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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 which looks at 'Dealing fairly with employee depression' following a recent LAC decision. We also discuss three new cases: The first case involves a company that used an operational requirements dismissal to resolve incompatibility between managers. The second case dealt with what must be proved before a court will find that there has been contempt of court. The third case is a Constitutional Court judgment that deals with the test for determining whether there has been a transfer under section 197.

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Resolving incompatibility through retrenchment

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 29 LAC 1.11.26 also reported at [2020] 6 BLLR 549 (LAC), Avis used an operational requirements dismissal to resolve incompatibility between managers. The matter was referred as an automatically unfair dismissal under s187(1) of the LRA due to unfair discrimination, or alternatively that the dismissal was unfair in terms of s189 of the LRA due to there being no bona fide operational requirements reason and Avis had not followed a fair procedure.

The LAC confirmed that the procedure used was unfair, and clarified that incompatibility is a species of incapacity because it impacts on work performance. The LAC clarified procedural and substantive fairness requirements for incompatability cases.

The LAC confirmed that compensation for procedural unfairness is not based on an employee's actual (financial) losses, and is a 'solatium' (redress) for the loss of a right, summarising key factors to determine compensation for procedural unfairness

Read more (Worklaw subscriber access only)

Contempt of court for not complying with strike interdict

Plastic Convertors Association of South Africa (PCASA) obo Members & Others v NUMSA & Others (J3725/18) [2020] ZALCJHB 63; [2020] 7 BLLR 690 (LC) (13 March 2020) deals with what must be proved before a court will find that there has been contempt of court. An applicant must prove beyond reasonable doubt the requisites of contempt being existence of the order; service or notice of the order; non-compliance; and wilfulness and mala fides.

The Plastic Convertors Association of South Africa (PCASA) and certain of its members made application to hold NUMSA in contempt of court for failing to adhere to the terms of a strike interdict. The relief sought was the imposition of a fine of R1 000 000.00 on NUMSA.

The factual background was that on 15 October 2018 NUMSA's members in the plastics sector went on strike in support of their demand for increased wages and improved working conditions. As a result of a number of violent attacks during the strike, PCASA approached the Labour Court for an urgent interdict. Despite the interdict, numerous violent attacks occurred at a number of PCASA's members' facilities across the country.

The LC held that PCASA had not established that NUMSA was in contempt of the interim strike interdict order.

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A transfer of a business as a going concern

The Constitutional Court judgment in Road Traffic Management Corp. v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic Management Corp. (CCT27/19; CCT86/19) [2020] ZACC 21 (4 August 2020) deals with the test for determining whether there has been a transfer under section 197 of the LRA. The ConCourt found that the crucial issue was whether the economic entity in question retained its identity after the transfer.

The Road Traffic Management Corporation (RTMC) is an organ of state with a statutory mandate to establish and run an effective road traffic management system. The Department of Transport entered into a Turnkey Agreement with Tasima Pty Ltd for the development of the eNaTIS system and the provision of related services. The eNaTIS is an essential facility used by the government in road traffic management. After the expiry of the Turnkey Agreement, the parties concluded an interim arrangement, followed by an unlawful five?year extension agreement. Subsequent disputes between the RTMC and Tasima regarding the eNaTIS system resulted in two previous judgments by the Constitutional Court.

In Tasima I, the Constitutional Court made an order on 9 November 2016 that the eNaTIS system and related services be transferred from Tasima to the RTMC within a period of 30 days. In terms of this judgment, the transfer was required to take place in accordance with the Migration Plan in the Turnkey Agreement in the event that the parties were unable to agree on an alternative plan.

In relation to the section 197 transfer, the Labour Court and the Labour Appeal Court both held that section 197 of the LRA applied to the transfer of the eNaTIS and found that Tasima's employees were automatically transferred to the RTMC.

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ARTICLE: Dealing fairly with employee depression

By Prof Alan Rycroft

Prof Alan Rycroft's article discusses depression and fair employer responses to it, in light of the recent LAC judgment in Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37 (21 July 2020).

A Legal Aid paralegal was dismissed at a misconduct enquiry for 17 days' unauthorised absenteeism, insolence, and a refusal to obey a lawful instruction. He referred both an automatically unfair dismissal claim under the LRA and an unfair discrimination claim under the EEA, claiming that the employer unfairly discriminated against him on the ground of his disability of reactive / manic depression.

This decision highlights that a dismissed employee alleging unfair discrimination on grounds of depression (a disability) has to establish factual causation (would the dismissal have occurred if there was no depression?) and legal causation (was the disability the most probable cause of the dismissal?). Only if it is shown that the most probable cause for the dismissal was the disability, can it be said that the dismissal was automatically unfair.

The LAC said depression must be looked at as a form of ill health. As such, an incapacitating depression may be a legitimate reason for terminating the employment relationship, provided it is done fairly in terms of Items 10 and 11 of the Code of Good Practice: Dismissal. If an employee is temporarily unable to work for a sustained period due to depression, the employer must investigate and consider alternatives short of dismissal before resorting to dismissal.

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
August 2020
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