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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the 2013 Labour Court Practice Manual and how this can be used for strategic dispute resolution. We also look at three new cases: The first deals with the limits of 'family responsibility leave' under section 27 of the BCEA. The second deals with how evidence is weighed in an arbitration - how does the employer prove a fact on a balance of probabilities? The third deals, with what disclosure qualifies as a 'protected disclosure' in order to be protected by the 'Whistleblower' Act.

This public newsletter is a free edited version of the subscriber newsletter.


Family responsibility leave - what are the limits?

Section 27 of the Basic Conditions of Employment Act provides for an employee to be granted 3 days' family responsibility leave during each annual leave cycle, in the event of specified personal circumstances taking place. These are defined as follows:

-   When the employee's child is born;
-   When the employee's child is sick;
-   In the event of the death of the employee's spouse or life partner, or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

In the light of recent judgments (see for example Kievits Kroon Country Estate v Mmoledi & others (JA 78/10) [2012] ZALAC 22 (24 July 2012)) which have stressed the need for employers to recognise that our society is characterised by a diversity of cultures, traditions and beliefs, and to 'reasonably accommodate' such diversity, how widely or narrowly should the above family responsibility provisions be interpreted?

In Public Servants Association on behalf of Jonase and Department of Justice & Constitutional Development (2011) 32 ILJ 1271 (BCA) the arbitrator was required to interpret and apply Public Service Resolution 7 of 2000, dealing with family responsibility leave. This contains provisions similar to section 27 of the BCEA. An employee applied for three days' family responsibility leave following the death of his brother-in-law. Initially his application was recommended but was later disallowed, and he was debited with three days' vacation leave. He referred a dispute to arbitration in terms of s 24 of the LRA over the interpretation and application of Resolution 7 of 2000, being a collective agreement. The employee claimed that by Xhosa customary law his brother-in-law was regarded as a full member of his family - he was effectively a 'sibling' - and that he was therefore entitled to family responsibility leave.

The arbitrating commissioner noted that the BCEA and the Resolution limited the notion of immediate family for the purposes of family responsibility leave as 'parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling'. If the drafters had intended to include other members by operation of law, they would have expressly stated so. The employee was accordingly held not to be entitled to family responsibility leave in respect of the death of his brother-in-law.

Proving facts at arbitration: When is it fair to disregard evidence of a vehicle recovery device?

A distributor of pharmaceutical products was concerned by a drop in orders. It took various steps to remedy the situation, including monitoring the daily activities of sales staff on a random basis as part of an audit process. To do so, it sought assistance from the Netstar Tracing and Recovery Systems Company, a specialist company in the recovery of vehicles.

Based on the Netstar report and its own investigations, the employer charged an employee with 'ghost calling' (ie pretending to call) at two pharmacies. The employee denied this and asserted that she did call on all the nine pharmacies allocated to her but used different routes to those the employer expected her to have used. This, she argued, was why the Netstar vehicle recovery device could and did not pick up her vehicle even at pharmacies she had visited but was accused of not having visited.

In considering the evidence of the employer's expert witness concerning the operation of the tracking device, the Commissioner found that it was difficult to conclude that the tracking system was without flaws. The Commissioner came to the conclusion that the employee's dismissal was substantively unfair and ordered the payment of just and equitable compensation.

The employer took this decision on review to the Labour Court which, using the Sidumo test, considered whether the award was one that a reasonable decision-maker could reach. The court accepted the employee's version to be more probable and held that the Commissioner had applied his mind to the material facts before him and that his decision was reasonable.

The employer refused to let the matter end there and appealed - in Sisonke Partnership t/a International Healthcare Distribution v National Bargaining Council for the Chemical Industry and Others (JA 51/10) [2013] ZALAC 16 (9 July 2013). On appeal, the employer submitted that the Commissioner's disregard of the expert's evidence constituted an irregularity. The expert had conceded that the tracking device could not detect the employee's vehicle in certain areas but had given a reason for every failure in the tracking process. What remained clear from the expert's evidence, argued the employer, was the fact that the tracking device did not confirm that the employee had visited two hospitals she said she had. According to the expert witness, the two hospitals had a common entrance and the tracking device at that entrance was functioning properly, yet the vehicle the employee was travelling in that day was not detected entering or leaving the premises of the two hospitals.

The LAC was asked to decide if the arbitrator fairly disregarded the evidence of the Netstar vehicle recovery device. The employer's case was this: not only did the device did not detect the vehicle at these hospitals but no one saw her and no one acknowledged her presence or corroborated her version. The employee had testified that at one of the hospital pharmacies she spoke to somebody but that person was busy and thus she could not spend more time with him. She confirmed that she did not go into the premises of the two hospitals in her vehicle but walked from a parking area of a hospital she visited nearby the two hospitals. The employee presented - and the Commissioner accepted - corroborating letters from the pharmacies. The employer argued that the Commissioner should not have admitted the hearsay letters from the pharmacists without the authenticity of such letters having been proven, alternatively without the pharmacists having been called to testify. That on its own, the employer argued, was an irregularity so gross that it made the decision of the Commissioner irregular and thus reviewable.

The LAC held that there is no absolute prohibition against the admission of hearsay evidence by a Commissioner in arbitration proceedings - which are meant to be swift and informal. Section 138 of the LRA provides:

'The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.'

The LAC weighed up the evidence and concluded that the Commissioner's decision was not unreasonable, having taken into consideration all the evidence, including the imperfect nature of the Netstar vehicle recovery device, the hearsay evidence submitted on behalf of the dismissed employee and other factors.

What are the lessons of this case? This is a good case study on how arbitrators and judges assess or weigh the basket of evidence before them. The employer bears the onus of proving the misconduct on a balance of probabilities. It chose, in this case, to rely mainly on the Netstar report which was only 85% accurate. The employee offered oral and hearsay evidence that she did visit all the sites she said that she had, and she put a version to explain why the Netstar report did not detect her vehicle. Other hearsay evidence in the form of corroborating letters from the pharmacies she allegedly visited, were also submitted in support of her version. Weighing the balance of probabilities, it can be appreciated that it was reasonable for the Commissioner to give the employee the benefit of the doubt.

What this means is that an employer, to prove a case on a balance of probabilities, has to go beyond a report - like the Netstar report - which has failings. It needs to fill in the gaps through its own investigations and other witnesses.

When can a whistle-blower prevent a disciplinary hearing?

The Protected Disclosures Act 26 of 2000 (PDA) was enacted to protect an employee who makes a disclosure about workplace crime. The policy behind the Act is that every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace. More than this, every employer has a responsibility to take the necessary steps to ensure that employees who disclose such information are protected from any reprisals as a result of such disclosure.

Where an employee is dismissed for making a protected disclosure, this is called an "occupational detriment", and in terms of s 187 of the LRA constitutes an automatically unfair dismissal. It also falls in the definition of unfair labour practice in s 186.

But does this mean that an employee who has made any disclosure can get a court interdict to prevent the employer from commencing a disciplinary enquiry? - in other words as a precautionary step to prevent an automatically unfair dismissal? This was the issue that arose in Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (C 418/2013) [2013] ZALCCT 21 (21 June 2013). An employee, a senior quality auditor in the quality systems section, raised certain complaints about the alleged failure of her employer to deal with customer complaints. She also complained that certain employees and senior managers were not doing their job and that the employer's Quality Assurance (QA) Department was in "extreme chaos". Arising from her comments in email correspondence and two meetings, the employer notified the employee to attend a disciplinary hearing. The alleged misconduct complained of was insubordination and incompatibility, by deliberately causing disharmony in the workplace.

In approaching the Labour Court, the employee said that the nature of her complaints fell within the definition of a "protected disclosure" in the Protected Disclosures Act and that the contemplated disciplinary hearing constituted an "occupational detriment" in terms of that Act. The employee brought an urgent application in terms of s 158(1)(a) of the LRA and s 4 of the PDA to interdict the disciplinary hearing.

The Labour Court, looking at previous cases, outlined the requirements for a successful interdict in the context of the PDA. They are: (1) The disclosure relied on as a protected disclosure must be more than an expression of a subjectively held opinion or an accusation; it must be a disclosure of information; (2) The disclosure must clearly indicate a breach of legal obligations and possibly criminal conduct on the part of the employer; (3) Disclosure about disagreement with the employer's policy is not disclosure of an impropriety.

Applying these requirements to the employee, the court found that there was no disclosure of an impropriety - her real complaint was the alleged non-performance by a manager and the QA technicians who reported to him, and what she perceived to be 'extreme chaos' in the quality systems department. That did not amount to 'criminal or other irregular conduct' as contemplated by the PDA. Nor did it fall within the definition of a 'disclosure' of an 'impropriety'. The court said the following:

"I fully agree that the PDA should be given a wide rather than a restrictive interpretation in order to encourage a culture of whistleblowing, especially in a country such as ours that is increasingly plagued by the scourge of corruption, both in the public and the private sector. However, the legislature could not have intended that concerns about the alleged poor performance of a quality systems department and an apparent lack of concern about customer complaints should be given the protection offered by the PDA".

For the court to grant an interdict it also had to find that there was a danger of irreparable harm. The court said that any harm that the employee may suffer is in any event not irreparable because she would have the opportunity to state her case and to lead evidence at the disciplinary hearing. Thereafter she could challenge the findings at the CCMA. The court also said that there was an alternative remedy for cases such as this, where the employee has not been dismissed. It specifies that 'any other occupational detriment' - such as a disciplinary hearing - is deemed to be an unfair labour practice and so can be resolved through conciliation, failing which by the Labour Court.

The court's conclusion was that the employee had not discharged the onus to show that she is entitled to the relief she sought under the PDA. The court directed her to take part in the disciplinary hearing and lead the evidence she deemed necessary to rebut the allegations of misconduct.

The lesson of this case is that not every disclosure qualifies as a protected disclosure under the PDA. The protection of that Act is offered in specific situations only. Outside of those, employees need to be wary of making allegations.


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Bruce Robertson
August 2013
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