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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 which deals with "union and political T-Shirts in the Workplace", discussing how to manage this situation in light of a recent Labour Court judgment. We also discuss four new cases. The first case looks at the impact of a threat of disciplinary action on the on-going employment relationship, and whether this could amount to constructive dismissal. The second case looks at the extent to which an employer must accommodate an employee's religious beliefs. The third case considers how an employer should identify who is on strike, where a strike by one part of the workforce impacts on the ability of other employees to perform their jobs. The fourth case looks at fair termination of employment where an employee no longer meets a condition for continued employment.
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Is it constructive dismissal if a threat of discipline is made?
The employee, a manager of the income section in the finance department, was issued with a notice of suspension pending an investigation into allegations of financial misconduct by him. About six months later he was furnished with a charge sheet in respect of a disciplinary hearing. It was alleged that the employee had caused the municipality financial losses.
The employee's attorneys directed a letter to the municipality indicating that he was prepared to resign on payment of between two-three months' salary in settlement of the matter. The municipality's attorneys responded on the same day stating that the municipality was prepared to accept the employee's resignation without any financial settlement. This letter warned that the disciplinary enquiry would go ahead 'in full force', saying that criminal and civil action was being considered.
The employee's attorneys immediately replied that the threats contained in the letter left the employee with no alternative but to resign, because the trust relationship between the parties has irretrievably broken down and the threats amounted to the constructive dismissal.
The employee failed to attend the disciplinary hearing scheduled for the next day, and filed an unfair dismissal claim with the bargaining council. The arbitrator found that the employee had failed to show on a balance of probabilities that the municipality had made the continuation of employment intolerable. The employee then filed an application in the Labour Court to review and set aside the arbitration award.
The Labour Court construed the threat in the letter as intended to coerce the employee into resigning without compensation. It said that the mere reporting of the applicant to the police and the institution of civil proceedings would have an "extremely deleterious impact on the applicant." The LC found that a reasonable man "guilty or not" would not want to face the "dangerous" prospects of criminal and civil proceedings and thus the employee had established that he was constructively dismissed. The LC set aside the arbitration award and ordered the municipality to pay three months' remuneration as compensation and the costs of the application.
On appeal, the LAC in Nokeng Tsa Taemane Local Municipality v Louw NO and Others (JA7/16)  ZALAC 37 (17 October 2018) set aside the Labour Court's order. The LAC held that the threat of civil and criminal proceedings in relation to financial misconduct cannot reasonably constitute a threat rendering continued employment intolerable. Any employee who is accused of illegal activities or financial impropriety may expect that the employer has various options, be they disciplinary, civil and/or criminal.
This LAC judgment confirms that threats by an employer to take legal or disciplinary action against an employee would not ordinarily provide a basis for constructive dismissal.
Accommodating religious beliefs
The employer, TFD Network Africa, conducts business as a logistics and transport service provider and offers a warehousing and distribution service. The warehouse normally holds substantial amounts of customer stock and stock-taking is required over weekends on a monthly basis.
The dismissal of the employee arose from her refusal to work overtime on Saturdays to do stock-taking, on account of her being a Seventh Day Adventist, a religion in which Saturday, the seventh day, is the holy Sabbath. Although the employee claimed that she made disclosure of her faith, TFD maintained that during the interview she was told that she would be required to perform weekend work, to which she indicated she had no problem. TFD claimed it would not have employed her if it had been aware that she could not work on weekends, as it was an operational requirement of the job that she participate in stock-taking on Saturdays. The employee signed a written contract of employment in which she agreed to perform 'such overtime duties as may be reasonably required of you from time to time, provided this does not exceed the limitations laid down in relevant legislation.'
After missing several monthly stock-takes, incapacity proceedings were initiated and after a hearing the employee was dismissed for incapacity. She declared a dispute concerning "an alleged unfair discrimination based on religious grounds". The Labour Court held that her dismissal was procedurally and substantively unfair, automatically unfair and that she was unfairly discriminated against by TFD on the basis of her religion and belief.
On appeal, the LAC in TFD Network Africa (Pty) Ltd v Faris (CA 4/17)  ZALAC 30 (5 November 2018) upheld the LC's decision and found that TFD did not reasonably accommodate the employee. TFD failed to discharge the evidentiary burden necessary to sustain the defences of fair discrimination under section 187(2)(a) of the LRA, with the result that the dismissal was automatically unfair as contemplated in section 187(1)(f) of the LRA. There was no evidence that the employer suffered any hardship at all by her being absent. She did not attend stock takes for 12 months and there is no indication that her absence impacted on the TFD's ability to get the stock takes done. The LAC found that her presence was not reasonably necessary for the accomplishment of the operational requirements.
This case confirmed this important principle: Where an employee, for religious reasons, refuses to perform part of her/his contractual duties, the employer bears the burden of proving that it could not accommodate the employee. The employer has a duty to reasonably accommodate an employee's religious freedom unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale that it seeks to protect.
Identifying who is on strike
The Marine Services Department of Transnet manages and administers the South African ports. Durban Harbour, with about 59 berths (parking bays), has between 15 and 45 ship movements in a 24 hour period. A ship entering or leaving the harbour is serviced by a tug (with its crew) and the land-based/quayside berthing staff. The employees in this case were part of the land-based/quayside berthing staff, employed as marine shore hands. They performed their duties at the berths where they would await the arrival of a vessel, brought in by the tugs, and would secure it once it is alongside the quay by tying it with ropes to stabilise it. When a vessel departs from the harbour they would untie the robes and a tug would help it move off the berth.
On the day of the unprotected strike Transnet had planned to have 17 ships moving between 06h00 and 18h00 during the day shift, but only 4 ships were moved. The unprotected strike endured for almost 10 hours and ended around 16h00 when it was already late for the employees to resume their duties that day. The shore hands said they did not participate in any form of industrial action and attributed the unprotected strike to the tug crews who had withdrawn their labour. It was therefore not possible for land-based berthing crews to execute their tasks if the tugs did not perform their duties.
Transnet issued a notice headed "notice of disciplinary action for collective misconduct" which informed the employees that they would receive a final written warning for the alleged misconduct and that those who were already on final written warning would be dismissed. The affected employees in this case fell into the latter category and were dismissed with immediate effect as a consequence of their alleged participation in the unprotected strike. According to Transnet the sanction of dismissal was motivated by the serious consequences of the unprotected strike, the employees' untrue denial that they were on strike, the fact that the strike was unprotected and had not been preceded by any dispute resolution process, and that it persisted for a period of approximately 10 hours.
The Labour Court rejected the employees' version and concluded that all of them participated in the unprotected strike. The LC determined that failure to issue an ultimatum did not amount to procedural unfairness, because it was not an invariable requirement. Transnet had expended considerable effort throughout the strike to negotiate with the employees and convince them to return to work, and the employees disregarded the informal 'ultimatum'. The LC also found that there was no obligation to subject the individual employees to a formal disciplinary hearing. They had chosen to deliberately and collectively deny that there had been an unprotected strike, and Transnet complied with the audi principle when it issued a notice and thereafter acted against them.
On appeal the Labour Appeal Court in National Union of Metal Workers of South Africa (NUMSA) and Others v Transnet National Ports Authority (DA8/17)  ZALAC 41 (29 November 2018) set aside the LC's order. It found that there was insufficient evidence that the berth-side employees were part of the tug crew strike. It also held that the employer could not have expected these employees to carry out their duties in an environment that was unsafe as a result of the illegal strike. The LAC did however uphold the LC's finding that there was no procedural unfairness in not issuing an official ultimatum, and in handling the disciplinary process through collective representations.
This case is a warning to employers: where a strike by one part of the workforce impacts on the ability of other employees to perform their jobs, an employer will have to prove that the affected employees are also striking, if it intends taking action against them as well.
Failing to meet a condition of continued employment
If a driver loses her driver's licence, there is an impossibility of performance - and in certain circumstances, employment can be terminated. The loss of the licence is decided by a body other than the employer. But what if a condition of continuing employment is within the employer's discretion? What would make termination substantively and procedurally fair?
Consider these facts: Armscor's conditions of employment provide that an appointment of an employee to its staff establishment is subject to "obtaining and maintaining" an applicable security clearance. Those "who fail to qualify for any grade of security clearance as a result of a negative vetting content will be dismissed or their contract of employment terminated." Significantly, s 37(2) of the Defence Act, 42 of 2002 provides that "A member or employee contemplated in subsection (1)(a) may not be enrolled, appointed or promoted, receive a commission or be retained as a member or employee, unless such member or employee has been issued with the appropriate or provisional grade of security clearance by the Intelligence Division.'
Mr Joubert was in the employ of Armscor for more than three decades, throughout which he obtained the required security clearance certificates appropriate to his position. On 23 October 2006 he was issued with a grade "Secret" security clearance certificate which expired on 11 September 2011. In accordance with Armscor's Security Practice Mr Joubert submitted an application to renew his security clearance certificate to Armscor's Personnel Evaluation Division on 26 September 2011. For the period 11 September 2011 to 26 November 2012 Mr Joubert held a security clearance certificate classified as "Confidential". Thereafter, for reasons never explained to him or to Armscor the vetting panel of the Intelligence Division of the SANDF refused to grant him all grades of security clearance, let alone at the highest level he previously enjoyed.
His employment was terminated by letter in which he was notified of his right to appeal. This was not successful and Mr Joubert referred an unfair dismissal dispute to the CCMA. The commissioner rejected Armscor's argument that it did not dismiss Mr Joubert and that the termination of his services came about by the operation of the law, viz s37(2) of the Defence Act. He further rejected its contention that it had no discretion in the matter but to terminate Mr Joubert's services. The commissioner was of the view that Armscor could have placed Mr Joubert on suspension or considered alternative sanctions short of dismissal. He found that Armscor opted to terminate Mr Joubert's services by merely issuing a notice to that effect without providing reasons for the termination of employment as envisaged in s188 of the LRA.
The commissioner reasoned that Armscor was required to decide a fair reason for the dismissal and to act in accordance with the procedures laid down in the LRA, which it had failed to do. The commissioner concluded that Mr Joubert's dismissal was both substantively and procedurally unfair. He reinstated him retrospectively on the same terms and conditions, with back-pay of R737 280.00 (nine months' remuneration).
Armscor lodged a review application with the Labour Court to challenge the finding that the dismissal was substantively unfair and the relief awarded by the commissioner. Armscor conceded the procedural unfairness of the dismissal and consequently it did not require any determination.
The LC held that Mr Joubert's dismissal was substantively fair because it resulted from a legal prohibition on further employment brought about by s37(2) of the Defence Act and Armscor's internal policies. The Court found the injunction (that employees who fail to qualify for any grade of security clearance as a result of a negative vetting outcome will be discharged from their services) to be patently fair and reasonable. The LC found the commissioner's reinstatement order to be incompetent and unsustainable, because in law a party cannot enforce a contract that is in contravention of a statutory provision, in this case s37(2) of the Defence Act.
On appeal in Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17)  ZALAC 39 (27 November 2018), the LAC viewed the facts of this case from a different perspective. The LAC noted that it needed to consider whether the loss by Mr Joubert of all levels of security clearance triggered impossibility of performance: put differently, whether the termination of Mr Joubert's services by Armscor was actuated by reasons of his incapacity. If the incapacity was permanent, this would therefore warrant dismissal.
But on the facts of this case the LAC found that Armscor terminated Mr Joubert's services with immediate effect for reasons that he had been refused all grades of security clearance, before he had been given the opportunity under the Defence Act to challenge the refusal to grant him the required security clearance. The termination letter was issued before the employer had finally established that it had become permanently and objectively impossible for the employee to be retained in its service. In other words, the incapacity had not yet been determined to be of a permanent nature that warranted the employee's dismissal. The LAC accordingly held that the dismissal was substantively unfair.
The LAC agreed with the LC that the commissioner committed a reviewable irregularity by reinstating Mr Joubert, and said under the circumstances of this case he should have been awarded compensation. As his termination was effected without providing a fair reason and following due process, the maximum compensation of 12 months' salary under s194(1) of the LRA was justified.
This judgment clearly recognises that where an employee does not have the required qualifications or certification for a particular job, this may trigger impossibility of performance, and if this incapacity is of a permanent nature, it may warrant dismissal. However in employment law the question that still remains is whether it was fair in the circumstances for the employer to exercise that election. An employer in such circumstances would be wise to follow the incapacity guidelines under the Dismissal Code of Good Practice.
ARTICLE: Union and political T-Shirts in the Workplace
By Prof Alan RycroftWearing a T-shirt which indicates support for a particular trade union or political party is part of freedom of expression, as important as the ability to express our speech. It indicates solidarity with a group or idea. But if enough people wear the same T-shirt it becomes a show of power and, to those who don't belong to that group, it may become a threat. In the workplace context this can heat up inter-union rivalry. Problems with T-shirts have been around since the early 1990's and continues to today. There is often recognition by arbitrators that inter-union rivalry justifies a restriction on the wearing of T-shirts.
But what is the law regarding the ability of employers to regulate this? A recent Labour Court judgment has brought some clarity on this issue.
Read more (note - only available to Worklaw subscribers)
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