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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 difficulties which arise in pre-retrenchment consultation. We also look at three new cases: the first dealing with whether a medical certificate is sufficient evidence in the Labour Court, the second with applications to rescind a CCMA arbitration made in the absence of the employer, and the third deals with the manner in which an employer raises the possibility of retrenchment.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Is a doctor’s certificate sufficient evidence?
It is usually understood that it is unworkable to require a doctor to come to every disciplinary or CCMA hearing to give evidence which substantiates what that doctor wrote on the medical certificate. Employers tend to accept the certificate, sometimes reluctantly, because often they are widely expressed and lacking in specifics. What about the same certificates being submitted in the Labour Court?
In Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 (LAC) an employee sought a review of a CCMA arbitration award which had upheld his dismissal. His review application was 31 weeks out of time, a period he justified on the grounds of illness, stress and depression. His application was supported by two medical certificates. The Labour Court dismissed the application for condonation on the grounds that neither doctor had expressed a view on the competence of the employee to manage his affairs. As the Court was not able to draw the inference as to when the employee became competent to launch the application, it refused to grant the application.
On appeal to the Labour Appeal Court, it was decided that the Labour Court, being a ‘superior court’, was bound by the same rules of evidence as the High Court. It followed that the medical certificates, not being in the form of affidavits, constituted hearsay evidence.
In the absence of explanation, the Court could infer either that the medical practitioners had not been prepared to go on oath to defend their certificates or that they had not been prepared to spare the time to explain their certificates. In the absence of affidavits, the Labour Appear Court held that the application had to fail.
What this case reminds us is that a document is just hearsay evidence and a court may refuse to admit that evidence. Because a document cannot be cross-examined, it is weak evidence unless it is accompanied by oral evidence. Alternatively, medical evidence must be in the form of an affidavit before the Labour Court will admit it as evidence.
Rescinding a CCMA arbitration award
It is nasty experience for an employer to receive notice that the CCMA has issued an arbitration award in the absence of the employer. Panic stations! Did we receive notice of the arbitration hearing? Was a fax received? Why didn’t someone pick it up? And so on…
The only option for the employer is to apply to the CCMA to rescind the arbitration award. Rule 33 of the CCMA rules provides that an application for the variation or rescission of an arbitration award or ruling must be made within fourteen days of the date on which the applicant became aware of the arbitration award or ruling. But what will the commissioner take into account? The issue arose in the recent case of Northern Training Trust v Maake & others (2006) 27 ILJ 828 (LC). The employer applied to the CCMA for rescission of an arbitration award made in its absence. It contended that it had not been notified of the date of set down of the arbitration. A CCMA employee testified that she had sent the notification by fax and produced the report that the notification had been successfully transmitted to both employer and employee. The commissioner refused the application for rescission.
On review, the Labour Court noted that the application for rescission of an arbitration award has two aspects. The first enquiry is concerned whether or not the notice of set down was sent, for instance by fax or registered post. Should evidence show that the notice was sent, a probability is created that the notice that was sent was in fact received. The second leg of the enquiry is concerned with the reasons proferred by the party who failed to attend the arbitration proceedings. Such party needs to prove that he or she was not willful in defaulting, that he or she has a reasonable explanation for not attending and that he or she has reasonable prospects of success if the award is set aside. The two requirements of fairness and expedition should be balanced. When there is an apparent conflict between the two, fairness should be given preference lest injustices are done.
The Court found that the commissioner had concerned himself with the first enquiry, placing undue emphasis on the successful transmission of the fax. That was by no means proof of proper notification, and regard should have been had to the facts which the company placed before him. The Court set aside the rescission ruling and arbitration award, referring the matter back to the CCMA to be heard de novo.
Pre-retrenchment planning: how far can the employer go?
This is an important and wide topic, one which we look at in more detail in this month’s article. We want to give you a recent illustration of the difficulty in finding a balance an employer must find between anticipating retrenchment and not appearing to have already made up its mind. In Robinson & others v Price Waterhouse Coopers (2006) 27 ILJ 836 (LC) employees were called to a preliminary meeting at which it was announced that there might be a need to retrench, following a restructuring exercise. Shortly afterwards three employees were called to individual meetings and given letters advising them that the restructuring could ‘potentially’ affect their positions, indicating their last day of work, but inviting ‘contra-proposals’ in writing. Viewing these as dismissal letters, the employees refused to submit any alternatives or attend subsequent consultation meetings.
The employer argued that the employees’ deliberate, express and written withdrawal from the consultation process removed the need to embark on the process of consultation to avoid dismissal. The employees argued that not only was their dismissal a fait accompli, but they had been selected for retrenchment because they had the longest service and were paid more than the employees who replaced them.
The court found that the employees had been pre-selected for retrenchment and the letters presented to the employees had the signs of finality. Even if the employees could be criticized for withdrawing from the process, the court found that the employer could have avoided this. The employees were never made aware that they could negotiate on the need to retrench, or alternatives, severance pay and selection criteria. They were never made aware of how to negotiate themselves out of the fait accompli. The court found that the only selection criterion used was the saving of costs, and this was unfair. The court reinstated the employees with limited retrospectivity.
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