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 newsletter contains an article which looks at the call to revamp our procedural approach to disciplinary enquiries. We also look at three new cases: the first deals with workers’ compensation when it is difficult to establish the link between the disease and the workplace. The second case looks at a new case on sexual harassment. The third case looks at whether a strike is unprotected if the demand is that a manager be fired.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
LATEST CASES
Accidents in the course of employment?
One of the principles of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is that compensation is dependent on an accident or illness arising ‘out of and in the course of employment’. But what if that illness or disease is difficult to tie to a specific event? This issue arose with respect to an employee seeking compensation for post-traumatic stress disorder in the case of Odayar v Compensation Commissioner (2006) 27 ILJ 1477 (N).
This was an appeal to the High Court in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The employee, a member of the SA Police Service had been diagnosed from post-traumatic stress disorder. The employee testified that during the course of his work he had been exposed to numerous deaths, shootings, murders, armed robberies, culpable homicides, motor vehicle accidents and rapes. He said exposure to these incidents adversely affected his health. He developed erratic and often aggressive behaviour, and had sleepless nights as a result of recurring dreams and nightmares. He also had difficulty maintaining interpersonal relationships which in turn led to problems in his marriage. He also turned to alcohol in order to drown his sorrows.
His claim for compensation was repudiated by the tribunal on the grounds that he was not injured in an ‘accident’. It was not possible to identify a specific incident as the cause of his disorder, nor was it possible to identify the exact date of the injury or traumatic event.
The Court found that the decision of the tribunal was based on an internal circular dealing with post-traumatic stress disorder which contradicted the Act. Section 65 of the Act requires the employee to prove that the disease arose ‘out of and in the course of employment’. An employee did not have to prove exposure “to an extreme traumatic event or stressor” as required by the circular. The Court was satisfied that the evidence established overwhelmingly that the employee’s disease, namely post-traumatic stress disorder, arose as a result of and in the course of employment. As such, he was entitled to compensation.
Is it sexual harassment even if she doesn’t complain?
The 2005 Code on the Handling of Sexual Harassment defines sexual harassment as unwanted or unwelcome conduct of a sexual nature. What if, in the normal chemistry of life, an employee engages in ‘courtship behaviour’ and receives no clear message that the conduct is unwelcome? Can his (or her) conduct nevertheless be found to be sexual harassment? This arose in the recent case of SA Broadcasting Corporation Ltd v Grogan NO & another (2006) 27 ILJ 1519 (LC).
The employee was a 53-year old regional manager who was found guilty of sexual harassment in an arbitration. The complainant, a contract employee, was 22 years old, and very much younger than the manager. His conduct toward her was indicative, the arbitrator said, of a desire to express romantic feelings (he gave what the complainant called “friendly baby kisses”, he lent books on friendship and love, he discussed his personal life, he visited her at home to discuss her application for a permanent position). This culminated in two serious incidents involving physical contact in the manager’s car (once he grasped her thigh, and then on another occasion tried to kiss her passionately in a car park). During the second incident the complainant had objected and the employee did not persist with his conduct. The complainant only laid a complaint of sexual harassment 6 months later after she herself had become the subject of a disciplinary hearing.
The arbitrator took into account the employer’s policy on sexual harassment (which recognized differing degrees of severity of sexual harassment), the complainant’s very late indication that she found the conduct unwelcome, the lack of reporting of the incidents to anyone for 6 months, the complainant’s willingness to be in the employee’s company over a long period, and his stopping the conduct as soon as it was made clear that it was unwelcome. The arbitrator nevertheless found the employee guilty of sexual harassment, mainly because the employee should have known that it was improper to pursue a subordinate in the manner in which he did. The arbitrator issued a final written warning, coupled with a directive that he receive counseling and that he could be transferred in the operational interests of the employer.
The court agreed with the arbitrator that the employee was guilty of sexual harassment. Regarding sanction, the court was satisfied that the arbitrator had applied his mind to the matter and that the sanction was rational and justifiable in relation to the evidence before him. The court held that the test for altering a sanction imposed by a CCMA commissioner is whether the sanction is so excessive (or so lenient) that the reviewing judge cannot in all good conscience allow it to stand. If the judge merely thinks that s/he would not have imposed the same sanction, it is not alterable.
What this case demonstrates is that even in a situation in which the victim of sexual harassment does not discourage or complain of the conduct, an employee can still be found guilty of sexual harassment where the employee should have known that it was improper to pursue a subordinate employee in the manner in which he did. This is a controversial decision. In the absence of a complaint within a reasonable time or evidence that he persisted in unwelcome conduct, there was scope for the arbitrator or judge to have found that the conduct, although reflecting poor judgment, did not constitute sexual harassment.
Striking to demand the dismissal of an employee?
The LRA makes a classic distinction between interest disputes (which can go on to power play in the form of a strike or lock-out) and rights disputes (such as dismissals) which must be resolved through arbitration. But where does a demand that someone be dismissed fit into this basic distinction? This issue was decided in the case of TSA Holdings (Pty) Tld & others v Numsa & others (2006) 27 ILJ 1483 (LAC).
Employees lodged a grievance against a manager for racist language. Meetings to resolve the matter did not do so and because the employer was of the view that there was no conclusive evidence, said that no action would be taken. The employer refused to submit the dispute to arbitration at the CCMA but offered to use polygraph tests to ascertain if there was a basis for the allegations. The union refused this proposal. The union then did refer a dispute to the CCMA summarizing the facts of the dispute as the company site manager having unfairly called members names eg kaffirs. The demand on the CCMA form was -- “We demand the dismissal of the racist manager’. The dispute was classified as ‘victimization’. Attempts to resolve the dispute failed.
The union gave written strike notice, demanding that the manager be dismissed with immediate effect. The employer requested the suspension of the strike pending a disciplinary hearing chaired by an independent chairperson. The manager was suspended pending the hearing. A strike commenced despite knowing about the hearing, causing the employer to seek an order from the Labour Court that the strike was not a protected one. The Labour Court however held that the strike was a protected strike; as a result, the employer appealed to the Labour Appeal Court.
The employer’s argument was that the demand for the manager’s dismissal was am unlawful demand and therefore could not result in a protected strike. The union argued that the purpose of the strike was simply to get the employer to hold a disciplinary hearing. The Labour Appeal Court said that the purpose of the concerted refusal to work must be determined in the light of all the conduct of the employees. This includes what they wrote in the referral of the dispute to conciliation and in the strike notice where these can shed light on the purpose. The court said that what is said in the strike notice is particularly important because it will probably reflect the views of the union or the strikers at the time that they were notifying the employer of the commencement of the strike. The employees did not say in their strike notice that their demand was that the manager be charged with misconduct in a disciplinary enquiry or that he be subjected to a fair disciplinary process.
The court focused on s 185(a) of the LRA which confers upon every employee the right not to be dismissed unfairly. It said that this leads inevitably to the conclusion that the employer would have dismissed the manager unfairly if it had complied with the employees’ demand. The court said there was no doubt that the demand such as the one made by the employees to the employer falls outside the category of demands that can be supported by a concerted refusal to work, retardation or obstruction of work envisaged in the definition of the word ‘strike’ in s 213 of the Act. This meant that the strike was unprotected.
What this means for unions and employees is that the way they formulate their demand in writing must fall within the categories allowed in the LRA as legitimate demands in a strike situation.
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Bruce Robertson
September 2006
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