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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 “Moonlighting and an employee’s other business interests”. We also look at three new cases: The first considers when a change to the method of performing work amounts to a change to terms and conditions of employment. The second is a case about deviating from the Chairperson’s disciplinary sanction. The third asks whether illegally employed foreigners fall under the LRA.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
When does a change to the method of performing work amount to a change to terms and conditions of employment?
The Johannesburg Metropolitan Bus Services (Metrobus) implemented a revised shift schedule. The question in Johannesburg Metropolitan Bus Services (Pty) Ltd v Samwu & others (LC Case No: J 2276/10; Date of judgment: 14 December 2010) was whether this was a unilateral change to bus drivers’ terms and conditions of service. If it was, the trade unions were entitled to call their members out on a protected strike. If it was not, their intended strike was unprotected and could be interdicted.
The employees’ contracts of employment do not specify a particular shift but their maximum working hours are set out in collective agreements of the South African Local Government Bargaining Council (SALGBC). According to Metrobus, the driver shift system resulted in overcrowding on some routes and underutilisation of buses on other routes. As a result, it implemented a revised driver system which would have the effect of revising both shifts and routes worked. It maintained that this would be to the benefit of the travelling public and will improve the sustainability of the company. SAMWU said that it would have the opposite effect on its members. Although their working hours would not be longer, some bus drivers – depending on their shift – may have to stay at the depot later. The new shifts were also less convenient to them.
Metrobus denied that it had implemented a unilateral change to terms and conditions of employment, stating that "the implementation of a shift system does not amount to a breach of the main collective agreement in that it is not an amendment to working hours agreed at a national level." Metrobus submitted that a change to the method of performing work may only amount to a change to terms and conditions of employment if it entails a change to the essential nature of the job – in this case there had been no unilateral change to terms and conditions of employment of bus drivers. For these reasons, Metrobus argued that the provisions of section 64(4) or 64(5) of the LRA did not apply to this dispute and it was not obliged to halt its implementation of the revised shift scheduling system.
The court decided that employees do not have a vested right to preserve their working obligations completely unchanged as from the moment they first begin work. It is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job, that there is a right to refuse to do the job in the required manner.
The court held that an alteration of shifts which does not result in employees being required to perform a different job, does not entitle them to claim a material breach of or alteration to the contract. A shift system is merely a work practice, not a term of employment.
What do we learn from this case? The first thing to notice is that the labour court recognised that the way work is done may be revised and amended without it constituting a change to the essential terms and conditions of employment. This distinction will often be case and fact specific, but the case follows earlier decisions which ask if employees are being required to do an entirely different job. Only then will a dispute about the proposed changes be correctly classified as a unilateral change to terms and conditions of employment under s.64(4) and (5) of the LRA.
Deviating from the Chairperson’s disciplinary sanction
Disciplinary charges arose out of an incident in which the employee allegedly displayed gross disrespect, uttered rude and abusive language to the municipal manager and made aggressive advances towards the same manager, in the course of which he humiliated the manager in front of staff and junior employees. The second charge was that he disrupted the functioning of the municipality by blocking the venue for the sitting of a mayoral meeting and blocked free access of the public to the reception area of the municipal premises. At the time of the hearing the applicant had been employed by the municipality for seven years and had a clean disciplinary record.
The employee was dismissed after the employer decided not to accept the recommendation of the chairperson of the disciplinary enquiry. His recommended sanction was that the employee be dismissed, but the dismissal be suspended for a period of 12 months, provided the employee was not found guilty of similar misconduct during that period. The recommendation was not to the employer’s liking and it decided instead to summarily dismiss the employee. The employee referred the alleged unfair dismissal to the CCMA. The arbitrator found the dismissal to be fair. The arbitrator’s decision was then taken on review.
These were the facts in Samwu obo Mahlangu v SALGBC (LC Case: JR 2595/09; Date of judgment: 21 June 2011). What determined the court’s decision in this case was the employer’s non-compliance with its own disciplinary procedure, which gave authority to the Chairperson to decide the disciplinary sanction. The court said that where an employer unilaterally assumes the power to determine the sanction when in fact it was bound by an agreed peremptory code assigning such power to an appointed chairperson, and where it does not give effect to the sanction recommended by the only person entitled to decide on it, the employer’s dismissal will be in breach of the provisions of the code. The court ordered that the Chairperson’s sanction of a suspended dismissal should apply.
This case again touches on the vexed question of what, if anything, an employer can do if it is unhappy with its chairperson’s finding. It shows that the options available may depend on the facts of each case. In this case, despite the chairperson stating that his proposed sanction was merely a recommendation to the employer, the terms of the applicable collective agreement showed this not to be so – the chairperson was in fact required to decide the matter. In this sense, the judgement follows the line of previous decisions that say an employer must comply with its own procedures.
Where a disciplinary procedure does provide (as some do) that the chairperson’s decision is merely as recommendation to the employer, the employer would then be entitled to decide whether to accept it or not. But this judgement is also helpful on that point, in that it expresses the view that where an employer legitimately decides not to accept the recommendation and impose a harsher sanction, procedural fairness requires the employer to allow the employee to make further representations before doing so.
The court expressed the view that if the employer was unhappy with the chairperson’s findings, it could have applied to review these findings. No mention was made of any right of the employer to rehear the matter if it believed it was faced with a manifestly unfair outcome, along the lines of Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) arch 2007 as discussed in our March 2007 newsletter. In summary, the LAC on that occasion stated that the law was this: - an employer is entitled to hold a second disciplinary enquiry if it would be fair to do so. But where an employer’s disciplinary code or collective agreement expressly or impliedly prohibits this, it may not be an option.
This judgement again emphasises the point we have made previously, that parties should canvass in their policies and agreements, the rights of all parties to contest the outcomes of unfair disciplinary proceedings. In that way, it would place the rights of all parties beyond doubt.
Do illegally employed foreigners fall under the LRA?
The employee was a foreign national from the Seychelles. She was employed as a receptionist at the employer’s Waterfront Hotel in Cape Town. At the time, she only had a study permit which expired on 30 May 2008. When the permit expired, Southern Sun told the employee that she could no longer lawfully tender her services in terms of the Immigration Act. She was told to obtain a valid employment permit. The employer’s stance was that she was not entitled to any payment as she could not lawfully tender her services. It stopped paying her and did not accept her continued tender of her services as it was of the view that the tender was unlawful. By 18 September 2008, the employee had not succeeded in obtaining a valid permit. Southern Sun instructed her to attend a disciplinary enquiry and dismissed her on the basis that she was unable to lawfully tender her services.
The employee referred an unfair labour practice dispute to the CCMA in terms of section 186(2) (b) of the Labour Relations Act. She claimed that she had been unfairly suspended and, in terms of the relief sought, asked that Southern Sun be ordered to pay her the salary due to her for the period of 11 August to 7 October 2008. When the matter proceeded to arbitration, the employee objected to the CCMA's jurisdiction but was overruled by the arbitrator, who found that the CCMA did have jurisdiction to hear the dispute. It is that ruling that the employer wished to have reviewed and set aside by the Labour Court.
The issue in Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun Waterfront Hotel v CCMA & others (LC Case No: C255/09; C362/09; Date of judgment: 21 June 2011) was accordingly not about the merits of the case. It was a technical, jurisdictional point – whether the CCMA has the jurisdiction to hear a dispute referred by an illegal worker. What the court held was that an "illegal foreigner" (or undocumented immigrant) is an employee for the purposes of the LRA. Even where the work itself is illegal and not only the contract of employment, the CCMA retains jurisdiction.
Lessons from this judgement: This case follows the reasoning in the ‘Kylie’ case which held that a sex worker, although employed in illegal and criminal prostitution, was still an employee under the LRA. But even if the CCMA has jurisdiction to hear the dispute, the remedy available is affected by the illegality of the contract of employment. Courts have always been reluctant to come to the aid of employees working illegally. But the court said that nothing in the LRA indicates that no form of protection in terms of section 193 of the LRA should be available to someone such as the appellant who was unfairly treated within the context of the provisions of LRA.
When it comes to the question of remedy, the court upheld the principle that each case will have to be decided in terms of its facts. It recognised that not all persons who are in an employment relationship which is prohibited by law will enjoy a remedy in terms of the LRA. In so deciding, the CCMA or court is engaged with the weighing of principles; on the one hand the ex turpi causa rule which prohibits enforcement of illegal contracts, and on the other hand, public policy sourced in the values of the Constitution, which, in this context, promotes a society based on freedom, equality and dignity and hence care, compassion and respect for all members of the community.
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