Public Newsletter
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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 on the latest and far-reaching LAC judgment on what constitutes a 'benefit' under the unfair labour practice regime. We also look at three new cases: the first looks at procedural fairness where employees absent themselves without permission and are 'deemed' to be dismissed. The second looks at remedies available to the single employee who perceives employment conditions have been changed unilaterally but cannot strike. The third looks at challenges to the CCMA's jurisdiction at the conciliation stage and whether these are more appropriately dealt with at the arbitration stage.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Fairness and the missing employee
A frequent issue which arises in Worklaw's Helpline queries and in the cases is this: what is the fair way to terminate the employment relationship where an employee has absconded or has failed to return to work for an unreasonable period? Have employees by such actions 'dismissed themselves'?
In the recent Labour Court case of Tubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR 2679/10) [2013] ZALCJHB 16 (8 February 2013), these were the facts: an employee was employed as an operator prior to the termination of her services on grounds of desertion. The employee absented herself from work from 7 April until 14 April without advising her employer of her intended absence or obtaining prior permission. On 7 April, the first day of absence, the employee had sent her supervisor an sms stating that she was "still in Joburg from Mafikeng due to personal problems" (with her boyfriend). "I thought I was going to arrive early." Her supervisor understood the sms to mean the employee would arrive at work later that day. She had no further communication with her supervisor to inform him she would be away from work after 7 April or for the extended period.
On 12 April (the sixth day of absence), the employee was contacted by an official from HR department and reminded of the employer's policy and procedure on desertion, namely, that unauthorised unexplained absence exceeding five days would result in the employee's dismissal. The employee intimated she would report for duty, which she only did two days later when she was advised that in terms of the Company's code and procedure, after the fifth day of absence, her services had been terminated on grounds of 'deemed desertion'. In terms of the code, unauthorised absence exceeding five days is also listed as a serious offence for which the employee can be dismissed. Two post dismissal enquiries and an appeal took place to enquire into her reasons for the unauthorised absence, which resulted in the confirmation of her dismissal.
The Bargaining Council commissioner found that the dismissal was not for a fair and valid reason and ordered the employer to re-employ the employee on the same benefits as were applicable as at date of dismissal. The commissioner found that there was no evidence to show that the employee ever intended not to resume work, and secondly that her absence was involuntary as it was a result of other circumstances, namely, her poor interpersonal relationship with her boyfriend.
The Labour Court found that the commissioner, in concluding the dismissal to be substantively unfair, had ignored or discounted relevant evidence, had taken into account irrelevant evidence, and had failed to properly apply his mind to material issues and as a consequence had committed gross irregularities in the conduct of the arbitration. The decision was one that a reasonable commissioner could not have come to. On these grounds, the court set aside the award and the matter was sent back for the arbitration to begin again.
The court's judgment draws some interesting contrasts to the other famous case about sangoma training ( Kievits Kroon Country Estate v Mmoledi & others (JA 78/10) [2012] ZALAC 22 (24 July 2012)), but we see that its main value lies in the court's assessment of a disciplinary code which includes the idea of 'deemed' desertion, and in what constitutes procedural fairness in terminating the employment contract under such circumstances.
The court found that it is not unfair if an employer's disciplinary code provides for termination at the end of the fifth day of absence on account of 'deemed desertion', provided the employer gives the employee a fair opportunity to explain the unauthorised absence if she/he returns to work, thereby enabling the dismissal to be reversed where an acceptable explanation is provided. The court submitted this represents a rational response by an employer to an extended period of unexplained unauthorised absence by an employee.
This decision needs to be read alongside the principle in Jammin Retail (Pty) Ltd and Mokwane (LC Case no JR 2784/08)) which says that where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule (ie hear the other side) before the employer can take the decision to dismiss the employee for his absence from work or for his failure to report for duty. While Jammin requires a pre-dismissal 'hearing', Tubatse sanctions a post-dismissal re-opening of the matter. Our view is that both procedures may be fair, depending on the circumstances of each case. If however an employer is uncertain over which route to go, the pre-dismissal application of the audi alteram partem rule would seem to be the safer route, particularly when the employer is able to make contact with the employee and may be aware of the circumstances giving rise to the absence.
The dilemma of the solitary striker
The withholding of labour through striking is seen in the LRA to be the acceptable way to put pressure on the employer to change terms and conditions of employment or to resist unilateral changes made by the employer. But the definition of a strike in the LRA implies that it is a collective response by more than one employee. This raises the question of the remedies available to a single employee who wants to get the employer to change or to resist the employer's changes.
This issue arose in the recent case of Du Randt v Ultramat South Africa (Pty) Ltd and Another (C 376/2012) [2013] ZALCCT 2 (15 February 2013). The employee alleged that the employer unilaterally varied his terms and conditions of employment. He referred a dispute to the CCMA in terms of s 64(4) of the LRA - the section requiring the employer to restore the terms and conditions which applied before the employer's unilateral change of those terms. This section anticipates that if the employer refuses, a strike will follow. But the applicant, as a single employee, cannot strike. This case answered the question: What is his remedy?
Here are the facts: The employee, initially based in Gauteng, was the employer's regional manager for the Western Cape. When his wife was offered a job in Cape Town, the employer agreed that he could also move to Cape Town and agreed that he would work from home in Tokai. The employer would pay him a monthly allowance on top his salary to set up a home office and to pay for telephone and ADSL lines.
The employer subsequently established an office in Edgemead (about 30 km from Tokai) and later formed the view that it was too costly to maintain that office and to contribute to the costs of the employee keeping a home office and working from home. To reduce losses, certain administrative and finance functions were moved to head office in Gauteng and the employee was instructed to start working from the Edgemead office. He refused, claiming that his post had been downgraded and that this was an unfair labour practice. The employer viewed the employee's refusal to report to the Edgemead office as "desertion" and stopped paying him, asserting that he was refusing to tender his services.
The employer subsequently established an office in Edgemead (about 30 km from Tokai) and later formed the view that it was too costly to maintain that office and to contribute to the costs of the employee keeping a home office and working from home. To reduce losses, certain administrative and finance functions were moved to head office in Gauteng and the employee was instructed to start working from the Edgemead office. He refused, claiming that his post had been downgraded and that this was an unfair labour practice. The employer viewed the employee's refusal to report to the Edgemead office as "desertion" and stopped paying him, asserting that he was refusing to tender his services.
The employee referred a dispute to the CCMA in terms of s 64(4) of the LRA alleging a unilateral change to his terms and conditions of employment. Conciliation failed and the commissioner issued a certificate recording that the dispute remained unresolved. Apparently because the applicant had referred a dispute in terms of s 64 of the LRA, the commissioner ticked the box "strike/lockout" on the pro forma CCMA certificate under the heading, "If this dispute remains unresolved, it can be referred to [strike/lockout]".
The employee then brought an urgent application asking for an interim order reinstating him on his old conditions of employment, but later abandoned the urgent application for interim relief and sought final (or permanent) relief. In essence, he asked for specific performance reinstating his home based working conditions, and an interdict to prevent the employer from unilaterally amending his employment conditions.
The Labour Court held that in these circumstances a single employee would normally still have the remedy of specific performance available to him/her. But in this case, the employee nailed his colours to the mast of an unfair labour practice in terms of s 186(1)(a) of the LRA (having asserted that he had been demoted). Given that assertion, he had an alternative remedy, ie to refer an unfair labour practice dispute to the CCMA in terms of s 191(1)(a) of the LRA. As he had not exhausted that alternative remedy, the applicant had not satisfied the requirements for final relief.
Given its conclusions above, the LC did not have to deal with factual disputes relating to whether the home based working arrangement was a condition of employment agreed as a permanent arrangement or whether this was a 'work practice' that could be changed by the employer.
What this case says about the single employee with a grievance is that, although a single employee cannot strike, that employee would normally still have the remedy of specific performance available to him/her. But if the employee describes the unilateral change as an unfair labour practice then, in terms of the LRA, this has to proceed to arbitration to assess if the employer's action is fair or not. An action for specific performance will focus on restoring a contractual right, whilst an unfair labour practice arbitration will focus on fairness. Depending on the cause of action chosen, there can be different outcomes.
Does the CCMA have to decide jurisdictional challenges before conciliating? If an employee was never dismissed, or if the employer cited is not the employer, or if the dispute is not referred to the CCMA in time, then an employer can challenge whether the CCMA (or bargaining council) has the jurisdiction to even start the conciliation. Rule 14 of the CCMA Rules reads as follows:
'If it appears during conciliation proceedings that a jurisdictional issue has not been determined, the Commissioner must require the referring party to prove that the commission has the jurisdiction to conciliate a dispute through conciliation'.This Rule makes sense: why should the CCMA and the respondent waste any time at all on the matter if it is clear it falls outside the CCMA's jurisdiction? But there are some disputes where establishing jurisdiction is part and parcel of the evidence led during the arbitration - for example, a person claiming to be constructively dismissed has to lead evidence that the resignation was due to the employer making continued employment intolerable, and this is usually part of the factual dispute to be dealt with at arbitration. Should the CCMA deal with these jurisdictional disputes before conciliating?
In the case of Cook4Life CC v Commission for Conciliation Mediation and Arbitration and Others (JR 350/2012) [2013] ZALCJHB 10 (29 January 2013) an employee was employed as an imports buyer and there were issues over his work performance. The employer contended that the employee conceded that his skills were not suitable for his position, and that it was agreed his employment would terminate by mutual consent.
But the employee referred an unfair dismissal dispute to the CCMA, claiming he had been unfairly dismissed for reasons relating to his incapacity, without any procedure being followed. At conciliation the employer objected to the CCMA's jurisdiction, contending that the employee had not been dismissed and that a settlement agreement had been reached in terms of which employment terminated by mutual consent. The employee conceded that his employment had been terminated by agreement, but claimed that he had concluded the agreement under duress.
The commissioner ruled that the CCMA had jurisdiction to conciliate the dispute and that the existence or otherwise of a dismissal in the present instance was to be established at the arbitration phase. The employer challenged this jurisdictional ruling on review in the LC, arguing that Rule 14 of the CCMA Rules was preremptory according to EOH Abantu (Pty) Ltd v CCMA and Another (Case No J68/08). This found that prior to commencing conciliation, the CCMA must establish whether it has the necessary jurisdiction to conciliate the dispute referred to it.
The Labour Court held that the commissioner's ruling deferring the employer's jurisdictional challenge to the arbitration phase, did not constitute a reviewable irregularity. The LC relied on Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) which held that Rule 14 must not be read so as to require that all jurisdictional questions of whatever nature raised at conciliation must necessarily be determined by the conciliating commissioner, on pain of a failure to do so being regarded as a reviewable irregularity. This would depend on the facts of each case, and the extent to which matters are intimately bound up with the substantive merits of the dispute and require evidence to resolve them.
The principle established in this case is as follows: A commissioner is not obliged to entertain a jurisdictional challenge at the conciliation phase where the challenge is not a true jurisdictional challenge, eg a failure to refer the dispute timeously, or a referral to the CCMA when a bargaining council has jurisdiction. Where a challenge (and the response to it) requires evidence to be led, this is best deferred to the arbitration stage of the process.
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Bruce Robertson
March 2013
Copyright: Worklaw
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