Public Newsletter
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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 'Dismissal for refusing to accept an employer's demand' and discusses a recent LAC decision in which employees alleged that their dismissals were automatically unfair. We also discuss three other new judgments: In the first case the Constitutional Court makes a clear ruling on the implications of a trade union operating outside of its constitution. The second case gives guidance on how inspections in loco should be conducted. The third case, a LAC decision, looks at the implications for decision-makers where parties have agreed the terms of reference in a pre-trial minute.
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RECENT CASES
The Constitutional Court rules on the limits of a trade union's constitution
In AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) v National Union of Metalworkers South Africa and Others (CCT 188/22) [2024] ZACC 13 (21 June 2024) the Constitutional Court had to decide if a trade union can operate outside its constitution - for example, in signing up or representing members in industries other than the industry stipulated in the union's constitution.
The employer, AFGRI Animal Feeds (AFGRI), is a private company that manufactures and distributes animal feeds. AFGRI had dismissed employees for misconduct after they participated in an unprotected strike following its refusal to grant organisational rights to NUMSA. Consequently, NUMSA referred an unfair dismissal dispute to the Labour Court.
In the Labour Court AFGRI raised a preliminary point that NUMSA had no legal standing because the employees could not become members of NUMSA in terms of its constitution, and therefore could not represent AFGRI's former employees. In terms of NUMSA's constitution, membership is confined to "workers in the metal and related industries" whereas AFGRI manufactures and distributes animal feeds.
The Labour Court found in AFGRI's favour. It held that NUMSA's referral of the dispute under section 200 of the LRA was invalid since AFGRI operates in the animal feeds industry and not the metal industry. The Labour Court upheld the preliminary point and dismissed the unfair dismissal application with costs.
NUMSA appealed to the Labour Appeal Court, essentially on the grounds that the case concerned the rights of employees to representation by their trade union under section 200(2) of the LRA. The LAC held that where a trade union has admitted to membership employees outside of its constitutionally-prescribed scope of operation, the union is limited to representing those employees in court, but it would not be able engage in collective bargaining on their behalf.
The employer appealed this decision to the Constitutional Court.
Read more (Worklaw subscriber access only)
Rules for an "inspection in loco"
In Sibanye Gold Protection Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (JR2424/21) [2024] ZALCJHB 190 (7 May 2024) the Labour Court considered when the conduct of an inspection in loco might be irregular.
An employee M of Sibanye Gold Protection Services was charged with sleeping on duty and dismissed following a disciplinary hearing. During the disciplinary hearing there was an inspection in loco to test the evidence.
The evidence in this case was that during the night shift two other employees spotted a vehicle that was parked at a high-risk area with headlights on. On approaching the vehicle with no signs of movement, the two employees could see that M had reclined his driver's seat and was sleeping. M was awakened by the movement of the two employees when one switched on his torch in an attempt to take pictures of him sleeping. It was alleged that M apologised to the employees for sleeping on duty.
M referred an unfair dismissal dispute to the CCMA. The main issue was the substantive fairness of M's dismissal. The commissioner conducted an inspection in loco and, relying on what he observed, found the dismissal to be unfair. He ordered M's retrospective reinstatement with back pay of six months' salary.
The employer applied to the Labour Court to have the award reviewed and set aside. One of the grounds of review concerned the inspection in loco conducted during the arbitration. The employer argued that the commissioner committed an irregularity when he based most of his findings on his personal observations and photographs taken during the inspection in loco. The employer submitted that the commissioner should have allowed the parties an opportunity to comment on his observations during the inspection in loco.
Read more (Worklaw subscriber access only)
The consequences of a pre-trial minute
The case of Sibanye Rustenburg Platinum Mine v Association of Mineworkers and Construction Union obo Sono and Others (JA32/2022) [2024] ZALAC 23 (2 May 2024) highlights the importance of the wording of pre-trial minutes, and the implications of agreeing to certain issues in the minutes.
59 AMCU members were dismissed for submitting false sick notes and, as a result, receiving pay for days they did not work. The employees were found guilty at a disciplinary enquiry and dismissed. Their sick notes were purportedly issued by Platinum Health but stamped at the RPM Hospital. An investigation revealed that the employees did not visit Platinum Health as recorded in the medical certificates. The certificates were signed by the same unknown person without her/his initials or surname and none of them had a serial number. The employees submitted the certificates with one motive, namely to deceive the employer in circumstances in which the employer has a zero-tolerance approach to dishonesty and fraud.
AMCU referred an unfair dismissal dispute to the CCMA on behalf of the employees. In preparation for the arbitration hearing, the employer and AMCU held a pre-arbitration conference with the purpose of setting out the issues in dispute that the commissioner was required to arbitrate. In summary the parties agreed that the commissioner had to determine only whether AMCU members were guilty of the misconduct charges against them. The commissioner in his award found not only that employees were guilty of serious misconduct but also that their dismissal was substantively fair.
On review at the Labour Court, AMCU argued that the commissioner had adopted a "one size fits all" approach to sanction and failed to consider the individual circumstances of each of its members. The Court remitted the matter to the CCMA for a hearing on the issue of sanction.
The employer took this judgment on appeal to the Labour Appeal Court, arguing that the parties had delineated the issues in dispute at arbitration in their signed pre-arbitration minute. The commissioner was therefore confined to determine only whether AMCU members were guilty of the misconduct charges against them. The employer submitted that the issue of sanction therefore fell outside the scope of the dispute before the commissioner.
Read more (Worklaw subscriber access only)
ARTICLE: Dismissal for refusing to accept an employer's demand
By Prof Alan Rycroft
Some dismissals are regarded as so unfair that they are called "automatically unfair dismissals" and are covered in Section 187 of the LRA. One of these situations occurs where the reason for the dismissal is "a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer". The reasoning is that it would be extremely unfair for an employer to demand that employee accept something it wishes to implement, and to then dismiss them if they don't agree to those demands.In National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024) the employer, part of the Coca Cola enterprise, issued a retrenchment notice to consult in terms of s189(3) of the LRA to unions. The consultation process was conducted in terms of s 189A, and facilitated by the CCMA. At the conclusion of the consultation process, 368 employees employed in the bargaining unit were retrenched with effect from 31 May 2019.
The dispute before the Labour Court involved only 21 employees, all previously employed either as merchandisers or pre-sellers. NUFBWSAW argued that the employees' dismissals were automatically unfair because the reason for their dismissals was because they had refused to accept the employer's demands during the consultation process, and this was in breach of s187(1)(c) of the LRA.
The employees' evidence was that after being advised that they had been selected for retrenchment, they were advised of a number of alternative positions. These offers of alternative employment were refused on account of the drop in remuneration that they would suffer.
The Labour Court found that, but for one of the employees, the employees' retrenchment was substantively fair. In reaching this conclusion, the Labour Court rejected the union's contention that the employees' dismissal was automatically unfair because the reason for dismissal was a breach of s 187(1)(c) of the LRA, and also the alternative claim that the dismissals were unfair for want of a substantively fair reason.
The Labour Court's decision was taken on appeal to the Labour Appeal Court. Prof Alan Rycroft's article discusses the learnings from the LAC's judgment.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
August 2024
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