Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks at ‘When is an appointment a promotion?'. There is also a brief reminder on a new Code of Good Practice on the Integration of Employment Equity into HR Policy and Practice. We also look at two new decisions, one dealing with unfair discrimination against diabetics and the other dealing with what constitutes bias in a chairperson of a disciplinary hearing. This public newsletter is a free edited version of the subscriber newsletter, and does not contain all the information contained in the subscriber newsletter. LATEST CASE REPORTS Discrimination against diabetes It is not only regarding persons with HIV that prejudices exist. A recent case highlights that a blanket approach to diabetes can result in unfair discrimination. In IMATU & another v City of Cape Town (2005) 26 ILJ 1404 (LC) the City of Cape Town refused to appoint an insulin-dependent diabetic to the position of firefighter in terms of a blanket ban on the employment of diabetics to such positions. This was alleged to be direct discrimination on the grounds of disability, in contravention of the Employment Equity Act. The City argued that the blanket ban was fair and justified on the basis of the inherent requirement of the job of a firefighter. There was medical evidence that the applicant was in optimal control of his diabetes and, because of his knowledge of diabetes, in a position to fulfil the duties of a firefighter without endangering himself or others. At the time of their appintment, existing firefighters were not medically examined for diabetes. There was no written policy or collective agreement on the issue. The Labour Court found that there had been unfair discrimination against the applicant. We think the learning from this case is that blanket bans against employing HIV positive, diabetics etc will invariably run into trouble. Employers should investigate the specifics of a case against the inherent reqiurements of a job. Bias by the presiding official in disciplinary hearings One of the most frequent allegations when a dismissal is challenged is that the chairperson of the disciplinary hearing is biased ("Well, he MUST be. He found me guilty!"). In smaller businesses it is often difficult to find a manager to chair the enquiry who has no knowledge of the alleged misconduct before the enquiry. Does this constitute bias? This issue arose in Numsa on behalf of Dolley & others and Formex Engineering (2005) 26 ILJ 1557 (BCA) where employees charged with misconduct alleged in a bargaining council arbitration that the chairperson of their disciplinary hearing was biased. It was alleged that the Chairperson winked at the company's representative, acted aggressively towards the employees and rejected their objections in general, and specifically that he could not chair the proceedings because of prior knowledge of the case. The arbitrator in the bargaining council explored the test for bias in South African law. The test is the ‘existence of a reasonable suspicion of bias', and an apprehension of a real likelihood that the decision-maker will be biased is not a prerequisite for bias. The test for disqualification is accordingly not actual bias but a reasonable suspicion of bias. On the facts of this particular case, the arbitrator found that there was no bias. The learning from this case is that chairpersons of enquiries need to watch their conduct closely and avoid engaging in any conduct which gives rise to a ‘reasonable suspicion of bias,' even when they do not think they are being biased. Talking privately to the official prosecuting the case, behaving in an unreasonable way in the hearing, appearing to have pre-judged the issue - these are tell-tale signs that could give rise to a reasonable suspicion of bias. New Employment Equity Code: Ignorance no longer an excuse! Employers will no longer be able to use the excuse they did not know how to implement Employment Equity policies. This follows the publication of the new Code of Good Practice on the Integration of Employment Equity into HR Policy and Practice, (Government Gazette No 27866, August 4 2005). This new code spells out how the employer's EE obligations are to be integrated into its everyday human resources policies and practices. The code is comprehensive and covers numerous topics, including Implementing EE, Recruitment & Selection, Promotion and Transfer, Impact on Employment Equity and Harassment, among many others. We intend to put this new code onto the Worklaw site in due course, but in the meantime this code can be accessed at: http://www.labour.gov.za/legislation/code_display.jsp?id=10250 INFORMATION ABOUT WORKLAW
Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa`s most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.
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Bruce Robertson
October 2005
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