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 sick leave, doctors’ certificates and related problems. We also look at three cases: the first deals with how to establish that continued employment has become intolerable. The second deals with creating a reasonable expectation of permanent employment. The third deals with a Labour Appeal Court decision on whether there is an enforceable right to affirmative action by an applicant in the designated groups.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
LATEST CASES
Continued employment – how intolerable?
The discovery of a shortage of boxes led to a call on 8 employees to undergo polygraph tests. Two employees agreed (and passed the test) but the remaining six refused. They were then charged with misconduct and dismissed. At the CCMA it was held that, on a balance of probabilities, the employer had failed to discharge the onus to prove that the employees were dismissed for a fair reason relating to conduct. Reinstatement with backpay was ordered. The employer, in New Clicks SA (Pty) Ltd v CCMA & others (2008) 29 ILJ 1972 (LC), took this award on review to the Labour Court.
The court found that the commissioner’s award was reasonable. As regards the employer’s argument that reinstatement should not be awarded where a continued employment relationship would be intolerable (s 193(2)(b) LRA) the court pointed out that reinstatement is the primary remedy in cases of unfair dismissal. The fact that the employer cannot trust the dismissed employees was held not to be enough to make continued employment intolerable. The judge said: “All in all, I am saying that for s 193(2)(b) to defeat the primary remedy, there must be convincing reasons for such. Accordingly, this court should not readily review the decision of a commissioner to not have refused reinstatement when there is some evidence by the employer that the employee is not to be trusted anymore. On the contrary, a decision to refuse the primary remedy is reviewable if no cogent reason supported by evidence is given for it. Such in my view would be an unreasonable award.”
What this case reminds us is that an employer has to lead evidence (not just argue in closing argument) which establishes that, apart from suspicion, there are grounds for an employer to regard continued employment as intolerable.
A reasonable expectation of permanent employment
An employee alleged that she had been unfairly dismissed on the basis of her pregnancy and that her dismissal therefore constituted an automatically unfair dismissal in terms of section 187(1)(e) of the LRA. The court first had to decide whether there had been a dismissal.
The employee had been appointed on a three-month probation period. At the end of that period, she was not offered permanent employment. Arguing that she had a reasonable expectation of continued employment, she argued that she had been unfairly dismissed.
The court in Vorster v Rednave Enterprises CC t/a Cash Converters Queenswood (2008) 17 LC 8.29.3 found the evidence supported the conclusion that the applicant did in fact have a legitimate expectation that the contract would be renewed and be made permanent. As a result the court was of the view that the applicant was dismissed as contemplated by section 186(1)(b) of the LRA.
Cases like this always turn on the facts. How did the employee acquire a subjective expectation and is this objectively reasonable? This case illustrates that often it is employer practices that create the expectation even though what is written appears to make it clear that there can be no expectation. Although the fact that a contract has been renewed a few times may weigh in favour of a conclusion that a reasonable employee could have expected a further renewal, this fact will not necessarily result in such a conclusion.
Similarly, even where a contract contains a disclaimer expressly stating that the mere fact that a contract is concluded or renewed should not create an expectation of a further renewal, the court will still have to consider all factors to determine whether such an expectation was created despite the express disclaimer.
A right to affirmative action?
In Dudley v City of Cape Town (2004) 25 ILJ 305 (LC) the LC held that affirmative action was not a right that could be asserted in the courts. The only remedy was to report the failure of the employer to implement an affirmative action policy to a labour inspector. This decision was referred on appeal to the LAC, which has recently handed down its judgement - Dudley v The City of Cape Town (LAC, August 2008).
The question for determination on appeal was whether an applicant for employment who is a member of “the designated group” and who complains that a designated employer has failed to comply with one or other of its obligations relating to affirmative action under Chapter III of the Employment Equity Act (EEA), may institute court proceedings to enforce such obligations prior to the exhaustion of the monitoring and enforcement procedure provided for in Chapter V of the EEA. Chapter V provides for enforcement by labour inspectors through issuing compliance orders.
The LAC has now confirmed the judgment of the labour court. The LAC said that the drafters of the EEA intended that any interested party who is aggrieved by a designated employer’s failure to comply with any of its obligations under chapter III of the EEA would take steps to have the enforcement procedure provided for in chapter V invoked and they did not intend that such an interested party could simply ignore that procedure and institute its own court proceedings.
What this judgment confirms is that affirmative action is effectively a shield in the hands of the employer to protect it from allegations of discrimination. As the EEA currently stands, affirmative action is not a sword in the hands of an aggrieved applicant for employment to force the employer to act affirmatively.
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Bruce Robertson
December 2008 / January 2009
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