Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at a new LAC judgment dealing with the situation where the inherent requirements of the job conflict with religious belief. We also discuss three other new judgments: The first case deals with whether involvement in a stokvel and loan scheme at work could be a dismissable offence. The second case concerns the obligation to furnish security when taking a matter on review. The third case asks what must be contained in a condonation application.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Participation in a stokvel at work: dismissable misconduct?
In Kaweng v South African National Biodiversity Institute and Others (JR221/22) [2024] ZALCJHB 401 (18 October 2024) the Labour Court had to decide the consequences, where there was a cross-over from a workplace stokvel to a loan scheme with loan sharks. The employer received a whistleblower report indicating that a "loan shark" was operating at the Botanical Gardens. After a forensic report two employees were dismissed.
The employees were charged with participating in an unlawful money-lending scheme on SANBI's premises for their own benefit during working hours, which was in violation of -
- clause 5.1 of SANBI's disciplinary policy, which states "an employee shall not commit any deed to the detriment of the SANBI or the discipline or efficiency of the SANBI, or allow such deed to be committed"; and
- clause 5.18 of the SANBI's disciplinary policy, which states "an employee shall refrain from participating either individually or with other employees in any form of action or omission, which will have the effect of disrupting SANBI's operations."
The Commissioner rejected the employee's version that he was simply a member of a stokvel - this was highly improbable and not plausible. The evidence supported the employer's version on a balance of probabilities, and it followed that the applicant did break the rule, and that his conduct was intentional. Having found the applicant guilty, the commissioner found that dismissal was the appropriate sanction.
The matter was referred on review to the Labour Court.
Read more (Worklaw subscriber access only)
The obligation to furnish security when taking a matter on review
In African Building Systems (Pty) Ltd v Mogaladi and Others (J822/24) [2024] ZALCJHB 345 (6 September 2024) the Labour Court investigated the oft forgotten requirement in section 145(7) and (8) of the LRA that to suspend the operation of an arbitration award until the review is decided, requires the applicant to furnish security to the satisfaction of the Court.
This case provides insight into when a court might exempt an employer intent of reviewing an arbitration award, from providing security in terms of section 145 which provides as follows:
- The institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection (8).
-
Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must-
- in the case of an order of reinstatement or re-employment, be equivalent to 24 months' remuneration; or
- in the case of an order of compensation, be equivalent to the amount of compensation awarded.
Read more (Worklaw subscriber access only)
What must be contained in a condonation application?
In HLB CMA South African Inc v Boshielo and Others (JR244/24) [2024] ZALCJHB 390 (17 September 2024) the Labour Court took a hard line on the criteria for an order condoning the late filing of a referral or application to the CCMA.
The employee was employed by an accounting and auditing firm as a trainee accountant and was undergoing his SAICA learnership. The employee was dismissed by the company for misconduct on 13 October 2023, and attempted to refer an unfair dismissal dispute to the CCMA. The 30-day CCMA referral period had elapsed by 12 November 2023, and on 10 January 2024 the employee brought an application for condonation, attached to which was a medical certificate from his traditional healer.
The company opposed the application for condonation, but the commissioner granted condonation in a ruling issued on 12 February 2024. The employer took this ruling on review in the Labour Court.
Read more (Worklaw subscriber access only)
ARTICLE : When the inherent requirements of the job conflict with religious belief
by Prof Alan Rycroft
There is a potential tension in Section 187 of the LRA. S187(1)(f) says that a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on the grounds of religion, conscience, belief, but s187(2)(a) of the LRA says "a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job".There have not been many cases in our law on religious discrimination. Worklaw has previously reported on TDF Network Africa (Pty) Ltd v Faris (CA 4/17) [2018] ZALAC 30 (5 November 2018) which held that:
- Where an employee, for religious reasons, refuses to perform part of her/his contractual duties, the employer bears the burden of proving that it could not accommodate the employee.
- The employer has a duty to reasonably accommodate an employee's religious freedom unless it is impossible to do so without causing itself undue hardship.
- It is not enough that it may have a legitimate commercial rationale that it seeks to protect.
The employee in this case was employed by Sun International as Marketing Manager: for its operations in East Africa and the Southern African Development Community (SADC) on 16 March 2015. The employee's employment contract contained a 'job flexibility requirement' clause, which required employees to perform work within their specific skills and capability level, to accept any training and be prepared and willing to move from job to job, both within and between departments. The employee did not raise any challenges concerning the hours of work and/or working days during his interviews. Significantly, he did not mention any impediment for him to attend to weekend work.
Almost two months after commencing his employment, the employee disclosed that he was a member of the Seventh Adventist Church and therefore could not travel or attend events on the Sabbath (commencing on sunset Friday until sunset Saturday). The disclosure was prompted by the employee being required to attend the Tourism Indaba, an annual trade show in Durban. The employee did attend the Tourism Indaba - but only on Sunday and Monday.
After that the employee did not attend any events that took place on the Sabbath. The employer argued that it earnestly attempted to accommodate the employee by excusing him from work during the Sabbath for a period of about 16 months. However, it became unsustainable because another employee, who had to step in most instances, endured substantial pressure which became unbearable as her own responsibilities increased.
In July 2016, the employer initiated an incapacity inquiry against the employee, which resulted in the employee's dismissal.
Read more (note - only available to Worklaw subscribers)
About Worklaw's services
Worklaw is an online labour law advice and information subscription service - see www.worklaw.co.za Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.
Contact help@worklaw.co.za for more information.
Bruce Robertson
November 2024
Copyright: Worklaw
www.worklaw.co.za