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 which asks 'What to do if the record of the arbitration is not available?' We also discuss three new cases: The first case considers whether occupational safety extends beyond the workplace. The second case investigates whether employers must take the initiative to investigate possible mental health problems. In the third case, the role of the Labour Court in regulating procedural fairness in consultation and facilitation is explored.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When is a miner justified in refusing to work?
In Association of Mineworkers and Construction Union and Others v Northam Platinum Mine Limited (JA8/19; JA9/19) [2021] ZALAC 32 (14 September 2021) it was held that there is no justification to restrict the duty of the employer in terms of the Mine Health and Safety Act to mitigate hazards and risks to narrow occupational safety in the work process. The intention of the Act is to allow employees to absent themselves from the broader working environment when a hazard or risk of harm to their personal safety arises.
The case also held that it is not reasonably practicable for an employer to reinstate employees who place unreasonable pre-conditions on their return to work. The Labour Court also has no power to set a condition to reinstatement that a peace pact must first be reached with non-parties to the litigation.
Read more (Worklaw subscriber access only)
Mental health issues in the disciplinary process
In Phalanga v Petro Oil Gas Cooperation of South Africa (SOC) Ltd and Others (C 564/2019) [2021] ZALCJHB 143 (9 July 2021) it was held that an employer is not obliged to eliminate all possible explanations for what appears to be the deliberate and wilful misconduct of an employee, in circumstances where other possible explanations were not previously known to the employer, or were not obviously apparent.
The employee occupied a pivotal operational role in the refinery plant where he worked. He was responsible for monitoring the operation of a refinery plant by means of a control panel consisting of a number of screens. The panel could not be left unattended at any time.
The employee missed five shifts. He was instructed to return to work, but he did not do so. The employee pleaded guilty to the charge of unauthorised absence from work.
In mitigation, he also submitted a two-page document which said that he was uncomfortable at work and interpersonal relations in the production section where poor, which affected him psychologically.
Read more (Worklaw subscriber access only)
Can the Labour Court intervene in pre-retrenchment facilitation and consultation?
In National Education Health and Allied Workers Union v Minister for Trade, Industry and Competition and Another (J587/2021) [2021] ZALCJHB 95 (delivered on 4 June 2021) it was held that the role of the Labour Court is not that of an armchair critic, and circumstances may warrant active intervention during the course of a Section 189 consultation process.
This was an application in terms of s 189A(13) of the LRA for an order declaring a consultation process to be "unfair and a sham", interdicting the retrenchment of employees, and compelling the employer to comply with a fair procedure. The evidence showed that the union had staged a walkout from two of the three facilitation meetings and had done little to consult in a meaningful way.
Read more (Worklaw subscriber access only)
ARTICLE: : What to do if the record of the arbitration is not available?
by Prof Alan Rycroft
The party taking a matter on review is, in terms of Labour Court Rule 7A, obliged to file the record of the arbitration process with the Labour Court. But in a startling number of cases, the record is not complete or is missing. What can be done?The starting point on recordings of arbitration proceedings is CCMA Rule 36 which requires the CCMA to keep a record of all arbitral processes and any arbitration award or ruling made by a commissioner. But from time to time documentary records and audio recordings are either lost or of such a poor quality that they cannot be used in the review proceedings.
Prof Alan Rycroft's article discusses the different approaches adopted by the courts in dealing with these circumstances. These range from referring the matter back to be heard again at arbitration, carrying on and hearing the matter when it is felt there is sufficient evidential material available to deal with it, or dismissing the matter entirely.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
October 2021
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