Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks in depth at the issue of whistle-blowing - an employee making disclosure of workplace crime or wrong-doing. We also look at two new decisions. The first is the Supreme Court of Appeal's decision on dismissal for refusing to accept workplace changes, and a decision on whistle-blowing.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Dismissal for refusing to accept workplace changes
How does an employer restructure or bring about changes to work methods where the employees refuse to agree to the changes? The LRA stipulates that it is an automatically unfair dismissal if the employer uses dismissal as a way to compel the employees to accept change. But the LRA also allows dismissal where it is operationally required.
The case of National Union of Metalworkers of South Africa v Fry's Metals (Pty) Ltdhas been working its way through the courts for 5 years, finally reaching the Supreme Court of Appeals. The employer, on the advice of consultants, wished to introduce changes in production methods to enhance productivity at the company. When the workers refused to accept the changes, the company gave them notice that they would be retrenched. NUMSA obtained an interdict against the retrenchments in the Labour Court in 2000, on the basis that they concerned a 'matter of mutual interest' which had to be bargained between employer and employee and for which the employer could not take recourse to dismissal. The company argued that the proposed dismissals were justified for 'operational reasons' relating to its productivity and viability.
The Labour Court granted the interdict, but the LAC set it aside, holding that dismissals concerning terms and conditions of employment were specially protected against only where the employer used dismissal as a tool to compel employees to agree to changes. Where the dismissal was final, and intended to be final, the employer was empowered to dismiss provided it could show justification for 'operational reasons'. The LAC judgment in effect enhanced employers' powers of dismissal in disputes about terms and conditions of employment. The Supreme Court of Appeal has now upheld the LAC finding.
What constitutes whistle-blowing?
The Protected Disclosures Act of 2000 was passed to protect employees who make disclosure in specific circumstances about 'impropriety' at the workplace. But as will be seen, to get the status of a 'protected disclosure', the courts are stipulating that certain requirements have to be met. In CWU & another v Mobile Telephone Networks (Pty) Ltd  8 BLLR 741 (LC) an employee accused his superiors of giving preferential treatment to a particular temporary employment agency from which it hired workers. The allegation was made twice via e-mail to the company's business risk unit, as well as to a number of senior employees. The employee was subsequently suspended for alleging that management was corrupt, and summoned to attend a disciplinary hearing.
The employee launched an urgent application for an order compelling the employer to lift his suspension and stop the disciplinary action against him, arguing that these actions constituted an "occupational detriment" under the PDA. The Court held the employee's allegations did not convey information - they were merely expressions of opinion without a factual basis. Also, the disclosure had been made publicly, whereas the PDA protects only private disclosures. The employee had failed to make use of the employer's elaborate procedures for reporting alleged wrongdoing. The application was dismissed with costs.
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