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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains notification of two recent CCMA guidance notes, one on medical certificates and one on illegal foreigners. We also look at two new cases: the first deals with the test the Labour Court uses when it reviews the arbitration award of a CCMA or bargaining council arbitrator. The second deals with the onus on an employer who denies that a dismissal was because the employee was living with HIV.

In our article this month, we look at whether an employer can unilaterally change a policy as opposed to terms and conditions of employment.

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


CCMA Guideline on Medical certificates

Recently the CCMA notified all its commissioners, for the sake of consistency, of the following guideline -

"The CCMA notes the Labour Appeal Court's view that medical certificates are regarded as hearsay evidence in the context of that case. However the CCMA will continue to accept medical certificates on face value in its processes. In exceptional cases where there is serious doubt as to the truth / authenticity/ validity of a medical certificate, commissioners may challenge it and require the medical practitioner to testify to it / alternatively report the matter to the medical board for investigation."

We suggest that what this means in practice is that parties appearing at the CCMA should continue to submit medical certificates as evidence, without necessarily calling the doctor as a witness to substantiate the certificate. But if there is a serious dispute over the authenticity of the certificate, the party intending to rely on the certificate should be prepared to call the doctor as a witness.

CCMA Guideline on illegal foreign employees

The CCMA recently obtained and accepted a legal opinion from senior counsel which concluded that there are two primary bases upon which the CCMA has jurisdiction to deal with referrals in terms of Section 115(1)(a) of the LRA from illegal foreigners. First, by criminalizing only the conduct of the employer who employs an illegal foreigner under the Immigration Act, the legislature did not intend to render the contract of employment between these parties void. Secondly, even if the provision of the Immigration Act does render the contract void, the illegal foreigner still qualifies as an 'employee' under section 185 read with the definition of an employee in section 213 of the LRA.

The senior counsel also commented on an appropriate remedy. He pointed out that cases involving the unfair dismissal of illegal foreigners arguably fall within the exceptions set out in either section 193(2)(b) (continued employment relationship would be intolerable) or section 193(2)(c) (...not reasonably practicable for the employer to reinstate or re-employ the employee). An award of compensation is likely to be the most appropriate remedy. In the context, therefore, of a finding of unfair dismissal involving an illegal foreigner, an order of compensation would most likely be appropriate.

This means that the CCMA will accept all referrals for illegal foreigners and will accept jurisdiction in these cases. The CCMA will probably order compensation in successful disputes. The CCMA is likely to oppose any review application challenging this approach right up to the constitutional court.


The test for reviewing an arbitrator's decision - rationality

One of the frequent and understandable reactions to receiving an arbitration award in which the arbitrator has found AGAINST you is to weigh up whether or not you should take it further. The LRA does not allow for an appeal (that is, a re-hearing), only a review on limited grounds. Section 145 of the LRA allows any party to a dispute who alleges "a defect" in any arbitration proceedings to apply to the Labour Court for an order setting aside the arbitration award.

A "defect" is limited to mean

  1. that the commissioner-

    1. committed misconduct in relation to the duties of the commissioner as an arbitrator;
    2. committed a gross irregularity in the conduct of the arbitration proceedings; or
    3. exceeded the commissioner's powers; or

  2. that an award has been improperly obtained.

The Labour Appeal Court over time has said that an indicator of irregularity is that there is no rational link between the arbitrator's decision and the evidence before her/him. This issue arose in the recent case of Edcon Ltd v Grobler & others (2007) 16 LC 1.11.48 [2007] JOL 20535 (LC). In an arbitration award the employer was ordered to reinstate and compensate the employee. The employer sought the review of that award. The employer had dismissed the employee for having used insulting and abusive language (she enquired as to who "the monkey" was who had installed the panic buttons at the store). The arbitrator found that the language in question did not warrant dismissal. Examining the facts, the court emphasised the fact that in a review application, the test is whether or not the arbitrator's decision was rationally justifiable. It found that it was, and that no grounds for interference existed. The application was dismissed. The test to be used by the labour court in reviewing an arbitrator's decision is this: "Is there a rational objective basis justifying the connection made by the arbitrator between the material properly available to him and the conclusion he or she arrives at?" The test for rationality is satisfied if there is reasonable logical connection between the evidential material properly placed before the commissioner and his or her decision.

What this means is that the Labour Court will not uphold a review simply because it would have decided differently. It will not uphold a review simply because one part of the arbitrator's reasoning is questionable. As long as there is a logical link between the evidence and the conclusion, the court will stand by the award. The Labour Court is now insisting that clear evidence be presented of misconduct, gross irregularity, powers being exceeded or that an award has been improperly obtained before it will entertain a review application.

Discrimination on grounds of HIV

What does an employee need to show if s/he thinks that a dismissal is not for the reason given, but really because of HIV infection? This arose in the recent case of Bootes v Eagle Ink Systems KZ Natal (Pty) Ltd (2007) 16 LC 8.29.7; [2007] JOL 20651 (LC). The Labour Court said that camouflaging discrimination under the cloak of misconduct is one of the most insidious forms of unfair labour practices. This is because employees struggle to prove it.

In this case an employee challenged the fairness of his dismissal and alleged discrimination on the grounds of HIV. The court confirmed the principle that the dismissal of employees because of their HIV status is discrimination unless the employer can show that being free of HIV is an inherent requirement of the job. The court explained that people in South Africa have the advantage of a constitutionally entrenched right not to be discriminated on the grounds of their HIV positive status. Furthermore, legislation facilitates proof of discrimination firstly by defining discrimination to include HIV as a prohibited ground of differentiation. Secondly, dismissal of the employee on account of his HIV status is, by definition, automatically unfair. These three measures together impose an enormous burden on anyone who discriminates against an HIV positive person.

Where an employer denies that the reason for dismissing the employee was his HIV positive status, it bears the onus of proving the true reason for dismissing the employee to justify its fairness. In this case the court was satisfied that the employer had failed to justify the dismissal on grounds of misconduct. Because the employer bore the onus to prove non-discrimination and could not do so, the dismissal was held to be unfair. This case emphasizes the fact that the employer, in terms of section 192 of the LRA, must be able to prove a fair reason to dismiss.

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Bruce Robertson
March 2008
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