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AUGUST 2022 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 discussing cases on 'Bullying as a form of harassment'. We also discuss three new cases: The first case investigates when and how an employer must act consistently in the disciplinary process. The second case looks at an unrecognised union's right to represent a member in dismissal proceedings, who is employed in a sector outside the scope of its constitution. The third case deals with whether and when a bundle of documents can constitute reliable and admissible evidence, without witnesses being called to testify.

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

RECENT CASES

Inconsistent about consistency?

In Burton and Others v MEC for the Department of Health Eastern Cape Province and Others (PA11/16) [2022] ZALAC 18 (5 July 2022) the following principles were confirmed:

1. There are two aspects to consistency: Historical consistency contemplates that a penalty will be applied consistently with how it has been applied to other employees in the past. Contemporaneous consistency contemplates that a penalty will be applied consistently as between two or more employees who commit the same misconduct.
2. The parity principle is not an immutable rule as the fairness of each dismissal is to be considered on its own facts.
3. The fact that an employee has previously not been dismissed for a specific instance of serious misconduct does not in itself grant a licence to employees to commit similar serious misconduct or warrant a finding that the dismissal of an employee for such misconduct is unfair.
4. Where there has been an oversight by a disciplinary officer, or different disciplinary officers hold different views on the appropriate penalty, this in itself does not necessarily warrant a finding of unfairness.

This case deals with the dismissal of senior managerial employees in the Eastern Cape Department of Health who took an unauthorised trip to Bloemfontein in a service provider's aircraft to attend a Confederations Cup soccer match. All the trip expenses were paid by the service provider. They misled the Department and the MEC for Health, Eastern Cape, about the purpose of the trip, stating they attended the match on official business to provide medical services when this was not so.

Read more (Worklaw subscriber access only)

The right of an unrecognised union to represent members

National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALAC 147 (17 June 2022) deals with an unrecognised union's right to represent members in dismissal proceedings, who are employed in a sector outside the scope of its constitution.

The LAC recognised that the LRA distinguishes between individual employee rights and collective bargaining rights. It held that while organisational rights granted to a union to engage in collective bargaining must be within its scope as determined by its constitution, different considerations apply when an employee elects to be represented by a union in an unfair dismissal dispute. Fairness and the right of the employee to representation in individual dispute proceedings would then be relevant considerations.

If a union has accepted the employee as a member outside of its constitutionally-prescribed scope of operation, it does so on the basis that the trade union is limited in the representation that it may provide to the employee. The union will not be entitled to bargain collectively with the employer on behalf of that employee. but its scope does not bar it from the representing the member outside of that, in an individual dispute with the employer.

Read more (Worklaw subscriber access only)

Can documents constitute evidence?

A SAPS warrant officer was dismissed on charges relating to assault and attempted murder arising out of a shooting incident. An arbitration award found his dismissal to be substantively unfair. The employer was successful in review proceedings and the Labour Court remitted the dispute back to the bargaining council for a hearing de novo (a fresh hearing).

In Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141 (1 June 2022) it was held that where a matter is remitted for an arbitration de novo, this does not necessarily mean that the evidence has to be adduced all over again, when it was already adduced and recorded.

Where the parties agree that the documents in the bundle should be regarded as evidence the presiding officer is entitled to accept the contents of the documentary evidence as if it were evidence adduced before him or her and, even if no witness testifies about it, it can be considered as relevant and admissible evidence.

Read more (Worklaw subscriber access only)

ARTICLE: Bullying as a form of harassment

By Prof Alan Rycroft

In Worklaw's April 2022 newsletter we outlined the new 'Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace'. We pointed out that the new Code replaces the previous sexual harassment Code, and incorporates other aspects of harassment - general harassment and bullying, and 'racial, ethnic and social origin' harassment.

The Code describes bullying as harassment which involves the abuse of coercive power by an individual or group in the workplace. Bullying involves intimidation, causing fear of harm, and may involve aggressive behaviour causing injury or discomfort. Bullying may include threats, shaming, hostile teasing, insults, constant negative judgment, and criticism, or racist, sexist, or LGBTQIA+ phobic language. Bullying is usually psychological harassment causing emotional abuse.

Bullying is not just managerial behaviour. The term 'mobbing' is used to describe harassment by a group - often co-employees - against an individual. Harassment can also be online cyber-bulling. In his article Prof Alan Rycroft explores how bullying is being handled by arbitrators and judges.

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
August 2022
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