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The impact of violence occurring during a protected strike on the nature of the strike and the subsequent dismissal of employees

Tue, 31 Oct 2023 15:00:39 GMT

In African Meat Industry and Allied Trade Union (AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd (D1050/2019) [2023] ZALCD 17 (17 October 2023) , the Labour Court was called upon to consider a diverse range of issues that arose on account of a protected strike that turned violent. In particular, in this judgment the Court dealt with the following issues:

Whether it is possible for a protected strike to become “unprotected” and if so, what is required for a strike to lose its protection,
The dismissal of employees on the basis of:

unlawful conduct during the course of a strike;
derivative misconduct; and
contempt of a Court order and non-compliance with picketing rules and the Code of Good Practice on Picketing ( “Code” ).

The appropriate relief in respect of an unfair dismissal of “striking” employees.

The strike and disciplinary proceedings

During June and July 2018, employees of Shave and Gibson Packaging (Pty) Ltd (“ Company ”) embarked on a strike called by the African Meat Industry and Allied Trade Union (“ AMITU ”) in relation to increased wages and shift allowances, guaranteed bonuses and the removal of the Company’s HR Manager. The strike was protected and during the course of the strike, all demands other than the wage increase demand were abandoned.

The strike was marred with violence, harassment and intimidation, which the Company contended was on the part of AMITU members. For the most part, AMITU denied the involvement of any their members (“ Striking Employee s”) in any unlawful conduct. Eventually, the Company obtained a Court order interdicting AMITU and the Striking Employees from engaging in any unlawful conduct. The Court order also required AMITU and the Striking Employees to comply with certain picketing rules relating to the distance that they were meant to be from the Company’s premises, as well as relating to a prohibition against the brandishing of weapons during the picket action.

Despite the Court order, the strike violence, intimidation and harassment continued. In response to this, the Company wrote to AMITU and declared the strike was no longer conducive to collective bargaining and alleged that it has lost its protected status due to its protracted duration and the persistent unlawful conduct that had accompanied the strike. AMITU, however, maintained that the strike retained its protected status.

The Company had also called upon AMITU to identify the perpetrators of the unlawful conduct that occurred during the strike, failing which the Striking Employees would be charged with derivative misconduct. On this issue, the Company had affixed a “whistleblower notice” on its fence, encouraging the Striking Employees to anonymously report any knowledge that they had of the perpetrators of the unlawful conduct. AMITU was of the view that the Company had means available to identify the preparators of the unlawful conduct by means of, for example, the viewing of CCTV footage.

While AMITU had ultimately offered that the Striking Employees return to work, thereby calling off the strike, the Company advised it of its intention to take disciplinary action against the Striking Employees and as such, requested that they not return to work but instead present themselves at a disciplinary hearing that was to be convened.

The allegations of misconduct against the Striking Employees related to the following:

charge 1 : their participation in an unprotected strike;
charge 2 : derivative misconduct;
charge 3 : being in contempt of the Court order granted to the Company; and
charge 4 : the harassment and/or intimidation or assault specific individuals.

Pursuant to a disciplinary hearing being held in relation to the above allegations, the Striking Employees were dismissed from the Company’s employ.

The Labour Court’s findings

The first issue that the Court had to determine was whether all of the Striking Employees, as AMITU members, participated in the strike. The Court noted that while lists of “identified” and “unidentified” employees were referred to by the Company during the trial had in fact referred to those of the Striking Employees who had been positively identified as having picketed and those who had not. The Court further accepted the Company’s version that no AMITU members, including the Striking Employees, had reported for work for the duration of the strike. In addition, ultimately AMITU and the Striking Employees conceded in their closing arguments that the latter had participated in the strike. Consequently, the Court found that all of the Striking Employee were part of the strike called by AMITU.

The loss of “protection” during a strike

The Court then proceeded to deal with whether it is possible for a strike to lose its protected status and if so, in which circumstances this could arise.

In the first instance, the Court found that it was not possible for a strike to lose its protection merely because the demands made by a union and its members were “unreasonable”. In particular, the Court held that the Company’s argument in that regard was devoid of any basis because it was not obliged, in law, to give into the demands made by AMITU. The Court further reiterated that the reasonableness of demands made during a collective bargaining process is not justiciable, provided that the demand: (i) relates to a matter of mutual interest between and employer and employees; (ii) does not fall foul of sections 64(1)(a) (relating to the referral of a dispute to the a Bargaining Council or the CCMA) and/or section 65 (relating to limitation on the right to strike) of the LRA; and (iii) does not require an employer to act unlawfully. In the circumstances, the Court held that the Company was not entitled to treat the strike as “unprotected” purely on the basis of its view that the wage demands made by AMITU were unreasonable. The Court further held that to the extent that AMITU had continued to make any unlawful demands (e.g., the initial demand relating to the dismissal of the Company’s HR Manager), the Company ought to have sought an order prohibiting such demand/s.

In relation to whether it was possible to the duration of a strike to have an impact on its “protected” status, the Court found that there was no legal authority for the contention that an otherwise protected strike loses its protection merely due to it being of a “protracted” duration.

Moving onto the issue of the violence and intimidation that had taken place during the strike, the Court made the following findings:

While no reliable evidence had been provided in relation to any violence and intimidation that had taken place on the picket line outside the main entrance to the Company’s premises, it had to be accepted that the strike was marred with violence and intimidation having regard to the following:

some of the Striking Employees were found to have brandished dangerous weapons while picketing;
rocks had been thrown at trucks belonging to the Company and one of its clients;
trucks belonging to the Company had been petrol bombed and shot at with live ammunition while being driven;
the home of a non-striking employee had been set alight while he was at work; and
a social media post by one of the Striking Employees and WhatsApp messages sent from unidentified numbers had been used as a means to intimidate non-striking employees.

Therefore, despite no evidence having been led directly linking any of the Striking Employees to the violence and intimidation (except for the brandishing of weapons during picketing and social media post), the probabilities were that these instances were linked to the strike by reason of the targets of the violence and intimidation, the timing of the instances and the signs of premeditation.
There had been some debate over time, both in judgments by our Courts and through journal articles by academics and practitioners, regarding whether it was possible for a violent strike to lose its protected status. However, it held that even where the strike was marred by violence and intimidation, it was not open for the Company to have declared, of its own accord, that the strike had lost its protection. To do so, the Court held, would be to impermissibly discard of the constitutional right to strike of those Striking Employees who peacefully exercised their right.
To the extent that the Company sought to have the protected strike declared “unprotected”, it ought to have approached the Court for such an order and a consequent interdict or order that the strike to be suspended, which it did not do.
·Finally, even if the Striking Employees were indeed involved in an unprotected strike, there were certain processes set out in the LRA in relation to dismissals of such a nature. One of the steps in that process was for an employer to issue an ultimatum calling upon the striking employees to return to work. The Company failed to comply with the relevant legislative processes in that regard.

As a result of all of the above, the Court found that there was no basis for the dismissal on the Striking Employees in relation to their alleged participation in an unprotected strike.

Dismissal for unlawful conduct during the strike

Insofar as the harassment, intimidation and assault of specific individuals was concerned, the Court found that other than two of the Striking Employees, there was no evidence that had directly or circumstantially linked any of the other Striking Employees to such conduct. As such, the Court found that the dismissals of only the two Striking Employees who had been identified as engaging in objectionable conduct was justified.

Dismissal for derivative misconduct

The Court confirmed that the current position in our law in relation to derivative misconduct is that where an employer seeks to impose a duty on employees to disclose information about their fellow striking employees, an employer must prove, on a balance of probabilities, actual knowledge of the perpetrators of the wrongdoing on the part of the employees. In addition, the reciprocal nature of the trust relationship between an employer and its employees then requires the employer to guarantee the safety of the “disclosing” employees. In addition, the Court held that where an employer had the means to obtain the relevant information regarding wrongdoing on the part of striking employees, there would have been no ground to burden its employees with a duty to provide the information.

Ultimately, the Court found that on the facts before it, it was unlikely that the Striking Employees had actual knowledge of the perpetrators of the unlawful that had occurred during the strike. This was in circumstances where some of the violence that had taken place (that is, the stoning, firebombing and shooting at the drivers of the trucks) happened at night and not during or near an active picket. The Company was further unable to place any of the Striking Employees at the “scenes of the crimes”, nor were there any circumstances from which it could be inferred that they had knowledge of the perpetrators. The position was same in relation to the arson attack on a non-striker’s house and the attacks on non-strikers and contract workers that had occurred.

In addition, the Court found that the Company was, in any event, in a position to ascertain certain information without the assistance of the Striking Employees. For example, the Company could have identified the sender/s of the WhatsApp messages and it had identified a Striking Employee who had made threatening posts on social media posts, as well as having obtained a protection order against another Striking Employee for alleged threatened assault during the strike. Furthermore, the Attorney had also informed AMITU that the Company was in the process of identifying the individuals involved in attack on the contract workers through photographs.

The Court also found that even if any of the Striking Employees had been in a position to identify the perpetrators of wrongdoing, a careful reading of the Whistleblower Notice issued by the Company did not disclose a guarantee of a whistleblower’s safety. Therefore, the Court found that the Company had not discharged its reciprocal duty of good faith.

Finally, the Court confirmed that there was no requirement or duty in our law for the Striking Employees to have actively and positively dissociated themselves from the unlawful acts in question. Nor was there any evidence led, whether direct or circumstantial, that the Striking Employees had in some form associated themselves with the violence before it commenced or even after it ended, thereby making them complicit in the relevant misconduct.

As a result of all of the above, the Court found that the Company had not been able to sustain the dismissal of the Striking Employees on the basis of derivative misconduct.

Dismissal as a result of contempt of Court and non-compliance with the Code

The Court noted that issues involved the contempt of Court and non-compliance with the Code concerned three aspects, namely where the Striking Employees picketed, whether they had hindered access and egress to the Company’s premises and whether they remained armed with weapons during the picket action after the Company had obtained a Court order prohibiting same.

The Court found that the order that had been granted in relation to where the Striking Employees could picket was contradictory in that could be seen to refer to varying distances that they could picket from the Company’s premises. This was particularly in relation to the cross-references to the final picketing rules obtained by the Company and the contents of the Recognition Agreement between the Company and AMITU. The Court found that, all things considered, those of the picketers had substantially complied with the relevant Court order in relation to the distance that they were required to be away from the Company’s premises.

The Court further found that there was no reliable evidence before it to support the claim that picketers had prevented employees and clients from entering the Company’s premises and that they had harassed and intimidated persons trying to enter the Company’s gate. However, there was substantial evidence before the Court that demonstrated that several of the Striking Employees had continued to carry weapons during the picket action even after a Court order had been obtained prohibiting from doing so, as well as after a ruling by the CCMA that directed that the picketers must be unarmed (which was, in any event, in line with the provisions of the Code). Therefore, the Court found that those of the Striking Employees who had carried weapons when they were prohibited from doing so had committed a dismissible offence.

The relief to be granted to the Striking Employees

In terms of the fairness of the Striking Employees’ dismissals, the Court found that while their dismissals were procedurally fair, other than those of the Striking Employees who had been identified committing misconduct and/or who could be directly linked to wrongdoing, the dismissals of the remaining Striking Employees were substantively unfair.

The question that remained was what relief the Striking Employees were entitled to as a result of their substantively unfair dismissals. The Company contended that the circumstances surrounding the Striking Employees’ dismissals were such that a continued employment relationship would be intolerable given the violence and intimidation that plagued the strike, the fact that it in most of the instances did not know who the actual perpetrators were and the fact that none of the Striking Employees has disassociated themselves from the strike violence and inflammatory statements that AMITU had made about it.

While the Court acknowledged that the case put forward by the Company was compelling, it was constrained by the fact that for there was no direct or circumstantial evidence linking any of the Striking Employees to the violence and intimidation. Furthermore, there was no duty on the Striking Employees to dissociate themselves from the violence and intimidation committed by other employees during a strike or even condemn it. Consequently, the Court held that the remaining Striking Employees were entitled to the primary relief allowed by the LRA, being an order of reinstatement. However, given the nine month delay occasioned by AMITU and the Striking Employees in the prosecution of their claim, the Court found that reinstatement to the date of dismissal would be inappropriate and limited the extent of the reinstatement order by the same period of the delay.

Concluding remarks

This judgment provides helpful guidance to employers on how to deal with certain issues that may arise during a strike, whether protected or unprotected and this includes, among other things, the following:

Only the Labour Court would be in a position to declare a protected strike as “unprotected” and even so, such a declaration would likely one be made in exceptional circumstances due to the constitutionally enshrined right to strike.
It is becoming increasingly difficult to take disciplinary action against employees for unlawful conduct during a strike in the absence of proper identification of employees who are involved such conduct. As such, employers must use all reasonable means possible to identify specific perpetrators and take caution in attempting to discipline employees who have not been properly identified engaging in unlawful conduct. Means of identification may include CCTV, eyewitness accounts, photographs and the like, in conjunction with keeping a detailed strike diary.
In relation to alleged derivative misconduct, employers must take all reasonable steps to guarantee employees’ safety before requiring them to come forward with any information that they may have about the perpetrators of misconduct. Even so, employers must not impose a duty on striking employees to come forward if they have other available means to identify the perpetrators of misconduct or where it is unreasonable to expect that the striking employees would have any information to share in relation to the perpetrators. Allegations of derivative misconduct brought in such circumstances are unlikely to succeed as well.
Employers must ensure that Court orders obtained in relation to unlawful conduct during a strike are clearly worded in the event that there is an intention to take disciplinary action against striking employees for non-compliance with any such orders.

No information provided in this article may in any way be construed as legal advice. Fact specific advice must be sought before any action is taken based on the information provided in this article, and consent must be obtained from Wilken Incorporated before the information in this article is reproduced in any way. Wilken Incorporated disclaims any responsibility for actions taken without proper consultation / consideration by it and/or information reproduced without its consent.

Can the unpleasant consequences of the exercise of managerial prerogative be regarded as harassment?

Fri, 20 Oct 2023 13:42:00 GMT

In La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (8 September 2023) , the Labour Court was called upon to shed some light on the intricate legal concepts involving harassment as a form of unfair discrimination within the meaning of section 6(3) of the Employment Equity Act 55 of 1998 (“ EEA ”).

The Applicant in this matter, Ms Gabriella La Foy, was formerly employed as a Director-General by the Department of Justice and Constitutional Development (“ DoJCD ”). Ms La Foy had referred a claim of unfair discrimination to the Labour Court, claiming that she experienced harassment during her tenure at the DoJCD.

Ms La Foy’s claim of unfair discrimination was premised on, among other things, the following allegations:

Her branch that she was managing within the DoCJD was grappling with capacity issues due to staff shortages. She subsequently completed a request to fill up vacant positions which she considered critical and she had provided a motivation outlining the necessity of these positions. However, her request was declined, which she perceived as harassment.
Several complaints were made against Ms La Foy, resulting in her receiving “audi alteram partem” (tell your side of the story) letters. She contended that the issued letters amounted to further harassment. While the DoCJD investigated the complaints against her, Ms La Foy was transferred to another position pending the finalisation of the investigation. She viewed this transfer as a demotion and an additional form of harassment. Over time, Ms La Foy felt marginalised, believing that her duties were being unfairly stripped away.
She also claimed that she was denied international trip opportunities, which were part of her responsibilities, as well as leave requests being denied.

The above issues culminated in Ms La Foy first referring a dispute to the Commission for Conciliation, Mediation and Arbitration, and ultimately, the Labour Court, in which she claimed that the alleged harassment that she had experienced constituted unfair discrimination on arbitrary grounds.

THE LABOUR COURT PROCEEDINGS

The Labour Court had confirmed in relation to Ms La Foy’s claim that an action is arbitrary in where “it is whimsical or based on random choice or personal whim rather than any reason or system.” With this in mind, in analysing Ms La Foy’s claim, the Labour Court considered several authorities to dissect the legal definition of harassment in a workplace, including the following:

the grammatical meaning of harassment involves “aggressive pressure or intimidation” and to harass means to “trouble by repeated attacks”;
the Code of Good Practice on Prevention and Elimination of Harassment in the Workplace (“ Code ”) provides that harassment includes unwanted conduct which impairs dignity and which creates hostile and intimidating work environment;
the Code also provides that harassment may also take the form of conduct that humiliates or demeans an employee; and
section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 defines harassment as being “ unwanted conduct is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and is related to sex, gender or sexual orientation or association with specific grouping ”.

The Court further noted that the grammatical meaning of harassment in a workplace could be easily used by employee to avoid the differentiation between the exercise of managerial powers on the one hand and harassment on the other. This means that an employee may seek to interpret a work-related instruction or decision, which is unsatisfactory to him/her, as constituting harassment. In this regard, the Court cautioned that consideration must be given to the potential over-sensitivity of employees bringing work-related harassment complaints (similar to how one could consider whether or not a party has been constructively dismissed). Accordingly, the Court in essence found that harassment in a workplace must be assessed objectively as opposed to being assessed subjectively.

Ultimately, the Court held that Ms La Foy’s claim did not meet the criteria of harassment when assessed objectively. Importantly, it held that merely because Ms La Foy was dissatisfied with the decision to declined her request to have positions filled, when viewed objectively, this could not be interpreted to constitute harassment in terms of the EEA. Instead, it was held that Ms La Foy’s claim amounted only to an unpleasant consequence of the exercise of management functions.

The Court accordingly found that Ms La Foy had failed to discharge the burden of proof that the DoCJD had unfairly discriminated against her and noted that the issue of capacity / staff shortages applied not only to her, but as other branches had also experienced similar problems. Furthermore, the Court dismissed Ms La Foy’s claim that the refusal to allow her to partaking in international trips amounted to unfair discrimination in the form of harassment. In this regard, the Court held that a failure to support a work-related function cannot amount to unfair discrimination nor was the decision to exclude her from the international trip whimsical (i.e., arbitrary). With regard to the decision to decline Ms La Foy’s request for leave, the Court held that in circumstances where there was an operational need to revoke a request for leave, an employer may do so provided that it does not completely take away those annual leave days allocated to an employee.

CONCLUDING REMARKS

The Labour Court’s finding in this matter provides a helpful insight for employers on how a Court may evaluate claims of workplace harassment and unfair discrimination.

What is clear from this judgment is that there is a differentiation between a simple work-related instruction, constituting the exercise of managerial prerogative, and an instruction that may demean one’s dignity, ultimately constituting unfair discrimination in the form of harassment. Ultimately, it remains important for employers, as far as is reasonably possible, to create a workplace free of harassment to avoid liability for claims in terms of EEA.

This article was reviewed by Lee Masuku, a Director of Wilken Incorporated. This notwithstanding, no information provided herein may in any way be construed as legal advice. Fact specific advice must be sought before any action is taken based on the information provided in this article, and consent must be obtained from Wilken Incorporated before the information in this article is reproduced in any way. Wilken Incorporated disclaims any responsibility for actions taken without proper consultation/ consideration by it and/or information reproduced without its consent.

Could the adoption of COVID-19 vaccination policy constitute unfair discrimination based on an arbitrary reason?

Fri, 20 Oct 2023 13:28:32 GMT

In Maasdorp v University of the Free State (JS647/22) (12 October 2023), the Labour Court was called upon to consider the possible fairness of a dismissal arising from the implementation of a COVID-19 vaccination policy (“Policy”). In this regard, the Applicant in the matter ( “Mr Maasdorp” ) claimed that his dismissal from the Respondent ( “UFS” ), resulting from his failure to comply with the Policy, was automatically unfair. Ultimately, the Court’s consideration of Mr Maasdorp’s claim was within the context of it determining a condonation application for the late filing of the claim. While the Court considered the other required factors in relation to Mr Maasdorp’s condonation application, for purposes of this article the focus will be on only two of those factors, namely the prospects of success and the importance of the case.

FACTS OF THE MATTER

The UFS adopted the Policy on 26 November 2021 and on its version, the Policy was introduced in line with its obligations in terms of the Occupational Health and Safety Act 85 of 1993 (“OHSA”) and the Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces of 11 June 2021 (“Consolidated Direction”). In terms of the Policy, employees were required to be vaccinated against COVID-19 in order to gain access to the workplace. However, the Policy also allowed employees who chose not to be vaccinated to either:

apply for an exemption from the application of the Policy on religious, medical or other grounds; or
provide a negative COVID-19 test not older than seven (7) days in order to gain access to the workplace.

Once the Policy had been adopted, UFS issued several instructions to Mr Maasdorp, who was employed in an administrative position, calling upon him to return to the workplace subject to him complying with the Policy. While Mr Maasdorp refused to be vaccinated, he proffered no reasons for his refusal. He further did not apply for an exemption from the Policy, nor did he produce negative COVID-19 tests as was also allowed in the Policy. A disciplinary hearing was held in relation to Mr Maasdorp’s failure to comply with the UFS’ instruction that he return to work and, effectively, his non-compliance with the Policy. Pursuant to this disciplinary hearing, Mr Maasdorp was dismissed from the UFS’ employ. As a result, the Court had to consider whether, for purposes of determining the prospects of success of his automatically unfair dismissal claim, Mr Maasdorp’s dismissal through the application of the Policy was discriminatory.

THE LABOUR COURT’S DECISION

The Court noted that Mr Maasdorp’s claim was that his dismissal from the UFS’ employ was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 ( “LRA” ), in that it was discriminatory on the arbitrary ground of his vaccination status. It went on to confirm that discrimination is arbitrary where it takes place in “the absence of reason or, at the very least, the absence of a justifiable reason”.

The Court correctly noted that while it was possible that the Policy was “discriminatory” in the simplest, neutral sense of the word (given that it discriminated against UFS’ employees who were unvaccinated, not in possession of an exemption nor in possession of a negative COVID-19 test), the question of whether this was unfair discrimination and/or differentiation was a separate enquiry.

Therefore, on whether the Policy constituted discrimination against Mr Maasdorp on an arbitrary ground, the Court held as follows:

UFS’ claim in its Answering Affidavit that the implementation of the Policy was “guided by the scientific consensus regarding the value of vaccinations” was not disputed by Mr Maasdorp (in that he did not file a Replying Affidavit dealing with this averment).
With the above in mind, to base a workplace rule on scientific consensus can categorically not be arbitrary and instead, is the antithesis of arbitrariness.
There was no other reason that the Policy could be described as arbitrary.
Mr Maasdorp advanced an argument that the UFS did not comply with the OHSA (and its applicable regulations) and the Consolidated Direction when it failed to accommodate him in terms of the Policy. However, in circumstances where this argument was not in the pleadings before the Court, it could not be considered for purposes of determining Mr Maasdorp’s condonation application.
Even though the fact that the issue of “accommodation” could not be considered for purposes of the condonation application, the Court remarked that the failure to accommodate would speak more to the fairness of the dismissal as opposed to the alleged arbitrary nature of the Policy.
Therefore, where it was undisputed in the pleadings before the Court that the Policy was consistent with the Consolidated Direction and that it was, consequently, undisputed that the Policy was sanction by law, it could not be described as being arbitrary.

In light of the above, the Court held that Mr Maasdorp had poor prospects of succeeding with his automatically unfair dismissal claim given that it could not be said that the Policy unfairly discriminated against him on an arbitrary ground. While acknowledging the importance of matter (that is that it related to a dismissal related to the implementation of a COVID-19 vaccination policy), the Court found that this issue could not make up for Mr Maasdorp’s poor prospects of success. Accordingly, the Court dismissed Mr Maasdorp’s condonation application for the late filing of his automatically unfair dismissal claim.

CONCLUDING REMARKS

The Labour Court’s finding in relation to Mr Maasdorp’s automatically dismissal claim is not entirely determinative of the approach our Courts are likely to take in relation to unfair dismissals claims related to the implementation of COVID-19 vaccination policies in terms of the Consolidated Direction. Particularly where in this matter, the merits of Mr Maasdorp’s claim were only relevant to a determination of whether or not he ought to be granted condonation. It remains possible that each case will be determined on the specific facts before the Court at the time. The extent to which an employer complied with the Consolidated Direction and the processes provided for in the LRA, prior to dismissing an employee, are likely also to be taken into consideration in an unfair dismissal claim either before the Labour Court or another dispute resolution body.

Notwithstanding the above, what the Labour Court’s decision in this matter does is that it gives guidance regarding how an employer’s adoption of a COVID-19 vaccination policy in terms of the provisions of the Consolidated Direction is likely to be treated. In other words, where an employer alleges that it relied on the Consolidated Direction and the prevailing “scientific consensus” in implementing a COVID-19 vaccination policy, it is unlikely that a Court would find that for purposes of section 187(1)(f) of the LRA, a dismissal arising therefrom was discriminatory and “arbitrary” given that the implementation of such a policy cannot be said to be in the absence of any reason, alternatively a justifiable reason. Caution must still be adopted, however, in circumstances where the position may still be different if a party puts up a substantive argument against the reliance on the Consolidated Direction and “scientific consensus” for the adoption of a COVID-19 vaccination policy, which Mr Maasdorp had failed to do in this instance.

Mandatory vaccination – there is no one size fits all

Wed, 23 Mar 2022 08:12:03 GMT

South Africa has been dealing with the COVID-19 pandemic for just under two years now. However, in as much as employers have managed their businesses in a way suited to the prevailing lockdown restrictions at any given time, the “old normal”, being employees reporting for work in office, remains a necessity for many employers. With employees returning to work, the implementation of mandatory vaccination policies has increasingly become the “elephant in the room”.

There are some who have raised their concerns with the lawfulness and/or constitutionality of vaccine mandates. However, to date our Courts have not made any specific pronouncements on the issue. Despite this being the case, two recent decisions have assisted in giving guidance to employers, as well as highlighting the pitfalls, associated with the implementation of a mandatory vaccination policy.

The takeaways from this article and the authorities discussed herein are as follows:

In implementing a vaccination policy, there is no one size fits all.
The procedure followed by an employer in the implementation of a vaccination policy will be closely scrutinised. Employers must fully and properly consult with employees and/or their representatives and safety representatives in respect of all aspects of a vaccination policy.
A policy relating to mandatory vaccination against COVID-19 should take into account the operational needs of an employer as determined by a risk assessment. It is through this risk assessment that Employees who must be vaccinated are identified.
Admission or access policies do not constitute mandatory vaccination policies, particularly where an alternative to vaccination is catered for.

Steps must be taken to reasonably accommodate employees who refuse to be vaccinated, for any reason, and reasonable accommodation is mandatory in circumstances where employees have medically accepted contra-indications for vaccination.

Factors to consider in an unfair dismissal for a refusal to vaccinate

The first of these decisions is that of CCMA Commissioners Winnie Everett and Laurie Warwick (“the Commissioners” ) in Dale Dreyden v Duncan Korabie Attorneys (WECT13114-21) . The importance of this decision is that it has provided insight into the factors that the CCMA is likely to take into account in determining the fairness of dismissals on account of an employee’s refusal to vaccinate.

In this matter, Mr Dreyden sought to have his dismissal from a law firm’s employ declared as both procedurally and substantively unfair. Mr Dreyden alleged that his dismissal was on account of his “refusal to vaccinate for COVID-19”. The managing director of the law firm explained that a mandatory vaccination policy had been implemented in the following circumstances:

Due to security breaches the firm had experienced in recent times and the nature of its business, it had become impractical for employees to work from home on a full-time basis.
He had a co-morbidity, Addison’s Disease, which put him at risk of severe illness should he contract COVID-19.
The size of the firm’s offices was such that there was no room therein to have a separate isolated area for unvaccinated employees.

The firm had several “engagements” with its employees regarding the need to vaccinate, but Mr Dreyden did not heed this call. Ultimately, on 20 August 2021, the firm’s managing director sent out a communication to employees wherein they were required to confirm that they had either registered for or taken a COVID-19 vaccination, failing which they would be dismissed. On 30 August 2021, Mr Dreyden confirmed his decision not to vaccinate and pursuant to this, his employment with the firm was terminated.

In their analysis of the fairness of Mr Dreyden’s dismissal, the Commissioners had regard to sections 8 and 9 of the Occupational Health and Safety Act 85 of 1998 ( “OHSA” ), which places an obligation on employers to ensure, as far as reasonably practicable, a safe working environment. The Commissioners further had regard to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces ( “Direction” ), which was issued by the Department of Employment and Labour issued the Direction on 11 June 2021.

The following are the important principles enunciated by the Commissioners in Dale Dreyden award:

Mandatory vaccination against COVID-19 should take into account the operational needs of an employer as determined by a risk assessment .
·The size and nature of the employer will be an important consideration in relation to both determining the extent of a risk assessment to be conducted, as well as the level consultation required on the implementation of a mandatory vaccination policy.
Employees who must be vaccinated must be identified through the risk assessment.
While each case is to be decided on its own merits, the following factors, among others, may be relevant in deciding on the fairness of an employee’s dismissal for a refusal to vaccinate:

the nature of the job;
the degree of exposure to members of the public;
the degree of exposure, age, illness or comorbidities of other employees, managers and owners;
the reasons for an employee’s refusal to vaccinate;
whether work may be done from home; and whether an employee who refuses to vaccinate can be accommodated.

In applying the above factors to the facts before them, the Commissioners found that Mr Dreyden had not provided a clear reason for his refusal to vaccinate at the time when the firm’s mandatory vaccination policy was introduced. This was in comparison with the cogent and reasonable explanation that the firm’s managing director had given for the need for the introduction of its policy, as well as its attempts to engage its employee on the vaccination requirement. In the face of Mr Dreydan’s continued refusal to vaccinate, the Commissioners found that he was incapable of performing his duties as required by the firm and for this reason, his dismissal was substantively fair.

However, Mr Dreydan’s dismissal was found to be procedurally unfair due to the firm’s non-compliance with the Direction when it:

failed to inform Mr Dreydan of his right to refuse vaccination on constitutional grounds;
failed to ask Mr Dreydan for the reasons for his refusal to vaccinate, as well as failing to counsel him on the issue;
failed to engage Mr Dreydan on the issue of reasonable accommodation, as alternative to dismissal; and
merely dismissed Mr Dreydan via a WhatsApp message, which constituted an insufficient level of consultation on the issue.

Consequently, Mr Dreydan therefore awarded one month’s remuneration as compensation for the procedural unfairness of his dismissal, together with four weeks’ notice pay owed to him as a result of the immediate termination of his employment.

Refusal to vaccinate as a breach of contract

The Labour Court recently handed down judgment in Solidarity obo Members and Others v Ernest Lowe, a Division of Hudago Trading (Pty) Ltd (J49/22) (14 March 2022) , which also involved what the company termed an “admission policy”. The substance of the company’s admission policy was the following:

all employees would need to be fully vaccinated in order to access its premises;
as an alternative to vaccination, employees were entitled to produce a negative COVID-19 test on a seven-day rolling basis, the cost of which would be for the employee concerned; and
where employees failed to comply with either of the above, a “no work, no pay” policy would be adopted, as well as disciplinary action possibly being taken against them.

The high watermark of the applicants’ case was that the company’s admission policy was unlawful in that it constituted a breach of the employment contract of the second applicant ( “Mrs Van Rensburg” ), alternatively that the company had unilaterally changed Mrs Van Rensburg’s terms and conditions of employment. The applicants also alleged that the admission policy constituted a mandatory vaccination policy. Therefore, the applicants argued, its introduction ought to have compiled with the provisions of the OHSA and the Direction, the latter including the need for consultation and reasonable accommodation for employees who could not vaccinate.

The company denied that the admission policy constituted a mandatory vaccination policy, in circumstances where employees are provided with an alternative to vaccination (i.e., the production of a negative COVID-19 test). In those circumstances, the company claimed, the provisions of the Direction did not apply to it. It was also denied that there was any breach of Mrs Van Rensburg’s employment contract taken place nor was there any unilateral change to terms and conditions of her employment that required restoration.

Makhura AJ found that the applicants had failed to point out any provision of Mrs Van Rensburg’s employment contract that had been breached through the introduction of the admission policy. Similarly, the applicants specified which provision of Mrs Van Rensburg’s employment contract had allegedly been unilaterally changed by the admission policy. On this basis alone, the applicants’ claim failed.

Over and above the failures on the contractual claim, Makhura AJ found that the admission policy could not be unlawful for want of compliance with the Direction. This was in circumstances where it was held that the admission policy did not need to comply therewith because it did not constitute a mandatory vaccination policy. In particular, Makhura AJ found that production of a negative COVID-19 test as an alternative to vaccination, brought the admission policy outside of the ambit of a mandatory vaccination policy. Mrs Van Rensburg’s complaint of the “unjustified hardship” of having to pay for tests was simply insufficient to bring the application of the Direction into the picture.

In his dismissing the applicants’ application, Makhura AJ found that the company had:

“… acted in accordance with the OHSA and the provisions of the Direction in its duty to provide and maintain, as far as reasonably practicable, as working environment that is safe and without risk to its employees’ health.”

The future of the Direction

On 15 March 2022, the Minister of Employment and Labour signed the Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46043, dated 15 February 2022 ( “the Code” ). Chapter 1, clause 1, paragraph 4 of the Code provides that:

“On the expiry of the declaration of the national state of disaster, the Regulations and the Direction will cease to have legal effect. Because there remains an ongoing need to prevent and mitigate the risks associated with SARS-CoV-2 exposure in the workplace, it is necessary to incorporate those provisions in the Regulations and the Direction relevant to preventing and mitigating those risks.”

In light of the above, unless the national state of disaster is extended beyond 15 April 2022, the Direction issued in terms of OHSA will lapse and the Code will come into effect.

Essentially, the provisions of the Code echo the provisions of the Direction. The key differences being:

the grounds upon which an employee can refuse to be vaccinated are not limited;
employers are obliged to counsel and take steps to reasonably accommodate employees who refuse vaccination (on any grounds) in positions that do not require the employee to be vaccinated; and
upon the production of an accepted medical certificate, or a medical evaluation confirming an employee has contra-indications, such employee must be accommodated in a position that does not require vaccination.

In addition, the Code now provides further guidance to employers in respect of the risk assessments to be undertaken, the plans to be prepared, and the content of such risk assessments and plans.

Concluding remarks

Therefore, with the developing legal landscape on the implementation of mandatory vaccination policies in adopting such a policy, it is recommended that employers:

as far as possible apply the requirements of the OHSA and the Direction (and the Code, once applicable); and
keep their proverbial “ears to the ground” on incoming decisions by bodies such as the CCMA and more especially the Courts on the issue, which decisions may go a long way in providing guidance on the “dos and don’ts” of mandatory vaccination policies.

This article was reviewed by Sade Maitland, a Director of Wilken Incorporated. This notwithstanding, no information provided herein may in any way be construed as legal advice. Fact specific advice must be sought before any action is taken based on the information provided in this article, and consent must be obtained from Wilken Incorporated before the information in this article is reproduced in any way. Wilken Incorporated disclaims any responsibility for actions taken without proper consultation/ consideration by it and/or information reproduced without its consent.

Game, set and match

Thu, 29 Oct 2020 10:58:08 GMT

In the matter of NUMSA obo Members v Aveng Trident Steel and Others CCT 178/19, the Constitutional Court considered whether an employer has the right to implement alternative terms and conditions of employment based on its operational requirements and to retrench those employees who do not accept the alternative terms and conditions of employment. Judgment was handed down by the Constitutional Court on 27 October 2020.

The principle enunciated by the Constitutional Court is that as an alternative to retrenchment, an employer, pursuant to consultations, may offer employees employment on less favourable or reduced terms and conditions of employment. Should the employees decline such an offer, the employer can dismiss those employees as a result of its operational requirements. However, the employer must ensure that the dismissal is as a result of its operational requirements and not the employee’s refusal to accept the reduced or less favourable conditions of employment. Said differently, the employer’s operational requirements, and only that, must be the dominant reason or proximate cause for the dismissal to escape liability under section 187(1)(c) of the Labour Relations Act 66 of 1995 (“ LRA ”).

FACTS

Aveng Trident Steel (“ Aveng ”) experienced a sharp decline in sales volume and profitability. Aveng sought to realign its cost structure to ensure its sustainability. It initiated a consultation process in terms of section 189A of the LRA to realign its business and proposed, inter alia, the review of its organisational structure and redefinition of certain job descriptions. It proposed to cluster jobs along the lines of the provisions of the Main Agreement of the Metal Engineering Industries Bargaining Council (“ MEIBC ”), which would lead to a combining of job functions resulting in significant cost savings.

The National Union of Metalworkers of South Africa (“ NUMSA ”) accepted the proposed realignment. This resulted in 249 employees opting for voluntary severance packages, 4 employees being retrenched and the termination of 257 limited duration contracts. Aveng concluded an Interim Agreement with NUMSA in terms of which consultations about job descriptions would continue whilst the remaining employees would perform the functions of those who had departed.

NUMSA reneged on the Interim Agreement concluded between itself and Aveng which set out terms in which employees agreed to work in accordance with Aveng’s redesigned jobs. NUMSA instead demanded a pay increase for the employees performing the work which was originally performed by those who had departed. Faced with the inevitability of not being able to continue with its operations, Aveng agreed to the increase and engaged NUMSA in further consultation regarding the redesign of job descriptions. NUMSA attempted to convert the consultations into a wage negotiation and consensus could not be reached. Aveng advised NUMSA that consultations on the job descriptions had been exhausted and that it would implement the new job descriptions. Affected employees were offered the positions with the amended job descriptions, without a reduction in pay, as alternatives to the retrenchment. Only 71 employees accepted alternative roles and 733 employees who did not accept the offers of alternative employment were retrenched. NUMSA referred an automatically unfair dismissal dispute in terms of section 187(1)(c) of the LRA to the MEIBC and further to the Labour Court.

The Labour Court held that the employees were not dismissed for refusing to accept any demand but that they were dismissed based on the employer’s operational requirements. Dissatisfied with the decision of the Labour Court, NUMSA appealed against the Labour Court decision to the Labour Appeal Court (“ LAC ”). This decision has been summarised and commented upon in our website article of https://www.wilkeninc.co.za/2019/06/14/labour-appeal-court-confirms-dismissals-for-operational-reasons-permissible/

The LAC held that section 187(1)(c) of the LRA ought to be read in the context of the LRA’s scheme for the protection against dismissal, and in particular section 188 of the LRA, which provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove a fair reason, such as an employer’s operational requirements under section 189 of the LRA.

The LAC found that the purpose of Aveng making the proposal was not to gain any advantage in wage bargaining but was rather to restructure for operational reasons to ensure Aveng’s long-term survival. The employees’ rejection of the proposal necessitated their dismissals due to operational requirements. The LAC held that one had to consider the real reason giving rise to the dismissal to determine whether section 187(1)(c) of the LRA was triggered and upheld the Labour Court’s decision.

CONSTITUTIONAL COURT

The Constitutional Court held that section 187(1)(c) requires one to determine the real reason for the dismissal. It further held that the contention that an employer may never resort to retrenchments without contravening section 187(1)(c) would undermine an employer’s right to fair labour practices is entrenched in the constitution. The wording of section 187(1)(c) is not triggered simply because a proposed change is refused, and dismissal ensues. It was further held that determining the reason for a dismissal is a question of fact and enquiry into the reasons for the dismissal is an objective one. The Constitutional Court held that the Afrox approach was most useful in this regard and the Constitutional Court agreed with the LAC that on a proper interpretation of the section “it no longer matters what the employer’s intention or purpose might be” since there has been a shift in the focus from the employer’s intention in effecting the dismissal to the refusal of the employee to accept a proposal. The Constitutional Court found refuge in the specific wording of section 187(1)(c) of the LRA in that the wording of the section specifically provides that “a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is”. Accordingly, this requires the interrogation and determination, amongst various factors about what the cause of the dismissal was.

Although three judgements were delivered, all three judgements dismissed the appeal and found that Aveng had not contravened section 187(1)(c) of the LRA. The only aspect upon which the Justices in the three different judgements depart from one another is in determining the reason for the dismissal. The second judgement departs from the majority judgement on whether, on the proper interpretation of section 187 (1)(c) of the LRA, causation is still a requirement and whether the Afrox judgement’s causation test is still relevant for determining the true reason for the dismissal in respect of section 187(1)(c) of the LRA. The third judgement, endorsing the second judgement, goes further to find that the language of section 187(1)(c) of the LRA does not call for imputing causation in determining the reason for the dismissal.

COMMENT

With the matter between NUMSA and Aveng having been finalised through the Constitutional Court, it does not mean to that employers have carte blanche to dismiss employees. The Courts will continue to guard against opportunistic or disingenuous employers by determining the true reason for the dismissals.

An employer facing the potential of having to embark on a restructuring process that entails amending employee’s terms and conditions of employment is advised to seek legal advice to ensure that the contemplated retrenchment arises from its operational requirements not any other reason.

Our Managing Partner, St. Elmo Wilken, has represented Aveng in this matter from the outset since 2015.

The cost of frivolous and vexatious litigation

Mon, 27 Apr 2020 10:58:05 GMT

In the judgment of National Education Health and Allied Workers Union (“ NEHAWU ”) v Minister of Health and Others, Whitcher J was faced with an urgent application brought by NEHAWU on behalf of its members in which they inter alia alleged that the Minister of Health and all the provincial MECs failed to provide Personal Protective Equipment (“ PPE ”) to the hospitals and clinics in which their members are providing essential services during the coronavirus pandemic. NEHAWU further alleged that the Minister of Health failed to issue guidelines for the use of PPE, and failed to meaningfully engage with NEHAWU about these issues. NEHAWU accordingly sought an order:

directing the respondents to meaningfully engage it on these matters, and, pending this, the Court was required to interdict and declare unlawful any disciplinary action which may be taken against the NEHAWU’s members in relation to a refusal to work in the absence of PPE; and
directing the Minister of Labour to exercise his powers in terms of section 21 of the Occupational Health and Safety Act, 1993 to prohibit the performance of those duties that endanger the health and safety of employees.

WITHDRAWAL OF THE APPLICATION

Despite the fact that NEHAWU attempted to withdraw the application on the morning that it was due to be heard, the respondents argued that a determination, particularly of the factual allegations, was in the interests of justice.

In considering whether or not to hear the application, despite the withdrawal by NEHAWU, Whitcher J turned to the decision in Meat Exchange LTD v Mtwazi 1967 (3) SA 356 (LC) 1967 (3) SA 356 where the Court reasoned that injustice would be done if the plaintiff, on a whim, could withdraw the proceedings in circumstances where the reputation of the defendant has been attacked.

Agreeing with the counsel for the respondent’s, Whitcher J proceeded to hear the application and found that the nature of the allegations deserved evaluation and determination as it was within the interests of justice to do so, due to the fact that the allegations made by the union concerned both the parties to this dispute as well as the public at large.

THE APPLICATION

Turning to the merits of the application, the Labour Court found that NEHAWU’s allegation of PPE shortages in the hospitals and clinics set out in their application, held up poorly against the respondents’ denials. The inherent strength of the union’s claim was unsubstantiated and mostly founded upon hearsay. The Court applied the Plascon Evans rule to the totality of the evidence produced by the parties, finding that NEHAWU did not establish its central contention, being that of the shortage of PPE at public health facilities to warrant the relief it sought through its urgent application.

COSTS

Judge Whitcher concluded that the Court is not in the position to dictate how parties must conduct themselves or advance their interests. The Court can, however, adjust the standard of what constitutes frivolous and vexatious conduct in litigation. The Court warned that those who elect to pursue untenable legal points, abuse the court processes, and unnecessarily consume the resources of their opponents by making allegations they cannot substantiate are aware of the risk of a cost order being issued against them should they lose. On this basis and the finding that “legal points aside, the applicant had a very poor factual basis to drag all the twelve respondents to court” , Judge Whitcher dismissed NEHAWU’s application and ordered them to pay the costs of the first respondent i.e. the Minister of Health.

COMMENT

New ParagraphThis judgment should come as a strong warning to those who seek to pursue frivolous and vexatious claims on facts that cannot be substantiated. Simply withdrawing such a claim will not be sufficient to escape the liability of an adverse cost order, particularly where proceedings have already commenced, and the nature of the allegations dictate the Court’s consideration. Although employment disputes, unlike other civil disputes, do not necessarily see costs following the result, it is clear that where parties’ claims are illegitimate and unfounded (failing to make out a case on law and facts), the Courts will not hesitate to impose an appropriate cost order where it is in interests of justice and equity to do so.

Reviewed by Sade Maitland, a Director at Wilken Incorporated.

Are trade unions bound by the four corners of their constitutions?

Mon, 30 Mar 2020 10:58:03 GMT

In the unanimous judgment of National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7 , the Constitutional Court (“ CC ”) was tasked with the central issue of determining whether a union can ignore its own constitution, which provides for and defines the eligibility for membership as well as whether or not a union can demand or ganisational rights from an employer whose employees fall outside the scope of its constitution. The CC dismissed the appeal concluding that NUMSA was bound by its own constitution and could not operate outside the provisions of its own constitution.

BACKGROUND

NUMSA represented 70% of Lufil’s employees and sought organisational rights in terms of sections 12 to 16 of the Labour Relations Act 66 of 1995, as amended (“ LRA ”). Lufil refused to grant NUMSA these organisational rights as its employees fell outside of NUMSA’s registered scope according to its own constitution. The Labour Court dismissed Lufil’s review of the CCMA arbitration award by granting NUMSA organisational rights.

THE LAC FINDINGS

On appeal, the Labour Appeal Court (“ LAC ”) held that NUMSA was not entitled to organisational rights within Lufil’s workplace, as its employees fell outside the scope of NUMSA’s registered constitution and therefore NUMSA did not have sufficient representativity.

The LAC held that although the commissioner was correct in finding that NUMSA had the locus standi to apply for organisational rights, and refer a dispute to the CCMA, this did not mean that it had the necessary entitlement to those rights in terms of the requirements of the LRA.

The LAC further held that at common law, a union is bound by the powers conferred upon it by its constitution. The LRA requires unions who seek organisational rights, to register and determine their own constitution providing for and prescribing the criteria for the eligibility of membership. Therefore, any act or decision contrary to its constitution is ultra vires and invalidas it falls beyond the powers of the actor or decision-maker.

THE CC FINDINGS

NUMSA took the LAC decision on appeal to the CC and argued that section 4(1)(b) of LRA was unconstitutional, because it infringed upon the constitutional right to freedom of association and fair labour practices. NUMSA contended that:

the wording of section 4(1)(b) of the LRA and its very own constitution should be interpreted less restrictively considering section 39(2) of the Constitution; and
the wording of section 4(1)(b) of the LRA, particularly “subject to its constitution” must be applied in such a way as to ensure that unions and their members can exercise their right to freedom of association.

The CC quoted section 95(5)(b) of the LRA, which clearly defines inter alia the qualification for admission to membership. NUMSA submitted that the phrase “subject to its constitution” is an internal regulatory mechanism and can be ignored at will. The CC found it difficult to accept that NUMSA could simply choose to ignore the provision for the qualification and admission of membership found in its own self-imposed constitution.

The CC commented that according to international obligations, a principal source in relation to the right to freedom of association in the workplace is the Freedom of Association Convention. The approach and interpretation of the LAC and the wording of section 4(1)(b) of the LRA, mirrors that of the Freedom of Association Convention and is found to be in alignment with international practice. The CC held that section 4(1)(b) of the LRA complied with and is consistent with the limitation clause of section 36(1) of the Constitution.

NUMSA’s argument was severely impacted as it had voluntarily chosen to limit and define the scope of eligibility for membership in its association and was thus bound to the categories of the membership set out in its scope.

Victor AJ stated that freedom of association is a positive right as it enables individuals to highlight issues of concern and collectively contest the structure of social power within its midst. NUMSA failed to take into consideration both its existing members’ right to associate and dissociate as well as the possible vulnerability of the “capture” of its association as explained by Woolman et al (eds) “Freedom of Association” Constitutional Law of South Africa Service 6 (2014) at 44-2-3: “it is important for an association to have control over selective membership policies…associations admitting members who do not fall within its object and purpose may have the effect of altering the identity of the organisation. This in turn violates the association’s existing members’ right to disassociate”.

The freedom of association is not only a right conferred upon employees, but upon employers as well. The constitution of a union or employers’ organisation must determine several substantive matters as discussed inn Turner v Jockey Club of SA 1974 (3) SA 633 (A) at 644G – 645C , it was held that—

“The constitution not only determines the nature and scope of the association’s existence and activities but also prescribes and demarcates the powers of the association and its office-bearers.”

The CC held that the LAC was correct in finding that the role of a union’s constitution gives effect to legitimate government policy of orderly collective bargaining at sectoral level. Therefore, a union’s constitution constitutes an agreement which binds its members.

The CC further held that although NUMSA’s scope was defined in its constitution, there was room for its amendment through provisions found in the LRA, however, NUMSA refused to amend its constitution to include the paper and packaging industry which is the industry Lufil operates within. Lufil’s core argument rested on the fact that NUMSA’s constitution did not extend to the paper and packaging industry and never attacked NUMSA’s suitability to represent its employees.

According to the CC, the constitution of a union serves an important purpose for employers, as they are informed of the different industries within which unions operate. In allowing a union to operate outside of its scope and to act without regard to its constitution, would severely undermine the core constitutional values of the promotion of accountability, transparency and openness. The CC questioned why NUMSA did not amend its constitution in order to extend the eligibility requirement as defined in its scope to allow for the admission Lufil’s employees as members, as it could easily have done so, instead of electing to litigate this matter in court.

The CC concluded that it was not in the interests of justice to grant leave to appeal and dismissed the application.

COMMENT

It is unlikely that trade unions will persist with demanding organisational rights outside of their scope of registration and would rather amend their constitutions appropriately. However, this matter is important as it empowers both members of trade unions and employers to hold unions to their constitutions.

Reviewed by Sade Maitland, a Director at Wilken Incorporated

Derivative misconduct - a balancing act

Wed, 03 Jul 2019 10:58:01 GMT

The Constitutional Court considered the origin, development and application of the concept of derivative misconduct in the matter of NU MSA obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (2019) ZACC 25. This judgement is most instructive in that it not only provides guidelines on the factors to be considered when relying on derivative misconduct, but also emphasises that reliance on derivative misconduct should not be to the exclusion of exploring and proving, directly or indirectly, employees’ participation in, or association with, primary misconduct.

On 22 August 2012, the employees of Dunlop Mixing and Technical Services Proprietary Limited ( Dunlop ) embarked a protected strike. As is unfortunately often the case, the strike was immediately accompanied by violence and despite Dunlop obtaining an urgent interdict to stop the violence, the violence continued and escalated over the following month. Negotiations between Dunlop and the employees’ trade union, NUMSA, also did not stop the violence. Dunlop called upon NUMSA to assist it in identifying those employees who were responsible for the violence, but not NUMSA did not respond. Dunlop ultimately dismissed all its employees on 26 September 2012.

NUMSA challenged the dismissal of its members at the CCMA. The arbitrator distinguished between three categories of employees namely, those who were positively identified as committing violence, those who were identified as present when the violence took place, but did not physically participate, and those who were not positively and individually identified as being present when violence was being committed. The arbitrator reinstated those employees who were not positively identified as being present when violence was being committed. Dunlop challenged the reinstatement of those employees by way of review proceedings in the Labour Court, relying on the principle of derivative misconduct. The Labour Court granted the review. NUMSA appealed to the Labour Appeal Court ( LAC ) to overturn the Labour Court’s order but this appeal was dismissed.

In considering the litigation preceding the appeal to the Constitutional Court, the court carefully considered the grounds upon which the arbitrator as well as the Labour and LAC relied upon for their decisions. Considerable emphasis was placed on the presence of the employees during the violent episodes in these tribunals. The Labour Court overturned the arbitrator’s decision on the basis that the arbitrator acted unreasonably in finding that there was no evidence that the applicants were present during the violent episodes and in so doing, the arbitrator ignored the circumstantial evidence and inferential reasoning that should have followed from it. The Labour Court held that their derivative misconduct consisted of a failure to inform the employer of the identity of the perpetrators of violence or exonerating themselves by explaining that they were not present and could not identify the perpetrators. This conduct was held to be a breach of the employees’ duty of good faith. The Labour Appeal Court upheld the Labour Court’s decision and approach.

The Constitutional Court debunked the notion that reliance, whether directly or indirectly, and by inferential reasoning of the presence of employees is required in establishing a link to the misconduct of other employees. Instead, the Constitutional Court found that presence at the scene is not required but prior or subsequent knowledge of the violence and the necessary intention relation thereto is required.

The Constitutional Court also considered the basis upon which derivative misconduct imputes guilt to those who were not involved in the primary misconduct. The basis upon which derivative misconduct has been justified in earlier decisions of the Labour Court and LAC was based on the breach of a fiduciary duty or good faith obligation towards the employer. The Constitutional Court held that fiduciary duties are not implied by law into all employment relationships. Similarly, the contractual duty of good faith does not as a matter of law imply the imposition of a unilateral obligation on employees to disclose information of misconduct of their co-employees to the employers. The court held that since the contractual obligation of good faith is a contested one, it must, at the very least, be of reciprocal nature. The court further held that inferring the duty of disclosure on the basis of good faith can never be unilateral and such a duty to disclose must be accompanied by reciprocal, concomitant duty on the part of the employer to protect the employees’ individual rights including fair labour practices and the right to effective collective bargaining.

This judgement cautions against relying upon derivative misconduct as an easy way of imputing guilt in respect of employees where there is no clear and direct evidence of any misconduct. That being said, it is still possible to rely on derivative misconduct where all avenues of establishing guilt is not possible provided satisfactory guarantees are given to those required to speak up.

Labour appeal court confirms dismissals for operational reasons permissible

website@sitemodify.com (Website Editor) — Fri, 14 Jun 2019 10:57:57 GMT

The hotly contested right of an employer to implement alternative terms and conditions of employment based on its operational require m ents and to retrench those employees who do not accept the alternative terms and conditions of employment, was considered by the Labour Appeal Court in the matt er NUMSA and Others v Aveng Trident Steel and Others, JA25/18 . J udgment was handed down on 13 June 2019.

In this case, Aveng Trident Steel was facing a sharp decline in sales volume and sought to realign its cost structure to ensure its sustainability. It initiated a consultation process in terms of section 189A of the LRA to realign its business and proposed, inter alia, the review of its organisational structure and redefinition of certain job descriptions. It proposed to cluster jobs along the lines of the provisions of the Main Agreement of the MEICB, which would lead to a combining of job functions resulting in significant cost savings.

NUMSA accepted the proposed realignment. This resulted in 249 employees opting for voluntary severance packages, 4 employees being retrenched and the termination of 257 limited duration contracts. Aveng Trident Steel concluded an Interim Agreement with NUMSA in terms of which consultations about job descriptions would continue whilst the remaining employees would perform the functions of those who had departed.

NUMSA prematurely terminated the Interim Agreement and demanded a pay increase for the employees performing the work which was performed by those who had departed. Faced with the inevitability of not being able to continue with its operations, Aveng Trident Steel agreed to the increase and engaged NUMSA in further consultation regarding the redesign of job descriptions. NUMSA attempted to convert the consultations into a wage negotiation and consensus could not be reached. Aveng Trident Steel advised NUMSA that consultations on the job descriptions had been exhausted and that it would implement the new job descriptions. Affected employees were offered the positions with the amended job descriptions, without a reduction in pay, as alternatives to the retrenchment. Only 71 employees accepted the alternative offers and 733 employees were ultimately retrenched.

NUMSA contended that the retrenchment of the 733 employees constituted an automatically unfair dismissal in terms of section 187 (1) (c) of the LRA as it argued that the reason for the dismissal was the refusal by employees to accept a demand in respect of altered job descriptions. The Labour Court concluded that the employees were not dismissed for refusing to accept any demand but that they were dismissed based on the employer’s operational requirements.

In the Appeal to the Labour Appeal Court, NUMSA contended that:

The Labour Court’s interpretation was inconsistent with Chapter VIII (dealing with strikes and lockouts) of the LRA, the plain meaning of the words used in the amended section 187 (1) (e) of the LRA, a purposive interpretation of the provisions and the spirit, purport and objects of the Bill of Rights.
The amended section 187 (1)(c) of the LRA also applied in circumstances where the demand was motivated by the genuine operational requirements of the employer to change terms and conditions of employment.
To hold otherwise would in effect be reading in an implicit limitation on the fundamental rights to collective bargaining and strike.

Aveng Trident Steel argued that such an approach ignored the fact that collective bargaining could only yield changes to terms and conditions of employment if it resulted in an agreement. If no agreement was reached an employer would be left without any means of addressing its operational requirements, other than by a lock-out, and may never resort to retrenchment. Aveng Trident Steel further argued that such interpretation would undermine the employer’s right to fair labour practices by excluding recourse to retrenchments when legitimate operational requirements are at play.

After examining the history of the amendments to section 187 (1) (c) of the LRA, the LAC held that;

“… our prevailing jurisprudence has interpreted the LRA to permit dismissal on such grounds, being structural or similar needs – the upshot being that the right to retrench is implicit in section 187 (1) (c) of the LRA. It is doubtful, for the reasons following, that the purpose of the amendment was to change the law in this regard.”

The LAC held that section 187 (1) (c) of the LRA ought to be read in the context of the LRA’s scheme for the protection against dismissal, and in particular section 188, which provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove a fair reason, such as an employer’s operational requirements under section 189 of the LRA. In this regard, the LAC held:

“It follows that even where there is evidence suggesting a credible possibility that dismissal occurred because the employees refused to accept a demand, the employer can still show that the dismissal was for a different more approximate fair reason.”

The fact that the proposed change is refused, and dismissal ensues does not necessarily mean that the reason for the dismissal is the refusal to accept the proposed change. Whether Section 187 (1) (c) is breached does not depend on whether the dismissal is conditional, but rather on finding what the true reason for the dismissal of the employees is. The existence of a refusal merely prompts a causation enquiry. The actual reason for dismissal needs to be determined and there is no reason why employers’ operational requirements must be excluded from consideration as the possible reason for the dismissal.

By parity of reasoning, the provisions of section 65 (5) of the LRA permits the dismissal of protected strikers where the employer is able to demonstrate a legitimate and substantial business necessity. Whilst dismissing protected strikers for an employer’s operational reasons is permissible the LAC stated that:

“By the same token, while employees cannot be dismissed for refusing to accept a demand, they can be dismissed if that refusal results in a more dominant approximate operational necessity.”

Accordi ngly, the real enquiry is whether the reason for the dismissal is the refusal to accept the proposed changes to employment. One must first determine factual causation by asking whether the dismissal would have occurred if the employees had not refused the demand. Once the factual causation has been determined and it is found that the dismissal would have occurred if the employees had not refused demand, one must consider legal causation, namely, whether such refusal was the main, dominant approximate or most likely cause of dismissal.

Applying these principles, the LAC found that the dominant reason or proximate cause for the dismissal of the 733 employees was Aveng Trident Steel’s operational requirements and that the dismissals did not fall foul of section 187 (1) (c) of the LRA. *Our managing partner, St. Elmo Wilken, has represented Aveng in this matter from the outset.

Final means final

website@sitemodify.com (Website Editor) — Fri, 07 Jun 2019 10:56:15 GMT

Employers may rely on final written warnings issued to employees to impose a sanction of dismissal for repeated misconduct for the same or similar offence. The whole purpose of a final warning is to draw a line in the sand that any further misconduct of the same or similar nature will be visited with the sanction of dismissal.

In the matter of Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41 (5 March 2019) , the court had to con sider whether the commissioner’s decision upholding a sanction of dismissal relying on a final written warning, in circumstances where the employee challenged the validity of the final written warning, was justified.

The court held that employees may not challenge a final written warning in a dismissal dispute in the absence of having challenged the final written warning. If an employee is unhappy with an employer issuing a final written warning, then the employee must challenge it by referring an unfair labour practice dispute to the CCMA. It is therefore impermissible to dispute the validity of a final written warning in an unfair dismissal dispute.

The only challenges that may be made in respect of a final written warning in an unfair dismissal dispute are whether the final written warning was indeed issued, whether it was for a same or similar offence or whether such final written warning is still valid.