11 November 2017

Failure to re-employ an employee is when an ex-employee has a reasonable expectation of being re-employed … which expectation comes to naught. In this case, the expectation is created by a pre-existing agreement and failure to give effect to the agreement is deemed to be akin to unfair dismissal.

Section 186(1)(d) of the Labour Relations Act (the “Act”) deals with selective re-employment, where “an employer [who] dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another”. Such an agreement is usually made in the wake of a mass retrenchment, where retrenched employees are promised the chance at re-employment should suitable vacancies arise in future. But the section does not require a collective agreement and any valid agreement, including a mutual separation agreement, voluntary termination agreement, or medical lay-off agreement will do equally well.

Employees alleging a failure to re-employ in terms of an agreement must prove the existence of the agreement which imposes the obligation to re-employ upon the employer. A mere ‘intimation’ of re-employment is not sufficient.

For the purpose of such an agreement, what would constitute a “suitable” vacancy? It is commonly accepted that the employee alleging a failure to re-employ must also prove that they are qualified for the vacant position in question. In the case of Bosal (Afrika) (Pty) Ltd vs NUMSA obo Botha [2000] 3 BALR 325 (IMSSA) the dismissed employee could not prove that he had the necessary skills for the position and the court held that the externally sourced job applicant had been fairly appointed.

If an employer appoints a new employee to perform a retrenched employee’s work in breach of a rehiring agreement, that is held to be an unfair labour practice (OCGAWU obo Mapolie v Metlite Alloys (2002) 10 BALR 1058 (CCMA)). The hiring of a contractor to perform a retrenched employee’s work was held to constitute an unfair dismissal  (NUMSA obo Dayimani and Wire Products Stainless Steel (2004) 25 ILJ2116 (BCA)).

The LRA does not require that employees be rehired on the exact same terms and conditions of employment as were previously in force but if the vacancy can be regarded as being substantially similar, it would be safest to allow the ex-employee the right of first refusal before the position is advertised.



22 September 2017

As people, we like to compartmentalize our world into manageable segments. Most employees have a very clear divide between what they consider to be their working-lives as opposed to their personal-lives. But does this arbitrary divide protect them from discipline for misconduct committed outside of work? Does the employer have any right at all to interfere with what an employee does in his or her personal time? The short answer is ‘yes’ but the long answer is the one this article will examine.

The kind of misconduct the employer is most likely to become aware of is the kind connected in some way with the employer’s interests. So, for example, the owner of the hotel the company habitually uses might complain to the employer about the unacceptable behaviour of one of its employees who is staying there. Or an employee, who became inebriated after hours, might verbally abuse his superior in a setting outside of work. These are offences that might occur outside of working hours, off company premises and out of uniform.

Can the employer act?

“As a general rule an employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some interest in the conduct of the employee. An interest would normally exist where some nexus exists between the employee’s conduct and the employer’s business. In the absence of such nexus, the employee’s conduct is likely to be non work-related conduct […].” (PAK le Roux & A van Niekerk The SA Law of Unfair Dismissal (1994) at p.184)

This makes sense. When applying discipline, an employer acts to protect its own interests. Thus, an employer has to establish a causal nexus between the employee’s conduct and a negative effect on the interests of the business.

A ‘negative effect’ has to be demonstrably detrimental or disruptive to employee relations, the company’s reputation or its business. Take the above hotel-example. Certainly, had the employee been swinging from the hotel’s chandeliers, this would be detrimental to the reputation of the company – but only insofar as hotel management is concerned (assuming the incident did not also appear on Youtube). If this also results in the employer losing its preferred client rating with the hotel and having to pay more for future bookings, it also affects the company’s business. Similarly, in the above verbal abuse-example, relations would become strained between the employee and his superior (not to mention any colleagues who became aware of the incident) – thereby negatively affecting employee relations. In either event, this would be cause for discipline.

There is some overlap between these kinds of offences and cases where there has been criminal misconduct outside of work. (However, for the purposes of this article, the latter should not be confused with the predicament where it becomes impossible for an employee to render service due to being imprisoned.)

In the matter under discussion here, the test remains consistent: has the employee’s criminal misconduct detrimentally affected the company’s interests? Now, instead of having to prove that the employee was swinging on chandeliers, the company bears the onus to prove (on a balance of probability) that the employee committed the criminal misconduct complained of. Then to prove that same was detrimental to the company’s interests. Visser v Woolworths [2005] 11 BALR 1216 (CCMA) warns that the mere fact that an employee was arrested does not quit the employer’s onus in this regard.

Another challenge is posed when it becomes time for this misconduct to be described when drafting charges. As a rule, disciplinary codes are inherently geared (and worded) toward at-work offences and will not include these conducts. It then becomes the responsibility of the employer to prove that the complained of behaviour is prohibited by the company and that this is a well-known rule that has been consistently applied.

Employers are aided in this (somewhat) by paragraph 3(1) of the Code of Good Practice on Dismissals, which states that “[s]ome rules or standards may be so well established and known that it is not necessary to communicate them.” Add to this Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), which confirmed that there is a standard of ethical behaviour about which an employee does not have to be reminded of and does not have to be specified in the Code of Conduct.

In conclusion, if an employer can show that a rule has been breached by an employee’s conduct outside of work and which has had a negative impact on the company’s interests, the employer can discipline that employee.



15 September 2017

Work, by definition, is filled with frustration. Sometimes tempers can cause the cup of professionalism and courtesy to overflow. The use of expletives may be frowned upon (or even considered taboo) in some work places. But this does not necessarily hold true for all workplaces.

It could be argued that the prohibition against swearing in the workplace is an unwritten rule and is universally known. Unfortunately arbitrators might see it differently.

In the judgment of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583) an employee was dismissed for a list of offences including the fact that he swore. The company, however, had no established rule against swearing in the workplace. The arbitrator consequently ruled that the dismissal had been unfair and the employee was awarded compensation.

Based on this, it may be assumed that swearing is acceptable unless the employer makes it clear to his/her employees that such language is prohibited. The Code of Good Practice places the burden of proving i) that the rule exists, and ii) that the employee knows of the rule, on the employer. If the employer fails to prove this, the rule is considered not to have existed at the time of the offence.

In the case of Lithotech Manufacturing Cape – A Division of Bidpaper Plus (Pty) Ltd vs Statutory Council for Printing, Newspaper and Packaging Industries and Others (2010) 31 ILJ 1425 (LC) the employee had been dismissed after being found guilty of directing abusive language towards a superior.

The arbitrator found that the employee had, in fact, sworn at his superior. However, taking into account the surrounding circumstances, the arbitrator found the employee’s dismissal sanction to be too harsh and awarded the employee a lesser sanction (effectively reinstating the employee).

This decision went on review to the Labour Court, which took into account the employee’s long service at the company and the fact that the employee would reach retirement age soon. Further, that the objectionable words were not directed at the superior but were (needlessly) descriptive of the situation. Evidence was also led that there were no previous cases where an employee had been disciplined for using similar language in the workplace.

The Labour Court recognised that swearing in the workplace was common and that a dismissal was inappropriate under the circumstances. The employee was subsequently reinstated with a final written warning.

This case lent credence to the idea that the seriousness of the offence was directly related to the target of the offensive language. By order of ascending magnitude, it therefore becomes important to distinguish whether i) swearwords are simply being used in a general, non-specific way and in place of everyday adjectives; ii) swearwords are being used to describe specific inanimate objects or broad concepts so as to highlight an objectionable situation; or iii) directed towards or used to describe a particular person.

The specific objectionable words and their meaning, together with the context wherein they were said as well as the audience (if any) who witnessed them said may be additional and important factors in determining the seriousness of the offence.

Based on all the above, it becomes clear that the existence of policies that regulate such language are of the utmost importance when considering disciplining staff.

However, employees are very perceptive and critical of their superiors and superiors set the tone for the workplace. If a superior regularly uses swearwords and harsh language, employees (may legitimately) accept that this is the norm and that swearing is not prohibited. In such a case the actions of the superior will weigh heavier than any written policy or procedure. Consistent application of the policy, especially to management, is therefore paramount in maintaining the integrity of the policy.



10 August 2017

The Employment Equity Act 55 of 1998 (the “EEA”) was amended by Act 47 of 2013 to broaden the net of unfair discrimination. The previous EEA already specifically prohibited anyone from discriminating against an employee based on any listed ground, including (amongst other things) sex, race, colour, sexual orientation and religion. This is what is referred to as a “closed” list. In other words, if it’s not on the list, it’s not covered by the EEA.

The amendment to section 6 of the EEA extended this list to include “[…] any other arbitrary ground”. Should someone now allege that they have been discriminated against (on grounds that fall outside of the list) they will merely have to prove that the conduct complained of is substantially similar to discrimination on one of the listed grounds. This amendment brings the EEA into closer alignment with the spirit of the Labour Relations Act 66 of 1995 (the “LRA”). Section 187(1)(f) of the LRA provides a similar list as that provided by the EEA but includes discrimination on any “arbitrary ground” and adds that dismissals based on these grounds are deemed automatically unfair.

In New Way Motor and Diesel Engineering (Pty) Ltd V Marsland [2009] 12 BLLR 1181 (LAC), the court held that discrimination on an arbitrary ground takes place when the alleged conduct has the potential to impair the fundamental dignity of the person who the conduct is aimed against. In that case, an employee claimed his dismissal was automatically unfair as it was based on arbitrary discrimination against him in that he suffered from depression (as confirmed by a psychiatrist). The court held that, even though this did not fall squarely into the listed ground of “disability” it did, in fact, amount to discrimination.

The case of NUMSA & Others v Gabriels (Pty) LTD [2002] 12 BLLR 1210 (LC), it was held by the court that discrimination on an unlisted ground must be similar to a listed ground. The court also decided that it must be a clearly identified ground that is based on attributes or characteristics which have the potential to impair the dignity of a person, or affect the person negatively.

The amendment to section 6(1) was designed to broaden the definition of discrimination and help more people find redress in even more situations of discrimination. Despite this, it does not seem that the addition of the term “arbitrary grounds” will drastically increase the original scope of section 6(1). The courts and CCMA will probably use the same test as previously used in determining whether or not discrimination took place (and, if it did, whether it was unfair).

In the event an employee refers a case of unfair discrimination, on a listed ground, to the CCMA, the company bears the onus of proving the discrimination did not take place. Where the alleged discrimination is on an unlisted ground, the employee bears the onus of proving discrimination.

In either event, the company shall have to prove that it had done everything it could to protect its employees from discrimination. However, this shift in onus may aid employers facing discrimination allegations based on an arbitrary ground to at least establish what the employee’s case is before being obliged to respond to it.