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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 cross-over between misconduct and incapacity' following a recent LAC judgment. We also look at three new cases: the first deals with the SCA's judgment on the long-running Kievits Kroon saga - what is fair when an employee wants lengthy unpaid leave to complete sangoma training? The second looks at a Constitutional Court judgment which overturns a controversial LAC judgment dealing with the setting aside of irregular promotions. The third case looks at whether an employer can enter into collective agreements with a minority union and what the effect of this would be.

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


The SCA rules on absenteeism to train as a sangoma

We have already covered the Labour Court decision (Kievits Kroon Country Estate (Pty) Ltd v CCMA & others (2011) 32 ILJ 923 (LC)) and the Labour Appeal Court decision (Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others (2012) 33 ILJ 2812 (LAC)) in this case. Now it is the turn of the SCA, bringing finality nearly 7 years later.

The facts, stated briefly, are these: A chef at a conference and leisure resort began experiencing visions and she consulted a sangoma who told her that she had to appease her ancestors by becoming a sangoma herself. She approached her employer and informed the employer about her visions. After consulting with the other chefs, the employer allowed her to work morning shifts to attend the training course to become a sangoma in the afternoons. This accommodation for her training continued from February to May.

During May the employee approached the employer and reported that she was about to complete her sangoma course and that she was now required to attend full time for a month, from 6 June to 8 July. She requested that she be allowed unpaid leave for the entire month. The employer was willing to allow the employee to utilize her leave days, but she had no leave in hand. She was offered one week of unpaid leave. The employer submitted they were very busy, short of staff and would not be able to provide a proper service to guests without her. The employee submitted that a week would be insufficient for the completion of her course.

On 1 June 2007 the employee left two documents on the desk of the HR manager. She failed to report for duty on 2 June. She later phoned the HR manager and asked her if she had seen the documents she left on her desk. She acknowledged receipt of the documents but told her that they did not change the employer's position and that unless she reported for duty she would face disciplinary action. According to the employer's disciplinary code, a person who absents himself/herself from duty for three or more days has to face disciplinary action.

On her return to work the employee was subjected to a disciplinary enquiry where she faced several charges, including non-compliance with established procedure and/or managerial instructions; being absent without a valid reason for three days or more; and gross insubordination. She was found guilty of all the alleged misconduct and dismissed. Her dismissal was referred to the CCMA.

Underpinning the CCMA award is an acceptance that for some people there is a belief that dire things will or could happen if training or rituals are not undertaken. Recognising 'necessity' as a justification for absenting herself, the arbitrator held that 'the applicant was justified to choose a course that would save her life... life ranks higher in the scale of legal values than property and other things.' Nothwithstanding the employer's earlier accommodation of the employee, the arbitrator found there was a lack of empathy and understanding of cultural diversity in the employer's workplace.

In the balancing between the employee's life and the employer's business interests, the arbitrator found that the employer would not have suffered any irreparable harm arising from the absence of the employee. The employer's evidence had been that it was short-staffed at the time and that it was a busy period, but this was not given weight because the employer had conceded that the employee would not have been dismissed had she submitted a medical certificate issued by a registered medical practitioner.

The arbitrator's decision was upheld by both the Labour Court and the Labour Appeal Court. The SCA in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (875/12) [2013] ZASCA 189 (29 November 2013) has now dismissed the appeal against the LAC judgment. In looking at the courts' judgments in these matters, we think the following principles emerge:

  1. When an employee feels called to follow an inner religious or cultural compulsion to absent herself / himself from work to fulfil that compulsion, that belief cannot be trivialised or questioned by the employer. It is not for the employer to question the employee's belief that harm may be caused by ancestors if the employee fails to heed the call.
  2. What the employer may do is in these circumstances is -

    1. check that the employee does have a sincere belief;
    2. test whether there is an ulterior motive in requesting leave;
    3. scrutinise the supporting evidence, such as a traditional health practitioner's certificate, and attempt to understand it; and
    4. ask the employee to explain its meaning. Once satisfied on these points, an employer should attempt to accommodate a request for leave and may investigate the possibility of an alternative time when the leave can be taken.

  3. Unless the employee classifies himself / herself as sick and applies for sick leave, a subjective cultural or religious 'calling' or 'condition' is not an illness that needs to be supported by a medical certificate.
  4. As part of justifying the need for leave, an employee should support the application with documentary evidence from a traditional health practitioner who explains the employee's condition and inner compulsion. This evidence is not that of an expert witness or a doctor, but rather a person trained in traditional methods of physical and spiritual healing.
  5. Where an employee unilaterally absents herself/himself from work, the fact that the employer knew where the employee was during the unauthorised leave, the reason for it and the period of absence, will be significant factors in favour of the employee.
  6. In certain circumstances it will be fair for the employer to dismiss an employee who absents himself / herself from work without the permission of the employer. These circumstances will include: (a) the failure by the employee to give an explanation for the need for leave, as well as advance notice of the intended leave; and (b) a lack of support from a traditional health practitioner as to urgency, condition and need for leave.
  7. Even where the employee has informed the employer of the desired leave and the reasons for it, there may be circumstances where the employee's intended absence will be unreasonable and intolerable for the employer, and a fair dismissal is possible.

This is clearly a developing area of practice. Future regulations from the Interim Traditional Health Practitioners' Council will hopefully bring greater clarity and consistency. But until that time, tolerance, non-judgmentalism and understanding are the key elements required of an employer in applying the SCA decision.

The consequences of delay in challenging irregular appointments

In Worklaw's December 2012 / January 2013 Subscriber Newsletter we looked at the case of Khumalo & another v MEC for Education, KwaZulu-Natal (LAC DA 3/2011; Judgment 29 August 2012) in which the court controversially set aside appointments made irregularly eight years before. An employee lacked the minimum requirements for the position but had been appointed. The other employee was offered protected promotion to settle his grievance that he was not short-listed.

The MEC was not aware that the promotions of the employees were fraught with certain irregularities until it was brought to her attention in a complaint lodged with her by a trade union. A task team consisting of the departmental officials and representatives of the union was established to look into the complaints and thereafter submit a report to the MEC. This was done and it concluded that in the absence of supporting documentation it had been difficult for it to understand why the employee had been promoted in the absence of all the minimum requirements of the post concerned and why the other employee had been promoted in the absence of a prior shortlisting. The MEC accepted the task team's findings and approached the Labour Court seeking the setting aside of the on the ground that they were unlawful to the extent that they did not meet the requirements of just administrative action as set out in s 33 of the Constitution.

The Labour Court set aside the impugned decisions and further directed the Department to take necessary steps to fill the posts. In addition the Court granted certain structural remedies. The Labour Appeal Court dismissed the appeal against the decision of the Labour Court. The parties petitioned the Supreme Court of Appeal for special leave to appeal, which petition was dismissed.

The employees appealed to the Constitutional Court, which in Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal (CCT 10/13) [2013] ZACC 49 (18 December 2013) set aside the decisions of both the Labour Court and Labour Appeal Court and replaced the decision of the Labour Court with an order dismissing the application. This is a very lengthy and complex judgment dealing with the cross-over between employment law and administrative law. But the basis on which the matter was ultimately resolved was simple: the delay by the MEC in taking her own department's decision on review was so unreasonably long that fairness required that the appointments remain in place.

The principle established by this case is this: Where the delay in correcting an irregularity is unreasonable and unexplained, this will not generally be condoned, particularly where there is no wrongdoing on the part of a person promoted irregularly.

Does majoritarianism prevent collective agreements with minority unions?

Embedded into the LRA is the principle of majoritarianism: the union which has 50% + 1 support is granted extensive organisational rights. These include all the rights which a minority 'sufficiently representative' union can acquire - access to the workplace, deduction of trade union subscriptions, and leave for trade union activities - plus rights of electing shopstewards and access to information. These spread of organisation rights inevitably lead to collective bargaining. A majority union and an employer can then agree under section 23 of the LRA to extend the application of their agreement to cover all affected employees, including members of a rival minority union. A minority union (unless it can argue that it is 'sufficiently representative') does not acquire organisational rights. Section 18 of the LRA also allows a majority union to conclude a collective agreement which sets the thresholds required for other unions to acquire organisational rights - this can then entrench the position of the majority union to the exclusion of other unions.

The argument for majoritarianism is that it is only a union representing the majority of the workers that has the influence and power to effectively bargain with the employer. The Marikana tragedy was triggered in part by the frustrations felt by members of a determined minority union with no recognition in a workplace in which there was a recognised rival majority union. There is a growing sense that the system needs to change. Observers agree that the collective bargaining climate has become increasingly adversarial and fraught in the past five years.

Against this background is the LC decision in POPCRU v Ledwaba NO & others (JR 636/2012) [2013] ZALCJHB 244 (5 September 2013) arising from an application to set aside an arbitration award. POPCRU is an existing majority trade union recognised by the Department of Correctional Services. SACOSWU, on the other hand, was an unrecognized minority union, having 1 479 members. The Department had, at the time, some 40 000 employees.

SACOSWU approached the Department seeking that the Department afford it the organisational rights of access to the employer's premises and trade union subscription deductions, which the Department initially refused. SACOSWU objected against such refusal and the Department decided to afford SACOSWU what was termed "permission to organise". This was in essence affording SACOSWU right of access as contemplated by s 12 of the LRA. This led to a complaint by POPCRU that this conduct undermined the existing collective agreements with it, and that SACOSWU did not qualify in terms of number of members for admission to the departmental bargaining council (DBC).

The Department then formally afforded SACOSWU organisational rights in a collective agreement. These included SACOSWU representing its members in internal department disciplinary proceedings and affording SACOSWU trade union membership subscription deductions. This was despite SACOSWU never being admitted to the DBC and never having attained the prescribed threshold of representativeness. According to POPCRU, the conduct of the Department in affording SACOSWU organisational rights contravened the prior collective agreements which the Department was bound to comply with and, consequently, the collective agreement the Department concluded with SACOSWU was invalid. The Department contended that there was nothing in law prohibiting this - it was concluded in terms of section 20 of the LRA, which meant that these organisational rights were granted outside the ambit of Part A of Chapter III of the LRA. These were the positions of the parties before the arbitrator.

The matter referred to arbitration was whether the collective agreement between the Department and SACOSWU on organisational rights was validly concluded. The arbitrator concluded that it was. The arbitrator accepted that such a collective agreement would be an agreement as contemplated by section 20 of the LRA and would thus fall outside the ambit of the statutory organisational rights in terms of Part A of Chapter III of the LRA. The arbitrator further found that the collective agreements between the Department and POPCRU were agreements concluded in terms of Section 18 of the LRA and not section 20 and were thus not affected. The arbitrator finally concluded that to deny SACOSWU the right to enter into a collective agreement with the Department would contravene section 23(5) of the Constitution.

POPCRU then brought an application in the Labour Court to review the arbitrator's award. The LC overturned the arbitrator's award and set aside the collective agreement with SACOSWU. The LC held as follows:

  1. A collective agreement between a majority trade union and an employer can competently and lawfully exclude organisational rights of another minority trade union.
  2. Section 20 provides for the conclusion of a collective agreement on organisational rights outside the parameters of Part A of Chapter III of the LRA, but such an agreement would still be subject to all the provisions relating to collective agreements in Part B of Chapter III of the LRA.
  3. In terms of s 23(1)(d) in Part B, any collective agreement with a majority trade union that specifically binds non-parties to the collective agreement and identifies the parties so bound, is actually binding on such non-parties.

What are we to make of this judgment? In clearly maintains the status quo, in entrenching the rights of majority unions. It will be interesting to see the impact of the LRA amendments in this area, once they become law. The proposed new section 21(8C) provides that an arbitrator may award organisational rights to a minority registered union that represents 'a significant interest / substantial number of employees', even if it doesn't meet the thresholds of representativeness required by a collective agreement with the majority trade union. This is subject to the proviso that all parties to the collective agreement were given the opportunity to participate in the arbitration proceedings. The amendments do not however appear to consider the impact of the extension of a collective agreement under section s 23(1)(d) in Part B, as was the case in these LC proceedings.


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Bruce Robertson
February 2014
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