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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 looks at disciplinary procedures for large numbers of employees facing charges. We also look at three new cases: The first case looks at the Constitutional Court's very recent ruling on which demographics to use in developing Employment Equity Plans. The second case looks at whether an employer can interfere with an employee's choice of representative for a disciplinary hearing. The third case looks at what must be proved when an employer's case in a disciplinary hearing is based on an unwritten rule.

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The Constitutional Court rules on demographics for Employment Equity Plans

This is a saga that has wound its way from CCMA to the Constitutional Court (CC). The dispute is historical because it concerned the Department of Correctional Service's 2010 Employment Equity Plan. But the principles emerging from the CC's judgment give guidance to employers on formulating future EE Plans.

The Department of Correctional Service's 2010 EE Plan set certain numerical targets to be attained within the five year period of the plan, in order to achieve employment equity in the Department's workforce. The numerical targets in the 2010 EE Plan were based on national mid-year population estimates for 2005, issued by Statistics South Africa.

In 2011 the Department advertised certain posts in the Western Cape. The individual applicants in this case applied for appointment to some of the posts. Most of the individual applicants were recommended for appointment by the respective interview panels but most were denied appointment. In the case of males, the basis for this decision was that they were Coloured persons and Coloured persons were already overrepresented in the relevant occupational levels. In the case of women, the basis was that women were also already overrepresented in the relevant occupational levels. This meant that appointing these applicants to the positions for which they had applied would not be in accordance with the 2010 EE Plan.

The applicants referred unfair labour practice disputes to the CCMA for conciliation in terms of the LRA. The basis of the disputes was that the Department's refusal to appoint the individual applicants on the ground that they belonged to a race or gender that was already overrepresented on the relevant occupational levels constituted unfair discrimination and, therefore, an unfair labour practice. The applicants also attacked the 2010 EE Plan as non-compliant with the EE Act and as invalid. The conciliation process was unsuccessful. The dispute was then referred to the Labour Court for adjudication as an unfair labour practice dispute.

The Labour Court in Solidarity & Others v Dept. of Correctional Services & Others (C 368/2012, C968/2012) [2013] ZALCCT 38 (18 October 2013) concluded that the 2010 EE Plan did not comply with the EE Act. The Court held that section 42 of the EE Act meant that both the regional and national demographics had to be taken into account in determining numerical targets. The Labour Court did not order that the applicants should be appointed or promoted to the positions for which they had applied, but ordered the Department to take immediate steps to ensure that both national and regional demographics were taken into account when setting equity targets at all occupational levels of its workforce.

On appeal to the Labour Appeal Court in Solidarity and Others v Department of Correctional Services and Others (CA23/13) [2015] ZALAC 6 (10 April 2015), the LAC concluded that the deviations from the 2010 EE Plan made the numerical targets flexible, and that they were not quotas. It said that, if rationally implemented, the deviations ensured that the plan was not implemented in a rigid fashion. The LAC accordingly found that the 2010 EE Plan complied with the EE Act and the Constitution, and dismissed the appeal.

On appeal to the Constitutional Court in Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18 (15 July 2016), the Court overturned the LAC decision and found that the 2010 EE Plan did not comply with the EE Act and the Constitution. In coming to this conclusion, the Court made three distinct findings:

Firstly, the CC held that Black candidates, whether they are African, Coloured or Indian people, are also subject to the principle in the Barnard case (namely that promotion may be refused to White people who are already over-represented in that occupational level). Both men and women are subject to that principle. This has to be so, the Court said, because the transformation of the workplace entails that the workforce of an employer should be broadly representative of the people of South Africa.

Secondly, the CC held that targets in employment equity plans will not constitute quotas where there is provision for deviations from the targets of the plan. Allowing deviations for scarce skills and other exceptions provides flexibility.

Thirdly, the CC held that the basis used in setting the numerical goals or targets in employment equity plans must be one authorised by statute. A wrong basis will lead to wrong targets. In failing to use the demographic profile of both the national and regional economically active population to set the numerical targets, the Department had acted in breach of its obligation in terms of section 42(1)(a) of the EEA and, thus, unlawfully.

Remedies: what makes the CC decision interesting is that it was determined to bring resolution to the historical dispute. Unlike the Labour Court which made a general order, the CC ordered that those applicants who had applied for appointment to posts that currently remained vacant, must be appointed to those posts and be paid remuneration and benefits attached to those posts. Those applicants who had applied for appointment to posts that were currently filled, must be paid the remuneration and benefits attached to those posts.

Can an employee choose any representative in a disciplinary hearing?

We were asked recently on Worklaw's Helpline service whether an employer can restrict who an employee can select to be her/his representative in a disciplinary hearing? By chance, the LAC has recently ruled on this issue in McDonald's Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (JA10/2016) [2016] ZALAC 32 (28 June 2016).

In this case the individual workers had been dismissed in the wake of a strike, allegedly characterised by violence. The dismissed workers referred an unfair dismissal dispute to the bargaining council. The employer raised, as a point in limine, the argument that the workers were not at that time members of AMCU, because their membership had lapsed by reason of non-payment of subscriptions in excess of three months, and therefore AMCU could not represent them according to AMCU's constitution.

On review, the Labour Court held that the arbitrator had not properly grasped the provisions of the Union's constitution and, thus, the ruling had to be set aside. Both the arbitrator and the Labour Court framed the rationale for the outcome in terms of the right of the union to represent persons. Neither articulated the point that the issue was also about the individuals' rights to choose a union to represent them. Neither the arbitrator nor the Labour Court addressed the question of whether an employer has any right to challenge the membership credentials of persons who desire a union to represent them in disciplinary proceedings or before a statutory arbitration forum; (ie the CCMA or a Bargaining Council forum).

The matter was taken on appeal to the LAC, which held that except as regards the need for a union to prove membership for collective bargaining purposes, the relationship between a union and its members is a private matter. When an individual applicant wants a particular union to represent him in a dismissal proceeding, the only relevant question is that worker's right to choose that union. Whilst the LAC's reasoning differed from that of the LC, it nevertheless dismissed the appeal and confirmed the Labour Court's decision.

This approach is a confirmation of the provision in Item 4(1) of the Code of Good Conduct: Dismissal where it simply says: "The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee." How this should be applied, we think, would depend on the facts of each case, decided on the basis of fairness / reasonableness. For example, an employee based in Durban could not automatically expect to demand representation from a fellow employee based in Johannesburg. The concept of a 'workplace' as defined under s213 and what constitutes the workplace for a particular organisation, may be a useful guideline. An employer would have to be able to motivate good practical reasons why representation should for example be restricted to a specific department within the workplace.

Workplace rules must be known and clear

An off-duty employee of the casino visited the casino with a VIP (a very important punter). A routine surveillance camera recorded them buying drinks at the bar, payment being made with vouchers, not money. These vouchers are issued by the casino to VIPs as an incentive to prolong their stay and 'facilitate a mood conducive to gamble away more than the vouchers are worth'. The employee handled the vouchers.

Upon the basis of this episode, the employee was confronted with an allegation that he breached a workplace rule. The employer, Sun City, described the charge as "unauthorised possession and use of a VIP drinks voucher in that on 18 July 2008 you were in possession of VIP vouchers and used them to purchase drinks at the Rhino bar". The employee was convicted of that charge, and dismissed summarily. In a subsequent arbitration, it was held that the dismissal was substantively fair. On review at the LC, that award was confirmed. On appeal to the LAC, the award and review judgment were both challenged.

The LAC in Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30 (15 June 2016) held that the dismissal was unfair because the employer could not prove the existence of a clear workplace rule, particularly as it had not been written in any disciplinary code. There was also no evidence of the communication of the rule to employees. The LAC acknowledged that not all rules need to be written down (such as 'thou shalt not steal') but if an employer wants to rely on an oral rule, there is a greater weight on the employer. An employer is obliged to -

  1. prove the existence of a clear workplace rule, particularly where it is not written in any disciplinary code; and
  2. provide evidence of the communication of the rule to employees.

These requirements are not new. Item 7 of the Code of Good Conduct: Dismissal says that any person who is determining whether a dismissal for misconduct is unfair should consider, if a rule or standard was contravened, whether or not-

  1. the rule was a valid or reasonable rule or standard;
  2. the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
  3. the rule or standard has been consistently applied by the employer; and
  4. dismissal was an appropriate sanction for the contravention of the rule or standard.


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Bruce Robertson
July 2016
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