate the dispute because Swart had placed in issue non compliance with section 189 and under section 191 (12) Swart was compelled to place the dispute before the Labour Court for adjudication • The Labour Court was persuaded by the argument advanced by Rand Water: “If it was the legislature’s intention that if one employee only is dismissed by reason of the employer’s operational requirements, then the CCMA will have jurisdiction, the relevant section clearly need not have contained the following words ‘following a consultation procedure in terms of section 189’… The legislature intended that it is only in matters where only the substantive fairness of a dismissal by an employer by reason of operational requirements involving a single employee is to be determined, that the CCMA has jurisdiction to hear the matter. As soon as the procedural fairness of the dismissal is put in issue by a single employee, I am satisfied that section 189 (12) of the LRA must be interpreted as meaning that such cases must still be referred to the Labour Court …”

50. Bracks NO & Another v Rand Water & Another [2010] 8 BLLR 795 (LAC) • Labour Appeal Court: • section 192 (12): “If an employee is dismissed by reason of the employer’s operational requirements following a consultation procedure in terms of section 189 that applied to the employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court.” • this provision makes no express mention of the CCMA’s jurisdiction, it is intended rather to confer a choice on employees to refer disputes concerning retrenchments to the CCMA in certain circumstances rather than to the Labour Court • The Labour Court’s interpretation defeats the object of section 191 (12) which according to the memorandum explaining the 2002 amendments to the LRA was simply designed to enable employees retrenched alone to refer a dispute to the CCMA, rather than to the Labour Court, if they so wish • The Labour Court had accordingly erred by choosing an interpretations which frustrated the purpose of section 191 (12)