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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 which looks at two new judgments dealing with 'Deciding who is involved in strike misconduct'. The first applied the doctrine of "common purpose" to hold employees liable. The second considers whether a political party can be held liable for the conduct of its members who represented that they acted on its behalf.

We also discuss three other new cases: The first case, a Constitutional Court decision, considers whether compensation for procedural unfairness should be paid to an employee who committed serious sexual harassment. The second case had to decide when inconsistency renders other discipline unfair. The third case asks when an employer can use a maximum age requirement to exclude meritorious applicants.

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


No compensation for procedural unfairness?

The Head of Anaesthesiology at a public hospital in the Western Cape was dismissed after being found guilty of sexual harassment. The Constitutional Court found that the dismissal was procedurally unfair in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14 (17 June 2021).

The Constitutional Court held that in assessing procedural fairness, an important factor in determining compensation is the degree to which the employer deviated from the requirements of a fair procedure. The nature and gravity of the misconduct and the attitude of the perpetrator also weigh heavily in determining compensation. Where the conduct of the employee is serious, it may be just and equitable to grant no compensation, notwithstanding that the dismissal was procedurally unfair.

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When inconsistency does not render other discipline unfair

Some employees at a mine were dismissed for failing to comply with the employer's health and safety requirements, whereas others were not. In National Union of Mineworkers and Others v SAMANCOR Limited and Others CCT 154/20 Date of judgment: 22 June 2021 the Constitutional Court confirmed that an employee, dismissed for serious and proven misconduct, may not rely on the fact that another employee has been acquitted of different charges, and use the apparent inconsistency of discipline as the basis to be reinstated.

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When can an employer use a maximum age requirement to exclude other meritorious applicants?

The SA Navy, as part of the National Defence Force, implemented the Military Skills Development System (MSDS) to select enlisted persons to undergo training. The Tebeila Institute of Leadership, Education, Governance and Training challenged the age requirements for admission to the MSDS.

The SCA in South African Navy and another v Tebeila Institute of Leadership, Education, Governance and Training - (2021) 30 SCA 1.11.23 also reported at [2021] 6 BLLR 555 (SCA) held that as long as age requirements are imposed for reasons that bear rational scrutiny, then the requirements are not arbitrary or unfair merely because there are persons of merit who are excluded.

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ARTICLE: ARTICLE: Deciding who is involved in strike misconduct

By Prof Alan Rycroft

In the confusion and rapid progress of industrial action, employers often find it difficult to be sure which strikers were involved in misconduct. In some situations it is difficult to know if an employee is on strike at all. This leaves employers with difficulties in being consistent. It also creates difficulties in citing the right parties in any court applications. These issues arose in two recent court decisions.

Common purpose

NUMSA members engaged in an unprotected strike, leaving their workstations with placards and written demands which included the removal of the company's head of human resources. He was subsequently assaulted by the strikers and required medical attention.

The Labour Appeal Court in NUMSA obo Dhludhlu and Others v Marley Pipe Systems SA (Pty) Ltd (JA33/2020) [2021] ZALAC 13 (23 June 2021) found the employees had acted with 'common purpose' and that their dismissals were fair. The Court held the undisputed evidence was that the striking employees celebrated the assault. The inference that all employees were involved in or associated themselves with the assault was the most probable and plausible.

Ostensible authority

In Brightstone Trading 3 Closed Corporation t/a Gordon Road Spar v Economic Freedom Fighters and Others (J 605/21) [2021] ZALCJHB 122 (18 June 2021) the EFF attempted to engaged with the employer about employment issues. When the employer refused, the subsequent protests led to the closure of the store.

The employer instituted interdict proceedings against the EFF and a number of employees. The Labour Court accepted that the facts of the case showed that the employer was justified in believing the EFF branch secretary had the (ostensible) authority to act on behalf of the EFF, and granted the employer a final order interdicting the EFF and the named employees from carrying out the unlawful conduct. The court also granted a costs order against the EFF.

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Bruce Robertson
July 2021
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