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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 'Distinguishing Disability from Incapacity'. We also look at three new cases: The first looks at the fairness of appraisal systems for a discretionary bonus. The second looks at the obligation of an employer to provide transport for employees working after 18h00. The third looks at whether a reinstatement order covers the period between the award and its implementation.
This public newsletter is a free edited version of the subscriber newsletter.
The fairness of appraisal systems for a discretionary bonus
The company in this case paid discretionary bonuses to employees. Five employees - employed as halaal chicken slaughterers - did not receive bonuses as they were rated below 3 out of 5 points in terms of the company's performance management system. The employees referred a dispute to the CCMA. They indicated that the dispute was about an unfair labour practice, but in summarising the facts of the dispute, they said "the employer unfairly and unlawfully discriminated and/or employed discriminatory employment practices against the employees on one or more of the prohibited listed grounds, especially on the grounds of nepotism, alternatively arbitrary grounds."
At arbitration, the commissioner evaluated the company's "talent management toolkit" setting out its performance management system. He concluded that the process envisaged was not followed in the case of the five employees. The commissioner was clear that he only dealt with the process followed by the company and was in no position to say whether the ratings given to the employees were correct or not, and if incorrect, what the correct rating should have been. In other words, the commissioner conceded that he was unable to say whether the employee should have received a bonus if the process had been correctly followed. But based simply on the performance appraisal system itself, the commissioner found that the process leading to five employees not receiving a bonus was an unfair labour practice "relating to the provision of benefits to the employees". He ordered the company to pay each of them compensation equivalent to one month's wages.
The employer applied to the Labour Court in Rainbow Farms (Pty) Ltd v CCMA and Others (C377/2012)  ZALCCT 43 (29 May 2015) to have the CCMA award reviewed and set aside. As part of the review application, the employer challenged the CCMA's jurisdiction to arbitrate the dispute, as the employees had referred to a "discriminatory employment practice" in their initial referral to conciliation. The employer argued that it was accordingly an unfair discrimination dispute.
The LC did not agree, as it was clear that despite the above description, they had referred the dispute as an alleged unfair labour practice. The court referred to the LAC judgment in Apollo Tyres South Africa (Pty) Limited v CCMA & Others (DA1/11 )  ZALAC (21 February 2013) that found employer conduct relating to the provision of benefits may be subjected to scrutiny by the CCMA under its unfair labour practice jurisdiction, where the employer exercises a discretion that it enjoys under the contractual terms of a scheme conferring the benefit. The LC held that the decision reached by the arbitrator - that the appraisal for the purpose of a discretionary bonus was subjective and therefore unfair - was one which a reasonable arbitrator could reach. The employer's review was accordingly dismissed.
The obligation of an employer to provide transport for employees working after 18h00
The employee was a truck driver. In terms of his contract of employment he agreed to work overtime when required to do so. The main agreement concluded in the National Bargaining Council for the Road Freight and Logistics Industry also provides for overtime work. The employer instructed the employee to work overtime from 1700 until 1900 on 6 and 7 December 2010. (His normal dayshift ended at 1700). He worked until 1800 on both days but refused to work until 1900. He said that the last bus that normally dropped him off near his residence in Lentegeur in Mitchell's Plain left shortly after 1800. If he took the last bus to Mitchell's Plain at 1900, it would drop him off at the Mitchell's Plain town centre, far from his residence. He would then have to walk home say 2km through a notoriously dangerous crime area.
The employee was called to a disciplinary hearing to face allegations of gross insubordination and breach of contract. He had a previous final written warning for similar misconduct. He was dismissed.
The employee referred an unfair dismissal dispute to the Bargaining Council. The arbitrator found that his dismissal was unfair and ordered the company to reinstate him. The arbitrator found that, in terms of s 17 of the BCEA, any work performed after 1800 was considered night work; that the employer was obliged to ensure that transport was available to the employee's place of residence; that the available transport was "not suitable" to the employee; and the fact that the employee was prepared to work until 1800 showed that he did not have the intention to be "deliberately insubordinate".
Section 17 of the BCEA says "night work" means work performed after 18:00 and before 06:00 the next day, and an employer may only require or permit an employee to perform night work, if so agreed, and if, amongst other things, "transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift". This is not an easy section to understand. For example, what does it mean to say that transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift?
The employer took this decision on review to the Labour Court. The court, in TFD Network Africa (Pty) Ltd v Singh N.O and Others (C 571/11)  ZALCCT 40 (6 May 2015) looked at the purpose of s 17(2)(b) of the BCEA and found that the conclusion reached by the arbitrator was not so unreasonable that no other arbitrator could have come to the same conclusion. The employee did refuse to work overtime beyond 1800 in circumstances where the employer could not ensure that transportation was available between the workplace and the employee's place of residence. He made it clear to the employer that that was the reason for his refusal. The finding by the arbitrator that he did not have the intention to be deliberately insubordinate, was not unreasonable. In those circumstances, the court held the fact that he had a prior final written warning for a similar offence became irrelevant.
Ensuring transport 'is available' does not mean that the employer has to provide the transport, however the availability of public transport in the vicinity of an employee's residence may, in certain circumstances, not necessarily be enough to relieve the employer of its duty - for example if it would be unsafe to use this transport. The LC said it must follow "a common-sense, purposive approach" in deciding whether the facts of a particular case comply with the requirements of section 17(2)(b).
What does a reinstatement order cover?
As with many other cases we comment on, the wheels of justice sometimes turn very slowly. The employer's review of a CCMA arbitration award in 2004 retrospectively reinstating the employee, was dismissed in 2007. The employer was still unhappy and unsuccessfully appealed against the review decision. Although the employee was eventually reinstated in 2009 following protracted negotiations, he obtained a writ of execution against the employer's movable property that included payment up to the time of compliance with the award. This was again challenged by the employer.
Finally in 2015, the employer's appeal in the LAC in Coca Cola Sabco (Pty) Limited v Van Wyk (JA11/2013)  ZALAC 15 (5 May 2015) was upheld. The court held that a reinstatement award does not cover the period between the award and its implementation. Should an employer refuse to pay an employee for this period then the employee has a contractual claim against the employer, which is a totally different cause of action. The LAC held that all that an award for reinstatement does is to revive the contract of employment: a reinstatement award/order cannot extend to a date beyond the date of the order, nor can it serve to form the basis of a common law contractual entitlement.
This is a very technical judgment which, whilst correct in law, will be confusing to laypersons and lawyers alike. Rather than a speedy, 'one-stop-shop' approach which resolves reinstatement as well as the claim for salary from the time of dismissal to the date of implementation, the LAC has stated that the amount for subsequent unpaid wages after the date of implementation of the award is a separate claim. This exposes employees to further risk. If there is a delay between the reinstatement order and their actual return to work, and where the employer refuses to pay wages for this period, the employee will be obliged to pursue this in the civil courts or under section 77 of the Basic Conditions of Employment Act.
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