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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 tricky business of chairing a disciplinary hearing'
In addition to the three arbitration awards discussed in the article, we also look at two new LAC decisions. The first looks at FAWU's appeal against a R500 000 fine for being in contempt of court. The second looks at whether a public disclosure by an employee justifies dismissal on the basis of making the continued employment relationship intolerable.
This public newsletter is a free edited version of the subscriber newsletter.
The earnings threshold under the BCEA has been increased from R193,805.00 to R205,433.30 with effect from 1 July 2014. Please remember that "earnings" means the regular annual remuneration before deductions (eg income tax, pension, medical and similar payments), but excluding similar payments made by the employer in respect of the employee. Subsistence and transport allowances, achievement awards and overtime payments are also excluded.
Proving contempt: the LAC rules on FAWU's R500 000 fine.
During 2013 the Labour Court fined FAWU R500 000 for being in contempt of an interdict. The LC at the time had this to say:
"The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. This in a context where the Labour Relations Act 66 of 1995, which has now been in existence for some 17 years and of which trade unions, their office-bearers and their members are well aware, makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right."The Union's appeal to the LAC in Food and Allied Workers Union v In2food (Pty) Ltd (JA61/2013)  ZALAC 31 (12 June 2014) against the order of the Labour Court had a single ground of appeal: that there was no evidence of a breach of the court order by the union. As such, the appeal turned on a finding of fact.
The LAC set out the legal requirements for a finding of contempt of court. Proof of contempt of a court order requires proof of -
- the order;
- service on the relevant party, and
- deliberate wilful disobedience. There must be proof beyond reasonable doubt that the union committed a breach of the order, as distinct from a breach by the individual union members on strike. The liability of a trade union for contempt of a court order is strictly determined by reference to what the court ordered the trade union, itself, to do and evidence that it did not do as it was told.
The court found no evidence that the trade union wilfully breached the court's order. The appeal was accordingly upheld, and the order granted by the Labour Court was set aside.
It is important to note that the outcome of this appeal turned on a lack of evidence and the non-specific requirements contained in the interdict. The LAC judgment gave two examples where contempt of court was held to exist. In Security Services Employers' Organisation and Others v SATAWU (2007) 28 ILJ 1134 (LC) the union was directed by the court to ensure that copies of an order interdicting further strike action, were brought to the attention of its members by affixing copies at various places and to maintain such notices until the workers all resumed work. The union did not do so. Thus a breach was proven. The court looked at the reasons why there was a breach and, unsatisfied with the explanation, concluded that contempt had occurred and fined the union R500,000, suspended on certain conditions. The liability of the union was based on its direct breach of obligations imposed upon it.
The second example given by the LAC was Supreme Spring, a Division on Met Industrial v MEWUSA (J 2067/2010) where the relief granted in the interdict specifically instructed the union to take concrete action, ie to refrain from inciting the striking employees from participation in the strike. The union official responsible thought it appropriate to approach management and try to negotiate a cessation of the strike in return for the employer abandoning the court proceedings. The court held that this behaviour was inconsistent with the order directing the union not to encourage or incite the strikers to persist, and held the union in contempt, imposing a fine of R100,000 on the union and imposing suspended terms of imprisonment on named union officials.
Whilst the LAC granted the Union's appeal due to the lack of evidence of contempt, the LAC made it clear that it endorsed and adopted the sentiments expressed by the Labour Court and as quoted above. The LAC agreed that they represent 'a significant moment of judicial resolve'. Nevertheless, on the facts of this matter, the union had not been shown to have breached the order.
The lessons from this judgment are that the wording of interdicts should be specific, clearly spelling out what is required of the other parties, and evidence of any breach must be 'beyond reasonable doubt'.
The employee was an engineer and project superintendent on a mine. One of his job responsibilities was to ensure that health and safety standards were maintained. On 20 August 2006, the employee, whilst off duty, fractured his collarbone, as a result of which he underwent an operation. He was booked off work for an initial period of 1 week, but this period was extended by the employee from time to time. At the employer's request he did some work from home, particularly on a sensitive health and safety report.
On 3 October 2006, the employer wrote to him informing him that his medical condition had been re-evaluated by the employer's resident doctor and instructed him to return to work for "restricted duty" from 4 October 2006. The employee did not return to work. Another letter to the same effect was sent on 4 October advising the employee to resume duty on 5 October 2006. The employee sent an e-mail informing the employer that its request was not acceptable as he had a valid medical certificate booking him off until 15 October 2006.
On 6 October 2006, the employer sent an e-mail to the employee, informing him that by failing to return to work as instructed, he was failing to obey a valid instruction. He was subsequently served with a notice of a disciplinary hearing in terms of which he was charged with: failure to obey a reasonable instruction; being absent without permission, and insubordination. A disciplinary hearing was held and he was found guilty on all charges and dismissed.
Subsequent to his dismissal but before the hearing of his appeal, the employee released a report to the media and an article was subsequently published in a publication known as Highland Panorama. In that article, the employee was quoted as having alleged that the employer did not have adequate measures in place to address the water pollution that its mining operations had caused.
After his dismissal, the employee referred an unfair dismissal dispute to the Bargaining Council. The commissioner found the dismissal to be procedurally and substantively unfair. With regards to the appropriate remedy, she granted the employee 12 month's compensation. She said it was impractical to reinstate him as the employment relationship had been irretrievably damaged by him disclosing the confidential report to the media after his dismissal. The employee's contention that this was a 'protected disclosure' was not plausible and probable. The commissioner held that it was not made 'in good faith', but by a vindictive employee who wanted to humiliate and embarrass his employer to get even.
The employee applied to the Labour Court for a review of the commissioner's award, particularly the commissioner's finding that the employment relationship had broken down and the resultant awarding of compensation instead of reinstatement. The Labour Court dismissed the review application on the basis that the commissioner's decision was one that a reasonable decision-maker could reach..
The employee appealed to the LAC against the judgment of the Labour Court, in Potgieter v Tubaste Ferrochrome and Others (JA71/12)  ZALAC 32 (12 June 2014). He argued that his disclosure was protected not only in terms of the Protected Disclosure Act (PDA) but also under the South African National Environmental Management Act (NEMA).
The LAC had to assess whether his disclosure was made in good faith, and if it was, whether reinstatement is inappropriate just because the disclosure has embarrassed the employer. The LAC held that where an employee makes public disclosure of sensitive information concerning the employer, this in itself does not automatically render the employment relationship intolerable. If it did, this would seriously erode the protection that the legal framework seeks to grant whistle-blowers. The court accepted that public interest may, in certain instances, outweigh the interests of protecting the reputation of an organisation.
The LAC reinstated the employee, finding that the Labour Court erred when it found that the employee had not adduced evidence showing that the disclosure he made was in good faith.
Our first comment is technical - it has taken 9 years from the dismissal to get this matter resolved. While the employee will get back-pay and his job back, this delay is unacceptable. Secondly, we have given a full description of the facts of the case to show that the dismissal was not primarily about a protected disclosure. It was clearly about an employee who refused to return to work a month and a half after an injury. But the outcome turned on the commissioner's assessment of the motive and impact of the employee's post-dismissal disclosure. The LAC, recognising the public interest in disclosures of water pollution by the mine, has given a warning to employers: even though the public disclosure by an employee is damaging and erodes trust, that may be insufficient to warrant dismissal.
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