Is the president above the law?

Posted in General with tags on October 1, 2009 by Maggie

The Centre for Constitutional Rights recently published a document concerning the question whether the President is above the law.  I enclose the article for your interest and consideration.  Click here to access it.

What do you think??

Can I have my lawyer at a CCMA hearing?

Posted in Disciplinary hearings with tags , on September 7, 2009 by labourlawoffices

Legal representation for an employee during a disciplinary hearing or at the CCMA is often a point of contestation.  The general position in regard to the right of an employee to be legally represented at a disciplinary enquiry and / or during CCMA / Bargaining Council arbitration includes the following:

The general rule is that legal representation at a disciplinary enquiry is not allowed unless the employer’s disciplinary code and procedure or the employee’s terms of employment permit it.  Generally, an employee may only be represented by a fellow-employee or trade union representative, and not a legal representative.  However, our Courts have decided that in cases where complex issues are concerned, legal representation may be permitted.  If the matter is unusually complex involving complicated evidence and difficult issues of law, the refusal of legal representation could result in the disciplinary proceedings been regarded as unfair.  However, if the matter is fairly straight forward, the evidence to be led clear, and no complex legal questions arise, the refusal of legal representation would in all likelihood be considered to have been fair.

The criteria for allowing legal representation is whether or not the failure to do so may render the disciplinary proceedings procedurally unfair, and this would in turn, involve a consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal complexity, the availability of a co-employee representing the employee, and the legal capabilities of the complainant, the employee and the disciplinary chairperson.

When an employee requests to be legally represented at a disciplinary enquiry, and the company’s disciplinary code and procedure does not permit such representation, the employee should be informed that the company’s disciplinary code and procedure does not permit legal representation at disciplinary enquiries.  The employee may then be allowed to prepare an argument for the disciplinary enquiry chairperson to consider on why legal representation should be allowed, despite the provisions of the company’s disciplinary code and procedure.

The employee may rely on a legal representative at a disciplinary enquiry for this purpose.  The company would also be given an opportunity to be so represented during this aspect of the hearing.  At the disciplinary enquiry the chairperson will hear the legal representative only on the issue of why legal representation should be allowed.  The employer representative or legal representative for the company will also be granted an opportunity to argue the matter.

The chairperson of the disciplinary enquiry will then apply his / her mind to the question whether fairness in the circumstances requires that legal representation be permitted. In considering the request, the disciplinary enquiry chairperson will consider all the circumstances of a case in order to determine whether the refusal would render the proceedings procedurally unfair.  The chairperson will not be allowed to rely simply on the fact that the company’s disciplinary code and procedure does not allow for legal representation in coming to a conclusion.  By refusing an employee the right to legal representation irrespective of the circumstances of his / her case is inconsistent with the constitutional right to fair labour practices and the common law.

Whereas no legal representation whatsoever is allowed at CCMA / Bargaining Council conciliation proceedings, a party’s entitlement to legal representation at arbitration proceedings is specifically regulated.  If a dispute concerns a dismissal involving misconduct, incapacity ill-health or incapacity / poor work performance, legal representation is only allowed if:

  • The commissioner and all the other parties agree, or
  • If the commissioner decides that it would be unreasonable for a party to proceed without such representation.

A legal representative may represent a party at all other arbitration hearings in respect of any other reason for dismissal.  Consultants, Advice Office officials, relatives and friends are, without exception, not allowed to represent a party at arbitration proceedings.  Once again, a legal representative should be permitted at arbitration to argue the merits of why in circumstances of that particular matter, a commissioner should exercise his discretion in allowing legal representation on behalf of a party.

Strike action: What does the law say?

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


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.

Who owns the copyright in computer programs written by an employee?

Posted in Questions and Answers with tags on June 25, 2009 by labourlawoffices

Section 21 (1) (d) of the Copyright Act 1998 of 1978 provides that where a work is “made in the course of the author’s employment by another person under a contract of service”, the employer is ”the owner of any copyright subsisting in the work”.  In an action in the High Court, the Applicant sought to enforce a copyright claim in certain written computer programmes against his former employer.  The employee claimed to have created the programs in his own time, at home, to assist him personally in the performance of his duties as employee.  He alleged that it was not part of his duties as a meteorologist to write computer programmes.  The employee claimed that the programs had not been “written in the course and scope of his employment” and that ownership of the copyright in the programmes vested in him and not in his employer.

When the case was decided in the Supreme Court of Appeal it was held that the phrase, “in the course of employment” was not ambiguous and did not require anything by way of extensive or restrictive interpretation.  The Court held that a practical and common sense approach directed at the facts usually produces the correct result.  The Court pointed out that it was dangerous to formulate generally applicable rules to determine whether or not the work was authored in the course of an employee’s employment.  It remained fundamentally a factual issue that depended not only on the terms of the employment contract but also on the particular circumstances in which the particular work was created.  In this case the factual basis for the employee’s claim was not supported by the available evidence.  As meteorologist the employee had to collect and collate meteorological data and transmit it to head office for analysis and storing.  The employee developed his programs for this very purpose.  Although he may not have done it to make his own job easier, he did it because of his employment with his employer.

The Court went on to find that although it had to be accepted that the employee’s initial programming took place at home it was clear that as time passed he spent increasingly more of his office hours developing programs, to such an extent that he failed to give sufficient attention to his duties as Head of a Regional office.  In any event, the Court held, the fact that an employee creates work at home (or even during office hours at the premises of the employer) is but one factor that has to be taken into account in answering the question whether the work was made in the course of his employment.  The earlier Court finding that the programs had indeed been made in the course of the employee’s employment was thus endorsed.

Legal rights of pregnant women at work

Posted in Basic Conditions of Employment, Dismissals with tags , , , , , on June 15, 2009 by labourlawoffices

Being pregnantLabour legislation affords a pregnant female employee four consecutive months’ unpaid maternity leave, which may commence at any time from 4 weeks before the expected date of birth or from a date from which a medical practitioner or midwife certifies that leave is necessary for the health of the mother or child.  No employee may work for 6 weeks after the birth (whether or not the child is born alive or miscarries), unless a medical practitioner or midwife certifies that it is safe for her to do so.  The only obligation on an employee is that she must notify the employer in writing of the date on which she intends to start maternity leave within 4 weeks of such date or when reasonably practicable.

Pregnant or nursing mothers who choose to return to work are also protected.  Employers may not employ them in work that is hazardous to the health of mother or child, and if the mother is required to do night work, the employer must offer her suitable alternative employment if there is a threat to her health and if reasonably practicable.

The wages of new and expectant mothers on maternity leave are covered by the State in terms of the provisions of the Unemployment Insurance Act.

An employer may not dismiss a female employee in any circumstances merely because she is pregnant.  The dismissal of women on the ground of pregnancy or for a reason related to her pregnancy or intended pregnancy is rendered automatically unfair by the Labour Relations Act, 1995.  The provisions of the Employment Equity Act, 1998 protects a woman from unfair discrimination based on her pregnancy, for example being denied promotion, being forced to take unpaid leave or made to work in conditions that endanger her health or that of her unborn child.  An employer’s refusal to permit an employee to resume employment after she was on maternity leave in terms of any law, collective agreement, or her contract of employment is regarded as a form of dismissal.  An employee who commits serious misconduct before or during her maternity leave may still of course be dismissed for such misconduct.  An employer may not dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or because she has become physically incapable of doing her work as a result of pregnancy.  So for example a woman who develops lengthy bouts of post-natal depression which renders her incapable of working, may not be dismissed because of the operational requirements of her job.  An employee who does not disclose at the time of appointment that she is pregnant can not be dismissed for “deceiving” her employer about her pregnancy.

An employee who has been unfairly dismissed by reason of her pregnancy or a reason related to her pregnancy will ordinarily be entitled to re-instatement, alternatively compensation up to a maximum of 2 years’ remuneration.  Dismissal by reason of an employee’s pregnancy is regarded as a form of automatically unfair dismissal and is adjudicated on by the Labour Court.  A dismissed employee must first refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council operating in the industry / sector in which the employee was employed.  If the dispute is not capable of settlement / resolution under conciliation by the CCMA / Bargaining Council the employee is entitled to refer the dispute to the Labour Court for adjudication.

Are there any limits to the Constitutional court’s jurisdiction in labour matters?

Posted in Constitutional matters with tags , , , on January 29, 2009 by labourlawoffices

Section 167 of the Final Constitution provides that the Constitutional Court (“the Court”) may decide only constitutional matters and issues connected with decisions on constitutional matters. The legal term jurisdiction means the power vested in a Court by law to adjudicate upon, determine and dispose of a matter.

If the Court does not have jurisdiction it will refuse to hear and consider the merits of a matter at all. Once the Court has determined that it has jurisdiction it grants leave to appeal if it is in the interest of justice to grant leave to appeal. This process entails some consideration of the prospects of the merits of a case.

The Court has on a number of occasions adjudicated on labour matters. The Court does not have the power to review every decision by the Labour Court simply in the basis that the decision might be wrong and therefore in violation of the rule of law. It would seem that the Court is inclined to find jurisdiction for itself in those cases governed by statutes which were enacted to give content or effect to a constitutional right, or otherwise to meet the legislature’s constitutional obligations.

In a most recent Constitutional Court case workers challenged the authority of the Supreme Court of Appeal to decide the question whether the commissioner had jurisdiction in respect of the dispute between the parties. In addition, they challenged the finding by the Court of Appeal that the real dispute between the parties was whether an exemption from a Bargaining Council agreement related to wages, relied upon by the employer, had been validly granted by the Bargaining Council.

The findings and conclusions of the Court of Appeal as well as the challenges to such findings and conclusions raised important questions concerning the role of commissioners in resolving labour disputes and that of the Court in overseeing the arbitration process the Court held. These questions go to the jurisdiction of commissioners to resolve labour disputes and that of the Courts to review arbitral awards. The Court held that these questions manifestly raise important constitutional issues which affect the resolution of labour disputes. The question whether the commissioner adjudicated the real dispute between the parties is an issue connected with a decision on a constitutional matter, the Court held.

The Court went on to find that the issues raised in the case were matters of public interest. The case concerned the enforcement of a Bargaining Council agreement which sets out minimum wages and other conditions of employment and requires the Court to apply the provisions of the LRA.

The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in Section 23 of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance which the provisions of the collective agreement which is the product of the collective bargaining process the Court pointed out.

Compliance with a collective bargaining agreement is critical not only to the right to bargain collectively through the forum constituted by the Bargaining Council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched, the Court held. The Court concluded that the case raised important questions concerning the roll of arbitrators and that of Courts in overseeing the arbitration process. For these and other reasons considered, the Court was satisfied that the application for leave to appeal raised a constitutional matter.

The minority decision is this case took a different view of what constitutes a constitutional matter. Relying on Section 33 of the Constitution which provides that everyone is entitled to administrative action that is lawful, reasonable and procedurally fair the minority held that a Court in considering a review, or an appeal in respect of a review, of the CCMA in terms of the LRA is obliged to interpret its powers in the light of Section 33 of the Constitution.

The question relating to the power of the Court of Appeal to of its own accord raise an issue that appears on the face of the record before it and which goes to the jurisdiction of the CCMA, the Court held needs to be considered in the light of Section 33 of the Constitution. The further question that required consideration is whether the award falls to be set aside because the commissioner failed to apply her mind to the terms of the exemption concerned. The minority held that the question whether an arbitrator has applied her mind to an issue before her is a question that needs to be considered in the light of Section 33 of the Constitution. For the minority, both questions thus raised constitutional matters within the jurisdiction of the Court.

The minority admitted that a review of a decision of the CCMA will always need to be undertaken in the light of the right entrenched in Section 33, and will therefore generally involve a constitutional matter. Whether it is in the interest of justice for the Court to entertain such an appeal, however, would only occur if the matter at hand raises a matter of particular constitutional importance the minority went on to hold.

The majority Court’s grounds for holding that the issues concerned a constitutional matter require further consideration. If it is clear that the enforcement of a bargaining council agreement materially affects the right to engage in collective bargaining or any other right in the Bill of Rights, its interpretation will give rise to a constitutional issue. Where, however, the interpretation is concerned with a provision that does not affect the right to engage in collective bargaining nor any other right entrenched in the Bill of Rights, but concerns substantive terms and conditions which have been negotiated, it does not follow that a constitutional issue is automatically engaged.

In the particular case, the primary dispute insofar as it related to the bargaining council agreement, turned on whether the wage provisions of the 1998 main agreement applied to the employer or whether an exemption granted in 1997 exempted the employer from those provisions. This does not necessarily raise a constitutional matter. There is no provision in the constitution which is directly relevant to the interpretation of either such main agreement or the exemption; nor can it be said that either of the interpretations for which the parties contended gave greater or lesser effect to the provisions of the Bill of Rights. The exemption itself contained in the main agreement is not legislation that falls to be interpreted in a manner consistent with the spirit, purport and objects of the Bill of Rights.

The enforcement of all collective agreements does not automatically raise a constitutional matter. While the rule of law requires that all binding obligations be enforced, it does not mean that the enforcement of all binding obligations necessarily raises a constitutional matter. The LRA carefully provides procedures to ensure that collective agreements are enforced. Those procedures have not been challenged as inadequate or unconstitutional.

The Constitutional Court should therefore be careful to recognise that the constitution establishes it as a court that has jurisdiction in constitutional matters only; not as a general court of appeal in all matters. The Court has not always respectfully observed those limits placed on its jurisdiction.

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


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.

Affirmative action appointments have to be defensible

Posted in Affirmative action with tags , , on December 8, 2008 by labourlawoffices


Affirmative action

Affirmative action

Appointments and promotions supported by affirmative action considerations are, as a general principle not a contentious issue in the South African workplace nowadays.  What is, however, contentious is whether such affirmative action appointments and promotions are correctly understood, done in accordance with fair labour practices and the constitutional imperatives of promoting equality in and transforming the workplace.

It is therefore always welcome and informative to take cognisance of how the Supreme Court of Appeal interprets the application of affirmative action in employment.

The recently reported case of Gordon v Department of Health:  Kwazulu Natal is instructive in this regard.

The appellant, the then Assistant Director of a hospital, applied for the post of Deputy Director:  Administration at another hospital.  After interviewing the candidates, the selection committee decided that the appellant was the most suitable candidate, based on his strong leadership and planning and control competencies, criteria which were found lacking in the other candidates.  The panel’s recommendation was endorsed by the province’s Department of Health, but not by the Provincial Public Service Commission, which directed the Department to appoint a black male candidate.

The appellant instituted action in the Labour Court, claiming to have been unfairly discriminated against on the basis of race.  The Labour Court dismissed the application and the appellant appealed to the Labour Appeal Court.  Such Court held that the application was fatally defective because the successful candidate had not been joined or “at least” had not been afforded the opportunity to be heard, and dismissed the appeal on that basis alone.

The Appeal Court found that the Labour Appeal Court had erred by finding that the successful candidate should have been joined.

Merits of the claim

The Court noted that the appellant’s contention was that in the absence of a rational policy, plan or program which justified the Department acting in an inherently arbitrary manner, the failure to appoint him was discriminatory and unfair.  The Department contended that its decision was beyond judicial scrutiny because, even in the absence of a specific plan or policy, appointing a black candidate was a measure designed to promote equality and transformation of the public service.

The Court found that the appellant had been discriminated against on the basis of his race.  Item 2 (1) (a) (since repealed) of Schedule 7 of the Labour Relations Act 66 of 1995 which applied, provided that, in spite of the prohibition of discrimination, employers could adopt employment policies or practices “designed to achieve the adequate protection or advancement of persons or groups or categories of persons disadvantaged by unfair discrimination”.

The Court held that while affirmative action is designed to uplift the previously disadvantaged, the question was whether the appointment of the successful black candidate in this case was a measure falling within the terms of that item, as read with the Interim Constitution Act 200 of 1993.  The Court noted that item 2 (1) (a) dealt with employment policies and practices.  It held that in cases involving alleged discrimination, the Courts have always focused on the policies or plans by which employers sought to defend themselves to establish whether those plans or policies were rationally connected with the constitutional imperative of promoting equality.  The Court noted that ad hoc or random actions were found incapable of meeting such objective.  The Court therefore deduced that properly formulated plans go a long way to meeting the requirements of rationality.  Thus rational affirmative action plans or programs are approved while ad hoc or random actions are impermissible the Court stated.

Turning to the facts, the Court noted that the argument that the successful candidate’s appointment was a measure to advance employment equity was the only justification advanced for discriminating against the appellant.  The Department had no policy or plan.  Neither was the Commission able to provide a coherent explanation for rejecting the appellant, or to explain how the question of representivity was addressed in the recruitment and selection process.  This, the Court said, indicated that the Commission held a view that the only way to promote equality was to appoint black candidates.  The appointment was accordingly found to be clearly ad hoc, arbitrary and unfair.

The Court concluded that in the quest to attain representivity, efficiency and fairness were not to be compromised.  To justify the failure to appoint a candidate who complied with stipulated requirements it had to be shown that such action was not unfair.

The Court concluded that in the absence of an equity plan, the Department was obliged to follow legislation pertaining to selection and appointment, none of which permits the rejection of suitable candidates on the basis of race alone.

The appeal was upheld and the Department was ordered to pay the appellant the difference between the salary he received from 1996 to the date of this retirement in 2003, and the salary he actually would have received had he been promoted.  

The Enforcement Of Restraint Of Trade Agreements

Posted in Employment contracts, Restraint of trade with tags , on May 13, 2008 by labourlawoffices

Employers often elect to enforce the provisions of a restraint of trade clause incorporated in contracts of employment of former employees who act in breach of such an agreement. A restraint of trade clause is in principle valid and the party seeking to avoid the restraint [the employee] bears the onus of proving that the restraint was unreasonable, contrary to public policy and therefore not deserving of enforcement. This test, in effect, made it easier for an employer to enforce the restraint of trade provisions as long as they were reasonable.


In the context of the constitutional right freely to choose one’s trade, occupation or profession and the right to dignity, courts are now deciding that the employer bears the onus to prove the reasonableness of the restraints in question.


Contracts in restraint of trade must protect some proprietary interests of the person who seeks to enforce it before it will be enforced. These interests may take the form of trade secrets, confidential information, goodwill or trade connections. If the restraint does not protect the proprietary interests of an employer, no protection or enforcement would be possible. It has been said that a man’s skills and abilities are part of himself and he cannot ordinarily be precluded from making use of them by a contract in restraint of trade. Even if an employer has expended time and money on the training of the employee “it affords the employer no proprietary interest in the workman or in his knowledge or skills”.


Not all information obtained in the course of employment is secret or confidential. If information is of such a nature that “it is inevitably carried away in the employee’s head after the employment has ended” the employee may use the information for himself or herself, subject of course to a duty of good faith while being employed.


What public policy is and whether a term in a restraint agreement is contrary to policy is now determined by reference to the values that underlie our constitutional democracy as given expression by the provisions of the Bill of Rights.


The task of a court has been described thus:


“A court must make a value judgement with two principal policy considerations in mind in determining the reasonableness of a restraint.


The first is that the public interest requires that parties should comply with their contractual obligations, and the second is all persons should in the interests of society be productive and be permitted to engage in trade and commerce or the professions… In applying these two principal considerations, the particular interest must be examined. A restraint would be unenforceable if it prevents a party after termination of his/her employment from engaging in trade or commerce without a corresponding interest of the other party deserving of protection. Such a restraint is not in the public interest. Moreover, a restraint which is reasonable as between parties may for some other reason be contrary to the public interest”.


It follows that given the nature of the restraint clause and the need for a court to balance the contractual provisions against the right to be a productive worker, a restraint clause should be drafted to reflect this balance.


Before information qualifies as a trade secret, it needs to comply with three requirements:


  • The information must not only relate to but also be capable of application in the trade or industry; 
  • The information must be secret or confidential. The information must accordingly-objectively determined-only be available  to a restricted number of people or to a close circle or, as usually expressed, the information must be something which is not public property or in the public knowledge; 
  •  Finally, the information, objectively viewed, must be of economic or business value to the plaintiff.

Employers would well be advised to carefully analyse their existing restraint of trade agreements and, where necessary, tailor them to present day efficacy requirements.


Posted in Employment equity with tags , , on March 10, 2008 by labourlawoffices

The application and scope of the Employment Equity Act 55 of 1998 is regularly tested and adjudicated upon in the Labour Court.  An Applicant for a promotional post whose candidacy is recommended by the selection committee concerned is often aggrieved if someone else is appointed in his / her place.   

In a recently reported Labour Court judgement an Applicant complained that his employer only had regard to gender and race representativity in the appointment process.  The employer had made a conclusive decision not to appoint the Applicant, in order to appoint someone of a different gender or race group.  The Court held that this constituted discrimination on grounds of race and gender, and cast on the employer the burden of proving that the discrimination was fair.   

The Applicant submitted that the arbitrator had failed to have regard to the fact that the employer did not have any equity plan; that the representativity targets set by the employer had already been met, and that the yardstick in respect of representativity was the particular level, and not the department as a whole.   The Court held that although the employer did not have an employment equity plan, it operated within a frame work of policy statement and targets with reference to its employment equity goals and objectives.  Therefore the fact that it did not have a plan did not by itself render the refusal to promote the applicant unfair.   

The Applicant’s claims that the employer had in fact reached its equity targets, had not been contradicted.  Furthermore, although the employer had conceded that the most urgent corrective measures were required in respect of people with disabilities, it was apparent from the evidence that the Applicant’s undisputed disability had not been considered at all.   It appeared that the employer had applied preferential treatment within the designated groups, with specific reference to gender when the application had specifically indicated that race, gender and disability status were relevant.   

The Court noted that the employer’s equity policy specifically stated that once specified representivity levels had been achieved, merit alone would be the only consideration in promotions and appointments.  The Applicant’s qualifications for the job were beyond reproach and therefore, had the employer applied the policy directive, the Applicant would have been promoted.   It was apparent from the policy directive that representivity had to be looked at, at the particular level and not in the department as a whole.  The employer had considered representivity levels in the department as a whole, rather than in the division concerned, as required by the employer’s policy. 

The Court was satisfied that the employer, in rejecting the considered and reasoned recommendation of the selection committee, overtly relied on the enhancement of gender representivity in the department as a whole, thereby ignoring in their entirety all the other factors that he ought to have considered.  The finding therefore was that the employer’s refusal to promote the Applicant was unfair and that affirmative action had been applied in an arbitrary and unfair manner.