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In City of Johannesburg v SAMWU & others (2009)5 BLLR 431(LC), the initial demand by the union was for two managers to be suspended for interfering with certain test results, this was later changed to a demand for suspension in accordance with due process and in a manner not constituting an unfair labour practice. This demand was accepted by the court as not being unlawful. Management had, on receipt of the strike notice, asked the court to declare the intended strike unlawful. The court did not agree, finding that the modified demand made by the union was not unlawful.
On this basis, I would argue that the “threat” is not unlawful if there is a justifiable reason for their demand and that their demand was not for the factory manager to be dismissed without a hearing. In these cirumstances, therefore, the employees cannot be disciplined for making the threat. However, if they were demanding a dismissal without a hearing, that would be unlawful.I agree with Michael save to add that the wording of the contract a between contractor and its employees will be decisive as to whether this is a change in work practice or a change to terms and conditions of employment. (Per Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (“NUMSA”) & others) [2012] 6 BLLR 544 (LC))
In its current form Item 12.6 is obligatory and, as per the preamble (Item 2(4)) employers are only allowed to deviate from the “non-obligatory” provisions of the Code for good reason.
However, experienced labour lawyers are in agreement that an interpretation of Item 12.6 making “accommodation” compulsory cannot be sustained legally and that, provided an employer has fulfilled the requirements for a fair incapacity termination and can prove that it is incapable of accommodating the employee in another position, despite its best efforts to do so, the dismissal would be fair. Whether commissioners and judges will rule along these lines remains to be seen. Another tack may be for employers to go the operational requirements route arguing that, for economic reasons, it cannot accommodate the employee and enter into a section 189 consultation process. I have little doubt, though, that should Item 12.6 find its way to the Constitutional court, it will be found to be unconstitutional in that it impinges on the economic rights of the employer
The definition of workplace will depend on the facts of each case. Different operations may be different workplaces only if they are operationally independent. The pivotal concept is independence.
For me, the critical question and the evidence I, as an adjudicator, require to prove knowledge or awareness of the rule has always been: At the time that the employee committed the offence, did he or she know that what they were doing would attract disciplinary action and what the likely sanction would be. It then rests on the employer to adduce evidence to prove, on a balance of probability that:
• at the time the employee committed the offence, they knew that, if caught, they would be disciplined; and
• at the time the employee committed the offence, they knew what the likely sanction would be.There was no basis for the employer to not restore the accountant’s salary. The fact that the employer is saying the reason for not restoring the accountant’s salary is because the accountant’s normal salary was “too high” indicates that the agreement for the reduction was abnormal for everyone and that the intention was to restore everyone’s salaries once things normalized post lockdown.
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In order to be disciplined the accountant must have know or ought to have known that by opening the email he would be disciplined. Thus, If the accountant knew, before he opened the email what it contained and that he was not authorized to read the content and that he knew, by doing so, he would face disciplinary action, then, yes, he should be disciplined. Otherwise, no.The person who should be disciplined for gross negligence is the Financial Manager for making the mistake which has had consequences.
In response to Anna’s question I would like to add that the impracticality that could lead to the possible decision not to reinstate the employee must relate to something other than the employer providing less favourable conditions than those which prevailed prior to the transfer.
Reinstatement, on the same terms and conditions as prevailed at the time of the transfer, would be the primary remedy unless:
(a) the employee did not want to be reinstated; or
(b) evidence is adduced to prove that:
a. the new employer’s provision of conditions at work that are substantially less favourable than those provided by the old employer have rendered further employment intolerable; or
b. it is not reasonably practicable for the employee to be reinstated.
c.
The dismissal cannot “necessarily” be regarded as a constructive dismissal.
Reinstatement, on the same terms and conditions as prevailed at the time of the transfer, would be the primary remedy unless:(a) the employee did not want to be reinstated; or
(b) evidence is adduced to prove that:
a. the new employer’s provision of conditions at work that are substantially less favourable than those provided by the old employer have rendered further employment intolerable; or
b. it is not reasonably practicable for the employee to be reinstated.
c.
The dismissal cannot “necessarily” be regarded as a constructive dismissal.As far as I know, there is no legal obligation on an employer to re-employ a retrenched employee. If the consultation process ends in an agreement in terms of which the employee agrees to the six-month re-employment clause, he/she would be bound by that and would have no claim to re-employment after the six months expires. However, should the employer employ someone else into the position of the employee during or after the expiry of the six months, and the employee can prove, because of that, that there was no fair reason for the employer to retrench him/her, then the employee could refer an unfair dismissal claim in the ordinary course and the arbitrator / judge would determine whether the dismissal was fair or not and whether re-employment was the appropriate remedy in the circumstances.
I agree with Michael with the following addition. The critical fact is that the notice period had not expired and therefore the contract of employment had not yet terminated when A’s duties were changed to that of “odd jobs”(see Mthimkhulu v Standard Bank of South Africa [2021] 1 BLLR 86 (LC) which held that the contract of employment in a resignation situation terminates when the notice period expires). Therefore, unless (as Ivan points out) there is another fair reason for retrenching A instead of B, LIFO must apply.
However, I think (but am not totally sure about this) the position might be different if the notice period had expired AND THEN the employer agreed to keep A on with a change in job requirements. Surely B could argue that A was re-employed in terms of a new, albeit tacit or verbal contract, and because A’s (and not B’s) new position had become redundant, A’s position could be terminated for operational requirements as he would have been employed in terms of a new contract and would therefore be considered to be LAST IN.
I agree with Michael … it is very hard to pin down a precise definition of “part of the organisation”. At best I believe it would require the application of the dominant impression test:
Quote from John Grogan’s Workplace Law 13th edition
The LAC has accepted that the ‘dominant impression’ left by the contract and the actual working relationship is the final determinant of the legal nature and consequences of the relationship.
The ‘dominant impression’ test means what its label implies: the contract and relationship built on it must be examined as a whole to determine whether the impression left looks more like an employment relationship than like something else.
While it is impossible to compile an exhaustive list of ‘factors’ to be taken into account, the more significant are the employer’s right to select who will do the work, the power to terminate the relationship, the employee’s obligation to work for a given time and for certain hours, whether remuneration is paid for time worked or for a particular result, whether the employer provides the employee with tools, equipment and office space, and whether the employer has the right to deploy the employee as it sees fit.
“The provision that the date of dismissal shall be the date on which the employee left the service of the employer, if earlier than the date of termination of the contract, appears to contemplate a situation in which the employee left the service of the employer before the expiry of any notice which might have been given. It also means that employees who left their work because of intolerable conditions, and then subsequently resigned, are deemed dismissed on the date they left work [Helderberg International Importers v McGahey NO (2015) 36 ILJ 1586 (LC)].” Grogan J Workplace Law Juta 2020
From this quotation from John Grogan’s book, I suggest that the date of dismissal is the date on the on which the employee was physically present at the employer’s premises.
In circumstances where the employee is not routinely working from the employer’s premises, I think that the most likely approach for identifying the date of dismissal would be to identify the last date on which the employee actually provided work.
INGRID LEWIN
Although the decision in Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd (LC1105/10 dated 11 November 2011) relates to a unilateral change to terms and conditions of employment, it suggests that an employer can either retrench an employee in terms of section 189 or lock out an individual employee if the employee refuses to accept a demand on a matter of mutual interest. Therefore I think that Section 187(1)(c) would apply to an individual employee.
Ingrid DevilliersIf the relief that the employee seeks is likely to impact on the employer then the employer must be joined. Like any other proceeding, however, the employer can choose whether to defend the action or let it go by default or gives notice that he/she/it is prepared to accept the arbitrator’s award without defending the case. There is nothing compelling an employer to participate, However, by not doing so, the employer risks an award against it by default.
INGRID LEWIN
