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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 legal representation at internal disciplinary enquiries. We also look at two new decisions dealing with consultation in a ‘bumping’ process in retrenchment and the difference between an employee and an independent contractor.
This public newsletter is a free edited version of the subscriber newsletter, and does not contain all the information contained in the subscriber newsletter.
LATEST CASE REPORTS
The e-mail complaint – admissible hearsay evidence?
Our law of evidence distrusts evidence which cannot be cross-examined – whether it is an affidavit, a document or what the witness overheard someone else saying to another. This sometimes makes it difficult for an employer to prove a vital fact. This problem arose recently in Swiss South Africa (Pty) Ltd v Louw NO & others (2006) 27 ILJ 395 (LC). The employer, an airport handling company, received an e-mail from its agent in Singapore informing it that a passenger had complained on arrival that a member of the employer’s check-in staff in Johannesburg had demanded payment from him for waiving his excess baggage payment. Relying on this e-mail alone, the employer instituted a disciplinary enquiry and dismissed the employee even though she denied soliciting the bribe. The employee’s version was that a tip of $20 had been pushed into her hand by the passenger.
At the CCMA the arbitrator refused to attach any weight to the e-mail on the grounds that it was hearsay evidence. He found the dismissal to be unfair and reinstated the employee. In the Labour Court the provisions of s 3 of the Law of Evidence Amendment Act 45 of 1998 were held to be applicable to CCMA arbitrations. Therefore, depending on the circumstances of the particular case, hearsay evidence could be admitted by an arbitrator if it is in the interests of justice to do so. However in this particular case the court was of the opinion that the admission of the hearsay evidence was not in the interests of justice. The court found the arbitrator had been correct in rejecting the hearsay evidence
Can trade union activities destroy the relationship of trust?
We know that the interests of an employer and the interests of employees are divergent: greater productivity and profits versus increased wages and more generous benefits. It is not unusual when an employer views a trade union official with suspicion if not hostility. What if an otherwise competent employee, in his capacity as a shop steward, is robust in criticism, difficult in negotiations, confrontational in manner? Can the stage be reached where this so destroys the trust relationship that an employer would be justified in dismissing him? This problem arose in Kroukam v SA Airlink (Pty) Ltd  12 BLLR 1172 (LAC).
An employee, a pilot and then chairman of the Airlink Pilots’ Association, was dismissed after being found guilty of gross insubordination and having a disruptive influence on the employer’s operations. The Labour Appeal Court concluded that at least some of the reasons why the employee was dismissed were that as far as management was concerned he had: (a) challenged and questioned too many of the decisions made by management; (b) called for the resignation of certain personnel of the respondent; (c) expressed a vote of no confidence in certain members of management; and (d) played a key role in the bringing of a contempt of court application against the employer and, among others, the CEO. The judge, commenting on the alleged breakdown of trust, said that if there is or was no trust relationship between the parties, such trust relationship would have been destroyed by the employer’s “unacceptable and illegitimate reaction” to the employee’s exercise of his rights as a union official or representative.
The court held that it would undermine the protection that the Constitution and the LRA confers on union officials or representatives and employees against victimisation, to accept a proposition the effect of which would be that an employer may destroy a trust relationship by victimising an employee and then benefit from such illegitimate and unlawful conduct.
Retrenchment: selection criteria and job-sharing
We know that s 189(7) of the LRA requires that retrenchment must be in accordance with selection criteria (a) that have been agreed to or (b) that are fair and objective. We also know that s 189(6) requires an employer to consider and respond to representations made and to state the reasons for disagreeing. In the recent case of CWIU & others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) both these aspects (among others) were in dispute. The court confirmed the following principles:
- If shortly after retrenchment aimed at downsizing, an employer employs casual employees to do the same work as those retrenched, a presumption of the unfairness of the retrenchment will arise.
- An employer is obliged to give serious consideration to a proposal of job-sharing as an alternative to retrenchment.
- An employer and a union are free to agree upon selection criteria that are or may be subjective. When the agreed selection criteria are subjective, the employer does not act unfairly in using such selection criteria to select the employees to be dismissed.
- Where the employer does not use agreed selection criteria to select the employees to be dismissed, it may not use selection criteria other than “fair and objective” selection criteria
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