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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 that discusses the impact of long court delays on reinstatement orders, entitled "Fire now, pay later - court orders after a long delay". We also discuss three new cases: The first case asks whether an employee can be disciplined for a Facebook post made when not at work during annual leave. The second case deals with the requirement for a pre-strike ballot where a union's constitution does not provide for one. The third case discusses how conflicting evidence should be evaluated in a sexual harassment case.

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


Using Facebook during annual leave

Can an employer discipline an employee who uses Facebook to express racist political views during annual leave? This was the issue in a recent case involving a Specialist Buyer employed by Edcon. She occupied a senior position although she was not part of management.

During December 2015, then President Zuma replaced Finance Minister Nhlanhla Nene with Minister Des van Rooyen. Public media estimated that this cabinet reshuffling caused a loss of between R250 to R500 billion to the South African economy. This caught the attention of public media, including television programs such as Carte Blanche, which on 20 December 2015 aired a program on the reshuffling. On 20 December 2015 at 19h16, while on annual leave, the employee published the following post onto her Facebook account:
"Watching Carte Blanch and listening to these f***ing stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president... President my f***ing ass!! #zumamustfall. This makes me crazy ass mad."
At the time that the employee published her post, her Facebook profile stated that she was employed by Edcon as a Fashion Buyer. From the day after her Facebook post, Twitter users started to mention her Facebook post and 351 Tweets mentioned the post between 14h00 on 21 January and 13h00 on 22 January 2016. Comments on that social media platform included:
"@EdgarsSA what are your thoughts on the degrading racist remarks made by one of your buyers?? we demand answers #MsTeresaCantamessa" and "Another one!! #Ms TeresaCantamessa #RacismMustFall"
On 22 January 2016, the Sowetan Newspaper published an article about the employee's post entitled "Racist Monkey slur strikes again". Several Twitter users demanded answers from Edcon and in some instances, threatened not to do business with Edcon.

Edcon dismissed the employee after holding a disciplinary enquiry. Aggrieved, the employee referred an unfair dismissal dispute to the CCMA. The commissioner concluded that the dismissal was substantively unfair and awarded her maximum compensation of 12 month's salary. The Commissioner's decision was based on his framing the issue as whether Edcon was entitled to act against the employee, given that she published her Facebook post while she was on annual leave and not at work, and the post having made no mention of Edcon.

Edcon took this award on review to the Labour Court in EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019). The LC set aside the CCMA award and held that the dismissal was fair. Whilst the LC confirmed the general rule is that an employer has no jurisdiction or competency to discipline an employee for conduct that is not work related, which occurs after working hours and away from the workplace, an employer can exercise discipline over an employee in those circumstances provided it establishes the necessary connection between the misconduct and its business.

In this case the "necessary connection" was established because once the usually anonymous identities of employees are exposed to the general public, it must only be in a positive and not negative environment or circumstance. In other words, an employee has to avoid being a controversial employee in the public eyes where s/he can be associated with the employer. The employee's Facebook message was held to be a highly offensive remark, in respect of which Edcon was entitled to take disciplinary measures lest its name be put into disrepute for tolerating racism.

The fact that the employee was on leave turned out to be irrelevant because of the direct and immediate impact of the Facebook post on the employer's business. This meant that the general rule which respects an employee's out-of-work privacy was not a complete barrier to Edcon's right to discipline the employee. It was able to establish the necessary connection between the misconduct and its business.

The case is further evidence that if employees choose to express racist and other unacceptable views in the public domain, even when not at work, they run the clear risk of disciplinary action being taken against them by their employer.

Pre-strike ballots

The LRA has some strange and contradictory provisions on strike ballots. section 95(5)(p) requires a registered trade union's constitution to provide for a strike ballot before calling a strike, which in terms of the new section 95(9) may be a secret ballot, but section 67(7) precludes an attack on the legality of a strike over the failure to hold a ballot.

The effect of this is simply that whilst it is a legal requirement for a union's constitution to provide for a strike ballot, there is no legal consequence or penalty if the union fails to comply with its constitution and does not do so.

But what if a trade union's constitution does not require a ballot? This was the crucial fact in the case of Mahle BEHR SA (Pty) Ltd v NUMSA and Others ; FOSKOR (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March 2019).

Companies in two separate matters applied as a matter of urgency for an order interdicting Numsa and its members from engaging in a strike. It was common cause that the union had not conducted a secret ballot of members prior to engaging in the strike. It was also common cause that Numsa, although a registered trade union, in its constitution did not provide for a "recorded and secret ballot" to be held prior to engaging in a strike and did accordingly not comply with the requirements of section 95(5)(p) or (q) of the LRA.

At the hearing the judge raised a preliminary question: whether the transitional provisions set out in section 19 of the 2018 Labour Relations Amendment Act, which came into effect on 1 January 2019, were relevant. The transitional provisions provide that the registrar may issue a directive to those unions whose constitutions don't comply with the requirements of section 95(5)(p) and (q), and until such time as they comply with the directive they would be required to conduct a secret ballot before going on strike.

The Labour Court held that the pre-strike secret ballot requirement was not an infringement on the right to strike. All that is required should a union not wish to be subject to the transitional provisions is for that union's constitution to essentially comply with the requirements of section 95(5)(p). This provision has been a requirement since the inception of the Labour Relations Act 66 of 95.

The Court held that section 67(7), in providing that a union's failure to comply its constitution regarding a strike ballot may not constitute a ground for any litigation affecting the legality of the strike, applies only to those unions that have complied with the requirements of section 95 with regard to including in their constitution the requirement to ballot before going on strike. As Numsa did not have those required clauses in its constitution, s67(7) did not apply in this case.

The Court was satisfied that the transitional requirements apply to those unions whose constitutions do not provide for a "recorded and secret ballot", whether or not they had been given a directive by the registrar to amend their constitutions. In the interim and pending amending their constitutions to comply with the balloting requirements, the Court ruled they "must conduct a secret ballot of members" before engaging in a strike. For those reasons the Court interdicted the unions from engaging in a strike without first conducting a secret ballot.

"She said, he said" - contradictory evidence in sexual harassment cases

One of the features of many sexual harassment disputes is that it is a contest between two contradictory versions. And often what is alleged to have happened was in private with no other witnesses. Worklaw has received many Helpline queries asking whether the employer should hold a disciplinary hearing when there are no other witnesses apart from the complainant and the alleged harasser. This situation again arose in the recent case of Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (JR1246/18) [2019] ZALCJHB 285 (14 October 2019).

Mr M was employed by Old Mutual as a Provincial General Manager in Gauteng. Ms S was employed as a Human Resources Coordinator. Both Ms S and Mr M occupied offices in Old Mutual's Parktown campus. Ms S's role required her to assist Mr M with human resources matters.

Ms S filed a formal complaint of sexual harassment against Mr M, alleging that he made unwelcome sexual advances towards her. These incidents were alleged to have taken place on 2 August 2016, 18 October 2016, and during November 2016. Mr M denied that these incidents took place. Despite these denials, Old Mutual charged Mr M with sexual harassment and after a lengthy hearing, chaired by a member of the Bar, he was dismissed for sexual harassment.

At the CCMA, in each incident there were wildly disparate versions, forcing the Commissioner to choose between them. The Commissioner rejected Ms S's version of the 2 August 2016 incident. He found it improbable that the incident took place because Ms S failed to report the incident timeously.

Regarding the incident on 18 October 2016, the Commissioner accepted Ms S's version of the events but did not construe Mr M's alleged conduct as sexual harassment. The Commissioner's conclusion, was that Ms S's behaviour gave Mr M the wrong impression because she did not directly confront Mr M about his previous conduct, she chose to conduct the meeting in the evening, and she commenced the discussion talking about a false rumour.

The Commissioner found that Ms S's approach to the incident of 18 October 2016 was inconsistent with a victim of sexual harassment. Regarding the November incident, the Commissioner made a credibility finding against Ms S, preferring Mr M's version because he remained consistent under cross-examination, while Ms S prevaricated and was ruffled. This, in the Commissioner's view, tilted the probabilities in Mr M's favour.

Based on these conclusions, the Commissioner found the dismissal was unfair and awarded him retrospective reinstatement.

On review, the Labour Court confirmed that to come to a conclusion on disputed issues a court must make findings on (a) the credibility of the witnesses; (b) their reliability; and (c) the probabilities.

After evaluating the evidence, the LC concluded that the Commissioner had not evaluated the evidence properly and found that the dismissal was fair. In cases of sexual harassment where there are two mutually destructive versions, there must be a careful consideration of both versions to ensure that the process does not put only the complainant on trial. The LC commented that the CCMA should be a safe, gender-responsive, dispute-resolution forum.

The Court was particularly critical of the Commissioner's finding that the complainant's failure to report the incident timeously led to him concluding that the incident did not occur. The complainant was seen to have been put on trial, in that the Commissioner's conclusion that there was no harassment was in part because the complainant had agreed to a meeting in the evening and had then not confronted the alleged harasser about the earlier incident. The Court was also critical of the Commissioner's conclusions about the different demeanour of the two witnesses, saying that power imbalances can account for the way incidents are handled.

ARTICLE: : 'Fire now, pay later' - court orders after a long delay

by Prof Alan Rycroft

We have noticed that a matter seldom gets concluded by the Labour Appeal Court before 5 years has passed since the dismissal. There are cases where the delay is much longer, such as the 10-year period in the recent case of Nhlapho and Others v Sasol Mining Ltd (JS737/09; JS778/09) [2019] ZALCJHB 260 (19 September 2019).

Is it fair to reinstate an employee after 10 years with full back-pay? This judgment is noteworthy in the way it treated the 10-year delay between the dismissals and the date of the judgment, in deciding what remedy to award to unfairly dismissed workers.

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
November 2019
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