Public Newsletter
WWorklaw 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 which looks at 'New Technology and Procedural Fairness' exploring judgments about cases in which new technology (eg sms, skype, zoom) was used. We also discuss three new cases: The first case deals with the employer's obligations when suspension is a holding measure. The second case, a CCMA award, deals with dismissal for refusing to come to work during the Covid pandemic. The third case looks at the consequences of appointments made irregularly.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Suspension as a holding measure
In American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2507/15) [2020] ZALCJHB 113; [2021] 1 BLLR 64 (LC) (15 July 2020) an employee, a driver, was involved in a vehicle accident that resulted in damage to the employer's property. The next day, the employer suspended the employee pending an investigation into the accident. The suspension was without pay.
The LC held that when suspension is a holding measure pending a disciplinary hearing, suspension without pay is a material breach of contract. The Constitutional Court's finding in Long v South African Breweries (Pty) Ltd and Others (CCT61/18) [2019] ZACC 7 (19 February 2019) that a hearing is generally not required before a precautionary suspension, does not apply where an employee is suspended without pay.
Read more (Worklaw subscriber access only)
Dismissal for refusing to come to work during the pandemic
The employee, a laboratory analyst, was dismissed for being absent from work without permission for 21 days during the level 5 lockdown implemented to combat the Covid-19 pandemic. She admitted that she had not reported for duty during this period, but claimed that she had decided to remain at home after her application for leave (even unpaid) had been turned down and that she had been forced to take the decision for herself because she was afraid of infecting her family.
In Beck / Parmalat SA (Pty) Ltd [2021] 2 BALR 131 (CCMA) it was held that a dismissal for being absent without permission, following an employer's refusal to grant an employee special leave may be unfair, where an employee has a compelling reason to be absent from work during the Covid-19 pandemic.
We think this CCMA award is concerning as it does mention the relevant provisions of the revised Consolidated Direction on Occupational Health and Safety Measures published by the Dept of Employment and Labour, which deal specifically with these issues. Worklaw's October 2020 newsflash discussed the revised Measures. Clauses 14 and 15 of these Measures create a right for an employee to refuse to work without fear of dismissal where there is "reasonable justification".
Read more (Worklaw subscriber access only)
Appointments made irregularly
Read below for further details.
The Newcastle Municipality resolved that all managers' contracts due to expire would be advertised, and the employees were advised of this about a year before their contracts were set to expire. However, the decision was not put into effect by the HR department. Instead the contracts were extended by the municipal manager, but were later set aside.
Two affected employees referred unfair labour practice disputes to the SA Local Government Bargaining Council. The Municipality informed the arbitrator that it had launched a "legality review" in the Labour Court and requested that the matter be postponed pending the outcome of that matter. The Municipality sought orders setting aside the employees' contracts of employment, arguing that the municipal manager had subverted the council's resolution to advertise the positions.
In Newcastle Municipality v Nzimande and others [2021] 1 BLLR 94 (LC) it was held that where an appointment covered by the Municipal Systems Act 3 of 2000 is made irregularly, it may be declared invalid and set aside.
Read more (Worklaw subscriber access only)
ARTICLE : New Technology and Procedural Fairness By Prof Alan Rycroft
The last 30 years has seen extraordinary innovation in technology. Initially telex messages and fax machines, and later personal computers, cell phones, SMS, and a variety of applications (apps) which allow communication in ways unthinkable in the mid-Twentieth century. The Covid-19 pandemic has driven the use of apps such as Skype, Zoom, Teams and so on to meet the requirement of communication in a world of 'off-site' work and social distancing.
The legal world has not escaped these forces. It is now routine for court cases and arbitrations to be heard on-line. Lawyers and judges have commented that on-line persuasion and argumentation is a different and often more difficult task than a face-to-face process. The courtroom dynamic has been replaced with a new and sometimes alienating reality. Does it affect the fairness of your 'day in court'?
Prof Rycroft in his Article discusses judgments to date dealing with these issues, including the recent decision in Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) and Another (J435/20) [2020] ZALCJHB 92; (2020) 41 ILJ 2652 (LC) (28 May 2020) dealing with retrenchment consultations through 'zoom'.
Read more (only available to Worklaw subscribers)
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Worklaw is an online labour law advice and information subscription service - see www.worklaw.co.za WWorklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.
Contact help@worklaw.co.za for more information.
Bruce Robertson
February 2021
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