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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 'Workplace safety: New legislation on dangerous weapons' - appropriate, we think, in light of the high levels of violence accompanying many strikes.
We also look at three new cases: The first deals with whether an employee's freedom of conscience allows a refusal to obey instructions. The second deals with the limits and consequences of a lock-out. The third deals, brings clarity on what it means to make a settlement agreement an order of court.
This public newsletter is a free edited version of the subscriber newsletter.
It is well settled law that an employee does not have to obey an instruction that is unlawful or unreasonable. But what about a refusal that has the employee's conscience as its basis? One thinks of a state doctor's refusal to perform an abortion as the classic example. That is fairly clear, because provision is made for doctors to follow their conscience and be allowed to refuse to perform abortions. But what if an employee in a weapons factory says "I am unable to obey that instruction to design a bomb because it may lead to the killing of innocent civilians, and, in conscience, I cannot support that'? Can an employee at a fast-food outlet say that conscience prevents him selling unhealthy foods? Clearly in these cases, conscience would not allow an employee to refuse to do the task for which they were employed.
Even more complex are the facts in Motaung v Department of Education (JS 196/2010)  ZALCJHB 122; 2013 (3) SA 44 (LC) (15 October 2012). The employee held the position of Director: Private Higher Education in the Department of Education. She claimed that she had been subjected to unfair discrimination for her refusal to succumb to pressure from her supervisor, the Deputy Director-General for Higher Education, to pay ignore the regulatory framework governing private higher education institutions. She believed that she was being asked not to comply with legal obligations imposed on her, and thereby would have been guilty of misconduct in terms of the Public Service Act.
The employee accepted that her line manager had the prerogative to issue a written directive to her directorate to disregard certain regulations and portions of the legislation. However she requested express instruction to do so. She said she asked him to do this in order to avoid any confusion in the future about whether or not she had refused to take an instruction. Her superiors were not prepared to clarify matters in this way. She was adamant that processing the applications would have required her to act in a manner inconsistent with the regulatory framework.
From the Department's perspective it saw the conflict as simply a difference of opinion about how the Act and regulations should be implemented, and that the employee should have accepted that this was the case and followed her superior's opinion as to the proper way to implement the provisions.
Was this a case of conscience justifying a refusal to obey instructions? The Labour Court judge struggled with this, saying "I have some difficulty in identifying a belief in the importance of strict adherence to regulations as being the kind of belief that was intended to be protected by the prohibitions against unfair discrimination." But the court worked through that difficulty by distinguishing between conscience and belief. Belief, the court said, involves some attachment and commitment to the truth of some fundamental proposition or set of propositions, that also entail certain moral precepts. Conscience, on the other hand, does not seem to necessarily entail adoption of a belief in certain truths, but does entail a deeply held conviction about what is morally right or wrong. Using this understanding of the right to conscience, the court said "I am satisfied that it is possible for the applicant to claim that she was unfairly discriminated against on account of acting according to the dictates of her conscience."
The employee claimed she had been discriminated against. The main prejudicial treatment she claimed to have suffered for obeying the dictates of her conscience ranged from the re-assignment of her functions to her supervisor and thereafter to his successor; unsatisfactory performance assessments; a denial of a notch increase; the failure to finalise a performance agreement; unexplained variations in her PAYE tax rate; unexplained deductions for medical aid; the failure of the Department to appoint someone to the position of secretary for the directorate; the failure of the Director-General to respond to her complaints about psychological harassment she was suffering at the hands of her supervisor; and her exclusion from discussions and meetings.
This case could have been decided, we think, on the basis of the employee being asked to obey an unlawful instruction but the Labour Court dealt with it on basis of conscience. The court found that the employer's actions in re-assigning her duties amounted to unfair discrimination on account of her acting in accordance with her conscience that if she processed the problematic applications, she would be complicit in flouting the regulations, and possibly guilty of misconduct. The court also found that the employer's assessment of her performance and not granting her a notch increase amounted to unfair discrimination, and ordered the restoration of the employee's functions and some financial compensation, mainly a notch increase.
An interesting aspect of the lock-out is the impact on workers who are not in dispute with the employer. This situation arose in the recent case of UTATU SARHWHU and Others v Autopax Passenger Services (Soc) Ltd and Another (J 1931/2013)  ZALCJHB 223 (17 September 2013). The employer in this case is a state owned enterprise in the business of providing long haul road passenger coach services to passengers, on a variety of routes across the country. The workplace is unionised. The majority union is SATAWU. UTATU is also a recognised union.
There had been a dispute between the employer and SATAWU and another union (Transport and Omnibus Workers Union). In response to a strike embarked upon by these two unions, the employer implemented a lock-out. UTATU did not declare a dispute against the employer; UTATU and its members did not want to participate in the strike and UTATU (whilst at no stage formally accepting the employer's demands), tendered the services of its members to the employer. The strike itself was an industry level strike relating to wages and conditions of employment. The lock-out was applied to all "eligible employees', which, in terms of the definition in a collective agreement, would include members of UTATU.
After the lock-out had been implemented, members of UTATU continued to tender their services and there were numerous engagements by UTATU with the employer to uplift the lock-out, all without success. This persisted until the ultimate resolution of the underlying dispute. The members of UTATU were not paid for this whole period.
UTATU brought an urgent application seeking an order compelling the employer to pay remuneration to its members. The reason given for the application was that the employer instituted a lock out on both SATAWU and UTATU members. UTATU argued that the lock-out was unprotected which would mean that there was no basis for not paying the salaries of the individual applicants.
What was undisputed was that the members of UTATU would and did directly benefit from the agreement relating to wages and conditions of employment concluded with SATAWU and TOWU which gave rise to the strike. This extension to UTATU members was by virtue of the application of the main collective agreement to all employers and employees in the industry.
The Labour Court held that the applicants did not have the necessary right to the relief sought and had failed to demonstrate the existence of a clear right. The court held that the employer was entitled as a matter of law to implement a lock-out against UTATU and its members. As there existed a proper issue in dispute, and proper and lawful notice of the lock-out was given by the employer, the lock-out was lawful and thus protected. The applicants were, therefore, not entitled to the payment of remuneration for the period that the lock-out endured, being the period between 19 August 2013 and 28 August 2013.
What do we learn from this case? If we get beyond the apparent injustice of penalizing employees with whom the employer is not in dispute, and we accept the majoritarian principle of collective bargaining, then the lock-out is, in the words of the judge, 'not an end in itself but a means to an end and exists specifically in the context of the process of collective bargaining. That end is the resolution of the impasse which exists in the collective bargaining process at the time when these mechanisms are invoked.'
What was also interesting was that the court, although endorsing strongly the majoritiarian principle, did state that had UTATU's members done more than merely tender their services and had actually accepted the employer's demands, that would have ended the dispute insofar as it concerned them. As a result, the lockout against them would have had to be lifted. Extending this principle, it suggests that even if a group of SATAWU members, albeit in the overall minority, had broken ranks and indicated their acceptance of the employer's demands, the employer would also arguably have had to lift the lockout against them as well.
The Judge President of the Labour Court, Judge Waglay, recently took the opportunity to bring certainty about the requirements and consequences of the Labour Court making a settlement agreement an order of court. This was an appeal against an earlier Labour Court order which made a settlement agreement an order of court and having done so, ordered that the dispute between the parties, about the interpretation of what it made into a court order, to be "transferred" to the CCMA for conciliation 'and if necessary to be arbitrated on an expedited basis.'
In South African Post office Ltd v CWU obo Permanent Part-Time Employees (CA 15/12)  ZALAC 20 (28 August 2013) the LAC held that the Labour Court's orders cannot be referred to a bargaining council or the CCMA for interpretation. It is not competent, the LAC said, for a quasi-judicial body to interpret an order of a court. But the court went into the requirements of Section 158(1)(c) of the LRA which provides that 'The Labour Court may make any arbitration award or any settlement agreement an order of the Court'. The LAC said that this does not however mean that the order is automatically 'there for the taking'. The court gave this example: where a settlement agreement provides for an employer to pay an employee R5000,00 by a particular date and the employer pays this amount on or before the due date, the employee would be foolhardy to approach the Labour Court to make the settlement agreement an order of court, as no purpose would be served by doing so and the Court would refuse to make it an order of court.
Another example was given: where the settlement agreement provides that the employer 'will re-employ a dismissed employee if he feels like doing so' and the employer does not re-employ the employee, the employee would be ill advised to approach the Labour Court and seek to make that agreement an order of court, because no purpose can be served by making such an agreement an order of court. It is an agreement that leaves the discretion to employ entirely within the discretion of the employer and he may employ 'if he feels like doing so'. He cannot be forced by a court's order to be in the mood to employ and there is no enforceable obligation to employ.
The LAC set out the circumstances in which the Labour Court can or should make a settlement agreement an order of court. The LAC clarified that the purpose of making a settlement agreement or an arbitration award an order of court, is to enforce compliance with the agreement or the award. The agreement or the award must therefore be unambiguous and unequivocal and not open to any dispute, to be made an order of court.
It is also useful to refer back to our discussion of Public Servants Association of SA v Gwanta and Another NNO (LCJ439/2010) in our April 2012 Subscriber Newsletter.This case was clear: a settlement agreement has to specifically provide for a court enforcement role, failing which the court may not assist in its compliance.
What all this means is that before the Labour Court will grant an order to make a settlement agreement or arbitration award an order of court, it must be satisfied that, at the very least:
- the agreement must be a written agreement in settlement of a dispute that a party has the right to refer to arbitration or the Labour Court. (Certain disputes are expressly excluded in s 158(1A)).
- if it is an award, that it satisfies the criteria set in section142A of the LRA, meaning the CCMA has made a written settlement agreement an arbitration award;
- the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and,
- there has not been compliance by the defaulting party with the terms of the agreement or the award.
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