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The municipality cannot be joined or held liable for the following reasons.
• CCMA Rule 26 permits joinder only where the party is an employer, may be an employer, or has a direct and substantial interest in the employment dispute.
• The contractor is an “independent contractor” and therefore is specifically excluded from the definition of “employee” in the LRA.
• The TES provisions do not apply because the contractor is not a labour broker.
• On the face of it, the municipality cannot be deemed to be an employer in terms of s200a of the LRA or s83A of the BCEA (none of the required facts apply).
• The Municipal Finance Management Act does not create a relationship between the contractor’s employees and the municipality.
• The Local Government Municipal Systems Act covers “staff members” who are defined in the Municipal Staff Regulations as ” an employee of a municipality”. It goes on to describe a staff member as permanent, full-time administrative and operational personnel; temporary, casual, or part-time workers; any individual appointed directly to a post created on the council-approved staff establishment organogram.I agree with Michael’s view; and don’t agree with the arbitrators reasoning finding the employer’s evidence insufficient to discharge the onus.
The Court misconstrued the issue as a deduction. This issue is quite simply a case of unauthorised absence of where the principle of “No work no pay” applies. If an employee is absent from work, they are only entitled to be paid if they are sick, if they are on authorised annual leave or if they are on family compassionate leave.
I agree that the amount of severance pay due to retrenched employees should be increased. However, I also agree that it might impose an insurmountable burden on some employers who are unable to afford it. I would suggest that the suggested amendment allow for a process whereby employers, who cannot afford the two weeks, can apply for an exemption in the same way that employers who are not members of bargaining councils can apply for an exemption from wage increases where the bargaining council agreement, making provision for an increase, applies to them.
I agree with Anna. And just to add that the new Code of Good Practice: Dismissal (based on the prevailing view of the courts until it was published) also supports her view. It suggests that a code is not necessary but for big employers it is recommended.
Bearing in mind that the court here is dealing with circumstantial evidence, the question is: which of the two possible versions is the more probable: Mothlang hacked the employee’s passwords or the employees were involved.
The common cause facts alone showed that there was sufficient prima facie evidence that the employees were involved in the fraud.
• Their persal profiles were used
• Although they changed their passwords monthly, Mothlang continued to access their accounts
• The one employee signed a form appointing a ghost employee
• The fraud occurred in their functional area, using their access rights
• The fraud was sustained over a long period.
In deciding whether an employee is guilty or not, there are two types of burdens of proof. Firstly, there is the evidentiary burden which shifts between the parties as they present their evidence. In this case, the common cause facts alleviated the employer of its evidentiary burden because the evidence (albeit circumstantial) showed it was more probable that the employees were involved than the possibility of Mothlang having hacked their passwords.The evidentiary burden then shifted to the employees to provide credible evidence to counter the evidence of the employer which they were unable to do.
• They could not explain how Mothlang repeatedly obtained their updated passwords.
• They could not explain why their profiles were used for the fraudulent appointments.
• They could not explain why one of them signed a form appointing a ghost employee.
• They could not explain why the fraud was concentrated in their unit and linked to their access rights.
Because there was no probable evidence to counter the common cause facts, the employer succeeded in discharging its overall burden of proving that the employees were guilty.Although an employee is not legally obliged to exhaust internal remedies before claiming a constructive dismissal, the employee must prove that resignation was the only viable option which includes showing that internal grievance procedures were exhausted or would have been futile. In the absence of evidence proving the latter, proving that resignation was the only viable option will be difficult.
• The duty not to bring an employer’s name into disrepute is a contractual duty, falling under the duty of good faith that an employee owes an employer which is an implicit term of the contract of employment.
• The uniform must clearly identify the employer linking the conduct to the employer.
• The employer must prove that the conduct of the employee (the assault) either actually harmed the employer’s reputation or could reasonably be expected to harm it.
• The facts speak for themselves in this case (the uniform clearly identified the employer and the assault took place in a public setting and therefore there is no need, I believe, for the employer to lead evidence that the assault actually harmed the employer’s reputation.
• The employee, therefore, is clearly guilty of bringing the employer’s reputation into disrepute.Whether they should be dismissed is another question and would depend on a number of factors: the seriousness of the assault, the number of supermarket customers who witnessed the assault and who were able to identify the employer from the uniform as well as the other usual aggravating and mitigating factors (length of service etc).
The decision in Gerhard Potgieter Maintenance Services (Witbank) (Pty) (Ltd) v Contract Cleaning National Provident Fund and others [2020] 9 BLLR 889 (LAC) is instructive particularly the following paragrraph:
“The compulsory nature of membership of the fund ……… serves a rational purpose, ie to secure a critical mass of contributors in one pool. Indeed, the pooling of risk is the fundamental element of any provident fund, a commonplace example of collective sharing of risk. If a member could join and leave at will for better schemes the risk that the residue would be diminished to a point where the scheme would be unviable is plain. Imposing a compulsion to belong serves to eliminate that risk. It serves the interests of the most vulnerable employees.@
I therefore suggest that employers would have to apply for an exemption.
The prevailing case law on the subject is still NUM v Northam Platinum [2014] 9 BLLR 870 (LAC) which held that an employee’s written warnings, even after they have lapsed, may be taken into account in determining the fairness of a dismissal, if the employee is found to have a propensity to commit misconduct at convenient intervals falling outside the period of applicability of the written warnings. This case is cited with approval at paragraph 26 of the Njobe judgment.
Very very debatable!!! Anna makes a very valid point. Possibly the answer may lie in which entity benefitted from the employee’s work …… the municipality or the Province? Section 197 is there to protect the employees. If the old employer chooses to continue to accept and benefit from the tender of their services post transfer, surely the old employer is still liable. The new employer cannot be held responsible if it does not benefit from the work done by these employees or if they did not “assist in carrying on or conducting their business. The definition of an employee in the LRA namely an employee is any person other than an independent contractor who works for another person or for the State and who receives, or is entitled to receive, any remuneration also includes any person who assists in carrying on or conducting the business of an employer.
I don’t think the case is precedent allowing employees to ignore the consequences of a section 197 transfer. The issue in dispute was whether the employees were entitled to be paid because they had tendered, and the municipality had accepted, their services pending the outcome of their discussions. In other words, their transfer, in effect, had been suspended for the period during which the old employer accepted their tender of services.
Yes .. provided the arbitrator does so in the presence of the opposing party. When I trained commissioners, I advised that at the beginning of an arbitration they ask the parties if they are inexperienced and if so spend some time explaining the process to be followed and basic rules of evidence. Where I suspect one or both parties are inexperienced, in dismissal cases for misconduct and incapacity I go through the elements required to prove their case as per Schedule 8 of the LRA .. on a flipchard, if one is available!!
It is a basic rule of evidence that direct evidence carries much greater weight than hearsay evidence. Direct evidence is the statement of a person who perceived the incident which they are describing with his/her own senses. In other words, it is the difference between a witness who observes something directly and the witness who hears about it after the fact.
Hearsay evidence must be treated with extreme caution as it is unreliable. It relies upon the credibility of a person who is not present and therefore cannot be cross-examined.
The Law of Evidence Amendment Act 45 of 1988 radically altered the traditional approach to hearsay. In terms of this statute hearsay evidence is permissible if:
• The party against whom the evidence is to be adduced agrees to the admission of hearsay as evidence;
• Where the originator, who is alleged by the witness to have made the statement, will himself testify, and
• Where the court is of the opinion that such evidence should be admitted in the interest of justice.In the arbitration of SACCAWU v OK Bazaars (1992) 13 ILJ 436 (ARB) (the arbitrator was Judge Edwin Cameron), hearsay evidence was allowed based on 3 considerations.
• Arbitration proceedings by their very nature are less formal than traditional judiciary procedures. Technicalities and formalistic objections should not be encouraged;
• ‘It is clearly desirable in the interests of fairness between management and its employees that all the material management has for feeling aggrieved at the conduct of an employee should be aired and that the arbitrator should have the benefit of the accused employee’s response to the material in question. Refusing to admit hearsay evidence will obstruct this process. What is more, in everyday life one often considers or reacts to hearsay statements. The employment context is no different. Excluding hearsay evidence altogether would therefore impede a fair and proper exploration of potential sources of industrial conflict’
• In cases of assault and intimidation in the workplace, victims are often too scared to give evidence. Fairness requires that the evidence should in these circumstances at least be heard and taken into consideration at an arbitration.Despite all of the above, the party introducing hearsay evidence at a disciplinary hearing would still have to convince the chairperson of the reasons why the hearsay evidence is good or has any value, i.e. why it should be given any weight by the chairperson when making his/her decision on guilt.
I would just add that my approach, when chairing an arbitration, is to admit the hearsay evidence and weigh it against all the other evidence that has been led. In the scenario presented, I do not think the evidence would carry much weight since it is the evidence of a single witness which, in any event, needs to be treated with caution.