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DECEMBER 2006 / JANUARY 2007 PUBLIC NEWSLETTER 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 unfair labour practices falling outside the LRA. We also look at a new case highlighting the requirement of procedural fairness in dismissing strikers .

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

LATEST CASES

The requirement of procedural fairness in dismissing strikers

As we know, the law requires a dismissal to be procedurally and substantively fair. This applies both to individual dismissals and collective dismissals, including those resulting from unlawful strike action. It is also clear that the substantive fairness of a dismissal for unlawfully striking will depend on the factors listed in item 6(1) of Schedule 8 to the LRA, which states as follows:

“The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including–

1. the seriousness of the contravention of the Act;
2. attempts made to comply with this Act; and
3. whether or not the strike was in response to unjustified conduct by the employ

In other words, all factors will be considered in deciding the fairness of a dismissal, including how serious was the unlawfulness of the strike, what attempts were made to make it lawful, and what was the cause of the strike. That much is clear. What is less clear is the requirement of procedural fairness in the context of the dismissal of unlawful strikers. This has again surfaced in the case of National Union Of Mine Workers & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC). This case considered the procedural fairness requirements of item 6(2) of Schedule 8 to the LRA, which states as follows:

“Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.”

The court recognised the distinction between the required pre-dismissal hearing and an ultimatum, a distinction that had emerged clearly in the case of Modise & others v Steve`s Spar Blackheath (2000) 21 ILJ 519 (LAC). The court in the Modise case stated the following:

“A hearing and an ultimatum are two different things. They serve separate and distinct purposes. They occur, or at least ought to occur, at different times in the course of a dispute. The purpose of a hearing is to hear what explanation the other side has for its conduct and to hear such representations as it may make about what action, if any, can or should be taken against it. The purpose of an ultimatum is not to elicit any information or explanation from the workers but to give the workers an opportunity to reflect on their conduct, digest issues and, if need be, seek advice before making the decision whether to heed the ultimatum or not.”

Whilst the court in the Modise case made it clear that procedural fairness will be assessed in the light of the circumstances of each case, it is clear that procedural fairness will require both a hearing and an ultimatum. In other words, the ultimatum does not suffice on its own. The court provided guidance on what form the hearing should take in the context of a strike. It stated that the employer should invite the strikers or their union (presumably by way of written notice) to make representations by a given time why they cannot be said to be participating in an unlawful strike, and if so, why they should not be issued with an ultimatum calling upon them to resume work by a given time or be dismissed.

Following the Modise case, all this seemed reasonably clear. It seems however that the Billards Contractors case may have now muddied the water somewhat. The court in that case commented that a hearing (in the form indicated above) that takes place before the issuing of an ultimatum cannot possibly deal with the question of whether or not, as a matter of fact, strikers (or individuals amongst them) complied with or attempted to comply with the ultimatum. Those questions can only be resolved after the ultimatum has expired. The court accordingly indicated that it may be neccesary to hold a further hearing to consider those issues in order for the dismissal of strikers to be procedurally fair. The court then commented that the further hearing could take place before or after the dismissals ie a form of appeal which gave the strikers an opportunity, after their dismissal, to persuade the employer that they had in fact complied with the ultimatum, or that they were prevented from doing so, or that their dismissal was unfair for some other reason.

ARTICLE : Remedies for unfair labour practices falling outside the LRA.

One of the problems caused by the restricted definition of an unfair labour practice in s 186(2) of the LRA is that there are several forms of unfair conduct which can and do arise in the employment context for which there is no apparent remedy. The definition of an unfair labour practice in the LRA is far narrower than all possible forms of fair labour practice guaranteed by the Constitution. This has led the Labour Court in the past to hold that an employee alleging an unfair labour practice in terms of the LRA must show that it falls within the terms of the unfair labour practice definition (Nawa & another v Department of Trade & Industry [1998] 7 BLLR 701 (LC)). The Labour Court has recently opened the door to a different interpretation in the case of Mathews v Glaxosmithkline SA (Pty) Ltd(2006) 27 ILJ 1976 (LC) which we will focus on in this article.

What are the gaps in the definition of unfair labour practice?

One of the more obvious gaps in the definition is an unfair transfer, although a transfer pending a disciplinary inquiry has been held to fall within the terms of the unfair labour practice definition, being a form of disciplinary action.Inaction by the employer is also not covered explicitly. For example, the failure of an employer to act on a recommendation to re-grade employees’ ranks was held to not fall within terms of the definition (Mzimni & another v Municipality of Umtata [1998] 7 BLLR 780 (Tk)).

There will also be unilateral management decisions which appear unfair but which do not fall within the definition. For example, restructuring of the employer which had some effect on the reporting lines and chain of command was held to fall within managerial prerogative and did not amount to unfair labour practice (Nawa & another v Department of Trade & Industry [1998] 7 BLLR 701 (LC)). Strikes are also not included among the listed unfair labour practices listed (Ceramic Industries Ltd t/a Betta Sanitaryware v NCBAWU & others [1997] 1 BLLR 1 (LAC)).

When an alleged unfair act falls outside of the definition, the CCMA or bargaining council will not have jurisdiction to conciliate or arbitrate the matter.

Bringing the claim under other legislation

Where the claim falls outside the LRA definition, a party should then investigate whether a cause of action exists in another forum or through some other piece of legislation (eg unfair discrimination in terms of the Employment Equity Act (EEA), under the Promotion of Administrative Justice Act (PAJA) or the SA Constitution).

The LRA definition of unfair labour practice is restricted to employer / employee practices. The EEA offers a wider definition of employee (it includes applicants for employment) and so discrimination in the appointment or promotion process could result in a claim under that act by an applicant

PAJA, aimed at ensuring fairness in administrative decision making, could be used to bring claims where the municipal, provincial or national departments are involved. The applicability of PAJA to dismissals has recently been challenged (See our October 2006 newsletter).

The Bill of Rights guarantees fair labour practices to all employees. This is a wide and unrestricted provision and its scope remains contested.

Lessons to be learned from Mathews v Glaxosmithkline SA (Pty) Ltd

What this case alerts us to is that where the definition of unfair labour practice in s 186(2) of the LRA does not cover the alleged unfair conduct, an employee is able to approach the labour court to deal with it on the basis of the constitutional right to fair labour practices.

We are aware that employers have hidden behind the gaps in the LRA’s definition and this case is a reminder that any unfair practice is now capable of being challenged. Far better then to deal with the employee’s grievances rather than attempting to argue that there is no claim recognised in law. Incidentally, although the employer in the case “won”, the court refused to order costs in its favour because if the employer had made full disclosure to the employee, a court action might have been avoided.

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Bruce Robertson
December 2006 / January 2007
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