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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 “When to consult? When to negotiate?’ We also look at three new cases: the first concerns expert evidence. The second asks whether a change in shift patterns falls within managerial prerogative. The third draws limits to the term ‘short-time’ and how it can be applied

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


Must one accept expert evidence uncritically?

An employee was dismissed, having been found guilty on a number of charges, including fraud and dishonesty. It was alleged that he claimed eight hours on the register for overtime worked. The employee contented that the numeral eight was written by someone else and not him. The figure was written with a red colour pen whereas the rest of the document was written in a blue colour pen.

The employer employed the services of a handwriting expert who gave evidence at the arbitration hearing and concluded that in his opinion the numerical figure eight in the register was inserted by the employee. The commissioner accepted this evidence and upheld the dismissal on a number of grounds.

At the Labour Court, among the many grounds of review were: (a) The commissioner should have found that the witness was not well qualified as an expert and that the evidence given by him was not sufficient but merely based on assumptions; (b) The commissioner failed to caution the employee to also bring an expert witness. These were the facts in National Union of Mineworkers and Another v Hawyes NO and Another (JR 2327/09) [2012] ZALCJHB 2 (20 January 2012).

This case raises some important points about expert testimony. Usually opinion evidence is not admitted because the arbitrator or court must make up its own mind based on the evidence, rather than just accepting a witness’s opinion of something. The difference is in expert evidence, which is admissible because the expert’s opinion deals with a technical matter (eg fingerprints, hand-writing, voice recognition, computer software etc) – which is then accepted as evidence by the arbitrator or judge.

How does someone become an expert? It is usually a combination of qualifications and experience. In this case the witness had a number of formal qualifications and his experience in the field of forensic document examination extended to a period of thirty years, during which time he had examined approximately 10 000 cases. He testified that he had appeared 800 times as an expert witness during his career in courts of law in both the Republic of South Africa and abroad.

Once a person is recognised by the arbitrator or judge as an expert, does it mean that the expert’s evidence is decisive? This case is a reminder that in assessing expert evidence, an arbitrator must scrutinize that evidence and be satisfied that the expert’s opinion has a logical basis, is reasonable and reaches a defensible conclusion. The LC found that the arbitrator had assessed the evidence in this manner, and rejected the review application.

The other interesting aspect of this case is that the court held that there was no duty on the commissioner to warn the party that they should also have called an expert. The judge stressed that parties need to go to arbitration proceedings prepared with all their witnesses. In this case, the employee was represented by an established trade union that regularly represented its members in arbitration proceedings. They could not blame the commissioner for their failure to call an expert. The LC did however recognise that if a party is unrepresented, more might be expected of a commissioner.

The lessons of this case are (a) in introducing an expert witness, s/he needs to tell the arbitrator / judge about the qualifications and experience that establish that person as an expert; (b) even though the witness is an expert, the evidence must have a logical basis, be reasonable and reach a defensible conclusion. It must be assessed on this basis, and should not just be accepted because it is given by an expert.

Changing shift patterns

An employer sought a declaratory order from the Labour Court that its proposed changes to its shift patterns did not constitute a unilateral change to the employees’ terms and conditions of employment. The purpose of seeking this declaratory order was to get an interdict to prevent the employees from embarking on a strike until they complied with the provisions of s 64 of the LRA.

The employer’s Durban factory production was designed in accordance with 24 hour 7 day week production schedule. In 2004 the parties had entered into a collective agreement regarding the implementation of a 12-hour 3-shift system in respect of those employees employed in the Durban factory’s truck and radial tyre department. At a later stage the parties orally agreed to extend the shift system to the rest of the employer’s factory. This shift pattern did not achieve its purposes and the employer then applied for ministerial determinations in accordance with the BCEA, which were granted, the last of which expired on 30 June 2011.

Shortly after the expiry of the last determination, the employer commenced a consultation process with the union with a view to amending the shift patterns set out in the 2004 agreement. Not reaching agreement and facing a strike, the employer went to the Labour Court for the declaratory order. The decision of the court is found in Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers Union of South Africa (NUMSA) and Others (D68/12) [2012] ZALCCT 6 (15 February 2012)

The court confirmed this principle: Unless specifically entrenched contractually, the right to regulate shift patterns is a work practice that falls within the prerogative of the employer.

This case also involved an investigation as to what constitutes a collective agreement. One of the restrictions on the right to strike (in s 65 of the LRA) is the existence of an applicable collective agreement regulating the issue in dispute. That collective agreement can then vary individual contracts of employment in terms of section 23(3). The court applied the definition of a collective agreement in s 213, which requires it to be in writing to constitute a collective agreement for the purposes of the LRA.

This case then confirms the distinction between terms and conditions of employment -which must be negotiated and agreed, before being amended - and work practices - which may be the subject of consultation or negotiation but in respect of which the employer may thereafter act unilaterally.

The limits of short-time

Short-time is a mechanism under which a worker's contract of employment continues, but with fewer hours or days per month than normal, for proportionately less pay, because of a shortage of work. The idea is to maintain the employment relationship and avoid retrenchment but to reduce the time worked and the remuneration paid, to enable the employer to survive a bad or slow period. In that sense, it is a reasonable alternative It can be argued that an employer has no inherent right to implement short time unilaterally. This requires agreement, as it changes terms and conditions of employment. Collective agreements, sometimes negotiated through bargaining councils, often provide for short time. Where the right to work short time does exist, the following questions are frequently asked:

  • Can short-time continue indefinitely?
  • If not, how long must an employee wait before requiring finality?

These questions arose in the recent arbitration award in NUDPW obo M. Malunga and I. Ndlovu and Vector Textiles (Case Number: U/5/2322/5/11; Date of arbitration award:15 February 2012). A collective agreement exists in the textile industry that regulates short time, but it does not provide any limits on the length of time employees may be placed on short time. Machinists had been placed on short time for 5 working days. They then returned to work. Some employees were then placed on short time again some months later and after 2 months had still not been called back to work.  The arbitrator was called upon to interpret and apply the provisions of the Main Agreement dealing with short time.

The arbitrator found that it must have been an implied term of the Agreement that it was intended that the short time would be of limited duration.  It could never have been intended that employees be placed on short time for months or years. The employees had argued they were in a form of employment limbo – not earning, not dismissed, not retrenched and not able to claim UIF or provident fund payouts. The arbitrator ruled that it must have been an implied term that after a reasonable time, the employee would either be called back to work or retrenched if the “slackness of trade” persisted.

There was debate in the award as to what constitutes ‘a reasonable time’. The arbitrator held as follows: “Short time is basically a no-fault suspension without pay, and as such it is a serious incursion on the right of an employee, established by our common law and the Basic Conditions of Employment Act, to be paid a wage if his or her services are tendered.  As such, it would seem both fair and equitable to say that a reasonable time for the employer to offer the options to the employee…would be 30 calendar days”.

We suggest that the reasonableness of the period will depend on the facts of each case. There may be situations in which an employer is awaiting the allocation of substantial work which may take more than 30 days to be finalised, and to commence retrenchment consultations at that stage may be premature.  Nevertheless, the principle emerging from this interesting award can be summarised as follows:If an employee is placed on short time and after a reasonable time is not called back to work, then the employer should be obliged to either (a) uplift the short time and allow the employee to resume normal working; or (b) depending on the financial predicament of the entity, commence retrenchment consultations.

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Bruce Robertson
March 2012
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