Public Newsletter
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'When does negligence become 'gross'?' We also discuss three new judgments: In the first case the Constitutional Court considers the Labour Court's jurisdiction on procedural unfairness in retrenchment. The second case applies the 'helping hand' principle that arbitrators have towards unrepresented parties, in respect of hearsay evidence. The third case looks at the implications of the Constitutional Court's dismissal of an application by the Minister of Home Affairs for leave to appeal a High Court ruling that the Zimbabwean Exemption Permit (ZEP) programme had been unlawfully terminated.
RECENT CASES
Labour Court's jurisdiction to adjudicate procedural unfairness in retrenchment
In Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (CCT 220/22) [2024] ZACC 8 (21 May 2024) the Constitutional Court had, amongst other issues, to decide the Labour Court's jurisdiction in disputes involving procedural unfairness in retrenchment dismissals.
Following their retrenchment and an unsuccessful conciliation at the CCMA, the employees instituted an application in the Labour Court in terms of section 189A(13) for an order reinstating them until Regenesys had complied with a fair procedure in terms of section 189A(13)(c) or alternatively for an award of compensation in terms of section 189A(13)(d).
The Labour Court dealt with each employees' case and gave reasons why it found their dismissals to have been either substantively fair or unfair. It also gave reasons for its conclusion that the dismissal of all the employees was procedurally unfair, and made a variety of orders.
These orders were appealed by Regenesys at the Labour Appeal Court. The LAC agreed with the LC that the dismissals were substantively unfair. With regard to whether or not the Labour Court had jurisdiction to determine the procedural fairness of the dismissals, the LAC (Regenesys Management (PTY) Ltd t/a Regenesys v Nortje and Others (JA49/2020) [2022] ZALAC 96 (18 July 2022)) held that it was not competent for the Labour Court to make the orders it made that were based on its conclusion that the dismissals were procedurally unfair.
Unhappy with the LAC's decision, Regenesys then appealed to the Constitutional Court.
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The 'helping hand' principle and hearsay evidence
In Nampak Divfoods (Pty) Ltd v Dlamini and Others (D727/2021) [2024] ZALCD 13 (6 May 2024) the Labour Court had to consider an arbitrator's duty to extend a "helping hand" to parties in dealing with whether hearsay would be regarded as admissible evidence.
The employee, a graphic designer, was requested to carry out an alteration on a job previously done. The employer contended that the employee was dishonest in that she withheld information on the quantity of plates utilised to execute the alteration and the time spent on the task, resulting in a monetary loss to the company. The employer charged the employee with misconduct, namely gross negligence and gross dishonesty, and she was found guilty of gross dishonesty and dismissed.
The employee referred an unfair dismissal dispute to the CCMA, and the arbitrator found that her dismissal was substantively unfair and ordered re-instatement. During the arbitration the employer had relied on a CTP report (a computer-generated log sheet from the output processing machine), but the arbitrator discounted this evidence because he regarded it as hearsay evidence.
The employer applied to the Labour Court to review the arbitrator's award on the grounds that he had committed a gross irregularity by, amongst other issues, failing to apply the 'helping hand principle' in not advising the employer that it needed to call an expert witness to prove the veracity or accuracy of the CTP report.
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Zimbabwean permit-holders: the effect of the Constitutional Court's ruling
On 18 June 2024 the Constitutional Court in Minister of Home Affairs v Helen Suzman Foundation and others CCT 55/24 dismissed an application by the Minister of Home Affairs for leave to appeal a June 2023 North Gauteng High Court ruling that the Zimbabwean Exemption Permit (ZEP) programme had been unlawfully terminated.
The High Court's judgment ordered that the Minister's decision (a) to terminate the Zimbabwean Exemption Permit (ZEP), (b) to grant a limited extension of ZEPs of only 12 months, and (c) to refuse further extensions beyond 30 June 2023, was unlawful, unconstitutional and invalid. The High Court remitted the matter back to the Minister for reconsideration, following a fair process that complies with the requirements of sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
It will be interesting to see how the new Home Affairs Minister Dr Leon Schreiber deals with the challenges posed by the High Court's judgment. In his first official act as the new Home Affairs Minister just one day after being sworn in, he extended the temporary concession for (all) foreign nationals who are currently awaiting the outcome of visa, waiver and appeal applications until 31 December 2024. This extension safeguards applicants from suffering adverse consequences or being erroneously declared undesirable while they await the outcome of their applications submitted to the Department.
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ARTICLE: When does negligence become 'gross'?
By Prof Alan Rycroft
Can you be certain when negligence becomes gross negligence?This is not an easy question which can be answered with scientific certainty. But the notion of "grossness" is embedded in our law and cases. For example, Item 3(4) of the Code of Good Practice: Dismissal advises that it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The Code gives gross dishonesty as an example of serious misconduct - which in turn implies that there is a form of dishonesty that is not gross.
In many disciplinary codes there is a distinction between 'negligence' and 'gross negligence', and where there is a recommended sanction, invariably gross negligence and gross misconduct attract the sanction of dismissal. Mere negligence, whilst still constituting misconduct, may not on its own be sufficient to justify dismissal as a sanction for a first offence. In ordinary negligence, the basis for the employee's culpability is not the act / omission itself, but rather the lack of care and/or diligence that accompanied the act or omission.
To qualify as gross negligence the conduct must depart from the standard of the reasonable person to an extent that it may be categorised as extreme. See Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another v Seopela N.O and Others (JR 226 / 2012) [2015] ZALCJHB 22 (4 February 2015).
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Bruce Robertson
July 2024
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