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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 'Facing two claims from one event', in light of two recent judgments that deal with this. We also discuss three new cases: The first case deals with allegations of inconsistency in applying discipline after a group of employees were charged with ignoring safety regulations. The second case concerns the attempt by SAA's business rescue practitioners to start retrenchments without a business rescue plan being in place. The third case considers the extent to which CCMA commissioners should assist parties to conduct their cases in arbitration.

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When is inconsistency a basis for unfairness?

In Samcor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17 (18 May 2020) the different disciplinary treatment of one of a group of employees involved in the same misconduct was regarded at arbitration as inconsistency, resulting in the reinstatement of all the employees.

On review at the Labour Court it was held that the employer had failed to prove on a balance of probabilities that the employees had defied the written instruction given to them by the mine overseer to stop working. For this reason, the employer's application to overturn the award was dismissed.

On appeal the Labour Appeal Court found that the Labour Court had incorrectly concentrated on the issue of the response by the employees to the instruction given by the mine overseer rather than analysing the central finding of the CCMA, namely not being consistent in disciplining all the employees involved in the same misconduct. In any event, the LAC disagreed with the LC's finding that the employer had failed to prove that the five employees had defied the mine overseer's written instruction to stop working.

Having regard to the alleged inconsistent treatment, the LAC noted that the evidence showed that the employee who was not dismissed, had not been present when the mine overseer gave the instruction to cease drilling and to install the temporary support and safety net, as she had been sent to fetch explosives. As a result, the facts of her case were different to those of the other five employees and she had been found not guilty.

But in any event, the LAC said the fact that she was acquitted by a chairperson who honestly and conscientiously applied his mind to the case, even if incorrect, cannot form the basis of a finding of inconsistency of discipline that then benefits the other guilty employees. The LAC confirmed that it cannot be fair that other employee's profit from that kind of wrong decision, and a wrong decision can only be unfair if it is capricious (ie unjustified), or induced by improper motives or a discriminating policy.

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Retrenchments without a business rescue plan

South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (JA32/2020) [2020] ZALAC 34 (9 July 2020) deals with the question of when a business rescue practitioner may commence retrenchment proceedings under s189 of the LRA. In this case, the business rescue practitioners proceeded to retrench SAA employees before finalising the required Business Rescue Plan.

NUMSA refused to participate in the s 189/189A consultation process. The BRPs pressed on in all earnest. On 30 April 2020, NUMSA and SACCA, ("the unions"), launched an application in terms of s 189A(13) of the LRA in the Labour Court.

At the time the Labour Court application was launched, the BRPs had not yet produced and published the business rescue plan as envisaged in s 150 of the Companies Act despite having been in office for approximately five months. The BRPs finally published their long-awaited business rescue plan on Tuesday 16 June 2020.

The Labour Court held that there was complete protection against the employees' dismissal during the business rescue proceedings. The Court held that reference in s 136(1)(b) of the Companies Act to "contemplated retrenchments in a business rescue plan" meant that any need to retrench had to be rooted in the business rescue plan.

On appeal to the Labour Appeal Court, the key question was when a business rescue practitioner may commence retrenchment proceedings under s 189 of the LRA. The LAC confirmed that the answer lies in the correct interpretation of s 136(1)(b) of the Companies Act and confirmed the interpretation given by the Labour Court.

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The 'helping hand' principle

The issue in Lyttleton Dolomite (Pty) Ltd v NUM obo Lekgau and Others (JR288/18) [2020] ZALCJHB 132 (11 August 2020) concerns the so-called 'helping hand' principle and the nature and extent of the duties of a CCMA commissioner to assist parties to conduct their cases in arbitration. The commissioner in this case had ruled that the company's evidence was hearsay and that on that basis it had not proved its case, without alerting or warning its inexperienced representative of this potential consequence.

On review, the Labour Court noted that clauses 20 and 21 of the CCMA Guidelines are the source of the so-called 'helping hand' principle. These clauses effectively require an arbitrator to outline to the parties at the commencement of the proceedings how they will be conducted, with the amount of detail to be provided determined by the experience levels of the parties. Clause 21 in particular requires the arbitrator, if it becomes evident during the proceedings that a representative does not understand the nature of the proceedings and that this is prejudicing the presentation of their case, to draw this to the attention of the party.

The LC confirmed that the commissioner in this case had a duty in terms of the CCMA Guidelines to 'lend a helping hand' during the proceedings, but failed to do so. The commissioner should at the time the evidence was led, have explained that the hearsay evidence was inadmissible, and it was unfair to only deal with this in the award. This prevented a full ventilation of the dispute and a fair trial of the issues. For these reasons the LC set aside the award and referred the matter back to the CCMA for a hearing 'de novo' before a different commissioner.

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ARTICLE: Facing two claims from one dispute

By Prof Alan Rycroft

Alan Rycroft's article discusses the possibility of facing more than one claim arising out of the same facts in light of two recent judgments that deal with this, one a Labour Appeal Court judgment - Feni v Commission for Conciliation, Mediation and Arbitration and Others - and the other a Constitutional Court decision - AMCU & Others v Ngululu Bulk Carriers.

The article looks at 4 different situations where an employer could face separate claims (eg unfair discrimination and unfair dismissal), and which may have to be decided by different bodies. Alan makes practical suggestions how to avoid being caught in lengthy and costly litigation.

Read more (note - only available to Worklaw subscribers)


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Bruce Robertson
September 2020
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