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OCTOBER 2015 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 the practicalities of 'contesting equal pay for equal work claims' under the recently amended Employment Equity Act. We also look at three new cases: The first case looks at the right to hire replacement labour in the context of a lock-out. The second case considers the situation of an employee being dismissed for refusing to submit to a medical examination. The third case is of great significance to the municipal sector, dealing with the invalidation of a disciplinary code contained in a collective agreement.

This public newsletter is a free edited version of the subscriber newsletter.

RECENT CASES

The right to hire replacement labour during a lock-out.

The union in SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341 (6 October 2015) embarked on a limited duration protected strike, giving the employer notification of the strike in terms of Section 64 of the LRA on 21 September 2015. The strike notice informed the employer that the strike would start on 25 September 2015, but stated that the employees would return to their work stations from 05H45 on 28 September 2015. It is not clear from the judgment whether it was intended that the strike would be suspended at that point or whether that would be the end of any strike action. The union's demands for wage increases, minimum working hours and housing subsidy were also contained in the notice.

On 22 September 2015 the employer responded by giving notice of a lock-out of SACCAWU members, which was also to commence on 25 September and which would continue until employees had accepted the employer's offer on changes to wages and conditions of employment.

Whilst the union accepted that the lock-out would be protected under the Act, it attempted to obtain an interdict preventing the employer from using replacement labour during the lock-out in terms of section 76(1)(b). This section provides as follows:

"An employer may not take into employment any person ....for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike."

The crisp issue for determination in this case was whether in terms of section 76(1)(b) of the LRA, an employer may continue to use replacement labour after a strike has ended. The union submitted that an employer's right to use replacement labour must be "in response to a strike" and once a strike has ended, section 76(1)(b) of the LRA no longer applies. The Labour Court agreed with the union. It said that the interpretation to be given to section 76(1)(b) of the LRA is that the statutory right of an employer to hire replacement labour is restricted to the period during which a protected strike pertains, and not after it has ceased.

The significance of this case is that a more restricted meaning has been given to the period during which an employer can employ replacement labour during a lock-out. If the strike ceases, the employer's right to use replacement labour falls away.

Dismissal for refusing to take a medical examination

An employee, a pharmaceutical sales representative, was dismissed for a "particularly serious and/or repeated wilful refusal to carry out lawful instructions or perform duties". The instruction she failed to perform was to present herself to a psychiatrist for a medical examination. In terms of the employee's contract of employment she agreed as follows:

"The Employee will, whenever the Company deems necessary, undergo a specialist medical examination at the expense of the Company, by a medical practitioner nominated and appointed by the Company."

The employee, who suffers from a bipolar disorder, which she maintained was under control, claimed that the instruction was unlawful and an act of unfair discrimination based on disability amounting to an act of harassment.

The company contended that the instruction was both reasonable and lawful in terms of the contract of employment, and was necessary to determine if she was "fit to work". The company claimed the employee was required to undergo such assessment "on account of her inappropriate, aggressive and irrational behaviour towards fellow workers and management on inter alia 20 October and 23 October 2009."

The issues the court in EWN v Pharmaco Distribution (Pty) Ltd (JS654/10) [2015] ZALCJHB 329 (22 September 2015) was required to determine were whether -

1. the provisions in the employee's contract of employment requiring her to undergo medical testing are enforceable or void;
2. her dismissal for failing to submit to a medical examination on the employer's instruction was automatically unfair in terms of s 187 (1)(f) of the LRA, and
3. in the event her dismissal not being automatically unfair, whether it was substantively or procedurally unfair.

Section 7(1) of the Employment Equity Act provides that medical testing of an employee is prohibited, unless -

1. legislation permits or requires the testing; or
2. it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

Like most cases in arbitration and court, the outcome in this matter was determined by the evidence. In this case the employer could not establish to the satisfaction of the court that 'medical facts or employment conditions justified the medical testing'. The LC found that the provisions in the contract were void and unenforceable; and her dismissal was automatically unfair.

The principle established in this case is this: Even where an employee has agreed to a term and condition of employment to subject herself to medical examination, if the employer cannot establish that this is justifiable under one of the exceptions to the prohibition against medical testing in section 7 of the EEA, that provision will be unlawful and unenforceable.

Invalid Disciplinary Code in the municipal sector

The case of City of Cape Town v Independent Municipal and Allied Workers Union and Others (C884/2014) [2015] ZALCCT 58 (17 September 2015) is of critical significance for the municipal sector and involved an application by the Cape Town municipality for a declaratory order from the Labour Court. The order sought was for the court to declare that the Disciplinary Procedure and Code Collective Agreement ("the DPCCA") purportedly entered into under the auspices of the SALGBC (bargaining council) on 21 April 2010, was not validly concluded in terms of the SALGBC's Constitution and accordingly did not become binding. Alternative orders were sought declaring that the DPCCA lapsed on 30 June 2012 (alternatively 31 December 2012) and no longer binds the municipality.

The background to the DPCCA was that it was drafted by a drafting committee and was not thereafter referred back to the bargaining council as required by the constitution of SALGBC. The decision of the drafting team was thus not a decision of the Bargaining Council. This was confirmed in a previous case (South African Local Government Association v Independent Municipal Allied Trade Union and Others [2014] 6 BLLR 569 (LAC)) which rejected the argument that a 'practice' had been accepted that there was no need to refer the drafting team's decisions back to the SALGBC. The LAC held in that case that a practice cannot trump the express and unambiguous terms of a constitution, especially when the decisions taken by the drafting team clearly had far-reaching implications, financial and otherwise.

The LC had no difficulty in granting the declaratory order in this subsequent case. This currently leaves the municipal sector in South Africa without a disciplinary code. The Code of Good Practice: Dismissal will in all probability regulate discipline until a new collective agreement is reached.

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Bruce Robertson
October 2015
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