Name of presenter: Professor Alan Rycroft Title of Presentation : Case Law Update May 2014

1. SASLAW SEMINAR 8 May 2014 Name of presenter: Professor Alan Rycroft Title of Presentation: Case Law Update May 2014

2. Toyota S.A. Motors (Pty) Ltd v CCMA and Others (D 317/10, D276/10) [2012] ZALCD 7) • It will be fair for an employer to conduct a second enquiry where a line manager, without authorisation, deviates from the ordinary sanction and deprives the employer of the opportunity to act consistently. Author and Date

3. Tubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR 2679/10) [2013] ZALCJHB 16 It is not unfair if an employer’s disciplinary code provides for termination at the end of the fifth day of absence. This represents a rational response by an employer to an extended period of unexplained unauthorised absence by an employee, provided the employer provides the employee with a fair opportunity to explain her unauthorised absence should she return to work, enabling the dismissal to be reversed where an acceptable explanation for absence is provided. Author and Date

4. NUM & others v Martin & East (Pty) Ltd (2013) 34 ILJ 978 (LC) If there is no statutory or contractual prohibition, fair suspension without pay may be considered as an alternative to dismissal of an employee. Suspension without pay as a form of disciplinary penalty is not impermissible and does not contravene the BCEA. The provision prohibiting deductions from remuneration without consent is premised on remuneration or wages becoming due after a tender of services or actual performance by an employee.

5. Farmers Meat Supply v Mgwenya NO and Others (JR 248/2011) [2013] ZALCJHB 28 If an employer relies on one lawful reason for dismissal, the adjudicator is not entitled to decide unilaterally that the employer ought to have relied on a different lawful ground for dismissal and then evaluate the fairness of the dismissal as if the employer had chosen that alternative justification. An arbitrator must evaluate the fairness of a dismissal with reference to the actual ground relied on by the employer. Author and Date

6. Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 46 An employee carries the evidentiary burden to at least establish a prima facie case of inconsistency before the employer is compelled to supply an answer of a defense. An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of differences in personal circumstances, the severity of the misconduct or on the basis of other material factors. An employer is not required in the name of consistency to repeat a previous decision made in error or one which is patently wrong.

7. SA Metal Group (Pty) Ltd v CCMA And Arbitration and Others (C350/13) [2014] ZALCCT 15 Author and Date It is peremptory for a commissioner to apply the 2005 Code when they preside over arbitrations dealing with dismissals for alleged sexual harassment.  “Until such time as the alleged offender is made aware that the conduct is unwelcome there can be no sexual harassment”. This proposition cannot be sustained given the definition of sexual harassment in the 2005 Code…

8. National Union of Public Service and Allied Workers obo Mani and others v National Lotteries Board (576/12) (2013) ZASCA 63 A threat to wilfully defy an employer and its CEO constitutes insubordination. Neither the Constitution nor the LRA protects employees from dismissal for insubordination. Trade union activities which constitute unlawful acts of insubordination are not protected. There is no inconsistency in giving, on the one hand, written warnings to those who acknowledged their wrongdoing and, on the other, dismissing those who did not.

9. National Union of Public Service & Allied Workers and Others v National Lotteries Board (CCT 75/13) [2014] ZACC 10 Author and Date [193] A trade union has a right to determine its own strategies and tactics in dealing with an employer concerning grievances, or complaints, disputes of right or disputes of interests, and, generally, on how to handle consultations, negotiations, discussions and collective bargaining with an employer.  It is not for a court to dictate to a trade union how to handle its discussions or negotiations with an employer or what tactics and strategies it should use and at what stage it should use them in its dealings with an employer. [195] To the extent that it can be said that the union adopted a confrontational stance in its dealings with the respondent, it was entitled to do so.  That was part of legitimate collective bargaining.  It was a lawful activity within the meaning of that phrase in section 4(2)(a)...  Their dismissal for taking part in that activity was a dismissal for exercising their right and constitutes an automatically unfair dismissal. 

10. Palace Engineering (Pty) Ltd v Ngcobo and Others (JA20/2012) [2014] LAC Even though less onerous reasons can be accepted for dismissing a probationary employee, the fairness of such reasons still needs to be tested against the stipulations of item 8(1)(a)-(h) of the Code of Good Practice. The onus rests on the employer to prove that the dismissal is substantively fair. Although a senior employee is expected to be able to assess whether s/he is performing according to standard, an employer is not absolved from providing such an employee with resources that are essential for the achievement of the required standard or set targets.

11. Sisonke Partnership t/a International Healthcare Distribution v NBCCI and Others (JA 51/10) [2013] ZALAC There is no absolute prohibition against the admission of hearsay evidence by a Commissioner in arbitration proceedings, which are meant to be swift and informal. BUT

12. Shoprite Checkers v Commission for Conciliation Mediation and Arbitration and Others (JR2259/11) [2014] ZALCJHB 36 For hearsay evidence to be admitted an employer must explain and provide a reasonable justification for the absence of a relevant witness Where the employee denies guilt, the employer should provide any corroborating evidence on which the hearsay evidence was premised.

13. NUMSA and Another v GFD Motors (Pty) Ltd and Others (C 358/07) [2013] ZALCCT 25 An arbitrator is not obliged to order either reinstatement or compensation even though unfair dismissal is found, as long as there is evidence that a continued employment relationship would be intolerable.

14. PE Pack 4100 CC v Sanders and Others (PA 08/10) [2013] ZALAC 1 Upon the termination of a franchise agreement, the joint venture between franchisor and franchisee dissolves, with the franchisor retaining the assets. The franchisee’s right to carry on the franchise business comes to an end. The granting of a fresh franchise to another party is not a transfer in terms of s 197 of the LRA but a new joint venture business between the franchisor and the new franchisee.

15. In2FOOD (Pty) Ltd v FAWU, Madisha, RS and 470 others (LC Case Number: J350/13) LC fined FAWU half a million rand for contempt of court for not doing more to curtail a violent, unprotected strike by its members. ‘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. These actions undermine the very essence of disciplined collective bargaining and the very substructure of our labour relations regime’.

16. FAWU v Ngcobo N.O. and Another (CCT 50/13) [2013] ZACC 36 A contract of mandate obliges a trade union to perform its functions faithfully, honestly and with care and diligence. Whilst a union has the Constitutional right to determine its own administration, this does not exempt it from liability for responsibilities it had agreed to undertake and then failed to honour. The Union’s failure to lodge a Labour Court application timeously breached its mandate with its members, and for that breach they are entitled to compensation.

17. Department of Correctional Services & another v POPCRU and Others (107/12) [2013] ZASCA 40 A policy is not justified if it restricts a practice of religious or cultural belief that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense.

18. Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (875/12) [2013] ZASCA 189 It is not for the employer to question the employee’s belief that harm may be caused by ancestors if the employee fails to heed the call. What the employer may do is in these circumstances is: (a) check that the employee does have a sincere belief; (b) test whether there is an ulterior motive in requesting leave; (c) scrutinise the supporting evidence, such as a traditional health practitioner’s certificate, and attempt to understand it; and (d) ask the employee to explain its meaning. Once satisfied on these points, an employer should attempt to accommodate a request for leave.

19. Janse van Vuuren v South African Airways (Pty) Ltd and Another (2013) 34 ILJ 1749 (LC) A collective agreement is subject to the Constitution and the Employment Equity Act and is not exempt from its provisions. Parties may not contract out of the fundamental rights and protections set out in the Bill of Rights.

20. Motaung v Department of Education (JS 196/2010) [2012] ZALCJHB 122; 2013 (3) SA 44 (LC) An employer may not discriminate against an employee who, on grounds of conscience, refuses to disregard instructions by the employer to disregard legal requirements or regulations.

21. Rand Water v Stoop & another (2013) 34 ILJ 576 (LAC) The word “concurrent” in s77 (3) of the BCEA places the Labour Court in exactly the same position as the High Court with the same powers and authority in relation to matters concerning a contract of employment. The Labour Court has jurisdiction over any claim as long as it involves a contract of employment. The words “any matter” in s 77(3) are broad and the literal interpretation does not limit the claims, in relation to a contract of employment, to a specific category. Damages, both liquid and illiquid, are included.

22. Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal (CCT 10/13) [2013] ZACC 49 (18 December 2013) Where the delay in correcting an irregularity is unreasonable and unexplained, this will not generally be condoned, particularly where there is no wrongdoing on the part of a person promoted irregularly.

23. Ethekwini Municipality v SAMWU (442/11) [2013] ZASCA 135 The SCA will not interfere with a decision of the Labour Appeal Court only because it considers it to be wrong: what is required in addition are special circumstances that take it out of the ordinary.

24. Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others - (2014) 23 LAC 11.10.1 A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at. If an arbitrator commits a process-related irregularity this is not in itself a sufficient ground for interference by the reviewing court, particularly where the decision reached is one that a reasonable arbitrator could reach. Where an arbitrator mis-classifies misconduct as poor performance, the award will only be reviewable if the outcome is unreasonable.

25. NUMSA v Abancedisi Labour Services (857/12) [2013] ZASCA 143 A refusal to allow an employee to do the work he was engaged to do may constitute a wrongful repudiation and a fundamental breach of the employment contract which vests the employee with an election to stand by the contract or to terminate it.

26. Cellucity (Pty) Ltd v CWU obo Peters [2014] 2 BLLR 172 (LC) There is a strong case on public policy grounds to find that prescription does not apply to unfair dismissal claims under the LRA. BUT Circuit Breakers Industries Ltd v NUMSA obo Hadebe and Others (JR 1958/08) [2013] ZALCJHB 286 (1 November 2013) Where an award of compensation has been issued by the CCMA, the award constitutes a debt for the purposes of the Prescription Act (subject to the 3 years prescriptive period). Where an award of reinstatement is granted by the CCMA this does not constitute a “debt” for the purpose of prescription.

27. Department of Home Affairs and Another v Ndlovu and Others (DA11/2012) [2014] ZALAC 11 Author and Date A misrepresentation by an employee (as to his qualification and skills etc.) before the commencement of employment is sufficient to warrant dismissal even if it is discovered some time later and the employee has rendered satisfactory performance. It is obligatory that an employer should produce such evidence to justify a dismissal unless of course that conclusion of a broken employment relationship is apparent from the nature of the offence and/or the circumstances of the dismissal.

28. Rogers v Exactocraft (Pty) Ltd (C1142/10) [2014] ZALCCT 20 Author and Date Severance pay is for an unexpected termination of one’s expectations. In the situation before me, the employee’s expectation was for just two years of further employment. …it would be anomalous if a right to severance pay for the 20 years prior to retirement could be created simply by re-employment when there was never a right to severance pay on retirement... there was no need to compensate the employee on retirement because this was not a dismissal but a termination of the contractual relationship. The employee’s investment in the company was taken care of through the provident fund.

29. Sanlic House of Locks (Pty) Ltd v Strydom Johannes Theodorus (J482/14) [2014] ZALCJHB 120 Author and Date The applicant failed to show that the merger that it relies on triggered the provisions of s 197 of the LRA. In other words, the applicant failed to show that it has a right to enforce the restraint of trade by virtue of the merger. 

30. Jonsson Workerwear (Pty) Ltd v Williamson and Another (D 426/2013) [2013] ZALCD 24 Where an employer in motion proceedings seeks to enforce a restraint of trade agreement, it is the facts stated by the ex-employee in his/her affidavit together with the admitted or undenied facts in the ex-employer's affidavit which provide the factual basis for the determination. Where the denials in the ex-employee’s version are bald, implausible, or far-fetched the court is justified in rejecting that version. The Labour Court has a discretion to decide whether to refer motion proceedings to oral evidence where there is a dispute of fact that needs to be resolved. In exercising this discretion, a litigant applying for a matter to be referred to oral evidence should at least advance reasonable grounds at the beginning of the litigation to support this discretion being exercised.