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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 new CCMA guidelines dealing with misconduct arbitrations. We look at three new Labour Appeal Court cases: the first concerns discrimination on religious or cultural grounds. The second deals asks whether a strike ‘transmutes’ from being protected to unprotected if the union introduces new demands. The third deals with ‘innocent’ misrepresentations on a CV.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Dreadlocks on appeal
A year ago, in our November 2010 Newsletter, we referred to the case of POPCRU and Others v Department of Correctional Services and Another  10 BLLR 1067 (LC). Five male officers employed by the Department of Correctional Services who wore their hair in dreadlocks, received a written instruction requiring them to comply with the Department’s Dress Code by “attending to their hairstyles”. They refused to carry out the instruction. Each one contended that his dreadlocks were worn either for religious or cultural reasons. Following a disciplinary inquiry all five were found guilty and were dismissed. The Labour Court, in a clumsy judgment, found that there was direct discrimination in that female correctional officials were permitted to wear dreadlocks. The dismissals were held to be automatically unfair.
The Labour Appeal Court in Department of Correctional Services and another v POPCRU & others (LAC CA 6/2010) Date of judgment: 27 September 2011 has now confirmed that the four men’s dismissal from the Department of Correctional Services was unfair and discriminatory. Judge John Murphy upheld the Labour Court ruling and ordered the Department to pay the legal costs.
The Department did not put up any defence that short hair or un-dreadlocked hair is an inherent requirement of the job. The LAC found it difficult to understand how the prohibition of dreadlock hairstyles contributes positively to the issues of discipline, security, probity, trust and performance, which were the focal concerns of the Commissioner. The Department’s submission was that neatness, uniformity and discipline were the purposes of the discrimination, but the LAC found there is no rational connection between those purposes and the measure. Not a single witness testified that the employees’ hairstyles were not neat.
The LAC confirmed that employers should, wherever reasonably possible, seek to avoid putting religious and cultural adherents to the burdensome choice of being true to their faith at the expense of being respectful of the management prerogative and authority. The court had this to say:
“While I accept the importance of uniforms in promoting a culture of discipline and respect for authority, we live in a constitutional order founded upon a unique social and cultural diversity which because of our past history deserves to be afforded special protection. It is doubtful that the admirable purposes served by uniforms will be undermined by reasonable accommodation of that diversity by granting religious and cultural exemptions where justified.”
The lesson of this case is that unless there is an inherent requirement of the job that the employer’s dress code is essential, employers are required to respect deviations from the dress code where the code infringes on religious or cultural beliefs. A last comment: the employees were dismissed in June 2007 and, unless the Department takes the matter even further, it has taken 4 years to resolve this dispute.
Changing demands during a strike
The Union referred a dispute to the CCMA. The issue in dispute was the employer’s failure to agree to its demand in respect of organisational rights. At the same time, the Union made demands on a range of other matters of mutual interest. One of the demands the Union made was for the payment of a 13th cheque.
The parties attempted to negotiate on the demands that the Union was making. However, no agreement was reached, and the Commissioner then issued a certificate of non-resolution of the organisational rights dispute that had been referred to the commission. The Union gave notice of the intention of its members to embark on strike action. The strike notice read as follows: “The strike pertains to unresolved dispute on collective agreement on organisational rights.”
During the strike there was communication from the union and the employer’s interpretation was that the employees were abandoning their demands for organisational rights and replacing these demands with a demand for a 13th cheque. Once the union raised the issue of a 13th cheque, the employer formed the view that the strike was from that point onwards unprotected and consequently suspended the shop stewards on the grounds that they had led the employees into an unprotected strike. The decision of the disciplinary hearing was that the shop stewards should be summarily dismissed.
Two ultimatums were issued to the strikers and when none of the striking employees had complied with the final ultimatum they were then dismissed. No hearing of any kind was given to any of the employees. None of the employees who received the “notice of termination of employment” took up the invitation in the notice to request a disciplinary hearing.
The Union, on behalf of 38 of the employees instituted proceedings in the Labour Court in which it sought an order declaring the dismissal of the employees procedurally and automatically unfair. The primary argument advanced by the employer was that the employees were precluded from demanding a 13th cheque in the course of the strike. When the demand for the 13th cheque was made, the strike (which had been protected until that point), was from then onwards unprotected. The employer was, therefore, entitled to dismiss the employees. The Labour Court rejected this contention and found that the strike for which the employees were dismissed was in fact a protected strike. Consequently their dismissal was automatically unfair.
The matter went on to the Labour Appeal Court in Edelweiss Glass and Aluminium (Pty) Ltd v NUMSA & others (LAC Case No: JA69/09) Date of judgment: 03 August 2011. The LAC identified the crisp question as - ‘does a change to a demand not made during the conciliation process, but made in the course of a protected strike, nullify the protected status of that strike?’
The judge said: “In my view, the articulation of the demand for a 13th cheque did not cause the protected strike to transmute to an unprotected strike. Such a transmutation……would only occur if it is shown that the employees had used the protected strike as leverage to achieve other objectives in respect of which no strike action could be taken.”
What we learn from this case is that the courts recognise that the negotiation process during a strike may include offers and demands falling outside the initial formulation of the parties’ positions, as part of good faith attempts to obtain leverage, introduce some ‘give and take’, and prompt settlement.
Also it is inescapable to note that the strike dismissals took place in 2003 and the LAC gave judgment in 2011. The LAC did not interfere in the Labour Court’s order for compensation of 24 months’ remuneration and reinstatement from 2007/8. The appeal of the employer, a small business, that this compensation and back-pay would force them to close, was not given weight.
Misrepresentation on a CV
The employer advertised to fill a position of an “internal investigator”. One of the minimum requirements outlined in the advertisement was that the candidate must be in possession of a valid code 8 driver’s licence. This was crucial because the incumbent would be required to go into the field in order to conduct the investigations.
The employee applied for the position. In her curriculum vitae (CV), she represented to be in possession of a valid code 8 driver’s licence. She was short-listed, performed satisfactorily at the interview and was appointed. Sometime after she took up her new position, the employer discovered that at the time that the employee applied for the position and was interviewed she was not in possession of a valid driver’s licence as claimed in her CV. This discovery was made after the employee was required to go into the field to investigate an alleged misconduct, but could not do so because she did not have a driver’s licence and could therefore not be given the company car to drive.
The employer viewed the employee’s conduct as amounting to dishonesty and charged her with serious misconduct. At the disciplinary hearing, the employee conceded that her CV did indicate that she was in possession of a valid driver’s licence but that representation was made erroneously; she had employed a person to type her CV and had indicated that she was in possession of a learner’s drivers licence. The typist mistakenly omitted to include the term “learner’s”. She had also not checked the CV before she submitted it. She added that it did not concern her that she did not have a valid driver’s licence at the time she applied for the position because she had a learner’s licence and would have obtained her licence in a short period of time.
The employee was found guilty of misconduct and dismissed. She referred a dispute to the CCMA. In arbitration the Commissioner believed that the “error was genuine” and the dismissal as a penalty was unfair and unreasonable, and ordered the appellant to “re-employ” the employee on a final written warning valid for six months.
On review at the Labour Court, while acknowledging that that the employee supplied false information, the court agreed with the Commissioner that the false information was supplied in “error”. The Labour Court found that the employee had not made a fraudulent misrepresentation, but had merely been negligent and that the Commissioner could not be faulted in finding that the error made by her was “genuine”
The Labour Court also took the view that although the employee’s employment contract provided that the giving of false information may lead to dismissal, this was not intended, said the court to “cover genuine errors”. The Labour Court then went on to say that it could also not interfere with the award because there was no evidence that the employee was appointed because she was in possession of a driver’s licence. In any event, she obtained a driver’s licence sometime after she obtained the position and she had a clean record.
The Labour Appeal Court in South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others  ZALAC 16; JA 56/06 (3 August 2011) did not agree. The LAC was of the view that the employee knew that a valid driver’s licence was a pre-requisite for applying for the advertised post, and her explanation for submitting a CV with the wrong information was simply so untenable that it ought to have been rejected as being wholly improbable. The employee testified that she knew that only those applicants in possession of a valid driver’s licence would be considered for the post. So she knew that her application would not get off the starting blocks had she simply stated that she was only in possession of a learner’s licence. Her explanation that she failed to check her CV to ensure that it did not contain false information about meeting the requirements advertised, could not be accepted as being truthful.
This case goes beyond truthfulness in the application process. The LAC made it clear that an arbitrator may not disregard the requirements of an advertised post or the fact that an applicant has provided false information which renders the minimum requirement for the post irrelevant.
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