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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 which looks at 'The employer's right to restructure'. The article explores a recent Constitutional Court judgment which stresses the need for businesses to adapt quickly to survive and prosper. We also discuss three new cases: The first case deals with the right to representation at the CCMA. The second case, a CCMA award, concerns the issue of whether an employee who tests positive for cannabis use, can be presumed to be 'under the influence'. The third case deals with parties' mutual obligations in the pre- retrenchment process, and emphasises that consultation is a two way street.

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


Who can represent an employer at the CCMA?

In Proactive Employers' Association of SA (PEASA) and The Director: CCMA & others J1619/19 LC; 7 Oct 2020 the Labour Court had to interpret the CCMA rules which specify who can represent parties at the CCMA. It was held that CCMA Rule 25 contemplates that only natural persons may represent employer parties at conciliation or in arbitration proceedings. Rule 25(1) restricts the right of representation of an employer to a member of the employers' organisation of which the employer party is a member, or any of its office bearers or officials (as defined in section 213 of the LRA).

An employers' organisation, Proactive Employers' Association of SA (PEASA), applied to review a number of rulings made by CCMA commissioners and bargaining council arbitrators in which they had refused to permit so-called 'dispute advisers' appointed by PEASA to represent its members at arbitration hearings, in accordance with their interpretation of the CCMA Rules. The dispute advisers had been appointed by PEASA from amongst employees of LabourNet (also a member of PEASA). The employer parties to the dispute were members of PEASA and were also LabourNet clients. In other words, the dispute advisers sought to represent clients of LabourNet.

The Labour Court started with Rule 25(1)(a)(ii), which grants the right of representation to any member of a party's registered employers' organization or an office bearer or official as defined in the LRA. The terms 'office bearer' and 'official' are defined in s 213 of the LRA, as follows:

The LC held that as the dispute advisers do not hold office in PEASA, and are not employed by PEASA as a secretary, assistant secretary or organiser, they were not office bearers or officials of PEASA, and thus in accordance with Rule 25, they had no right to represent either PEASA or any of its members in proceedings at the CCMA.

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Dismissal for cannabis use

In Rankeng / Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 (CCMA) it was held that, where an employee is charged with being under the influence of dagga/cannabis, an employer needs to prove that, in the sense that there was an impairment of performance. While circumstantial evidence may be used, a positive drug test is in itself insufficient.

The employee, employed as a picker, was charged with being under the influence of cannabis while at work. He admitted to smoking a full "zol of cannabis" early in the morning prior to going to work. He smoked at around 5:00am and left his house around 6:30am to report for duty around 7:00am. He was asked to take a drug test through Lancet Laboratories. He tested positive for cannabis and was dismissed. At the CCMA he disputed that the offence warranted a dismissal.

The policy of the company prohibited anyone from working while under the influence of alcohol or drugs. The company was very strict on this policy because it was a compliance issue in terms of the Occupational Health and Safety Act. The General Safety Regulations made in terms of the Occupational Health and Safety Act (OHSA) state that an employer may not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs to enter or remain at the workplace. The company policy recommended dismissal even for the first offence.

At the CCMA the employee argued that the fact that he was allowed to continue working (even though this was in a safe environment) demonstrated that he was not under the influence of any drug. He further argued that the Lancet Laboratories report did not say he was under the influence of cannabis, but merely indicated that he had tested positive for cannabis.

The CCMA commissioner found that there was insufficient evidence of the charges against the employee, namely that he was under the influence of cannabis, and that his dismissal was accordingly unfair. Although the company's evidence was that the employee's eyes were red and watery, it did not refer to any evidence of 'impairment' which would suggest an inability to perform tasks allocated. On the contrary, although management was required by its Disciplinary Code to send the employee home if it was suspected that he was under the influence of drugs, they chose to allow him to work, albeit in a safe environment. In the commissioner's view that was an acceptance that although he tested positive for cannabis, it had not affected his ability to perform his work.

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Consultation as a two-way street

In Govind v AC Nielsen Marketing and Media (Pty) Ltd (P 95/2020) [2020] ZALCPE 12 (6 October 2020) the mutual obligations in pre-retrenchment consultations were considered. The Court held that if an employee being consulted with does not assert his / her rights at the appropriate time, the employer cannot be entirely blamed for shortcomings in the process.

This dispute concerned a retrenchment conducted under section 189A of the LRA, and a challenge by an affected employee under section 189A(13) about the fairness of the procedure adopted by the employer.

The employee referred the dispute to the Labour Court under s189A(13) - the section that gives a consulting party the ability to challenge whether the employer has complied with a fair retrenchment procedure. The LC found against the employee and that on a holistic assessment, the consultation process, although brief, achieved the overall purpose of joint consensus-seeking required by the LRA.

The Labour Court noted that although the employee had concerns early on in the consultation process, she had waited until after her services were terminated before approaching the Court under s189A(13). The Court referred to the ConCourt's judgment in Steenkamp and Others v Edcon Limited (CCT29/18) [2019] ZACC 17 (30 April 2019) that said the primary purpose of section 189A(13) is to allow for early corrective action to get the retrenchment process back on track: its aim is to proactively foster the consultation process by allowing parties to seek the Labour Court's intervention on an expedited basis to ensure that procedural irregularities do not derail the consultation process before it ends. The Court said that its proactive role under s189A(13) had been eroded by the employee's dilatoriness in delaying bringing her Court application.

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ARTICLE: : The employer's right to restructure

by Prof Alan Rycroft

At times the slow and formalistic application of the law seems to be in opposition to the needs of the business world to adapt quickly. So it is a surprise that a recent judgment of the Constitutional Court in National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another (CCT178/19) [2020] ZACC 23 (27 October 2020) has acknowledged that businesses that adapt quickly will survive and prosper, and the law should not stifle change.

Prof Rycroft discusses the Constitutional Court's majority judgment that held that the dismissal of the applicants was not automatically unfair in terms of section 187(1)(c). It held that in an ever?changing economic climate characterised by increasing global competition, operational reasons not only relate to the downsizing of the workforce, but also to restructuring the manner in which an existing workforce carries out its work.

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Bruce Robertson
November 2020
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