1 22 nd annual current labour law seminar 2011 alec freund peter le roux clive thompson...

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22nd Annual

Current Labour Law Seminar2011

Alec FreundPeter le Roux

Clive Thompson

Johannesburg, Pretoria, Durban, Port Elizabeth & Cape Town

INDIVIDUAL LABOUR LAW

PETER LE ROUX

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Highlights:

• Contract principles: An update• Administrative law principles: An update• Delictual principles• Automatic termination of employment• Labour Appeal Court decisions dealing with

dishonesty• Intoxication• Dismissal for refusal to undergo polygraph testing• Formulating disciplinary charges• What is a benefit?

Current Labour Law

Contract principles and fairness:

SA Maritime Safety Association v McKenzie [2010] 5 BLR 488 (SCA)

The existence of a common law duty of fair dealing rejected.

But what about the exceptional cases?

Current Labour Law


Mahumani v Member of the Executive Council: Finance, Economic Affairs and Tourism, Limpopo (2010) 31 ILJ 2009 (NGP) – procedural fairness can be incorporated into contracts of employment via applicable collective agreement.

Nyathi v Special Investigating Unit [2011] JOL 27537 (LC) – employer not contractually entitled to extend suspension beyond a period 90 days. This was prohibited by the disciplinary code that had been incorporated into the contract of employment. However, dismissal was lawful and not in breach of contract. The disciplinary procedure not applicable in this case.

Current Labour Law


Mahlalela v Office of the Pension Funds Adjudicator [2011] 6 BLLR 587 (LC) and Ebrahim and Others v Sans Fibres (Pty) Ltd (2011) 32 ILJ 304 (LC) – principle that disciplinary and other policies can be incorporated into contract of employment accepted but on the facts held that there had been no such incorporation.

Current Labour Law

Contract principles:

SAMWU v Matjhabeng Local Municipality [2011] 3 BLLR 299 (LC) – employees enjoying a contractual right to free transport despite this not being contained in their written contract of employment. Contractual term based on practice and oral undertakings given by employer representatives.

Current Labour Law

Contract principles :

Fourie v Stanford Driving School and 34 Related Cases (2011) 32 ILJ 914 (LC) and Makume v Hakinen Transport CC; Moyi v Inkhunzi Contractors (Pty) Ltd; Shashape v Tswaing Local Municipality (2011) 32 ILJ 928 (LC) – employees relying on contractual right to claim certain BCEA rights. Section 4 of the BCEA . Oasis Group Holdings (Pty) Ltd v Bardien [2011] 3 BLLR 284 (LC) – period of resignation not extended if the employee takes sick leave during the resignation period.

Current Labour Law

Administrative law principles:

Chirwa v Transnet Ltd and Others [2008] 2 BLLR 97 (CC) and Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) – the decisions of employers in the public sector to dismiss or not to promote do not constitute administrative action.

Current Labour Law

Administrative law principles: Section 158(1)(h):

Section 158(1)(h) of the LRA empowers the Labour Court to –

… review any decision taken or an act performed by the State in its capacity as employer, on such grounds as are permissible in law; …

Current Labour Law


MEC Department of Education Kwazulu Natal v Khumalo and Another [2010] 11 BLLR 1174 (LC) – employer seeking to overturn decision to promote which was tainted by irregularities. Section 158(1)(h) applied. National Commissioner of Police and Another v Harri NO and Others (2011) 32 ILJ 1175 (LC) – employer seeking to review a decision of a disciplinary chairman not to dismiss an employee. Section 158(1)(h) applied.

Current Labour Law


Grootboom v National Prosecuting Authority and Another (2010) 31 ILJ 1875 (LC) – the decision not to reinstate an employee in terms of section 17(5)(b) of the Public Service Act (Proclamation 103 of 1994) can be challenged in terms of section 158(1)(h) of the LRA.

See also Mahlangu v Minister of Sport & Recreation (2010) 31 ILJ 1907 (LC).

Current Labour Law

Delictual principles:

Mokone v Sahara Computers (Pty) Ltd (2010) 31 ILJ 2827 (GNP) – employer held liable for damages on the basis that it infringed the employee's right to a safe working environment by not taking steps to protect her against sexual harassment. The employer should have had management and disciplinary structures in place that would immediately and effectively have dealt with the plaintiff's complaint.

Current Labour Law

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Fixed term contracts:

University of Pretoria v the Commission for Conciliation, Mediation and Arbitration and Others (unreported JA38/2010 dated 28 October 2010 / 28 October 2011). The expectation of permanent employment does not fall within the ambit of section186(1)(b).

Current Labour Law

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Fixed term contracts:

“[21]The words chosen by the legislature, absent an amendment to the legislation, cannot carry the burden of the third respondent’s case in that it covers a restrictive set of circumstances, namely a reasonable expectation of renewal of that which had previously governed the employment relationship, namely a fixed term contract which had previously been enjoyed, which had now expired and, by virtue of the factual matrix created, at best, a reasonable expectation of a renewal.”

Current Labour Law

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Fixed term contracts:“[18]… these words do not, however, carry the

meaning which is urged by third respondent, namely that, by being employed on the basis of a series of fixed term contracts, an employee has without more a reasonable expectation of a permanent appointment. The distinction between a fixed term contract and a permanent contract has a clear economic rationale. An employee in the position of appellant may have discretionary funds for a limited period. During this period, it offers a series of fixed term contracts to a particular employee. At some point these funds are depleted and the employer can no longer afford a further fixed term contract. By contract, the creation of a permanent post would necessitate a more permanent source of funding.”

Current Labour Law

Automatic terminations of employment:

Contractual mechanisms other than fixed term contracts

Current Labour Law

• Contracts linked to term of office as director.• Contracts of employment of employees of TES’s

or contractors expiring automatically if client no longer needs their services. |


Section 5 of the LRA

Section 5(2) provides, inter alia, that –

“… no person may do, or threaten to do, any of the following –

…(b)prevent an employee … from exercising any

right conferred by this Act. …”

Current Labour Law


Section 5(4) states that –

“A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of … this section is invalid, unless the contractual provision is permitted by this Act.”

Current Labour Law


Mahlamu v CCMA and Others [2011] 4 BLLR 381 (LC) “[22] In short: a contractual device that renders a termination of a contract of employment to be something other than a dismissal, with the result that the employee is denied the right to challenge the fairness thereof in terms of s188 of the LRA, is precisely the mischief that s5 of the Act prohibits. Secondly, a contractual term to this effect does not fall within the exclusion of s5(4), because contracting out of the right not to be unfairly dismissed is not permitted by the Act.”

Current Labour Law


Mahlamu v CCMA and Others [2011] 4 BLLR 381 (LC)

“[23] This is not to say that there is a “dismissal” for the purposes of s186(1) of the LRA in those cases where the end of an agreed fixed term is defined by the occurrence of a particular event. This is what I understand the Ratio of Sindane (supra) to be – that ordinarily, there is no dismissal when the agreed and anticipated event materialises (to use the example in Sindane (Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC)), the completion of a project or a building project), subject to the employee’s right in terms of s186(1)(b) to contend that a dismissal has occurred where the employer fails or refuses to renew a fixed-term contract and an employee reasonably expected the employer to renew the contract. Current Labour Law


Mahlamu v CCMA and Others [2011] 4 BLLR 381 (LC)

In other words, if parties to an employment contract agree that the employee will be engaged for a fixed term, the end of the term being defined by the happening of a specific event, there is no conversion of a right not to be unfairly dismissed into a conditional right. Without wishing to identify all of the events the occurrence of which might have the effect of unacceptably converting a substantive right into a conditional one, it seems to me that these might include, for example, a defined act of misconduct or incapacity or, as in the present instance, a decision by a third party that has the consequence of a termination of the employment.”

Current Labour Law

Constructive dismissal:

Eastern Cape Tourism Board v CCMA and Others [2010] 11 BLLR 1161 (LC) Test for constructive dismissal – coercion, duress or undue influence.

Current Labour Law

Alcohol and drugs:

Transnet Freight Rail v Transnet Bargaining Council and Others [2011] 6 BLLR 594 (LC)

•Arbitrator had erred by applying the principles relating to incapacity in the situation where the employee was not an alcoholic. The fact that an employee was experiencing difficult circumstances at home did not justify treating the matter as one of incapacity.

•The fact that the employee was 'caught' before any serious incident arose does not mean that the employee should be treated more favourably than the person who was not caught.

Current Labour Law

Alcohol and drugs:


•The job function of the employee is relevant in determining the fairness of dismissal. Where the job is highly skilled, responsible or hazardous, or the offence is committed by a senior employee who should be beyond reproach, dismissal for a first offence is justified. Where the job function of an offending employee is such that misconduct of this nature would be extremely dangerous and could result in death, injury or damage, a strict application of the rule forbidding alcohol use must be applied.

Current Labour Law

Alcohol and drugs:


•The strict application of such a rule is of importance to the company, its employees and public policy.

•The implications of being lenient in the application of an important rule, and the message such leniency sends to other employees regarding their infringement of such a rule also needs to be considered. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust.

Current Labour Law

Alcohol and drugs:


•The period of validity of a final written warning may differ, depending on the gravity of the offence. This is consistent with the principles of progressive discipline. Generally a final written warning valid for 12 months serves as a clear and strong communication to the employee that his conduct is regarded as extremely serious and will not be tolerated by the employer.

•Usually, the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature.

Current Labour Law

Alcohol and drugs:


•The principles of progressive discipline requires such a re-offending employee to usually be considered irredeemable.

•Even in circumstances where a final written warning or a string of warnings have expired, a sanction of dismissal may be justified.

Current Labour Law

Derivative misconduct:

CEPPWAWU obo Hlebela v Lonmin Precious Metals Refinery [2011] 8 BALR 814 (CCMA)

•Employer suffering huge losses of product – 1 security employee for every 4 employees.

•Employer informed by SAPS that employee may be involved in criminal offences.

•Investigation revealed that he had an irregular and illogical clocking pattern.

•Also discovered that his lifestyle could not be maintained on the salary he earned.

Current Labour Law



•On the advice of his union he refused to undergo a "lifestyle audit" and to answer questions regarding his extensive assets.

•Employee charged with the following –

It is alleged that you have knowledge of the enormous losses of PGM’s at PMR but you have made no full and frank disclosure to PMR about what

could assist PMR in its investigation therein.

Current Labour Law



•Found guilty of derivative misconduct.

•What about a charge of insubordination?

Current Labour Law

Dishonesty:

FAILURE TO DISCLOSE INFORMATIONMEC for Education, Gauteng v Mgijima [2011] 3 BLLR 253 (LC) – failure to disclose at the time of the recruitment process that the employee faced disciplinary charges. Fipaza v Eskom Holdings Ltd (2010) 31 ILJ 2903 (LC) - employee not disclosing the fact that she had previously been employed by the employer and had been dismissed. Dismissal unfair. The employee did not have exclusive knowledge of this fact. Court also appears to take the view that there is no general duty on a prospective employee to disclose material facts.

Current Labour Law

Dishonesty:

FAILURE TO DISCLOSE INFORMATION

Sotsepo v Kloof Gold Mine [2011] 6 BALR 684 (CCMA) – employee fairly dismissed for participating in a selection panel which interviewed his wife for a job and not disclosing this relationship.

Current Labour Law

Dishonesty:

THEFTMiyambo v CCMA and Others [2010] 10 BLLR 1017 (LAC) –

"[13] It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust. In De Beers Consolidated Mines Ltd v CCMA and Others [2000] 9 BLLR 995 (LAC) para 22, the court, per Conradie JA, held the following regarding risk management:

Current Labour Law

Dishonesty:


'Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society's moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer's enterprise.' "

Current Labour Law

Dishonesty:


“[21] Miyambo undoubtedly breached the relationship of trust built up over many years of honest service. The Company had a consistent policy of zero tolerance for theft and this had been clearly conveyed to all the employees including Miyambo. I agree with the Labour Court's ruling that the Commissioner's award was not justifiable in relation to the reasons given for it. On the basis of the factual findings made by the Commissioner,

the dismissal of the Appellant was justified for operational reasons and was fair.”

Current Labour Law

Dishonesty:

THEFTWoolworths (Pty) Ltd v CCMA and Others [2011] 10 BLLR 963 (LAC)

“[48] It has long been held that the employer’s decision to dismiss an employee will only be interfered with if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service with the employer thus far is indeed an important and persuasive factor against a decision to dismiss the employee for misconduct, but is by no means a decisive one. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others, this Court held:

Current Labour Law

Dishonesty:


“Although a long period of service of an employee will usually be a mitigating factor where such an employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.”

Current Labour Law

Dishonesty:


DVD footage implicating the employee created an "evidentiary burden" to demonstrate her innocence.

See also Rainbow Farms (Pty) Ltd v CCMA and Others [2011] 5 BLLR 451 (LAC).

Current Labour Law

Bringing the employer’s name into disrepute:

Mvembe v Cathorus Community Radio (2010) 31 ILJ 2217 (CCMA) – criticism of the employer's board and the station manager on facebook justifying dismissal – employee given the opportunity to apologise on facebook but refusing to do so.

Sedick and Another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) – disparagement of managers of employer on face book justifying dismissal – issue of invasion of privacy considered.

Current Labour Law

Bringing the employer’s name into disrepute:

Smith v Partners in Sexual Health (Non-Profit) (2011) 32 ILJ 1470 (CCMA) – employee denigrating manager and disclosing information relating to the employer's affairs to third parties though her Gmail account. Employer initially gaining access to employee's account accidentally and subsequently doing so intentionally. Intentional access on the second occasion contravening Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2002. Evidence obtained as a result thereof not permitted on the basis of the infringement of the constitutional right to privacy.

Current Labour Law

Inconsistency:

CEPPWAWU v NBCCI and Others [2011] 2 BLLR 137 (LAC)

•In cases of collective misconduct the employer is only obliged to discipline employees in respect of whom it has evidence.

•An employer is not obliged to investigate the identity of every person who may have participated in wrongful activity.

•In the case of collective misconduct a "wrong decision" resulting in an acquittal of an employee who did commit an offence will only be unfair "if it is a result of some discriminatory management policy“.

Current Labour Law

Insubordination:

Polygraph testingNyathi v Special Investigating Unit [2011] JOL 27537 (LC) – refusal to undergo a polygraph test constituted a material breach of contract which could justify the lawful termination of the contract of employment. But see the following excerpt:

Current Labour Law

Insubordination:

Polygraph testingNyathi v Special Investigating Unit [2011] JOL 27537 (LC)

“[33] I do not intend dwelling on the issue of the requirement of a polygraph examination. Suffice to

point out that the court accepts that the respondent has sound reasons for including such an obligation, to submit to, inter alia, a polygraph, in light of the core business and functions of the SIU which is to investigate corruption and maladministration in government departments and State institutions.

Current Labour Law

Insubordination:

Polygraph testingNyathi v Special Investigating Unit [2011] JOL 27537 (LC)

The court also accepts that although some of the measures, such as having to submit to a

polygraph examination, having to provide urine and blood samples, may seem to be intrusive, these measures are reasonable in the context of an organisation such as the respondent (provided, of course, that these measures are applied fairly and only when reasonably necessary to do so).”

Current Labour Law

Insubordination:

Nyathi v Special Investigating Unit [2011] JOL 27537 (LC)

“[39] I am firstly persuaded on the papers that it is a material term of the contract to submit to a polygraph test and that the applicant by refusing to do so has repudiated a material term of the contract entitling the respondent to terminate the contract. As already pointed out, it is not at issue here whether or not the termination would be fair. I am therefore not persuaded by the submissions advanced on behalf of the applicant that this refusal does not go to the root of the agreement and therefore not material.

Current Labour Law

Insubordination:

Nyathi v Special Investigating Unit [2011] JOL 27537 (LC)

I am persuaded in light of the facts contained in the answering affidavit that it is not unreasonable nor unlawful – taking into account the nature of the business of the respondent and the high premium placed on integrity in light of the SIU's functions – for the respondent to require of an employee to submit to a polygraph test. She had, after all, contractually agreed to do so. The refusal to undergo a polygraph test may also constitute misconduct and may even be a ground for dismissal.

Current Labour Law

Insubordination:

Polygraph testingBlignaut v The Core Computer Business (Pty) Ltd [2011] 6 BALR 642 (CCMA) – the dismissal of an employee because he had failed to undergo a polygraph test fair on the basis that the employee's contract of employment required the employee to undergo such testing.

SATAWU obo Mashiane v Swissport South Africa (Pty) Ltd [2010] 10 BALR 1121 (CCMA) – the dismissal of an employee for a similar refusal was unfair because the employer had failed to establish that there was a tacit term in the contract of employment to the effect that she could be required to undergo such a test.

Current Labour Law

Polygraph testing and operational requirements:

SA Transport and Allied Workers Union and Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC) – dismissal for failing a polygraph test could justify dismissal on the basis of the employer's operational requirements.

National Union of Mineworkers and Others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC) – Labour Court (reluctantly) accepted that it was bound by the abovementioned decision but found that, on the facts of the case before it, dismissal was not justified.

Current Labour Law

Negligence:Transnet Freight Rail v Transnet Bargaining Council and Others [2011] 6 BLLR 594 (LC)

“[44] Negligence can be defined as ‘a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person’.

[45] It is obvious from that definition, there is some times an overlap between poor work performance and negligence. Negligence can be treated as either incapacity or as misconduct, depending on the circumstances. The basis for culpability and negligence cases is the lack of care and/or diligence accompanying the act or omission. The test for negligence is an objective one, namely, whether the harm (or potential harm) was foreseeable and whether a reasonable person would have guarded against its occurring … Current Labour Law

Negligence:


[46] Negligence does not extend to acts where an individual, knowing full well the probability of the consequences of their actions and dangers in

their behaviour, deliberately and wilfully choses to behave in such a manner regarding the consequences.”

Current Labour Law

Sexual harassment:

Motsami v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC)

•Employee claiming dismissal for sexual harassment unfair because employer should have utilised a conciliation process as envisaged in its disciplinary code.

•Court rejects this view. Sexual harassment "the most heinous misconduct" which undermines the dignity integrity and self-worth of the person harassed.

•Sexual harassment must be viewed from the perspective of the person victimized.

Current Labour Law

Sexual harassment:


•To force conciliation on a victim compounds the wrong.

•Unless the victim agrees to another procedure, the employer must conduct a disciplinary enquiry.

•A disciplinary hearing must be conducted with the victim's co-operation. If the victim is uncomfortable with any process the employer must find a way to deal with it lest it be found culpable for failing to deal with the matter. In this case some form of counseling may be appropriate, if the employer "is of the means of providing it".

Current Labour Law

Sexual harassment:


“[21] In this matter the victim wanted a disciplinary hearing: in such an instance it would have been improper for the respondent to proceed with a

process other than a disciplinary hearing. The fact that the respondent’s disciplinary code provided

for conciliation does not mean that the respondent is inextricably bound to follow that process. The procedure must be chosen by the employer but it must do so in consultation with the victim.”

Current Labour Law

Sexual harassment:


Contrast with –

Hendricks v Cape Peninsula University of Technology and Others (2009) 30 ILJ 1229 (LAC) – dealing with a claim based on contract.

Current Labour Law

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Sexual harassment:Mzi Gaga v Anglo Platinum Ltd and Others (unreported JA44/10 dated 20/10/2011)

Current Labour Law

“[48]By and large employers are entitled (indeed obliged) to regard sexual harassment by an older superior on a younger subordinate as serious misconduct, normally justifying dismissal. In SA Broadcasting Corporation Ltd v Grogan N.O. and Another (2006) 27 ILJ 1519 (LC), Steenkamp AJ (as he then was) observed that sexual harassment by older men in positions of power has become a scourge in the workplace. It’s insidious presence is corrosive of a congenial work environment and productive work relations.

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Current Labour Law

Harassment by its nature will steadily undermine the supervisory authority vested in the superior, upon which the employer must rely, and hence will diminish or even destroy the trust requisite in the employment relationship; ultimately justifying the imposition of the sanction of dismissal. It is appropriate then for this court and employers to send out an unequivocal message: senior managers who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty.

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Current Labour Law

Much will depend on the circumstances, with the court or commissioner being obliged to have regard to the nature and gravity of the infringement; the impact on the victim; the relationship between the perpetrator and victim, the position and responsibilities of the perpetrator; and whether or not there is a patter of behavior evidenced by prior misconduct.”

Procedural fairness:

• There is some evidence to suggest that arbitrators are now taking into account the comments in the Avril Elizabeth decision.

• The issue of double jeopardy appears to be being considered more often.

• The formulation of disciplinary charges.

• CCMA guidelines dealing with misconduct cases.

Current Labour Law


Formulation of chargesWoolworths (Pty) Ltd v CCMA and Others [2011] 10 BLLR 963 (LAC)

“[32] Unlike in criminal proceedings … the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes, referred to above.

Current Labour Law


Formulation of chargesWoolworths (Pty) Ltd v CCMA and Others [2011] 10 BLLR 963 (LAC)

It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally

drafted by people who are not legally qualified and trained."

Current Labour Law

CCMA guidelines on procedural fairness: Section D:

No disciplinary procedure in place•Where there is no disciplinary procedure in place the Code of Good Practice: Dismissal must be applied subject to any departures that may be justified by the circumstances.

•It the procedure was defective the arbitrator must decide whether the defect was material. The seriousness of the defect should be taken into account when determining compensation for procedural unfairness.

Current Labour Law


Disciplinary procedure in applicable collective agreement•If the disciplinary procedure is contained in a collective agreement, this takes precedence over the Code. If the collective agreement does not deal with the issue, the Code must be applied.

•When deciding whether there has been procedural unfairness the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not find that the procedure was unfair.

Current Labour Law


Disciplinary procedure in contract•This disciplinary procedure must be ”tested against” the Code. Any conflict should be decided in favour of the Code unless the employer can justify a departure. •If the contract imposes a more burdensome procedure than the one in the Code, procedural fairness must be tested against the contract.•A departure from the agreed procedure should constitute procedural unfairness. But not every departure ought to give rise to a compensation order. The materiality of the breach and the prejudice to the employee should be weighed up in deciding what compensation, if any, should be ordered to be paid.

Current Labour Law


Disciplinary procedure imposed by employer•This disciplinary procedure must be ”tested against” the Code. If there is a conflict the Code takes precedence. unless the employer can justify a departure.

•A procedure that is not legally binding should not be strictly interpreted and applied.

•Ordinarily, departures from established procedures (or from the Code) should not result in a finding of procedural unfairness unless there is material prejudice to the to the employee.

Current Labour Law


Disciplinary procedure imposed by employer•If the employer amends or adjusts a procedure or policy to meet a particular exigency, or to address circumstances not contemplated by the policy or procedure, a finding of procedural unfairness is not warranted unless there is material prejudice to the employee.

Current Labour Law

Unfair labour practices:

Benefits disputes: The dilemma facing arbitrators•The unfair conduct of an employer relating to the provision of benefits can constitute an unfair labour practice.

•Too wide an interpretation will deprive employees of the right to strike. Too wide a definition will lead to employees being able to convert disputes of interest into disputes and right and the determination of terms and conditions of employment by compulsory arbitration. See UASA obo Horne and Others v Atlantis Foundries (Pty) Ltd [2011] 7 BLLR 779 (MEIBC).

•Too narrow a definition could lead to unfairness. Current Labour Law


The approaches adopted by the Courts•Distinguishing between benefits and remuneration – see Schoeman and others v Samsung Eletronics SA (1997) 18 ILJ (1098) and Gaylard v Telkom SA Ltd (1998) 19 ILJ 1624 (LC).

•The requirement that it had to be a claim that arises ex contractu or from statute or collective agreement. See HOSPERSA and Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC).

Current Labour Law


The approaches adopted by the Courts•IMATU OBO Verster v Umhlathuze Municipality and Others [2011] 8 BLLR 882 (LC) states that the HOSPERSA approach is no longer applicable. See also Protekon (Pty) Ltd v CCMA and Others [2005] 7 BLLR 703 (LC) and Department of Justice v CCMA and Others [2004] BLLR 297 (LAC).

•The distinction between remuneration and benefit is also debatable. How does one draw the distinction?

Current Labour Law


The approaches adopted by the Courts•Protekon (Pty) Ltd v CCMA and Others [2005] 7 BLLR 703 (LC) – the ULP definition can be utilised to challenge employer discretionary decisions in terms of contractual schemes.

•See also " The Unfair Labour Practice and the Definition of Benefits – Labour Law’s Tower of Babel” (2009) 30 ILJ 1451.

Current Labour Law

1 22 nd annual current labour law seminar 2011 alec freund peter le roux clive thompson...

Documents

v bardien

labour court

lc employer

mahumani v member

mahlalela v office

chirwa v transnet

lc employees

v sans fibres pty