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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 "Business rescue: what does it mean for the employment relationship?" We also discuss three new cases: The first case considers when a delay in holding a disciplinary hearing may constitute procedural unfairness. The second case involved an employee being dismissed for giving an interview to a journalist which resulted in an article that depicted the employer in a bad light; another issue in this case was the arbitrator's failure to guide the parties towards the real issues that needed to be determined in the case. In the third case the court had to consider whether an employee's protest against the employer's dress code amounted to gross insubordination and incitement.

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


Delays in holding a disciplinary hearing

In Passenger Rail Authority of South Africa v Tale N.O and Others (JR272/21) [2023] ZALCJHB 199 (29 June 2023) four employees received an instruction from their supervisor to disconnect a railway coach from the tracks so that it could be repaired. This was not their normal work and was work below their pay grade. The supervisor claimed they refused to do the work whereas the employees claimed they were not given enough time to do the work and the supervisor refused to listen to their explanations. The employees were charged with serious misconduct, insubordination and operation sabotage.

One of the employees was dismissed at a hearing held 2 years and 4 months after she was first issued with a charge sheet. A CCMA commissioner found her dismissal to be substantively and procedurally unfair and ordered reinstatement. The employer took the matter on review to the Labour Court. The Court found that when a delay in holding a disciplinary hearing is unreasonably long, without reasonable explanation, and causes material prejudice to the employee, this will usually result in a finding of procedural unfairness. The Court highlighted the criteria to apply in deciding whether a delay in disciplinary proceedings would constitute unfairness.

Read more (Worklaw subscriber access only)

Giving an interview to a journalist

In Commercial Stevedoring Agricultural & Allied Workers Union obo Van Wyk v Commission for Conciliation, Mediation and Arbitration and Others (C503/2020) [2023] ZALCCT 33 (21 June 2023) the employee was employed on a wine farm that exported wines to Europe. She was asked for an interview by a Swedish journalist about the working and living conditions of farm workers. The journalist subsequently published the interview in a Swedish magazine but misconstrued the information provided by the employee. The article created the impression that the employee was not being paid the required minimum wage and tarnished the employer's reputation amongst its Swedish clientele, causing a financial loss of 380 000 litres of wine.

The employee was charged with misconduct and dismissed. A CCMA commissioner found her dismissal to be procedurally and substantively fair. The employee brought a review application in the Labour Court, which found that the fact that the journalist misconstrued the information provided by the employee was conduct for which the employee cannot be held accountable.

Read more (Worklaw subscriber access only)

A fight about a dress code

In Mofokeng v CCMA & Others (JR1200/18) [2022] ZALCJHB 169; (2022) 43 ILJ 2531 (LC) (27 June 2022) an employee working in a head office of a mine was required to comply with a recently amended company policy banning the wearing of high heels at work. Unhappy with the rule change, she vented her dissatisfaction to some of her female colleagues, and requested that they should come together to voice their dissatisfaction to management. She also approached a trade union leader to support her, but he refused to come to her aid. She was subsequently dismissed for gross insubordination and incitement.

A CCMA commissioner found her dismissal to be fair. On review, the Labour Court held that expressing dissatisfaction with a workplace rule does not amount to gross insubordination. A charge of incitement is also inappropriate to describe conduct where an employee encourages others to motivate a change to a workplace rule.

Read more (Worklaw subscriber access only)

ARTICLE: Business rescue - what does it mean for the employment relationship?

By Prof Alan Rycroft

The Covid lock-down and loadshedding have been devastating to many enterprises, causing financial distress. As a result, there have been an increasing number of cases in which organisations "in distress" have been placed under business rescue.

Legislation provides that a company will be "in distress" if there is a reasonable likelihood that the company may reach a position within the next six months where it will no longer be able to pay its debt as it becomes due and payable. Distress is also described when it is reasonably likely that the company will become insolvent within the immediately ensuing six months.

In his article Alan Rycroft answers some common questions about the business rescue process and its impact on employment relationships.

Read more (note - only available to Worklaw subscribers)


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Bruce Robertson
September 2023
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