Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. Since our last newsletter, there have been 7 important decisions from the Constitutional Court, the Supreme Court of Appeals and the Labour Appeal Court. For this reason we have departed in this newsletter from our standard format of including an article on a relevant labour law topic, in order to provide an update on all the latest judgments.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
1. Are domestic workers covered by Workers' Compensation?
An employee was employed as a domestic worker in a private home for 22 years. She drowned in her employer's pool in the course of executing her duties as a domestic worker. The first applicant, the daughter and sole dependent of the deceased, approached the Department of Labour to enquire about compensation for her mother's death. She was informed that she could neither get compensation under COIDA, nor could she get unemployment insurance benefits for her loss which would ordinarily be covered by COIDA.
In Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020) the Constitutional Court held that Section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act (COIDA) is unconstitutional, to the extent that it excludes domestic workers employed in private households from the definition of "employee", effectively denying them compensation if they contract diseases or suffer disablement, injuries or death in the course of their employment.
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2. By when must a recurring discrimination case be referred to the CCMA?
The employee was employed in 1999 as an operator and as a shift leader grade 11 since 2008. The employee maintained that his exclusion from the scope of a collective agreement since his promotion in 2008 amounted to discrimination in that he was paid less than his subordinates and did not qualify for certain benefits.
On 21 July 2016 (some 8 years after the alleged cause of action would first have arisen) the employee referred an unfair discrimination case to the CCMA in terms of s 10 of the EEA alleging unfair discrimination on an arbitrary ground in contravention of section 6(1).
Sections 10(2) of the EEA provides that an unfair discrimination dispute must be referred within 6 months of the act or omission that allegedly constitutes unfair discrimination. On the issue of whether to condone the late referral of the dispute, the commissioner had in mind the factors normally relevant: ie the degree of lateness; the explanation given for the lateness; the prospects of success; and the importance of the matter. The commissioner was evidently aware of the employee's contention that condonation was not required because the alleged dispute related to ongoing or repetitive discrimination. However, he failed to engage with the question or to make a ruling in relation to it. Instead, he refused condonation for what he believed was a late referral and declined jurisdiction to conciliate on the grounds that good cause had not been shown, as the employee had poor prospects of success on the merits.
In Mngadi v Jenkin NO and Others (DA 7/2019) [2020] ZALAC 42 (24 November 2020) the Labour Appeal Court held that where discrimination is not a single act but a "continuing or repetitive" act that recurs on each pay date, condonation for late referral of the dispute is not required for acts in the previous 6 months.
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3. Is a time-limit on a salary increase for a new employee unfair discrimination on 'any other arbitrary ground'?
The employee was employed as a State Law Adviser. During the performance assessment for the financial year commencing 01 April 2015 and ending on 31 March 2016 the employee achieved an overall annual performance rating of 100%. The employer notified the employee that the Department could not process any payments in respect of the Performance Management Policy which required new appointees to the Public Service to serve 24 months on the initial salary level.
This gave rise to a dispute. Two other employees achieved the same performance assessment outcome of 100% and were awarded an annual pay progression for that fiscal year whereas he was not. What distinguished the employee from his comparators was the environment where he acquired his legal experience, being private practice. Dissatisfied with the responses received from the employer, the employee referred an unfair discrimination dispute.
The Labour Appeal Court in Minister of Justice and Correctional Services and Others v Ramaila and Others (CA 5/2019) [2020] ZALAC 41 (9 November 2020) held whatever the possible adverse consequences caused by a pay progression system, these do not constitute discrimination of a kind that could justify a claim in terms of s 6 of the EEA. Not all wrongful conduct is justiciable under s 6(1) of the EEA because there is no self-standing ground of arbitrariness or capriciousness.
The LAC held that being new in the public service was not a factor which had the potential to impair the employee's fundamental human dignity in a comparably serious manner. The LAC held that the Labour Court erred in concluding that he was discriminated against as envisaged in s 6(1) on "any other arbitrary ground."
This judgment is confirmation that the courts will give a narrow interpretation to the phrase 'any other arbitrary ground' in s 6(1) of the EEA. The alleged discrimination must relate to the existing grounds in s 6, and must impair the employee's fundamental human dignity in a comparably serious manner.
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4. Can a striker who complies with an ultimatum still be dismissed?
During May 2013, AMCU members participated in an unprotected strike. Samancor issued a final written warning (valid for 12 months) to these striking employees.
On 25 November 2013, AMCU members again participated in an unprotected strike. The employer issued an ultimatum to return to work, which was substantially complied with. Despite this, Samancor dismissed those employees who participated in the unprotected strike and who were already on a final warning.
On appeal at the LAC, emphasis was placed on Item 6(2) of the Dismissal Code of Good Practice which provides that prior to a dismissal of employees for their participation in unprotected strike action, 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.
In AMCU obo Rantho and Others v SAMANCOR Western Chrome Mines (JA62/19) [2020] ZALAC 46; (2020) 41 ILJ 2771 (LAC) (1 October 2020) the LAC held that where illegally striking employees obey an ultimatum and return to work within the stipulated time, the employer will not be entitled to subsequently dismiss them for such breach. An ultimatum by the employer is a waiver of the right to dismiss for the period of its duration.
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5. When can an employer refuse to comply with a collective agreement?
The dispute concerns a collective wage agreement entered into between the Government through the offices of the Minister of Public Services and Administration and union members to the Public Service Co-ordinated Bargaining Council ('PSCBC') which was concluded in 2018. The agreement covered adjustments to the salary structure of public service employees for three financial years, and the collective agreement was implemented for both the 2018/2019 and the 2019/2020 financial years. The dispute concerned the enforceability of part of the collective agreement that provides for salary increases for these employees for the financial year 2020/2021.
Certain public sector unions brought an application to enforce the application of the collective agreement for the financial year 2020/202, which government contended would cost the fiscus R 37.8 billion. The Minister of Finance launched a counter-application seeking declaratory relief that the relevant clause was unlawful, invalid and unenforceable, as it had been concluded in contravention of the public Service regulations.
The LAC decided that an unlawful agreement was concluded as it had infringed the mandatory legal requirements governing the conclusion of a collective agreement by Government. In Public Servants Association and Others v Minister of Public Service and Others (J500/2020) [2020] ZALAC 54 (15 December 2020) the LAC held that the conclusion of a collective agreement which infringes the mandatory legal requirements governing such agreements, will be held to be invalid and unenforceable, even where there has been partial compliance by the parties.
Unions have indicated they may appeal this judgment to the Constitutional Court. This case involved huge amounts of money, the state as employer and the consequences of the Covid pandemic. We think this factual matrix had a direct impact on the outcome of this case, and individual employers are unlikely to be treated in a similar way if they choose not to implement a collective agreement.
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6. Does a picket fall under the Regulation of Gatherings Act?
On 4 July 2012 the trade union referred a labour dispute to the CCMA. The dispute remained unresolved and the CCMA duly issued a certificate of outcome to that effect. The union gave notice of the intention of its members to embark upon strike action.
The union authorised the holding of a picket outside the premises of the employers. The picket allegedly became a violent demonstration in which damage to property resulted. That day, the Labour Court issued an order, at the instance of the employers, restraining the union and employees from engaging in unlawful acts. The order included a 'perimeter order' prohibiting the holding of a picket within 50 metres of the access road to the employers' premises. During the next month various acts of violence are alleged to have occurred, resulting in damage to property owned by the employers and their employees.
The employers issued summons against the union and employees for damage to property and the costs of security services. The claims allegedly constituted 'riot damage' as contemplated in s 11 of the Regulations of Gatherings Act. The union's defence was that the picket was in furtherance of a protected strike, authorised in terms of s 69 of the LRA. The Gatherings Act does not apply and the claims, if any, are to be adjudicated by the Labour Court. In any event, s 67(2) of the LRA confers upon the union and employees immunity from civil claims of the sort instituted.
In National Union of Metal Workers of South Africa and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (6/2020) [2020] ZASCA 161 (7 December 2020) the SCA held that a picket organised by a trade union in furtherance of a protected strike, is not a 'gathering' to which the provisions of the Regulation of Gatherings Act apply.
This SCA judgment has substantial consequences for employers seeking to hold unions responsible for damages arising from a protected strike.
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7. When is a criterion for retrenchment unfair?
In October 2014, about 100 employees were retrenched following Telkom's "Fit for the Future" business restructuring exercise which commenced in 2014 in response to declining revenues, market share and profitability.
Existing employees were required to apply for restructured positions. Employees were placed, without interviews, using strict criteria as per the job description and specifications of each post. While many employees accepted voluntary severance packages and voluntary early retirement, around 100 employees who had not been placed into alternative posts were retrenched.
The LAC in Telkom SA SOC Limited v van Staden and Others (JA68/2018) [2020] ZALAC 52 (1 December 2020) confirmed that where legitimate operational justification for restructuring exists, there is nothing innately unfair in requiring an employee whose position is affected by such restructuring to apply for placement into a position in the restructured operation. An arbitrator or court in the context of a retrenchment dispute is entitled to scrutinise the placement process and the decisions taken in terms of it. That scrutiny does not however entitle the arbitrator or court to decide what process it would have adopted or the placement decision it would have preferred, but whether the process put in place and decisions taken in terms of it by the employer were fair.
The LAC held that in a retrenchment process where existing employees are required to apply for restructured positions for which there are defined selection criteria, it is not unfair that non-placement in a position is used as the criterion for retrenchment.
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Bruce Robertson
January 2021
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