Public Newsletter


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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 appropriate handling of grievances. We also look at three new decisions dealing with offering alternative employment in a retrenchment process, the retirement age, and misconduct involving criticism of management in an e-mail.

This public newsletter is a free edited version of the subscriber newsletter, and does not contain all the information contained in the subscriber newsletter.


Alternative employment in retrenchment: how much persuading must an employer do?

Finding an alternative job to avoid retrenchment is one of the well known and accepted obligations of an employer where an employee's job has become redundant or where retrenchment is inevitable. The Code of Good Practice on Dismissal on the one hand requires the employer to consider alternatives to employment and on the other sanctions the withholding of severance pay if the employee refuses unreasonably to accept the alternative employment. In L & C Steinmuller (Africa) Ltd & others v Shepherd (2005) 26 ILJ 2359 (LAC), after an amalgamation of businesses, the employee, a contracts manager, was offered the position of business manager in the newly created company. When the employee accepted subject to conditions which the company was unable to accommodate, three meetings took place but no resolution could be reached. The employee was then advised that his services were terminated on the grounds of redundancy.

The commissioner found the dismissal to be unfair as there had not been meaningful consultations with the employee and the employer had not made a reasonable effort to convince the employee to accept the job offer as a means of avoiding dismissal. The Labour Appeal Court reached a different conclusion. It found there had been meaningful consultations on several occasions and no more could reasonably be expected of the company. The court concluded: "Neither in law nor in fairness is there any obligation that rests upon an employer who offers an employee alternative employment in order to avoid retrenchment to make an effort to convince the employee to accept the alternative offer."

Retirement age - again

Not long ago we reported on a case which said that if there was no agreed or normal retirement age, an employer cannot simply terminate an employee on the basis of age. This left employers wondering if the only way out was to wait for the aged employee to become incapacitated.

However a more pragmatic view has emerged in Botha v Du Toit Vrey & Partners CC (2005) 26 ILJ 2362 (LC), where a 66 year-old employee was dismissed on grounds that he had reached the retirement age. The employee alleged an automatically unfair dismissal on the grounds of age discrimination. The employer relied on an implied agreement that he would retire at 65, alternatively that 65 was the 'normal' retirement age for appraisers. The court found there was no agreed retirement age at 65. However this did not mean that he could continue to be employed until he himself decided to terminate his employment. The court said that in the absence of an agreed retirement age, an employer is entitled to determine the employee's retirement age at the standard or normal retirement age in the field in which he was working. This age was 65. The employee's consent was not required in this case. The court was however concerned that no consultation had taken place with the employee either before or after he reached his 65th birthday. In the court's view it was unfair to present an employee with a notice terminating his services within one month without any prior discussion. The court found that, although the termination was substantively fair, the employee was entitled to three month's compensation because the procedure had been procedurally flawed.

Watch the criticism in those e-mails!

E-mail has become one of the most effective ways to communicate but, because of its immediacy, it has a particular peril: the 'send' button is pressed all too easily, particularly when we are angry or frustrated. Having sent the e-mail, there is proof of insubordination and other acts of misconduct. In Van Wyk v Independent Newspapers Gauteng (Pty) Ltd & others (2005) 26 ILJ 2433 (LC) the chief sub-editor of the Pretoria News had a heated argument with her superior, the deputy editor, while on duty one evening. The following day she addressed an e-mail to the managing director in which she criticized him and other members of senior management. She circulated the e-mail to six other members of management. A day later she sent an e-mail to her superior, a close friend of hers, in which she vented her feelings and frustrations at work, especially with her editor. Neither forwarded the e-mail to anyone else but a copy was delivered to the editor in an unmarked envelope. The employee was disciplined and dismissed on the basis that the trust relationship had broken down.

At arbitration proceedings, several colleagues testified and while not condoning the e-mails, said that the sanction of dismissal was inappropriate. The employee accepted that she should have received a 'good dressing down' for the first e-mail, but submitted that the second e-mail should not have been admitted because of its private nature. The arbitrator upheld the dismissal as fair on the basis that management had every right to feel insulted by the first e-mail. The arbitrator held the second e-mail was admissible because it had been sent to a communal computer which was the property of the employer.

On review the employee relied on the Interception and Monitoring Prohibition Act 127 of 1992 to argue that the chairperson of the disciplinary hearing was prohibited from having regard to the second e-mail. The court did not agree because the employer's technology usage policy specifically cautioned employees not to assume that e-mails would not be read by other persons. The court was also satisfied that the first e-mail alone justified dismissal.


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Bruce Robertson
February 2006
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