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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 problem of racism in the workplace. We also look at new decisions, one dealing with consistency in disciplinary sanctions and one with the 'normal' retirement age.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Consistency in disciplinary sanctions
The Code of Good Practice: Dismissal requires an employer to apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration (Item 3(6)). At the same time the employer is obliged to take into account mitigating circumstances which may justify a lighter sanction. Many employers have problems in balancing the need to consider individual mitigating circumstances with the need to act consistently.
The decision in Consani Engineering (Pty) Ltd v CCMA & others (2004) 25 ILJ 1707 (LC) dealt with the issue of consistency. The company had been experiencing significant stock losses through theft by employees and notified employees that it was adopting a zero-tolerance approach to theft. An employee was caught in unauthorized possession of a roll of rubber tape. Despite the tape being scrap and the employee who was a sole breadwinner expressing remorse, the company dismissed him in terms of the zero-tolerance policy. The CCMA commissioner found the sanction too severe and reinstated him, which decision was then taken on review. The Labour Court recognised that many would regard the sanction of dismissal to be too harsh, but said that the Court was required to assess the justifiability of the sanction in the light of the employer's entitlement to set its own standards of conduct in the context of that business. The Court upheld the dismissal.
Because the sanction was also challenged as unfair on the basis of inconsistency with a previous incident, the Court was obliged to comment on how one should balance the principle of consistency with the obligation to consider mitigating circumstances and also a changing work context. The Court said that the requirement of inconsistency is not a hard and fast rule. Flexibility in adapting to a changing environment is equally important. The Court recognised that shifts in policy inevitably introduce standards not consonant with past practices. The company's change in policy to one of zero tolerance could be fairly regarded as a legitimate modification of the operational means for protecting the company from ongoing stock losses. Any ensuing element of inconsistency could not be considered to be arbitrary or in bad faith in the circumstances.
Age discrimination and the normal retirement age
Section 187(2) of the LRA says that it will not be unfair discrimination on the basis of age if a dismissal applies to an employee who has reached 'the normal or agreed retirement age for persons employed in that capacity'. But what must an employer do if there is no agreed or normal retirement age? In Rubin Sportswear v SACTWU & others (2004) 25 ILJ 1671 (LAC) the courts said the employer got it all wrong.
In this case, employees in a company with no agreed or normal retirement age were automatically transferred in a sale of a business to another company which did have a normal retirement age of 60. They were notified by their new employer that it was fixing a retirement age of 60. Although the employees did not agree, they were later dismissed for reaching the age of 60. They alleged an automatically unfair dismissal on the grounds of unfair discrimination on the basis of age. The Labour Court and the Labour Appeal Court held that if there is no agreed or normal retirement age, it will be automatically unfair to dismiss an employee simply for turning 60.
The Court held that a certain age cannot suddenly become the normal retirement age for employees or for a certain category of employees simply because the employer wakes up one morning and decides that he wants a certain age as the normal retirement age for his employees or for a certain category of his employees. What the employer can do is put a proposal to his employees on what should be an agreed retirement age in that workplace. If there is agreement it will be applicable to all those who have agreed to the proposal.
But what if there is no agreement? The Court said that a retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period. If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. The Court said that there was only one remedy open to the employer where employees refused to agree: to lock them out until they agreed.
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