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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 use of grievance procedures and how to improve their effectiveness in resolving conflict at the workplace. We look at three important cases : the first, a recent SCA decision, deals with whether a dismissed employee, in addition to compensation under the LRA, can claim damages for breach of contract in the High Court. The second, a recent Labour Court decision, deals with the unfairness of dismissing an employee as a consequence of a situation arising from his use of the grievance procedure. The third deals with the highly publicised recent Labour Court decision to appoint a white woman in the SA Police Service who had been turned down for promotion on grounds of her race.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Can an employer claim damages for breach of contract in the High Court as well as claiming compensation under the LRA?
Mr McKenzie was formerly employed by the South African Maritime Safety Association (SAMSA) as its chief internal auditor, but was dismissed in a manner that he alleged was both procedurally and substantively unfair. After pursuing his remedies under the LRA and reaching a settlement with SAMSA in terms of which he was paid an amount equivalent to one year’s salary, he instituted action in the High Court claiming that his contract of employment was subject to ‘an explicit, alternatively implied, further alternatively tacit term … that the employment contract would not be terminated by the Defendant or the Plaintiff without just cause’. He then alleged that this term had been breached in consequence of his having been dismissed ‘in a procedural and substantive unfair manner’. This he contended entitled him to claim damages calculated on the basis that he would otherwise have continued working for SAMSA until his retirement. The amount he claimed was R5.2 million.
The former employer claimed that Mr McKenzie’s remedies for unfair dismissal were those provided for in the LRA and that the High Courts did not have jurisdiction to grant such remedies. The case, South African Maritime Safety Association v McKenzie (SCA) (Case No 017/09 Judgment given 15 February 2010), raised the issue of whether, once the LRA grants a remedy to the right not to be unfairly dismissed, a dismissed employee can in addition claim compensation for breach of contract in the High Court.
The Supreme Court of Appeal held that employees who are subject to and protected by the LRA do not have in their contracts of employment an implied term that they will not be unfairly dismissed or subjected to unfair labour practices. Those are statutory rights for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.
This case, coming from the SCA, appears to have at long last given a definitive answer on the issue that you do not have the option to claim damages in the High Court arising from an unfair dismissal when you have a clear right to institute unfair dismissal proceedings through the mechanisms created in the LRA. It is clear that in giving employment rights under the LRA, the legislature did not intend for additional rights to be read into contracts of employment.
Automatically unfair to dismiss for filing a grievance
An employee, one of the best performers in the company, had clashed swords with a senior manager. This resulted in the employee being deprived of logistical support. The employee then lodged a grievance in respect of his salary increase and complained that he was given insufficient resources to do his work properly. The grievance was ultimately decided in the employee’s favour on the basis that his salary increase had been incorrectly determined, that he had received insufficient logistical support, and that management had unjustifiably adopted a threatening attitude towards him. The chairman of the grievance meeting recommended that the salary should be retrospectively increased and that he should be placed in an alternative position in the Cape metropole.
In the case of Mackay v Absa Group & another  12 BLLR 1317 (LC), the employee was then instructed to contact the employer’s human resources department about an alternative position, and was warned that if an alternative position were not found for him within three months his dismissal “in terms of the retrenchment policy” would be considered. After that period lapsed, his services were terminated. The employee alleged that his dismissal was “automatically unfair” because it was in response to the filing of his grievance.
The Court noted that employee had complied with the employer’s grievance procedure but this was not a right in terms of the LRA. However, this did not mean that the Court was deprived of jurisdiction to deal with disputes of this nature. Looking at the main objects of the Act, the Court listed the right to fair labour practices and the effective resolution of labour disputes – this gave the court the jurisdiction to protect employees who filed a grievance.
The employer’s lack of effort to accommodate the employee indicated that his fate was sealed after the grievance procedure had been concluded. The employee had a genuine grievance and the court held that victimisation in the form of dismissal as a result of an employee filing a grievance constitutes an automatically unfair dismissal.
While the court’s willingness to extend its jurisdiction beyond the provisions of the LRA may be criticised, we believe that the court was correct to penalise the employer for victimizing and dismissing an employee, simply because he chose to use the company’s grievance procedure. In our article (below) we look at how to get the best use of your grievance procedure.
Limits on affirmative action appointments
Barnard, a captain in the South African Police Services, claimed relief for unfair discrimination in the case of Solidarity obo Barnard v SA Police Services (LC) case no: JS455/07 judgement given 24 February 2010. Her cause of action was based on the allegation that she was denied promotion on two occasions for the sole reason that she was white.
The SAPS created a new post of superintendent of the NES, the function of which was to ensure optimal utilization of human, logistical and financial resources in the NES. Barnard was interviewed for the post together with six other candidates (four blacks and two whites). On assessment she received an average rating of 86,67 %, the highest score obtained by any candidate. The difference between Barnard’s score and that of a black candidate was 17,5 %. In its recommendation the selection panel stated that given the difference between the scores, service delivery would be adversely affected if she was not appointed. The panel also stated that representivity in the NES would not be affected as Barnard was already a member thereof.
The panel’s recommendation was referred to the Divisional Commissioner who recommended that post not be filled because the appointment would aggravate the representivity status of the already under-represented department and would not enhance service delivery to a diverse community. The post was left vacant and the position readvertised. Barnard reapplied for the post. She was again short-listed and interviewed with seven other candidates, and the panel again recommended her appointment.
Again, a meeting was held at divisional level to discuss the panel’s recommendations. The Commissioner supported Barnard’s appointment but the National Commissioner did not approve the recommendation and withdrew the post because the appointment did not address representivity.
Barnard filed a complaint in terms of the grievance procedure in respect of her non-appointment. The written reply to her grievance stated in essence that the recommendation in respect of the post did not address representivity and that the post was not critical and further that leaving it vacant would not affect service delivery.
The Labour Court held that the provisions of the Employment Equity Act and an Employment Equity Plan must be applied in accordance with the principles of fairness and with due regard to the affected individual’s constitutional right to equality. The essence of the judgement appears to be that it is not appropriate to apply the numerical goals set out in an employment equity plan without considering all relevant factors. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected. In this regard the need for representivity must be weighed up against the affected individual’s rights to equality and the need for operational efficiency.
The court duly appointed Barnard into the position. This case has achieved a great deal of media attention and the SAPS has indicated its intention to appeal the judgment. We must accordingly await the outcome of the appeal.
In the interim, this judgement may require employers to be far less rigid in implementing affirmative action targets, and a simplistic approach based solely on numerical goals may well run into difficulties with courts adopting a similar approach to the Barnard case. This in turn may have consequences for senior managers being assessed on whether numerical goals have been achieved, in terms of organisations’ performance management systems. It also creates problems for organisations seeking a standard simple approach to apply in all appointment processes, based strictly on the achievement of numerical goals.
Section 15(4) of the EEA mentions ‘absolute barriers’ to the advancement of persons not from the designated groups. Mrs Barnard, as a woman, fell within the designated group and section 15(4) did not appear to feature strongly in the Barnard judgement. But it would seem from the judgement that if absolute barriers to the advancement of any persons are perceived to have been created, employers may well run into difficulties with the courts.
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