Archive for the Unfair Dismissal Category

Where to go with an individual retrenchment dispute?

Posted in Dismissals, Questions and Answers, Unfair Dismissal with tags , , , on October 8, 2009 by labourlawoffices

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

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Strike action: What does the law say?

Posted in Strike action, Unfair Dismissal with tags , on August 31, 2009 by labourlawoffices

strike

A question was asked about what constitutes a strike action:

“Kindly assist me with definition of a strike and what is it that constitute a strike action whether procedural or not, also requirements of for a protected strike action,situations where general pre-strike procedures will not apply, substantive requirements for protected strikes and different kinds of dismissals”

Here is how the law sees it:

Strike Definition

Strike means “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory.”

The procedural regulation of strikes

Section 64 of the Labour Relations Act, 1995 introduces procedural limitations on the constitutional right to strike and includes the following:

  • The dispute must be referred for conciliation before a strike will be permitted;
  • The CCMA or Bargaining Council must attempt to resolve the dispute by conciliation;
  • A certificate stating that the dispute remains unresolved must have been issued;
  • Written notice of a strike must be given to the employer on 48 hours notice in the private sector and 7 days notice if the state is the employer.

Exemptions from statutory procedures

Industrial action may be protected even through the procedural requirements of the LRA have not been followed in the following circumstances:

  • If the parties to the dispute are covered by a Council constitution or a Collective Agreement that sets out dispute procedures, and they follow these;
  • If the other party locks-out in defiance of the statutory procedures;
  • If an employer fails to maintain or restore pre-existing terms and conditions of employment where employees or their union have invoked the status quo remedy provided for in Section 64 (4) of the LRA and asked the employer in the dispute referral to do so.

Substantive requirements for industrial action

Strike action is not permitted if –

  • The parties have agreed to refer the issue in dispute to arbitration;
  • The dispute has to be referred to arbitration or the Labour Court under the LRA;
  • A Collective Agreement, Arbitration Award or Wage Determination regulates the issue in dispute;
  • The strikers are employed in an essential service or a maintenance service.

Protected strikers may not be dismissed for participating in protected strike action. They may, however, be dismissed if they misconduct themselves or the operational requirements of the business justified dismissal.

Unprotected strikers may be dismissed after fair ultimata have been issued.

When does lying under oath cost and employee his job?

Posted in Dismissals, Employee misconduct, Unfair Dismissal with tags , , , , on January 16, 2009 by labourlawoffices

Introduction

In the recently reported Labour Appeal Court case of Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008 ) 29 ILJ 2189 (LAC) the appellant employee was dismissed for various incidents of sexual harassment. A CCMA commissioner found that the employee’s conduct did not amount to sexual harassment as defined in the Code of Good Practice: Dismissal, but that the sexual advances made by him did amount to inappropriate behaviour for a person in his position. The employee had been a convening senior commissioner of the CCMA.

The CCMA held that dismissal was not an appropriate sanction and re-instated the employee subject to a final written warning. The CCMA brought an application to review the award on, inter alia, the ground that the commissioner had committed a gross irregularity in that he had failed to consider and attribute weight to the fact that the employee had given false evidence both at the disciplinary enquiry and in the arbitration proceedings.

Labour Court decision

The Labour Court was unable to determine from the award whether the commissioner had considered the false evidence by the employee, but ruled that the dishonesty of the employee was a highly relevant issue and that, had the commissioner considered it, he would have come to a different conclusion.

The Labour Court accordingly granted the CCMA an order which in effect upheld the employee’s dismissal. The employee then appealed this decision to the Labour Appeal Court. The employee contended that, as the CCMA had not pertinently raised the issue of his dishonesty at the arbitration, the commissioner correctly did not consider the issue and the CCMA could not rely upon it as a gross irregularity. He also contended that, since the Labour Court had correctly held that his giving false evidence under oath was relevant only to the determination of the appropriate relief, the giving of false evidence could not convert an otherwise unfair dismissal into a fair one. There was therefore no basis in law for the Labour Court’s decision to deprive the employee of all relief, which was the effect of the judgement of the Court.

The employee also argued that if the CCMA wanted to avoid an order of re-instatement, it ought to have led evidence to establish that a continued employment relationship would be intolerable.

Labour Appeal Court decision

The Court found that the commissioner had been aware of the position that the employee held with the CCMA and that he had given false evidence. The commissioner ought to have appreciated the importance of the employee’s being a fit and proper person to occupy the position of a convening senior commissioner if he were to be re-instated in this position.

The Court below was therefore correct in concluding that, had the commissioner applied his mind to the effect on his job of the employee’s conduct in giving false evidence, he would not have ordered re-instatement. The Labour Appeal Court found that it was unfair that the employee should be denied any relief. Since his re-instatement was impracticable, it was just and equitable that the employee be awarded compensation equivalent to 12 months’ remuneration.

Although a commissioner is required to give brief reasons for an award in a dismissal dispute, he can be expected to include in such brief reasons those matters or factors which he took into account which are of great significance to or which are critical to one or other of the issues he is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his omission in his reasons of a matter of great significance or relevance to one or more of such issues give rise to an inference that he did not take such matter or factor into account.

In the present matter the employee’s conduct in giving false evidence under oath was so critical to the issue of relief that in the Court’s view, the only explanation for the commissioner’s failure to mention it in his reasons as one of the factors that he took into account is that he did not take it into account. If the commissioner had considered such a critical factor, he definitely would have mentioned this in his award. In the Court’s view the fact that the commissioner did not mention this very critical factor in his award justified the drawing of the inference that he did not take it into account.

Section 193 (2) of the Labour Relations Act, 1995 obliges the Labour Court or an arbitrator to order the employer to re-instate or re-employ an employee whose dismissal it has found to be unfair for lack of a fair reason or whose dismissal it has found to be automatically unfair unless one or more of the situations set out in Section 193 (2) (a) – (d) applies namely:

“Unless –

(a) The employee does not wish to be re-instated or re-employed;

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) It is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) The dismissal is unfair only because the employer did not follow a fair procedure.”

The situation envisaged in paragraph (b) is where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. It is possible that insofar as the giving of false evidence under oath occurs in the disciplinary enquiry before the dismissal and where it becomes one of the factors that are taken into account in taking the decision to dismiss, it could be said that it is one of the circumstances surrounding the dismissal. However, the same can not be said of a situation where the giving of false evidence only occurs in the arbitration or at the trial subsequent to the dismissal.

The Court went on to caution that its conclusion that the employee’s conduct in giving false evidence under oath in the arbitration rendered it “reasonably impracticable for the employer” to re-instate him did not mean that this will be the conclusion in each case in which as employee is found to have given false evidence under oath in an unfair dismissal matter. Each case will have to be decided on its own merits. The Court concluded that it would not often be the result because it does not follow in many cases that it is reasonably impracticable for an employer to re-instate such employee. It was precisely because the re-instatement of the commissioner was going to mean that he was re-instated to a position in which he had to expect others to respect an oath when he himself had been found to have shown no respect for the same oath, that makes this case unique in this respect.

When can you review an unfair dismissal award? Constitutional Court lays down the Law

Posted in Unfair Dismissal with tags , , , , on September 3, 2007 by labourlawoffices

The highest court of the country has laid down the law in its recent judgement in the unfair dismissal case of Sidumo and another versus Rustenburg Platinum Mines. The decision also affected the legal principles applicable to the review of CCMA arbitration awards.

The case involved the dismissal of the employee for reasons relating to misconduct. The commissioner found the employee guilty of misconduct but found that no dishonesty was involved. Based on the employee’s clean service record of 15 years, the commissioner reinstated him with three months compensation subject to a written warning valid for three months. Both the Labour and Labour Appeal Courts agreed with the outcome and refused any review relief. The Supreme Court of Appeal found that the employee’s dismissal was fair, hence the employee ended up with no relief.

A key finding of the Appeal Court was that in deciding unfair dismissal disputes, CCMA commissioners should not lightly interfere because it is the employer’s function in the first place to decide on punishment. The Constitutional Court decided that a commissioner is not required to defer to an employer’s dismissal decision. In reaching a decision the commissioner must have regard to all relevant circumstances. The standard of review to be applied when a decision by a commissioner on a dismissal dispute is sought to be reviewed was stated as follows: Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach?

The Court held that compulsory arbitration proceedings in the CCMA constitute administrative action, but held that it was not subject to the provisions of the Promotion of Administrative Justice Act. It held that the requirements of section 33 of the Constitution, which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, applied. The Court concluded that having regard to the reasoning of the commissioner, based on the material before him, it could be said that his conclusion was one that a reasonable decision-maker could reach.

The effect of this decision is that it is now more difficult to show that an award should be reviewed and set aside. Whereas before the decision, the test for review was whether based on the evidence available at the hearing the decision made was justifiable with regard to the reasons therefore, now unless a finding of unreasonableness can be sustained, an award will stand.