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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 Intimidation, evidence and proof. We also look at three new cases: the first looks at the use of polygraphs in the recruitment process. The second looks at the limits of constructive dismissal. The third looks at how a large employer can legally and fairly change policies and terms and conditions of employment.
This public newsletter is a free edited version of the subscriber newsletter.
We all understand that honesty goes to the heart of the employment contract. But how does an employer establish honesty during an interview process? Some employers - particularly those involving security and police - routinely conduct pre-interview polygraph tests as a way of getting some indication of an applicant's reliability and honesty.
This practice recently arose in the case of Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09)  ZALCJHB 45 (31 May 2012). An arbitrator was required to decide whether the municipality had committed an unfair labour practice by not promoting two employees to the posts of Licence Services Centre manager and supervisor respectively. The one employee had acted in the first post since 2002 and the other employee had acted in the second post since 2003.
The posts were advertised in July 2006 and appointments were made with effect from the September 2007. Neither of the two employees was successful in being appointed to the posts they applied for.
Prior to the interviews, all the short listed candidates also underwent competency and polygraph testing, to which they had consented in writing. All the candidates were asked at the end of each of their interviews if they had any objection to undergoing competency and polygraph tests. The municipality maintained that the polygraph test was a reasonable and fair criterion to take into consideration in deciding whether or not to appoint them.
However, the employees contended that the failure to pass the polygraph test was the sole reason for not appointing them. A witness from the municipality testified that the polygraph test was important enough to change a decision based on interview scores, because the test was meant to indicate their honesty and integrity, which both the employees failed.
The arbitrator found that both the employees were better candidates than the other applicants who were appointed and they had higher qualifications than the other candidates, apart from one other applicant. He also found that the individual employees' testimony that they did well when interviewed was not disputed by the municipality. Crucially, the arbitrator held that the reason they were not appointed was because they failed a polygraph test. It had not been stated as a requirement in the advertisement of the posts that applicants would be required to undergo a polygraph test. The arbitrator found that it was unfair of the municipality to introduce the test as a criterion since it had not been stated in the advertisement. The arbitrator then ordered that the applicant should pay the employees the salary and benefits they would have received had they been appointed to the advertised position with effect from 1 October 2007. In addition he awarded them each a year's salary at the lowest scale of a licence service centre manager.
On review at the Labour Court, the municipality argued that it was not obliged to spell out every factor that might be taken into account in the selection process in the advertisement. The court agreed, holding that not every consideration that is taken into account needs to appear in the advertisement, though it is certainly preferable to mention upfront a factor that might completely disqualify a candidate. The court held that the arbitrator did misdirect himself in emphasising the importance of the criterion not being advertised. But the court went on to hold that even if polygraph test results constitute relevant material in determining a person's integrity, the exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their deceitful character, in the absence of any other information placing a question mark over their integrity, is unfair.
The court held that the municipality had committed an unfair labour practice relating to promotion in relying exclusively on the result of a polygraph test to determine the honesty of the candidates. The court made an order of compensation.
What do we learn from this case? First, a practical issue in the recruitment process: not every consideration that is taken into account in the selection of a candidate for employment or promotion needs to appear in the advertisement. Second, the exclusive reliance on a polygraph test resulting in the elimination of a candidate for appointment on the basis of their deceitful character - in the absence of any other information placing a question mark over their integrity - is unfair.
From time to time we have looked at cases of constructive dismissal - where an employee resigns but later claims that this was because the employer had made continued employment intolerable, making the dismissal unfair. This issue again arose recently in Regent Insurance Company Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR3240/10)  ZALCJHB 50 (15 June 2012).
The employee had been given a final written warning for gross negligence. In the subsequent arbitration she said that she had taken a decision to resign from her employment because she feared being subjected to disciplinary proceedings. This fear emanated from her contention that her superior had threatened her and she also made a bald allegation that numerous other employees' services had been terminated in similar circumstances. The commissioner found the resignation of the employee amounted to a constructive dismissal which was unfair.
Taking the matter on review to the Labour Court, the employer contended that the commissioner in arriving at this conclusion relied on broad, sweeping and unsubstantiated findings and in so doing committed a gross irregularity, exceeded her powers as an arbitrator and failed to act as a reasonable decision maker. The court held that the employee had been unable to establish that she had been threatened in relation to a challenge to the final written warning. In the circumstances, and in the absence of her failure to challenge the final written warning in terms of the applicant's internal appeal procedure, or in terms of the unfair labour practice provisions of the LRA, the court said that it was clear that she did not resign in circumstances that were "intolerable" and she was not entitled to seek the assistance of the CCMA or the Court in the absence of her exhaustion of reasonable alternative remedies or procedures.
The Labour Court held that its function is to look at the employer's conduct as a whole and determine whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed. On the facts, the court concluded that the employee was not constructively dismissed and consequentially, the CCMA had no jurisdiction to entertain this dispute.
The lesson from this case is that if an employee is unhappy at work that is not enough to constitute constructive dismissal. Receiving a disciplinary warning or being required to attend a disciplinary hearing are also not grounds on their own for constructive dismissal. The failure to use the grievance procedure or other dispute resolving mechanisms as a way to resolve unhappiness is now routinely taken by the Labour Court as an indicator that things have not become intolerable. It is clear that if an employee intends to use the constructive dismissal argument, there has to be evidence - taken as a whole - of consistent abuse which the employee tries to resolve but is unable to.
One of the problems facing a large organisation is how to change policies and terms and conditions of employment when some employees belong to a majority trade union, some to a minority trade union and others to no union at all. What are the employer's obligations in order to legally (and fairly) change policies and other terms of employment?
This problem arose in South African Medical Association v University of Limpopo (J 825/11)  ZALCJHB 43 (17 May 2012). The employer, the University of Limpopo, wished to amend many of its policies. It obtained consensus through a process of collective bargaining with an entity known as the Joint Bargaining Forum (JBF) and then announced changes. In this case the applicant, the South African Medical Association (SAMA) represented two women doctors. They alleged they were contractually entitled to 120 days' paid maternity leave; and that their employer had unilaterally amended that entitlement by converting it to unpaid leave. The applicants sought specific performance of their employment contracts.
It was uncontested that the applicants did not nominate the individuals on the JBF to represent them; in fact, their uncontested evidence was that they gave no mandate to anyone on that body to represent them. SAMA, their union, was not part of the JBF and did not participate in its deliberations. It did not consent to the unilateral change to the applicants' conditions of employment, nor to any of its other members.
The Labour Court recognised that a majority union and an employer may conclude a collective agreement that binds non-parties in terms of s 23(1)(d) of the Labour Relations Act - but only if those employees are identified in the agreement and it expressly binds them. That did not happen in this case. That was the decisive basis of the court finding that the original terms of employment granting paid maternity leave had to be granted to the two doctors.
The lesson is clear: s 23 does give a mechanism to change policies affecting employees belonging to a minority trade union or to employees who do not belong to any union at all. As long as there is agreement with a majority trade union and the agreement identifies all employees (ie non-members of the majority union) who will be bound, then there can be a legal change to policies and terms and conditions of employment.
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