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. Worklaw's May 04 newsletter contains an article on the potential and problems of fixed-term contracts. We also look at two cases, one about when it is fair to hold more than one disciplinary hearing and the other about using different corporate identities to obscure who the employer is.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
When is it fair to have a second disciplinary hearing?
The issue in Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) was whether the employee had been punished twice and his dismissal therefore unfair. The Bargaining Council arbitrator found this to be unfair. The Labour Court then found that the arbitrator had committed a gross irregularity in coming to this decision. On appeal to the Labour Appeal Court, it was held that the law is simply this: an employer is entitled to hold a second disciplinary enquiry if it would be fair to do so.
This simple statement of the law has to be seen alongside other factors. The disciplinary enquiry must have been conducted in compliance with the employer's disciplinary code. If there has been compliance with the company's disciplinary code and the first enquiry has adequately canvassed the facts involved, it will probably be unfair to hold a second enquiry.
The norm of a single enquiry may be deviated from only in exceptional circumstances, such as--
- if the first enquiry/procedure was not in compliance with the company's disciplinary code;
- if, despite bona fide investigations, new and material information which was not in the employer's possession at the time of the first enquiry has come to light and which if proved to be true, would materially alter the outcome. The fairness in holding a second enquiry may be affected if there has been substantial delay in cancelling the first enquiry.
When the business activities of two companies, owned by the same person, and operating in the same premises, using the same staff, there can be confusion as to who is the legal employer. In Mdlalose v Fila SA (Pty) Ltd (2003) 24 ILJ 2328 (LC), when the employee tried to get an arbitration order made an order of court, the apparent employer alleged it was dormant, having sold its assets to another company as a going concern. The Labour Court found that the actions of the companies showed that they intended, either directly or indirectly to allow confusion, giving them a legal defence if it became necessary.
The Court said it would not tolerate this deliberate malpractice and made both companies jointly and severally liable to comply with the court order.
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