The Labour Appeal Court very recently in National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2013] ZALAC 10 per Ndhlovu JA held that “[e]ven if it were to be accepted that Selemela’s previous written warning, final or not, had lapsed that fact should not have relieved the commissioner from taking the written warning into account in determining whether or not the dismissal was fair, particularly bearing in mind that the previous transgressions were only five months old and, more importantly, startlingly similar to the present misconducts, namely, failing to obey a lawful instruction and leaving the workplace without permission. Such persistent insubordinate behavioural conduct could justifiably not be tolerated by any employer”

 

The principle that regard may be had to “lapsed” warnings stems from the dicta of Nicholson AJ in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) where he stated that “[i]t must also be recalled that there was in existence a written warning dating from March the previous year with a 12-month duration [which lapsed prior to the transgression]. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings.An employee’s duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances… I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal. That seems to be the purpose of the warning issued in October to the appellant. I am of the view that an employer is always entitled to look at the cumulative effect of the misconduct of the employee.”


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NEW EVIDENCE DURING ARBITRATION

Posted: January 31, 2013 in Uncategorized

It very often happens that an employer or employee attempts to present evidence at arbitration, which evidence was not presented during a disciplinary- or incapacity enquiry.

 

The Labour Appeal Court in County Fair Foods (PtyLtd v CCMA & others (1999) 20 ILJ 1701 (LAC) (“Country Fair”) found that “[t]he decision of the commissioner as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator. To that extent, the [arbitration] proceedings are a hearing de novo.”

 

This despite, the CCMA tends to follow the view expressed in French v Compuware Corporation Southern Africa 2003 (23) ILJ 2001 (CCMA), i.e. that Country Fair merely meant that the arbitration proceedings did not constitute an appeal and that as such all previously led evidence had to be presented de novo.  Commissioners thus favoured the view that evidence not led at the disciplinary hearing could not be led during the arbitration is the only case which says you cannot present evidence not presented at the initial disciplinary hearing.

 

The Constitutional Court however in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ; (2007) 28 ILJ 2405 (CC) at [§59] found that “[t]his determination [whether a disputed dismissal was fair] and the assessment  of  fairness  is  not  limited  to  what  occurred  in  the disciplinary hearing”.

 

In Wasteman Group v SAMWU & Others (2011) 32 ILJ 1057 (LAC) Davies JA similarly concluded that “[t]he commissioner is required to come to an independent decision as to whether the employers decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner”.

 

It was however only recently in IMATU obo Strydom v Witzenburg Municipality & others [2012] ZALAC 1;  [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC) where the Labour Appeal Court for the first time directly dealt with the question of new evidence being presented at an arbitration hearing.  In the said matter the employee was dismissed for incapacity and led evidence at the arbitration hearing which was not presented (or for that matter available) at the incapacity enquiry.  The Commissioner concluded that such evidence had to be disregarded.  Molemela AJA however (at [§15]) recorded that [o]n the understanding of what an arbitration hearing entails, one would have expected that the commissioner would listen to evidence afresh and then make a determination as to the fairness or otherwise of the employee’s dismissal. Instead of doing so, the commissioner sought to confine himself only to the evidence that was available as at the time of the enquiry notwithstanding the fact that new evidence was adduced before him, both documentary and oral. The latter approach was wrong as it equated an arbitration hearing with an appeal hearing of some sort, quite far removed from the principle enunciated in the afore-mentioned cases”.

 

From the above it is thus clear that new evidence may be led at an arbitration hearing.  One should however be careful as the reliance on such evidence might render the initial enquiry procedurally unfair, e.g. where a party intentionally elected not to confront the other party with damning evidence which were available during the initial inquiry.

SATAWU and Others v Moloto NO & Others the constitutional court had to consider if a strike notice conformed to section 64 of the Labour Relations Act and specifically whether the notice identified those intending participating.

 

In esse SATAWU issued a strike notice in terms whereof it stated that it was intent on commencing strike action on a certain date.  Equity Aviation (the employer) accepted the SATAWU strike to be protected but the participation by non-SATAWU members as unprotected.  Equity Aviation consequently dismissed the non-SATAWU strikers.

 

The constitutional court was split five judges to four judges in favour of finding that the strike notice also covered the non-SATAWU strikers.  It is thus pertinent to understand both judgments.

 

The minority judgment (per Maya AJ) placed great reliance on the judgment of the Supreme Court of Appeal which court drew largely on the chaos which would arise if notice needed not be given by / on behalf of all strikers.  The majority judgment stressed that there existed an agency shop agreement between SATAWU and Equity Aviation which on the common cause fact made SATAWU the agent of all workers employed by Equity Aviation.  The majority thus found that Equity Aviation could not have laboured under the misconception that the strike notice was only intended to cover the SATAWU members and concluded that “the union, which represented the dismissed strikers in the wage negotiations and in the referral for attempted conciliation under section 64(1)(a) before embarking on strike action, was competent also to give the single notice required under section 64(1)(b). Our concluding observation is this: to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process”.

 

 

 

 

Factual Disputes in Urgent Matters

Posted: December 12, 2012 in Uncategorized

In Steiner Hygiene (Pty) Ltd v Brown Margaret Sterikleen (Pty) Ltd and Others the Labour Court recently in an urgent application to enforce a restraint of trade agreement referred the dispute to trial in order to determine whether Stein Hygiene had a protectable interest.

 

It is trite that the Labour Court found there to be urgency.  This despite it elected not to determine whether the requirements for an interim order (as per Plascon Evans Paints Ltd v Van Riebeeck Paints(Pty) Ltd 1984 (3) SA 623 (A)) was met.   In this regard it was held in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 26, that ‘[m]otion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts”.  The Labour Court specifically found that “[t]he issue of the extent of the knowledge and information which the respondents are alleged to have acquired whilst in the employment of the applicant which they could use is, in my view, fundamental to the question of the proprietary interest of the applicant and can at best be determined by oral evidence”.  There thus existed a dispute of fact and as such and on the basis of Plascon Evans the version of the applicant (read with the common cause facts averred by the respondent) should thus have prevailed for purposes of the granting of interim relief.

 

 

 

 

 

In Safcor Freight (Pty) Ltd t/a Safcor Panalpina v South African Freight and Dock Workers Union, increases were given solely to non-unionized employees as negotiations with the relevant union was only set for a later stage.  

 

The Labour Appeal Court per Murphy AJA (now JA), not surprisingly,  found that the said “conduct was… [a] form of anti-union discrimination as proscribed by section 5(2)(c) and section 5(3) of the LRA.”

 

More importantly, Murphy AJA found that section 158(1)(a)(iii) of the LRA confers upon the Labour Court, “[t]he power to make any appropriate order including an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of the LRA”.  In casu this power extended to the Court ordering Safcor to afford the unionized employees the same increases as afforded to the non-unionized employees and further backdated these increases to the date of implementation.

In Randwater v Stoop and Another, Randwater sought to recover damages following from the misconduct of two employees in the Labour Court.  

 

Randwater placed reliance on section 77(3) of the Basic Conditions of Employment Act which reads that “[t]he Labour Court has concurrent jurisdiction with the civil courts 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 Labour Appeal Court per Waglay AJP (now JP), agreed that section 77(3) allows for a claim in the nature of that brought by Randwater to be instituted in the Labour Court and recorded that “[t]he word ‘concurrent’ in s77 (3) places the Labour Court in exactly the same position as the High Court with the same powers and authority in relation to matters concerning a contract of employment.  The last part of the s77(3) provides the Labour Court with jurisdiction irrespective of whether any basic condition of employment constitutes a term of the employment contract. This demonstrates that the Labour Court has jurisdiction over any claim as long as it involves a contract of employment.. The words ‘any matter’ in s77(3) are broad and the literal interpretation does not limit the claims, in relation to a contract of employment, to a specific category. Damages, both liquid and illiquid, are included”.

In PT Operatioal Services (Pty) Ltd v RAWU obo , the Labour Appeal Court per Musi AJA was vexed with a scenario where a CCMA commissioner dismissed a rescission application in an instance where it was not timeously brought and no application for condonation was made.  The rationale for dismissing the application being that no application for condonation was made.

 

Musi AJA found that there was solely a procedural defect and that the Commissioner was not functus officio.  Musi AJA further reasoned that the dismissal of the application in such circumstances was similar to a ruling of absolution from the instance and as such the application could be re-enrolled upon procedural compliance.  He finally noted that the Commissioner should rather have struck the matter from the roll.