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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 'the tyranny of the mob' - known to sociologists as 'mob theory'. Whilst this topic may be outside the range of normal labour law matters we discuss, it may be helpful in reviewing how we approach groups of strikers - whether as employers or as trade union officials. We also look at four new cases, two of them hot of the press from the SCA: The first brings finality to a long saga about the banning of dreadlocks. The second looks at the liability of a trade union which fails to pursue the claims of its members. The third looks at whether a signed agreement between employer and trade union can be rectified. The fourth looks at whether an arbitrator can decide the 'correct' reason for dismissal, changing misconduct to poor performance.
This public newsletter is a free edited version of the subscriber newsletter.
The SCA rules on dreadlocks
In 2007 a saga began when male correctional officers of the Department of Correctional Services at Pollsmoor Prison, Cape Town were dismissed for refusing to cut off their dreadlocks. They each had long service with the Department and were exemplary employees. A common feature among them was their hairstyle. They all wore dreadlocks but for different reasons. It was their refusal to cut their hair when ordered to do so under the Department's Corporate Identity Dress Code that led to their dismissals.
The matter found its way to the Labour Court where, rather strangely, it was held that there was no discrimination on grounds of religion or culture but there was on grounds of sex - because women warders were not ordered to cut off their braids or dreadlocks. On the matter went to the Labour Appeal Court where it was held that there was discrimination on grounds of religion and culture, and the employees were ordered to be reinstated. The Department appealed to the SCA and its decision has just been handed down (Department of Correctional Services & another v Police and Prisons Civil Rights Union (POPCRU) and Others (107/12)  ZASCA 40 (28 March 2013)). The SCA held that a policy is not justified if it restricts a practice of religious or cultural belief that does not affect an employee's ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense.
It is worth recalling why and how the Department issued and justified the instruction. First, there was evidence about large scale non-compliance with departmental policies in numerous areas including security, human resource issues, corporate dress and prison management. There were serious problems with discipline and security and the flouting of the dress code and human resource policies which resulted in high levels of absenteeism, assaults among inmates and correctional officers, escapes by inmates, corruption and misuse of official vehicles and finances and many other issues. The Department's interventions through the enforcement of the department's policies, including the dress code, yielded positive results as service delivery, discipline, team work and security improved dramatically in the institution. Second, the association between Rastafarians and dagga made regulation of dagga in the prison more difficult because there seemed to be official condonation of dagga use. Third, dreadlocks made the correctional officers vulnerable in situations where inmates had to be physically controlled - short hair was, it was argued - an inherent requirement of the job. In essence, there were the operational reasons that the Department argued justified a limitation on the rights to religion and culture.
The SCA did not accept these arguments but in formulating its decision, accepted that there may be situations where dreadlocks could impact on an employee's ability to perform his duties, or could jeopardise the safety of the public or other employees, or cause undue hardship to the employer in a practical sense. But if these limitations do not exist, a policy is not justified if it restricts a practice of religious or cultural belief.
Trade union liability for not representing its members
Two ex-employees claimed damages for the loss which they sustained because FAWU, which was acting on their behalf, failed to prosecute their claims in the Labour Court. The loss that they alleged that they suffered was the award that they would have obtained in terms of the LRA for their unfair retrenchment in 2002 by their employer, Nestle South Africa (Pty) Ltd.
After a failed conciliation at the CCMA, FAWU did not refer the dispute to the Labour Court within 90 days as required by s 191(11)(a) of the LRA and FAWU did not advise the employees of this failure. Nor did it keep them apprised of the progress of their cases. They regularly visited the FAWU offices to ascertain what progress was being made. They were told, repeatedly, that the matter had been referred to the Labour Court. Eventually in about May 2003 they approached the University of Durban-Westville Law Clinic for assistance and the Law Clinic advised them on 29 May 2003 that no documents had been filed with the Labour Court.
Eventually, on 4 June 2004, FAWU informed the employees that FAWU would not proceed with their claim in the Labour Court. On the same day they consulted attorneys who addressed a letter of demand to FAWU, and later the employees instituted their actions for damages against FAWU.
The High Court found that the employees would not have been granted condonation because they would not have been able to show good cause. This finding was based on the inordinate delay of FAWU, the lack of a reasonable and acceptable explanation for the delay, that Nestle would oppose the application on the basis that it would be prejudiced in having to defend a claim for dismissal which had occurred two years earlier.
On appeal to the SCA (Food & Allied Workers Union v Ngcobo NO and Another (353/12)  ZASCA 45 (28 March 2013)) it was held that FAWU had been negligent and were liable to pay damages to the employees. The SCA held the following:
- A trade union is liable for damages if it fails to perform the mandate which it accepted to represent its members before the CCMA and the Labour Court.
- It is no excuse for a trade union to argue that because it is not an attorney a less exacting standard should be expected of it in representing its members.
- The measure of damages is the amount of the award that would have been made if the claims for wrongful dismissal had succeeded.
When can you rectify a written agreement? In settlement negotiations there is often a tendency to blur meanings or to express things in loose language just to get agreement. Both sides believe that the agreement means what they thought (or hoped) that the words mean. Nothing could be further from the truth.
In the recent LAC case of South African Municipal Workers Union and Others v City of Johannesburg Metropolitan Municipality (JA 48/10)  ZALAC 4 (21 February 2013), the issue was whether the appellants (the trade union & employees) were entitled to 'rectify' the agreement between the union and the municipality so as to reflect that the employees would continue to receive a locomotion allowance as part of their remuneration. ('Rectification' is a process of applying to court to amend an agreement to reflect the parties' true intention.)
A dispute arose after the employees were promoted from the positions of superintendents to chief superintendents in the Metropolitan Police Department. The new positions carried with them an all-inclusive remuneration package and a motor vehicle was no longer required to carry out the duties attached to the new position. The employees were therefore required to return the motor vehicle supplied to each of them by virtue of their past positions. After taking up their new positions, the employees formed the view that their promotion placed them in a worse financial position. They thus made proposals to the respondent to be paid a "special locomotion allowance". This allowance would ostensibly fund the purchase of a motor vehicle by each of the employees.
After negotiations between the parties, a settlement agreement was eventually concluded. This agreement once and for all, settled the dispute relating to the locomotion/loco/car allowance for the employees. Apart from this agreement, not a single piece of paper showing a minute of meetings between them was presented to the Court.
The Municipality refused to pay the employees the monthly loco allowance and the employees instituted an action for payment. The employees claimed that the Municipality was in breach of the agreement by failing to pay the employees their monthly loco allowance. The employees contended that if it was found that the agreement did not provide for the continued monthly payment of their loco allowance, then the agreement should be rectified to reflect the Municipality's obligation to pay the monthly loco allowance as this was the common intention of the parties at the time the agreement was concluded.
The Labour Court dismissed the action on the grounds that the Municipality had not breached the agreement and had in fact acted in accordance with its terms. On the alternative claim for rectification, the LC held that the employees had failed to establish that the agreement did not reflect the common intention between the parties and refused to rectify the agreement. The matter was then referred to the LAC.
The LAC held that a written agreement that is clear and unambiguous stands as an agreement cast in stone. It cannot be moved nor can any inroads be made into it. If one party wants a settlement agreement to be rectified, it has a duty to satisfy the Court through clear evidence of the contentions made by them to support their entitlement to rectification. This case makes it clear that vague or ambiguous drafting of a settlement agreement inevitably leads to conflict later. Even if negotiations are longer, it is worth working towards an unambiguous agreement which captures the intention of both parties.
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