Labour Law Notes PDF

Labour Law Term 3 Notes Week 1: Introduction Labour dispute resolution (1) CCMA / Bargaining Councils (matters can only be referred to the council if the Act permits – wh...

Labour Law Term 3 Notes Week 1: Introduction Labour dispute resolution (1) CCMA / Bargaining Councils (matters can only be referred to the council if the Act permits – whereas they can always be referred to the CMMA). In instances where a council has been empowered to hear a matter, one cannot choose to disregard the council and go to the CCMA instead – the CCMA is most likely to send the matter back to the council. The CCMA is the heart of labour dispute resolution. (2) Labour Court (3) Labour Appeal Court. The purpose of labour law Equalizing bargaining power between employee and employers. The purpose of labour law is to be a countervailing force consisting of a procedural and substantive element. Substantive element: guarantees results = protective legislation regulating human rights, employment standards and occupational health and safety legislation. (i.e., an employee cannot simply be dismissed for asking for an increased salary, there is legislation protecting him) The procedural (enabling) element = collective bargaining a procedural element which enhances the bargaining power of employees – guarantees no substantial results. 1 The heart of labour law is conciliation, which must be exhausted before going to court. Five significant signpost 1) Scope of employment: constituency to which labour law applies (basically asking who is the employer and employee). 2) (un)fairness / (un)lawfulness – procedural and substantive (un)fairness. 3) Rights and interest disputes – matters of mutual interest. (only way to get this / fight for it is to strike) 4) Rights and interest dispute. 5) Dispute resolution and the certainty of conciliation 6) Majoritarianism. 1 A strike is constitutionally protected, and a lockout isn’t but it is still protected in the Act. Example 1 Fixed term contract for two years After two years the contract terminates – that is lawful. During the term the employer created expectation that will be renewed, but then does not renew the contract. As the contract period has ended, the termination is lawful – however it is not fair because an expectation of renewal was created + that is protected under the LRA. Example 2 Contract provides that before dismissal for misconduct, specific procedures must be followed. Employer dismisses employee for misconduct after following another, elbeit still a fair procedure. Is the dismissal unfair? NO. Is the dismissal unlawful? Yes – the contractually agreed procedure was not followed an it is not defence against unlawfulness claim to say that the other procedure was nonetheless fair. Scope of employment: labour law’s constituency. Labour law by and large applies to employers and employees and occasionally to applicants for employment, but not everyone who works or is engaged in productive activity is an employee. The term ‘employee’ thus generally narrower concept than worker. These workers falling outside the definition of employee do not have protection of labour legislation. There are many grey areas. An employee can join a trade union. An employer can join an employer’s organisation. Trade unions/employers/employer organisation can form a bargaining council. Sources of labour law 1. CONSTITUTION – SECTION 23 section 23 is an odd right because it is not clear who is everyone and who is a worker. But the further subsections refer to workers, employers, employer organisations and trade unions. The argument is that these subsections collectively contain an internal limitation close, and thus, it is the accepted wisdom that everyone in subsection 23(1) does not mean everyone, but is a reference to the individual and the groups referred to in later subsections. SANDU v Minister of Defence (1999): This case dealt with whether a solders was a worker, and the court found that he was a worker. Sachs J suggested that the worker mentioned in the Constitution refers to somebody who is in an employment relationship established by contract of employment but also those individuals who are in relationships akin to a contract of employment. The court thus opened the door to a broader interpretation of the work worker. 2. LEGISLATION: Timeline: Industrial Conciliation Act 11 of 1924 – industrial Conciliation Act 36 of 1937 – Black Labour Relations Act 48 – Industrial Conciliation Act 28 of 1956 (later the Labor Relations Act). (a) Collective agreements (b) Codes of good practice. A. Labour Relations Act 66 of 1995 Collective Rights (trade unions, right to strike, collective bargaining, bargaining councils) Unfair dismissal/ unfair labour practice Labour dispute resolution structure (CCMA, labour court. B. Basic Conditions of Employment Act 75 of 1997. C. Employment Equity Act 55 of 1998. Eliminate unfair discrimination in the workplace. Affirmative action the workplace. 3. PRECEDENT Labour court must follow a judgement of the Labour Appeal Court even if it is of the view that it is wrong – stare decisis provides that a judgement of the LAC is binding on the LC. But arbitration awards are not subject to the doctrine of stare decisis and not are not binding. But both of these courts must follow the Constitutional Court. 4. INTERNATION LAW Section 39, 232, and 233 of the Constitution says that we must look at international law. section 1 and 3 of the Labour Relations Act also says we must look at international law. 5. COMMON LAW – common law is still relevant, current legislation not displaced except in limited circumstances. 6. CUSTOM – seldom Significant labour law events 1. Application and appointment - Strike/lock-out 2. Employment and terms and 5. Unfair treatment in employment. conditions of employment. 6. Unfair discrimination in 3. Trade union membership. employment 4. Collective bargaining between 7. Change in identity of employer union and employer 8. Termination - Collective agreement. (a) Dismissal  (b) Retirement (c) Resignation. LABOUR DISPUTE RESOLUTION Jurisdictional facts The facts giving the forum jurisdiction to consider the dispute: Employment: is the person referring the dispute an employee? Dismissal/ULP: is the termination of employment a dismissal/ does the employer’s conduct constitute ULP? Forum: is the ‘employee’ at the correct forum? Time: has the dispute been referred to the forum within the correct time periods? Condonation: if late, has condonation been applied for? Typical labour dispute resolution procedures 1. Conciliation After conciliation, depending on the nature of the dispute. 2. Arbitration – at the CCMA 3. Adjudication 4. Strike/lock-out – in cases of interest dispute. Dispute Resolution in Dismissals / Unfair Labour Practice2 Section 191 of the LRA and s10 of the EEA tells us that: 1. After conciliation, dispute referred for either adjudication or arbitration depending on the reason for dispute ULP – arbitration after conciliation. Misconduct dismissal – arbitration after conciliation. Retrenchment – adjudication after conciliation (usually) If reason for dismissal unknown – arbitration after conciliation. If dismissal automatically unfair – adjudication after conciliation. Unfair discrimination (not dismissal) – adjudication after conciliation (usually). 2. Dispute must be referred to conciliation within certain period of time. (a) Dismissal – 30 days (b) Ulp – 90 days. (from the date of commencement / the day the employee became aware) (c) Unfair discrimination – 6 months. 3. Once referred for conciliation there are two jurisdictional facts to look out for:3 2 Exceptions: LRA s141, s191(12), S191(13). EEA: s10(6) 3 30 days to refer the matter to the CCMA – CCMA has 30 days to resolve the matter – if not resolved within the 30 days, a certificate must be issued stating that the matter could not be resolved – 90 days to refer the matter to the next appropriate body, starting from the day the certificate of non-resolution was issued  (a) 30 days (whether it had been referred w/in the correct time period) (b) Certificate of non-resolution (whether it had been referred for conciliation) 4. Next step arbitration/adjudication must also happen with certain period. Exceptions: LRA: section 141; 191(12); 191(13) + EEA: section 10(6). Focusing on dismissal / ulp Conciliation – Arbitration process SAMWU v Ngwathe Local Municipality (2015) 36 ILJ 2581 (LAC) Unfair dismissal referred for conciliation. 30 days expired. Certificate of outcome was only issued after the lapse of the 30-day period. The question was when does the 90-day period start running? The court viewed that the provisions of section 191 and 135/136 are mutually exclusive. The validity of referral to arbitration/adjudication is not only linked to the certificate of outcome. This means that upon the 30 day period expiring, even if prior to the issue of certificate of outcome, the matter must be referred for arbitration. Weller v ABSA Bank Limited. retrenched employee referred a dispute to the CCMA for conciliation shortly before South Africa went into lockdown in March 2020. Conciliation never happened but a certificate of non-resolution was issued on 3 September 2020. Employee filed his statement of claim on 18 November 2020, i.e., within a period of 90 days as contemplated in s191(11), the employer claimed that he should have done so within 90 days from the expiry of the 30-day period after the initial referral (i.e., 9 April 2021). Weller ruled that it was bound by SAMWU, which it did not regard as limited to arbitration. - A certificate is ‘not a sine qua non for referral of a dispute to the Labour Court for adjudication’ - The certificate has significance only if it is issued prior to the expiry of the 30-day period. Upon the expiry of the 30-day period, the employee acquires the right to refer a dispute for adjudication and is no longer dependent on the issue often certificate. A spanner in the works Always accepted that if reason for dismissal is one of those mentioned in s191(5)(b): - employee required to adjudicate the matter in the labour court. – however if the certificate was issued after the 30 days has passed, it’ll be ineffective and the 90 days will start from the day after the second 30-day period.  Association in Mineworkers & Construction Union & Others v Nqululu Bulk Carriers (Pty) Ltd and Other 2020: - the employee may refer the dispute to the labour court or arbitration. F & J Electrical CC v Metal & Electric Workers Union (2015) CC Parties covered by a Bargaining Council; employees retrenched. Union claimed they did not know the reason for dismissal – referred to bargaining council for conciliation and certificate of non-resolution issued by commissioner; then referred to bc for arbitration. Arbitration then held that it did not have jurisdiction since the reason for dismissal is retrenchment and that it should have been referred to labour court for adjudication. Referred to the lc, but then union claimed that reason for dismissal was automatically unfair – court granted default judgement on that basis. Employer wants to rescind judgment after finding out about the judgement handed down. Automatically unfair or retrenchment – conciliation / adjudication – referral to Labour Court within 90 days of certificate. 90-day period for referral to LC started to run when the BC commissioner issued certificate of non-resolution. The matter was referred to the lc long after the 90 -day period expired (although they eventually followed the correct route, it wasn’t followed within the correct time period) + no condonation was applied for. Hence, when the labour court granted the default judgement, it had no jurisdiction – the applicants were late and no condonation was applied for. Default judgement was rescinded by the CC. SUMMARY: how to get it right: conciliation / forum / time. Generally, all disputes must be conciliated. After conciliation, the issue determines the forum: - Misconduct – conciliation / arbitration. - Automatically unfair – conciliation / adjudication - Operational requirement dismissal – conciliation / adjudication. This means that issue must be correctly characterised, otherwise you might get the forum wrong. If in the wrong forum – it (usually) will not have jurisdiction – start afresh in the correct forum – which means that you probably be out of time. If you refer to the correct forum but out of time, that forum will not have jurisdiction – apply for condonation. Week 2: THE COMMON LAW AND CONTRACT OF EMPLOYMENT4 Fedlife Assurance Ltd v Wolfaardt (2001) Argued: that the effect of the 1995 Act is to confer on employees the right and remedies provided for in chapter 8 in the event of dismissal and to deprive them of their common-law remedies. Held: that the 1995 Act does not expressly abrogate an employee’s common-law entitlement to enforce contractual rights and nor does it so by necessary implication. Basically the Act does not take away the contractual rights of employees but gives them more rights. Baloyi v Public Protector and Others (2021). Par40… in other words, the termination of a contract of employment has the potential to find a claim for relief for infringement of the LRA, and a claim for enforcement of a right that does not emanate from the LRA (for example, a contractual right). JURISDICTION OF THE HIGH COURT Section 169(1) of the Constitution, the High Court may decide – (a) Any constitutional matter except a matter that – (i) The constitutional court has agreed to hear directly in terms of section 167(6)(a); or (ii) Is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa (iii) Any other matter not assigned to another court by an Act of Parliament. Section 157(1) and (2) of the LRA - The labour court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in chapter 2 of the constitution. - This means that the High Court cannot decide these matters because the LC has exclusive jurisdiction (1) labour court has exclusive jurisdiction in 4 Pathways created by the LRA deal with unfairness (which the common law courts do not deal with). But you can take contractual matters to the LC s77(3) of the BCEA  respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the labour court. Section 157(2) of the LRA and its relationship withs157(1) S157(2) does not extend the jurisdiction of the High Court to determine issues which, as contemplated in s157(1), have been expressly conferred upon Labour Court by the LRA but adds to the jurisdiction of labour court. It enables the lc to determine disputes concerning the alleged violation of any right entrenched in the Bill of Rights which arise from employment and labour relations. The jurisdiction is extended because the LC and the LAC are specialist courts steeped in workplace issues and best able to deal with complaints relating to workplace matters. S77(3) of the BCEA – The labour court has concurrent jurisdiction with civil court to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract. The course of action needs to be unlawfulness and not unfairness (Toyota) It must be contractual dispute between employer and employee (Zono) Makhaya v University of Zululand 2010 (SCA) Termination of a employment contract could possibly be a violation of the employee’s LRA rights (ccma / lc), court also be a violation of a fundamental right(right emanating from the common law) to insist on the performance of a contract, and an administrative action. Duties implied by common law Duty of employee Service (no right to paid leave at common law) Diligence and competence Good faith – can extend beyond end contract. Fiduciary duty – positive duty to disclose – limited. Respect and obedience. Duty of employer To receive into employment (is not obliged to provide work) Remuneration. Deductions – by consent and set-off, but see s 34 of BCEA. SA Maritime Safety Authority v McKenzie (2010) SCA Argument: pursued unfair dismissal claim – and settled it. Then pursued contractual claim: contractual term implied that contract could not be terminated unfairly – this in turn implied a fair – pre dismissal hearing. For it to be term of the contract it either had to be: - Express provision – could not show the court the exact contractual provision. The court had to ask whether it could be a tacit term? - Tacit term – imputed intention of the parties but what the officious bystander would have though. - Implied or tacit terms a. Implied term introduced by operation of law. b. Intention of parties not relevant Constitution, section 8 (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court- (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. THE BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997 Purpose/ object Purpose: advance economic development and social justice by fulfilling the primary objects of BCEA. Object: regulate the right to fair labour practices conferred by section 23(1) of the constitution by: establishing and enforcing basic conditions of employment and regulating the variation of basic conditions of employment. Give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Unfairness/unfair treatment in the context of the workplace has been given a specific meaning by the LRA and the place to enforce it I only in the CCMA and the LC. Unlawfulness/breach of common law contractual right is enforceable in the HC and LC as per this section, and thus if you want to pursue a common law claim, you need to make sure that there is a breach of contract. Consider which right is being breached to determine which court to go to: LRA right = CCMA or HC. Common law right = HC or LC. Constitutional right = HC or LC. Section 1 ‘basic conditions of employment’ means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment and includes the national minimum wage. NOT EVERY PROVISION OF THE BCEA IS A BASIC CONDICTION. The BCEA applies … with a few exceptions to all employees and employers. (section 6(3)) 1. Persons undergoing vocational training covered by the BCEA to the extent that their conditions of employment. 2. Employees on merchant ships covered y the Merchant Shipping Act. 3. Senior managerial employees excluded from Chapter 2 regulating working time. 4. Employees earning above a threshold earning level determined by the Minister excluded from Chapter 2 working time – R254 371 per year. 5. Sales staff who travel to their customs and regulate their own hours of work excluded from Chapter 2 regulating work time. 6. Employees who work less than 24 hours a month for an employer excluded from Ch2. Leave: ss19 – 27 S 19 Annual leave. S22 sick leave (paid) S25 Maternity leave. S25A Parental leave S25B Adoption leave. S25C Commissioning leave S27 Family responsibility leave (paid) Van Wyk and Others v Minister of Employment and Labour. It is declared that the provisions of section 25, 25A, 25B and 25C of the Basic Conditions of Employment Act and the corresponding provisions of the Unemployment Insurance Fund Act are invalid by reason of inconsistency with section 9 and 10 of the Constitution, tot eh extent that the provisions – (a) Unfairly discriminates between mothers and fathers. (b) Unfairly discriminates between one set of parents and another on the basis of whether their children – i. Were born of the mother. ii. Were conceived by surrogacy.  iii. Were adopted. Interim conditions: New parents from a natural birth will be able to determine how the four months of parental leave is shared among themselves, while parents of surrogate children, and adoptive parents to children under the age of two will get to enjoy the same parental leave rights. Sectoral determinations 1. Contract cleaning sector. 8. Children in the performance of 2. Civil engineering sector. advertising, artistic and cultural 3. Clothing and knitting sector. activities. 4. Learnerships. 9. Taxi sector 5. Private security sector. 10. Foresty sector 6. Domestic worker sector. 11. Farm worker sector. 7. Wholesale and retail sector. 12. Hospitality sector BCEA does not prescribe a minimum wage. The National Minimum Wage Act 9 of 2018 = current R27,58 per hour. - Applies to all workers and their employers except members of the South African National Defence Force. - Does not apply to volunteers - 'worker’ = any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind Section 73A of BCEA + 74 + 84 Week 3 Employment Aurthur and RTT Group (Pty) Ltd (2002) 43 ILJ 1699 (CCMA) Driver delivering online grocery orders for company which had a contract with Checkers, claimed that he was unfairly dismissed for unknown reasons and referred a dispute to the CCMA in terms of s191 of the LRA 1995. Contract – referred to as ‘independent contract agreement’ - Driver did not pay PAYE but VAT. - Received a remittance slip and not a pay slip. - No deductions for UIF. - Driver had to pay the company for his motorbike and insurance. - Driver does delivery according to the orders on the app. - Remittance slip set out the fees that were paid to driver for deliveries. The driver takes action against Athur, the person he had a contract with. Company objected to the jurisdiction of the CCMA on the basis that the driver was not an employee but an independent contractor. The commissioner considered: The driver only worked when there was a need for delivered via apps.  He did not pay PATYE nor was he subject to statutory deductions He paid for his own equipment and tools to carry out the work. The commissioner concluded that the driver was not an employee – CCMA lacked jurisdiction to entertain the dispute. EMPLOYMENT Employee [LRA/BCEA/EEA] (a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration and (b) any other person who in any matter assists in carrying on or conducting the business of an employer. And ‘employed’ and ‘employment’ have meanings corresponding to that of employee. Employment – not defined, but generally refers to the relationship between employee and employer. Employer – not defined in the LRA/BCEA/EEA, but generally refers to a person for whom employee works or is entitled to receive remuneration from. Worker – only defined in the NMWA as any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind. Type of employment - Standard employment (most of the below) = usually is a direct employment, with a single employer, full time and for an indefinite period. - Non-standard employment (at least one of the below) = indirect employment, multiple employers, part-time and for a fixed term. Safeguards to protect ‘employees’ from non-standardisation. IOL guidelines (recommendations) - Allowing a broad range of means for determining the existence of an employment relationship. providing for a legal presumption that an employment relationship exists where one or more relevant indications is present; and determining, following prior consultations with the most representative organisations of employers and workers, that workers with certain characteristics in general or in particular sector must be deemed to have either employed or self-employed. Test for employment (common law) - Smit v Workmen’s Compensation commissioner 1979 A right of supervision and control is indeed one of the most important indicators of contract of employment, but … a right of supervision and control is not the sole indicium (but the strongest).  Contract of service (employment) Contract of work (independent contr-) Object of contract is to render personal Object of contract is to perform specified services work or produce a specified result. Employee must perform services Contractor may perform through others. personally. Employer may choose when to make use Contractor must perform work within of services of an employee. period fixed by contract. Employee obliged to perform lawful Contractor must subservient to the commands and instructions of employer. contract, not under supervision or control of employer. Contract terminates on death of Contract does not necessarily terminate employee. on death of contractor – becomes part of deceased’s estate. Contract also terminates on expiry of Contract terminates on completion of period of service in contract. work or production of specified result. The role of contractual terms Denel v Gerber 2005 (LAC) - They devised their contract to escape tax law. they structured the contract to make it look like an independent contract. - The court held that courts cannot be swayed by what the parties call the relationship, but instead the court needs to look at the structure of the relationship/substance– despite of what they call it / how the contract is worded. This does not necessarily mean that terms of the contract will be totally disregarded, should be delt with on a case-by-case basis. - In this case, they found that although they called it an independent contract, it was actually an employment contract. State information technology agency (Pty) Ltd v CCMA (2008) - When a court determines the existence of an employment relationship, it must have regard for three primary criteria (the ‘reality’ test)5. Employer’s right to supervision and control. Whether the employee forms an integral part of the organisation with the employer. The extent to which the employee was economically dependent on the employer. S200A LRA: PRESUMPTION as to who is an employee (a) Until the contrary is proven, for purposes of this Act… a person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: 5 If you are asked in an exam to determine whether a relationship is an employment relationship, this is the test to apply. If the answer to all is yes, then its an employment relationship.  (a) The manner in which the person who works is subject to the contract or direction of another person’. (b) The persons hours of work are subject to the control or direction of another person. (c) In the case of a person who works for an organisation, the person forms part of that organisation; (d) The person has worked for that other person for an average of 40 hours per month over the last three months. (e) The person is economically dependent on the other person for whom he works or renders services. (f) The person is provided with tools of trade or work equipment by the other person (g) The person only works for or renders services to one person. Universal Church v Myeni 2015 - The court in this case held that there must be a legally enforceable agreement or some sort of contract before the presumptions apply. - They looked at the written agreement between the church and the priest and held that it was not a contract, as such the presumption cannot apply. Uber SA Technology Services (pty) Ltd v National Union of Public Service Allied Workers & Others (2018) - Two Uber companies – Netherlands and South Africa. The driver in this case contracted with Uber Netherlands. - Uber SA provide technical services to Uber + marketing Services. - In unfair dismissal proceedings the driver proceeded against Uber SA on the basis that they were employed by Uber SA. - The labour court (on review) found that the driver does not have a contract with Uber SA (its with Uber Netherlands) therefore they cannot be employees or presumed to be employees. This is following the precedent of Universal Church that the question of presumption cannot be determined where there is no contractual relationship between the parties. - The existence of a contractual relationship is a necessary pre-requisite to get the benefit of the presumption under s2000B. When does one become and employee: Code 26: The definition of an ‘employee’ includes a person who has concluded a contract of employment to commence work at a future date. Accordingly, it is not a requirement that the person has commenced work in order to be classified as an employee in terms of labour legislation. Non-standard employment Non-standard employment addressed by LRA. S198A-D (employees earning below BCEA threshold) - Employed by Temporary Employment Services (TES). Why are TES used: do not want hassle of managing employees (payroll, leave, disciple, dismissals etc); flexibility, need intermittent What is TES: section 198(1) of the LRA: (1) in this section, ‘the temporary employment service’ means any person who, for reward, procedures for or provides to a client other person- (a) who performs work for the client; and (b) who are remunerated by the temporary employment service. Who is the employer:6 section 198(2) of the LRA = the TES is the employer Who is liable for what: s198(4) TES and client are jointly and severally liable if the TES, in respect of any of its employees, contravenes – A collective agreement concluded in a bargaining council that regulates terms and conditions of employment. A binding arbitration award that regulates terms and conditions of employment; The BCEA, or A sectorial determination made in terms of the BCEA S198A – TES employees earning below earnings threshold (1) in this section, a temporary service’ means work for a client by an employee (a) for a period not exceeding three months. - Liability for dismissal: TES is liable because they are essentially the ‘employer’ (NUMSA v Abancedi) Employees on fixed term contracts. Part-time employees. - S200B (no threshold requirement) Lability for employer’s liability Assign Services v NUMSA 2018 (who is the employer once the deeming provision applies? - Assign services, a TES, placed 22 workers with Krost, a number of whom were members of NUMSA. - Assign services view was that section 198A(3)(b) created a dual employer relationship, while NUMSA contended that a sole employer relationship resulted from the section. - Majority: for the first three months the TES is the employer and then subsequently the client becomes the sole employer. 6 There is a commercial relationship between the client and the TES; there is a relationship between the client and worker – the client exercise the day-today ‘control’ over the worker; remunerations are paid by the TES – and the TES is the employers.  - Dissenting: the dual employer interpretation is correct – the language of the LRA does not expressly state that the TES would cease to be the employer after three months. S198(4A) If the client… is deemed to be the employer of an employee in terms of section 198A(3)(b) (a) The employee may institute proceedings against either the temporary employment service or the client or both the temporary employment service and the client. (b) … (c) Any order or award made against a temporary employment service or client in terms of this subsection may be enforced against either. - However the employee may also claim against the TES, as long as the TES is still in the picture – TES’s liability only lasts as long as its relationship with the client and while it (rather than the client) continues to remunerate the worker). - Nothing in law prevents the client and the TES from terminating their contractual relationship upon the triggering of section 198(3)(b), with the client opting to remunerate the placed employees directly. Section 198(2) gives rise to a statutory employment contract between the TES and the placed worker, which is altered in the event that section 198A(3)(b) is triggered. It is not a transfer to a new employment relationship, but rather a change in the statutory attribution of responsibility as employer within the same triangular employment relationship. Non-standard employment Section 198B does not apply to: - Employee earning above BCEA threshold. - Employer that employs less than 10 people, or that employs less than 50 employees and whose business has been in operation for less than two years. - If a fixed term contract is permitted by any statute, sectorial determination or collective agreement. S198B Fixed term contract with employees earning below earnings threshold - What is a fixed term contract. For the purpose of this section, a fixed term contract means a contract of employment that terminates on: (a) The occurrence of a specified event; (b) The completion of a specified task or project; or (c) A fixed date, other than an employee’s normal or agreed retirement age, subject to subsection (3). When may a fixed-term contract be concluded (a) An employee may employ an employee in a fixed term contract or successive fixed term contract for longer than three months or employment only if –  - The nature of the work for which the employee is employed is of a limited or defined duration; or - The employer can demonstrate any other justification reason for fixing the term of the contract. Examples of justifications for a fixed term contract contained in s198B(4). Fixed term contract not justified: what are the consequences - Section 198B(5) Employment in terms of a fixed-term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration (they basically become a permanent employee). - (9) an employer must provide an employee employed on a permanent basis with equal access to opportunities to apply for vacancies. Fixed term contract justified - (8)(a) must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment. - 198B(6) An offer to employ an employee on a fixed-term contract or to renew or extend a fixed-term contract must 1. Be in writing; and 2. State the reasons7 contemplated in subsection (3)(a) or (b) – in addition, these reasons should not be prohibited by s6(1) of the EEA. - Fixed-term contract for a period in excess of three months is permitted, provided that the above conditions are met. Piet Wes Civils CC v AMCU (2019) 40 ILJ 130 (LAC) - Piet Wes Civils provided certain services to a client, Exxaro Coal - Employees of Piet Wes were employed on contracts of employment (some written, some verbal) which made their employment subject to the employers’ contracts with Exxaro remaining in place - Exxaro terminated the service contracts on notice and Piet Wes gave one month’s notice of termination of employment to their employees - Piet Wes claimed that the employees were employed on fixed-term or limited duration contracts in circumstances where there was a justifiable reason under s 198B(4)(d), I.e., the employees had been employed to work exclusively on a specific project that had a limited or defined duration - The union argued that the contracts were indefinite duration contracts in terms of s 198B(5). - In respect of the written contracts: a possibility that future contracts may not be supplied by the employer’s client (Exxaro) not a specified even which in future will arise, nor is it related to the completion of a task or project or a fixed date, 7 (a) seniority, experience, length of service (b) merit (c) the quality or quantity of work performed (d) any other criteria of a similar nature.  bus is an operational risk which may occur, one under which any business operates. Court held that the fact that their contract with the client might end is not an ‘event’. As such, it is not a justifiable fixed contract = they are employed indefinitely. - In respect of the verbal contracts: these employees were not provided with written offers as required by s198B(6). These employees were thus not employed on the basis of a limited duration contract but rather for an unlimited duration and they should have been retrenched. - Consequently: all employment contracts entered into were of an indefinite duration as contemplated by s198B(5) and could not be terminated on notice without following fair dismissal procedures. Employees should be reinstated and retrenchment procedure should be followed. Section 198C does not apply - Employee earning above BCEA threshold - Employer that employs less than 10 employees or that employs less than 50 employees and whose business has been in operation for less than two years. - If a fixed term contract is permitted by any statute, sectoral determination or collective agreement. - Employee who ordinarily works less than 24 hours a month for an employer. - Duties an employee’s first three months of continuous employment with an employer. Section 198C – (1) a part-time employee is an employee who is remunerated wholly or partly by reference to the part the time that the employee works and who works less hours than a comparable full-time employee. - The employer must: treat a part-time employee not less favourably than a comparable full-time employee, unless there is a justifiable reason for different treatment. - Provide a part-time employee with access to training and skills development on the whole not less favourable than the access applicable to a comparable full- time employee. WEEK 4: DISMISSAL/ ULP / AUD / REMEDIES. LRA: section 185 - Every employee has the right not to be – (a) Unfairly dismissed; and (b) Subjected to unfair labour practice.8 Unfair labour practice: section 186(2) of the LRA. ‘Unfair labour practice’ = any unfair act or omission that arises between an employer and employer involving 8 Unfair conduct short of dismissal, but not any conduct short dismissal – listed in s186(2) + not unfair discrimination – EEA.  1. Unfair conduct by the employer relating to - Promotion; demotion; probation; probation (not dismissals related to probation); training; provision of benefits. 2. Unfair suspension of an employee or unfair disciplinary action short of dismissal. - Mukhari (not prescribed) Despite the fact that the arbitrator made an error of fact about the times of the meeting and the exam, they did not overlap, the conclusion would have still been reached even if the arbitrator did not make the mistake. The decision was reasonable. 3. Failure or refusal to re-instate / re-employ former employee per agreement 4. An occupational detriment (not dismissal) because employee made protected disclosure in terms of Protected Disclosure Act. The concept of a ‘benefit’ as used in section 186(2)(a) of the LRA. Apollo Tyre SA v CCMA (2013) - S186(2)(a) means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employee’s discretion. - Employee has to show a right or entitlement sources in contract or statute to such benefit. Pelindaba Workers Union v SA Nuclear Energy Corporation and Others (2020). - Employer granted a wage increase of 7,5% to those working in bads A-C. - Employees in band D only received 5% wage increase. - Union representing the employees referred ULP to CCMA ito s186(2)(a). - LAC: wage increase is not about a benefit as it is a dispute of interest – and that must go through the strike route. OTHER UNFAIR DISMISSALS s188 other unfair dismissals (dismissals that are not automatically unfair) (1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove (a) That the reason for dismissal is a fair reason – (substantive fairness) i. related to the employee’s conduct or capacity; or ii. based on the employer’s operational requirement; and (b) that the dismissal was affected in accordance with a fair procedure (procedural fairness) pathways: - automatically unfair dismissal: conciliation – adjudication. - Misconduct/incapacity dismissal: conciliation – arbitration - Retrenchment: conciliation – adjudication Terminations that are not dismissal  (1) resignation (unless a constructive dismissal). - Termination by the effluxion of time/fulfilment of term and condition. (2) retirement age (normal or agreed) - must distinguished between rules of retirement funds and retirement age for purposes of termination. - Working after termination – case law. (3) insolvency - contract suspended until terminated by liquidator or lapse of 45 days. - severance pay ito BCEA - however when a company goes into voluntary liquidation, it is deemed as termination because it is as a result of the doing of the employer. (4) agreement / waiver / settlement. (5) Death - Supervening impossibility (license revoked or work permit not renewed) (6) Deemed discharge ito legislation Onus in dismissal disputes: (1) the employee must establish the existence of the dismissal, (2) if the existence of the dismissal is established, the employer must prove that the dismissal if fair. What is a dismissal? S186(1) 1. Employer has terminated employment with or without notice. 2. An employee on fixed-term contract of employment reasonably expected employer to – renew a fixed term contract of employment or to be retained in employment on an indefinite basis. 3. Employee refused back by employer after taking maternity leave (automatically unfair). 4. An employer who dismissed a number of employees for same or similar reasons has offered to re-employ some of them. 5. An employee terminated employment with or without notice because employer made continued employment intolerable for employee (constructive dismissal). 6. An employee terminated employment after a transfer. Constructive dismissal Occurs when an employee terminates their contract of employment. Requirements: (1) Employee terminated the contract involuntarily. (2) Continued employment must, objectively, be intolerable.9 (3) Intolerable circumstances must have been of the employer’s making, and the employer must be culpably responsible for the conduct that created the intolerable condition. 9 this includes to any person who is in a senior position / oversees the employer / person they answer to. Resignation need not be of immediate effect. Generally, need to exhaust internal grievance procedure except if: futile or dysfunctional. Centre for Autism Research - The court held that the aggrieved employee must follow internal procedures before resigning, but only where the grievance procedure is effective. But in this case, the issue would have been sent to the CEO who was the one making the workplace intolerable, as such it was not possible/conducive for them to follow internal mechanisms. - There was constructive dismissal, there was good reasons for wanting to resign, good reason for serving their notice, good reason for not following internal mechanisms. Section 187 – lists reasons for which an employee cannot be dismissed for. - Dismissal contrary to s5 LRA – Protects right to freedom of association. - Participating in a protected strike or protest action. - Refusal to do work of protected striking employees. - Dismissal because of refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. - Dismissal to exercise right conferred by LRA - Pregnancy - Unfair discrimination - Transfer contemplated by s197/197A - Dismissal in breach of Protected Disclosures Act. Employee must show reason alleged = the dominant reason / cause of the dismissal - Ask: ‘but for’ the dismissal would/would not have occurred.10 Has employee produced sufficient evidence to raise a credible possibility that the dismissal occurred for a reason that would render it automatically unfair? Defence regarding age in s187(2) - Where an employer expressly permits an employee to work beyond the agreed or normal retirement age, this does not constitute a waiver of the right to dismiss that employee in terms of s187(2)(b) of the LRA (Motor Industry Staff Association v Great SA Autobody). The date of dismissal: s190 of the LRA. (1) The date of dismissal is the earlier of – (a) The date on which the contract of employment terminated; or (b) The date on which the employee left the service of the employer. (2) Despite subsection (1) 10 The distinction is important because whether or not it is a automatically unfair or constructive dismissal impacts the remedies the employee may get. If it is an automatic dismissal the employee may get compensation of 12 – 24 months salary, whereas if it is not automatically unfair the employee may get 12 months.  (a) If an employer has offered to renew on less favourable terms, or has failed to renew a fixed contract of the employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract. (b) If the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employer to resume work; (c) If an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re- employ the employee. REMEDIES: s193(1) of the LRA Subsection 1 provides that if the LC or arbitrator finds that a dismissal is unfair, the court/arbitrator may: (a) Order the employer to reinstate the employee form any date not earlier than the date of dismissal; (b) Order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) Order the employer to pay compensation to the employee. COMPENSATION: s193(2) of the LRA. Subsection (2) provides that the LC or arbitrator must require the employee to reinstate or re-employ the employee unless: a. The employee does not wish to be reinstated or re-employed. b. The circumstances surrounding the dismissal are such that a continued employed relationship would be intolerable. c. It is not reasonably practicable for the employee to reinstate or re-employ the employee; or d. The dismissal is unfair only because the employer did not follow a fair procedure e. If a dismissal is automatically unfair because the employers did not follow a fair procedure. Reinstatement does not restore the contract of employment but it merely directs the employees to tender their services and the employer to accept that tender. WEEK 5 MISCONDUCT AND INCAPACITY DISMISSAL. The other unfair dismissals: section 188 (1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove- (a) that the reason for dismissal is a fair reason [substantive fairness] (I) related to the employee’s conduct or capacity, or (II) based on the employer’s operational requirements, and  (b) that the dismissal was effected in accordance with a fair procedure. [procedural fairness] there are reasons for dismissal that may amount to good reason and does not violate section 188(1) of the LRA namely (a) conduct – inquiry (b) capacity – investigation (c) employer’s operational requirements – consultation Procedural fairness – conduct/capacity – Code of Good Practice/Schedule 8. Operational requirements – section 189/189A + Code of Good Practice on Dismissal Based on Operational Requirements + facilitation guidelines. MISCONDUCT DISMISSALS - good reasons = (mis)conduct. - Fair procedure = conduct – Code of Good Practice /Schedule 8. - Examples of misconduct ✓ Dishonesty; Absenteeism; Abusive language; Alcohol and substance abuse; Assault; Conflict of interest; Damage to property; Desertion; Sexual harassment; Insubordination; Intimidation; Negligence; Some off- duty conduct…., Participation in unprotected strike. DISMISSAL FOR MISCONDUCT: item 3.4-6 - Generally, it is not appropriate to dismiss an employee for a first offence, except if the conduct is serious and of such gravity that it makes a continued employment relationship intolerable.11 DISCIPLINARY PROCEDURES PRIOR TO DISMISSAL: item 3.1-3. 1. Workplace rules must create certainty and consistency in the application of discipline. o Standards of conduct are clear and made available to employees. o Some rule or standards maybe so well established and known that it is not necessary to communicate them. 2. Workplace discipline should be corrective or progressive. 3. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. o Informal advice and correction can suffice. o Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. 11 Example: gross dishonesty, wilful damage to the property of the employer, wilful engendering of the safety of others, physical assault on the employer, a fellow employee, client or customer, gross insubordination. In addition to the gravity of the misconduct, also consider: employee’s circumstances (length of service, previous disciplinary record, and person circumstances) nature of the job, circumstances of the infringement. Penalty of dismissal to be applied consistently and with parity.  o More serious infringements or repeated misconduct may call for a final warning, other action short of dismissal. o Dismissal should be reserved for cases of serious misconduct or repeated offences. The code of good practice + CCMA Rules. Must a workplace rule or standard always be in writing or formalised? Rule 80 “A rule or standard contained in a disciplinary code, collective agreement, contract or policy is normally sufficient proof of its existence. It the employer has no disciplinary code, the existence of the rule may be proved by testimony or inferred from the contract of employment, legislation or practice in the sector or establishment. The arbitrator may accept as a rule any basic rule of conduct applicable in all workplaces and any special rules may flow from the sector or the nature of the employer’s operations. Many of the universal rules flow from the duties inherent in every contract of employment such as the duties relating to performance (i.e., duties to keep time, comply with lawful and reasonable instructions) or relating to good order (duties to cooperate/respect co-employees, not to assault or harass co-employees) or relating to trust (duties not to engage in dishonest conduct or undermine the employer’s business or reputation)” MISCONDUCT: PROCEDURAL FAIRNESS. Item 4, the employer should: 4. Conduct an investigation – need not be formal. 5. Notify the employee of the allegations/give opportunity to state a case in response to the allegations. 6. Give the employee reasonable time to prepare the response. 7. Allow the employee the assistance of a trade union representative or fellow employee. 8. Discipline against a trade union representative/employee who is a office bearer/official of a trade union – first inform and consult the trade union. 9. Upon dismissal, employee should be given the reason for dismissal and reminded of nay right to refer the matter to BC or CCMA or to any dispute resolution procedures established ito collective agreement. 10. In exceptional circumstances, where employer cannot reasonably be expected to comply with guidelines, pre-dismissal procedures can be dispensed with MISCONDUCT: BREACH OF TRUST An employer relying on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence to justify a dismissal in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or circumstances of the dismissal, where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible. Autozone v Dispute Resolution Centre of Motor Industry. Misconduct: considering misconduct Item 7: person considering whether dismissal is unfair should consider: 11. Whether or not the employee contravened rule or standard regulating conduct in, or of relevance to, the workplace. 12. If a rule or standard was contravened, whether or not the rule was valid or reasonable rule or standard. 13. Whether the employee was ware, could reasonable be expected to have been aware of the rule or standard. 14. Whether the rue or standard has been consistently applied by the employer, and dismissal was an appropriate sanction for contravention of the rule or standard. National Union of Metalworkers of SA v PFG Building Glass - Employees worked as manufacturing operators at a glass manufacturer. - Dismissed for contravention of zero-tolerance policy on alcohol and drugs by testing positive for dagga whilst on duty. - Employee argues dagga is not a drug, but plant and its use has been legalised by CC. - Arbitrator: dismissal fair: There was a rule, employees were aware of the rule. Notwithstanding decriminalising private use of dagga, the rule was valid and reasonable because of the hazardous nature of business. Employer had zero-tolerance approach to the breach of the rule. Dismissal was an appropriate sanction. - Award was taken on review, the court was satisfied that the arbitrator’s finding fall within the band of reasonableness. DISPUTE RESOLUTION – MISCONDUCT DISMISSAL Section 191 LRA: Conciliation - Arbitration 191(5A) Despite any other provision in the Act, the council or commission must commence the arbitration immediately after certifying the dispute remains unresolved if the dispute concerns- (a) The dismissal of an employee for any reason relating to the probation; (b) Any unfair labour practice relating to probation; (c) Any other dispute contemplated in subsection (5) (a) in respect of which no party has objected to the matter being dealt with in terms of this subsection. a. Employee’s conduct or capacity. b. Constructive dismissal. c. Reason for dismissal unknown.  d. Unfair labour practice. Pre-dismissal arbitration 188A Inquiry by arbitrator (1) An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. (5) In any inquiry in terms of this section a party to the dispute may appear in person or be represented only by- a) a co-employee b) a director or employee, if the party is a juristic person; c) an office bearer or official of that party's registered trade union or registered employers' organization; or d) a legal practitioner, on agreement between the parties or if permitted by the arbitrator in accordance with the rules regulating representation at an arbitration before the Commission. (8) The ruling of the arbitrator in an inquiry has the same status as an arbitration award, and the provisions of sections 143 to 146 apply with the changes required by the context to any such ruling. INCAPACITY DISMISSALS - Good reasons = (in)capacity - Fair procedure = capacity – code of good practice/schedule 8. Incapacity - poor workplace performance item 8 and 9 questions that must be asked: failure to meet performance standard or misconduct? Employee aware or should reasonably have been aware of standard? Employee given fair opportunity to meet standard? Dismissal appropriate? Did employee get appropriate evaluation, instruction, training, guidance or counselling? Investigation? - Injury of ill health. item 10 and 11 PROBATION – ITEM 8(1) Purpose = to evaluate the employee’s performance. Period of probation should be determined in advance and be of reasonable duration. Employee should be given reasonable evaluation, instruction, training and guidance or counselling. Probation may be extended, and not dismissal or extension of probation unless employee is given a chance to make representations. A trade union representative or fellow employee may make the representations on behalf of the employee. Any person making a decision about the fairness of dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissal effected after the completion of the probationary period. INJURY OR ILL HEALTH: SICK LEAVE (BCEA) Section 22(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 'sick leave cycle' = the period of 36 months' employment with the same employer immediately following- a) an employee's commencement of employment; or b) the completion of that employee's prior sick leave cycle BCEA: Proof of Incapacity “23(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury.” LRA: INCAPACITY OF POOR HEALTH OR INJURY item 10 - Must investigate whether: I. Temporary/permanent II. Temporary, but absent unreasonably long/ investigate alternatives short of dismissal III. Permanent – reasonable accommodation (Witzenberg) Item 11 Any person determining whether a dismissal arising from ill health or injury is unfair should consider— - whether or not the employee is capable of performing the work; and  - if the employee is not capable— o the extent to which the employee is able to perform the work; o the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and o the availability of any suitable alternative work. IMATU v Witzenberg Municipality (2012) … I am of the view that the conclusion as to the employee's capability or otherwise can only be reached once a proper assessment of the employee's condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there, the employer must then establish whether it cannot adapt the employee's work circumstances so as to accommodate the incapacity, or adapt the employee's duties, or provide him with alternative work if same is available. I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognized as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. A dismissal would under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal - Employee should be given opportunity to state case - Conflation with disability and possibility of automatically unfair dismissal + EEA - Special circumstances - No need to exhaust sick leave; exhausted sick leave not indication of incapacity Notes from the bench: - Employee suffering from 'pre-morbid disorder’ - Dismissal was procedurally and substantively fair - Employer not obliged to retain non-productive employee, but must make proper assessment before resorting to dismissal. - Parexel International (Pty) Ltd v Chakane NO & others (2019) 40 ILJ 2334 (LAC) SPECIAL CIRCUMSTANCES – THE CODE 10(3)...In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. 10(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.