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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains a topical article on strike avoidance – how to develop an effective strike avoidance strategy. We also look at three new cases: the first looks at whether an employee’s attempt to have his suspension overturned is regarded by the court as an urgent matter. The second deals with the notice required by the LRA, if municipal employees intend to strike. The third looks at union members’ options when their union has entered into an unsatisfactory collective agreement.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Suspending suspension: Is getting a court to overturn suspension an ‘urgent matter’?
Suspension can seriously damage an employee’s reputation. As we have pointed out in previous newsletters, the purpose of suspension should be limited to those situations where the misconduct is serious and the employee might tamper with evidence or intimidate witnesses. But we are aware that many employers routinely suspend employees who have been charged with misconduct to avoid the suggestion at the disciplinary hearing or subsequent arbitration that the employment relationship can’t have broken down if the employee was allowed to carry on working pending the hearing.
In the recent case of Mosiane v Tlokwe City Council (2009) 30 ILJ 2766 (LC) the municipal manager was suspended pending an investigation into allegations of serious misconduct. He brought an urgent application in the Labour Court for an order declaring his suspension to be invalid and an order permitting him to resume duties immediately. He argued that if the matter was not heard as one of urgency, his reputation and character would be tarnished, he would be prejudiced in his reputation, advancement and job security and any hearing in due course would not afford him substantial redress as far as the personal and social consequences of his suspension were concerned.
The Court observed that a worrying trend is developing in that the Court's roll is clogged with urgent applications. Some applicants approach the court on an urgent basis either to interdict disciplinary hearings from taking place or to have their dismissals declared invalid and seek reinstatement orders. In most such applications the applicants are persons of means who have occupied top positions at their places of employment. The court said that they can afford lawyers who approach the court with “fanciful arguments” about why the court should grant them relief on an urgent basis. An impression is created that some employees are more equal than others, and that the court will grant them relief on an urgent basis.
The court stressed that all employees are equal before the law and no exception should be made when considering such matters. Most employees who occupy lower positions at their places of work follow the procedures laid down in the LRA 1995.
The court noted that the reasons advanced by the applicant why urgent relief was sought related to his reputation. This, the court said, could hardly be a basis on which to approach the court for relief on an urgent basis. All employees who get dismissed or suspended and believe that they are innocent, have their reputations tarnished. But they will eventually get an opportunity to be heard when the employer has to justify the charges against them. Should they fail to do so, the employees will be reinstated with no loss of benefits. The court accepted that some damage would have been done to their reputations, but the court was not in the business of ensuring that employees' reputations were not tarnished.
The court accordingly found that the ground of urgency raised by the applicant was not sufficient to allow him to jump the queue and dismissed the application with costs. The lesson of this case is that the Labour Court is determined to stop an abuse of the court’s processes. At the recent Annual Labour law Conference, the new Judge President, Judge Dunstan Mlambo, said that he had already restructured the labour courts to ensure a judge would be available to hear urgent matters to prevent the disruption of other matters. But he warned that he was targeting abuse of the court by lawyers!
What notice do municipality employees have to give of their intention to strike under section 64(1)(d) of the LRA?
Section 64 of the LRA requires notice of a proposed strike to be given to the employer. If the employer is the state, section 64(1)(d) requires at least 7 days’ notice of the commencement of the strike. For other employers, the notice is at least 48 hours.
In City of Matlosana v SALGBC & Others (2009) 30 ILJ 1293 (LC) the Labour Court was required to decide what notice needed to be given to the employer under section 64 of the LRA, when municipal workers intended to strike. The municipality applied to interdict a strike on the ground that the union did not give seven days' notice of its intention to strike. The court considered the meaning of 'State' in s 64(1) (d) and noted that the term is not defined in the LRA. Section 40 of the Constitution 1996 provides for three tiers of government, national, provincial and local, which together form the government of the RSA. After considering case law, the court supported the view that the word 'state' in the LRA must given a broad meaning. A municipality such as the employer in the present case must therefore also be the state at local government level.
One of the reasons for requiring seven days' notice of strike action is that the state provides essential services to the public at national, provincial and local level. No alternative provider is readily available, especially to poor communities, and there is therefore a rational basis for requiring seven days' notice for strikes in all three tiers of government.
In the circumstances the court found that the union must give seven days' notice of commencement of the strike to the municipality.
Are employees bound by bad collective agreements?
What can trade union members do if they find that their trade union has entered into a collective agreement which turns out to disadvantage them? This was the issue that arose in IMATU v SALGBC, Ethekwini Municipality, SAMWU (D476/09)  LC 133(26/11/2009) in which IMATU made application to court for a declaratory order giving a particular meaning to a collective agreement.
The background to this dispute was a collective agreement to regulate the TASK Grading Review process. In terms of this agreement, the parties entrusted to the Grading Forum (GF) the power and function of reviewing the grade assigned to positions within the Municipality. The aim of the grading project was to achieve consistency in the grades assigned to the posts. As the project spanned five regions with varying grading systems, it was a mammoth task. Given the aim of the agreement, the parties anticipated that there would be disputes. And there were several. At the same time, the parties appreciated that the grading process had to be completed expeditiously and finally.
Balancing these needs the parties agreed to terms of reference for the GF which made unanimous decisions final and binding, with only inconsistent decisions capable of further review. The consequence of this was that an employee disgruntled by the grading had no remedy. IMATU wanted a variation of the collective agreement.
The court was unwilling because, it said ‘maintaining the primacy of collective agreements is quintessential to sustaining a viable and vibrant collective bargaining system’. In this case, the clear intention of the parties was to design a dispute resolution system specifically for disputes arising from decisions of the GF. Critical to the design was finality of the disputes. The court went on to say:
An elementary tenet of collective bargaining is that the constituency is bound by the bargain, good or bad, that its representatives make on its behalf. The obvious remedy available to the constituency is to not elect or re-elect its representatives, perhaps to dismiss them or even to sue or charge them for negligence, fraud or other cause.
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