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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 'what must be disclosed during an interview for a job?' We also discuss three new cases: The first case considers the threshold for recognising a minority trade union. The second case deals with an employer's obligation to discipline employees. In the third case we discuss the Constitutional Court's recent split decision on applying prescription.
This public newsletter is a free edited version of the subscriber newsletter.
Union membership thresholds
The LRA rewards a union which enjoys majority support by assuring that union of rights to access, stop-order facilities and disclosure of information. At the same time the LRA recognises that minority unions are entitled to some rights if they achieve membership above a specific threshold. Section 18(1) permits majority trade unions and employers to agree representativeness thresholds for organisational rights under s12, 13 and 15. But is an employer precluded from according certain limited organisational rights to a minority union when it falls short of the representation threshold agreed between the employer and a majority trade union in the workplace in terms of s18(1) of the LRA?
This question was the focus of a recent judgment of the Labour Appeal Court in SACOSWU v POPCRU & others (LAC JA87/2015, judgment 31 May 2017. POPCRU concluded an agreement establishing representation thresholds with the Department of Correctional Services (DCS) for the acquisition of s 12, 13 and 15 organisational rights by minority trade unions in the workplace. Thereafter the DCS concluded a collective agreement with a minority union, SACOSWU, which had not attained the stipulated representativeness threshold, granting to the union stop order facilities for a limited period and the right to represent members in grievance and disciplinary proceedings.
POPCRU referred a dispute concerning the interpretation and application of its collective agreement with the DCS to the bargaining council for conciliation and then arbitration. The arbitrator dismissed POPCRU's application.
On review, the Labour Court (in POPCRU v Ledwaba NO & others (JR 636/2012)  ZALCJHB 244 (5 September 2013)) found that the arbitrator had erred. Since the agreed threshold had not been achieved by SACOSWU, the LC found that the DCS was not entitled to conclude the collective agreement with SACOSWU. The award of the arbitrator was set aside and substituted with an order declaring the SACOSWU collective agreement to be invalid. The Court declared that SACOSWU was not entitled to exercise organisational rights in the DCS or conclude a collective agreement with the DCS until the agreed representation threshold had been achieved.
On appeal to the LAC, the decision of the Labour Court was set aside on the basis that s 20 of the LRA provides that nothing in Part A of Chapter III(which must include a s 18(1) threshold agreement) precludes the conclusion of a collective agreement that regulates organisational rights. The LAC said that this accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The LAC confirmed that the LRA does not prohibit bargaining with a minority union, nor does the employer breach an existing s18(1) collective threshold agreement in doing so.
The LAC is clearly correct in applying s 20 of the LRA. It is a straightforward section, stating that-
'Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights'.But there may be a practical problem. Section 20 poses a potential dilemma in that it can undermine the statutory application of organisational rights regulated by the LRA. Employer-friendly trade unions, for example, could be granted organisational rights without the need for them to be 'representative'. Worst still, such unions could be 'intelligence operatives'. The Workers Association Union (WAU) allegedly started by politicians is a case in point.
The single-sentence Section 20 could indeed open the door for unions being recognised by an employer purely on the basis that such rights emanated from a collective agreement (and thus protected). Whether such union(s) is/are able to alter the state of collective bargaining is an entirely different question.
An obligation to discipline?
While an employer has the right to discipline employees suspected of misconduct, is there an obligation to do so? In other words, can other employees who are affected by the alleged misconduct demand that the employer take disciplinary action?
After intense union rivalry that resulted in NUM being displaced by AMCU, the employer, Impala Platinum, terminated its recognition agreement with NUM and concluded another with AMCU. In spite of agreements reached to guarantee their reintegration into the workforce, NUM's former shop stewards declined to resume work, claiming that it was unsafe for them to do so.
When the employer informed NUM that no further external interventions would take place, NUM launched an urgent application in National Union of Mineworkers v Impala Platinum Ltd and another (J1022/16)  6 BLLR 628 (LC) for an order compelling the employer to institute disciplinary action against AMCU members allegedly guilty of intimidating NUM shop stewards.
Having accepted that the matter was urgent, the Court noted that employers are obliged to ensure that working conditions are reasonably safe. This includes taking action to combat labour unrest and inter-union hostility which threaten to become violent. However, employers are not required to ensure absolute safety.
Of the incidents on which NUM relied, the employer had failed to institute disciplinary proceedings because of a lack of evidence, or the accused employees had been found not guilty, or the incidents had not been reported. The latest acts of misconduct occurred during a highly volatile period, and no disciplinary action had been instituted because to do so would create further instability.
The onus rested on NUM to establish that the employer had breached the shop stewards' contracts by not instituting disciplinary action. For about four years, the employer had gone to great lengths to ensure a return to normality in the workforce, which had culminated in a memorandum of understanding being drawn up. No violent incident had occurred after the memorandum was signed, and a number of NUM shop stewards had resumed work without incident. The employer had, accordingly, taken reasonable steps to ensure a safe working environment, and had not acted unlawfully by failing to take disciplinary action against AMCU members.
The application was dismissed. Although this case arose in a specific factual context, we are able to extract this principle: An employer is obliged to take action to combat labour unrest and any inter-union hostility that discloses a potential for violence and injury, but absolute safety under all circumstances is not guaranteed to the employee by the contract of employment. The employer is not an insurer.
Prescription of claims against the employer (again)
We have reported in several newsletters about decisions of the Labour Court, Labour Appeal Court, the SCA and the Constitutional Court that deal with this issue: does an employee's claim arising from an arbitration award or a court judgment prescribe (ie become no longer legally claimable) if action is not taken within 3 years?
The issue is a technical one but very real for employees who, after 'winning' reinstatement at arbitration, are told on their return to work that the employer has taken the arbitrator's decision on review. Then, if the employer is unsuccessful at the Labour Court, reinstatement is further suspended if the employer appeals to the LAC, and even onwards to the SCA or Constitutional Court. Inevitably this process takes longer than the 3 years the Prescription Act gives to 'creditors' to pursue their claims.
With the delivery of another judgment from the Constitutional Court on this matter, we were anticipating reporting that finally there is certainty in the law. Sadly, not so, as the Constitutional Court judges were split 4-4 in their views. This lack of certainty we think undermines what lawyers call the 'rule of law', because it leaves us with an unpredictable and uncertain situation. We pity labour lawyers trying to give sound advice on this matter!
Another preliminary observation is about the length of time it has taken to get to the Constitutional Court's 2017 judgment. The employees were dismissed in 2007 and several are now dead. Ten years to resolve a workplace dispute is simply untenable.
Here are the background facts: The employer dismissed the 42 appellant employees for participating in an unlawful strike. The employees referred a dispute to the Labour Court in 2007, and that court reinstated them with effect from the date of their dismissal, being 1 January 2007. When the employees reported for duty, they were told that the employer had decided to seek leave to appeal against the judgment. The appeal was unsuccessful, and an attempt to appeal to the SCA suffered the same fate in September 2009.
Those employees who were still able to work reported for duty at the end of that month. The employer took them back, but refused to pay the employees the salaries they would have earned between the date on which they should have been reinstated in terms of the Labour Court's order and the date of reinstatement - a period of nearly two years.
The registrar issued a writ for recovery of the arrear wages, but the writ was set aside by the Labour Court in June 2011. Three years after the date of the Labour Court's reinstatement order, the employees sought an order from the Labour Court declaring that they were entitled to their arrear wages. The employer contended that the claim had prescribed. The court (in NUMSA and Others v Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd (JS 794/03)  ZALCJHB 293 (5 November 2013)) granted the order sought for the entire period for those employees who were still alive, and to the date of the deaths of those deceased, finding that the amount owing was a judgment debt, which prescribed after 30 years.
The Labour Appeal Court however found that the claim did not arise from the Labour Court's judgment, but rather from the reinstatement of the employment contract, and accordingly had prescribed after three years (see Hendor Mining Supplies (a Division of Marschalk Beleggings(Pty) Ltd v National Union of Metalworkers of SA and others  2 BLLR 107 (LAC)).
On further appeal to the Constitutional Court in National Union of Metalworkers of South Africa obo Fohlisa and others v Hendor Mining Supplies (a division of MarschalkBeleggings (Pty) Ltd)  6 BLLR 539 (CC), the employees contended that the claim arose from a judgment debt, which prescribed after 30 years. Both judgments accepted this and, if nothing else we can say that there is certainty on the prescription of judgment debts.
But, needless to say the 204-paragraph judgment deals with several other issues. We do not intend to focus on these except to say that one group of judges held the view that all the employer's liability flowed from the reinstatement order while the other group of judges separated out different stages, saying that the arrear wage claim was not derived from a court order but from the employment contract.
But both sets of judges, for different reasons, upheld the appeal and the order of both the Labour Court and the LAC were set aside and the employer was ordered to pay those workers still alive their weekly wages plus benefits from 1 April 2007 to 28 September 2009, plus interest, and the estates of the deceased employees from 1 April to the dates of their deaths. The employer was also ordered to pay the appellant's costs, as well as their costs in the Labour and Labour Appeal Courts.
While there is no certainty on all aspects of this case, employers should now be very cautious about a litigation strategy to cause deliberate delay. Not only will the claim not prescribe but back wages and legal costs will be for the employer's account.
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