Industrial Law Journal Preview 09 September - 2019

Industrial Law journal Preview
                                                          September 2019
 
 
Dear Industrial Law Journal subscriber
We take pleasure in presenting the September 2019 issue of the monthly Industrial Law Journal Preview, authored by the editors of the ILJ: Christine Vosloo, Lisa Williams de Beer, Moffat Ndou and Richard Haslop.
 
Please note:  This newsletter serves as a preview of the printed and the electronic Industrial Law Journal. At the time of this dissemination, the full-length cases and determinations are still being prepared for publication in the Industrial Law Journal. The material mentioned in this newsletter only becomes available to subscribers when the Industrial Law Journal is published.

Legalbrief Workplace –the weekly Juta current awareness email service Legalbrief Workplace provides a concise roundup of a broad sweep of topical news coverage gleaned by our team of seasoned journalists from reputable local and international media sources. Subscribers to this specialist email newsletter will enjoy access to labour-focused news summaries and analysis pieces, latest developments in labour legislation and case law, and relevant parliamentary news drawn from Legalbrief Policy Watch. It will prove essential reading to human resource and labour relations practitioners, labour lawyers, CCMA officials, bargaining councils and private arbitrators, labour academics, shop stewards and trade union officials, business leaders and line managers in both government and the private sector responsible for a HR/LR function.

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Dismissal — Derivative Misconduct
The Constitutional Court has considered the origin and development of the doctrine of derivative misconduct and the distinction between fiduciary duties and contractual duties of good faith. It found that the imposition of a duty to disclose on employees would undermine the collective bargaining power of workers by requiring positive action in the interests of the employer without any concomitant obligation on the part of the employer to give something reciprocally similar to the workers. To expect employees to be their employer’s keeper in the context of a strike where worker solidarity plays an important role in the power play between worker and employer would be asking too much without some reciprocal obligation on an employer’s part (National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) at 1957).

 

Contract of Employment — Interpretation
Both the Supreme Court of Appeal and the Labour Appeal Court have confirmed the principles applicable to the interpretation of contracts. In Theron v Premier of the Western Cape Province & another (at 1980) the SCA found that, on a proper interpretation of the contract of employment, the employee’s fixed-term contract could be terminated on notice when the employer ceased to exist before the expiry of the term. In Baise v Mianzo Asset Management (Pty) Ltd (at 1987) the LAC dismissed the employee’s claim that he had been induced by a material misrepresentation by the employer to enter into a termination agreement.

 

Contract of Employment — Fixed-term Contract
The employee’s employment terminated when his second successive fixed-term contract came to an end. His union referred a dispute in terms of s 198D of the LRA 1995 seeking an order declaring that his contract be deemed to be of indefinite duration in terms of s 198B(5). The SALGBC arbitrator found that the employee was indefinitely employed and ordered his reinstatement. On review, the Labour Court found that the arbitrator was not competent to consider the dispute where the employee’s employment had already terminated and no unfair dismissal dispute was before him (Nama Khoi Local Municipality v SA Local Government Bargaining Council & others at 2092).

 

Dismissal — Insubordination
The Labour Appeal Court noted the factors to be taken into account when determining whether a refusal to obey an instruction amounts to insubordination. One of those factors is that the instruction must not be unlawful or in breach of a contractual term or a collective agreement. In the appeal before the court it found that the instruction given by the employer to the employee had not been reasonable nor legally enforceable, and that the employee was consequently not guilty of gross insubordination when he refused to carry out the instruction (Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) at 1999).


Dismissal — Automatically Unfair Dismissal — Amended Section 187(1)(c)
The Labour Appeal Court, in National Union of Metalworkers of SA & others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & another (at 2024), canvassed the history of s 187(1)(c) of the LRA 1995 — from the scheme of the LRA 1956 and the LRA 1995 regulating lock-outs and the lack of symmetry in the treatment of strike and lock-out dismissals to the purpose for the amendment of s 187(1)(c). It found that the purpose of the amendment was not to render automatically unfair any dismissal where the reason for dismissal was the employees’ refusal to accept a demand in relation to a matter of mutual interest. It found that the true reason for the dismissal had to be determined, and that there was no basis in principle for excluding the employer’s operational requirements from consideration as a possible reason for dismissal.
 

Dismissal — Misconduct during Strike
Employees participating in a protected strike were dismissed for ‘brandishing or wielding dangerous weapons’ in contravention of the employer’s disciplinary code and picketing policy. At arbitration a CCMA commissioner found, inter alia, that the employees had merely ‘carried’ sticks and that dismissal was not appropriate. The award was upheld on review. On appeal, the Labour Appeal Court found that the commissioner had committed a gross irregularity by adopting an unduly technical approach and had not given proper consideration to the purpose of the rule against wielding weapons and the harm it sought to avoid. The court was satisfied that the employer was entitled to prohibit weapons on the picket line. The constitutionally protected right to strike did not encompass a right to carry dangerous weapons on a picket line which, by their nature, not only exposed others to the very real risk of injury, but also served to threaten and intimidate (Pailprint (Pty) Ltd v Lyster NO & others at 2047).
 

Transfer of Business as Going Concern
The Labour Appeal Court has upheld the Labour Court decision, in Pillay & others v Mobile Telephone Networks (Pty) Ltd (2017) 38 ILJ 2360 (LC), that once it was established that there had been a transfer in accordance with s 197 of the LRA 1995, the employees were not required to tender their services to the new employer — their employment continued uninterrupted (Mobile Telephone Networks (Pty) Ltd v Pillay & others at 2011).
 

Collective Agreement — Interpretation — Payment of Bonus
A collective agreement provided for the payment of a project bonus to employees working on a particular project. It also provided for forfeiture on the bonus or a portion of the bonus in certain circumstances. The Labour Court was called upon to determine whether employees who participated in unprotected strike action forfeited the bonus for the entire year or only the month in which the strike took place. The court noted the principles applicable to interpretation, and found, from the unambiguous language of the bonus clause and the objectives of the LRA 1995 and the agreement, that the agreement was clear that the employees forfeited the project bonus for the whole year (Civil & Power Generation Projects (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others at 2055).

 

Strike — Issue in Dispute
The employer approached the Labour Court to interdict pending strike action by its employees. The court noted that it had to determine the true issue in dispute and, from an assessment of the union and employees’ case, it was clear that the essence of the dispute was equal pay for work of equal value under the Employment Equity Act 55 of 1998 on the basis that the union asserted that its members were being treated less favourably on an arbitrary ground. The dispute amounted to an unfair discrimination dispute, to be determined by the Labour Court in terms of the EEA and not by strike action. The strike was therefore unprotected in terms of s 65(1)(c) of the LRA 1995, and the employees were interdicted from participating in it (Comair Ltd v National Union of Metalworkers of SA & others at 2076).
 

Companies and Other Corporate Entities — Piercing Corporate Veil
In Prinsloo v Expidor 163 CC t/a The League of Gentlemen & another (at 2113) the Labour Court considered the principles applicable to piercing the corporate veil, and, applying those principles to the facts of the matter before it, found that the affairs of the close corporation were conducted in a manner indistinguishable from those of the sole member in his personal capacity. The court found that this was an abuse of the corporate personality of the close corporation, and found further that the member was the true employer and was liable for the debts of the close corporation.
 

Residual Unfair Labour Practices — Promotion and Benefits
The appointment of a trainee to a permanent post without complying with the employee’s own recruitment policy and procedure was found by a CCMA commissioner to be procedurally unfair and the promotion was set aside (National Union of Metalworkers of SA on behalf of Ntshiba and Eskom Holdings (Pty) Ltd & another at 2130).

 

An employee who was not promoted referred an unfair labour practice dispute to the CCMA, contending that he had been promised the promotion. Before the commissioner he made unsubstantiated allegations that the employer had fabricated evidence relating to the advertisement for the post. The commissioner found that the employee had not applied for the promotion, and, even if he had, he did not meet the minimum requirement of having a degree and would not have been considered for promotion. The commissioner found further that the employee’s conduct had been frivolous and vexatious, and he was ordered to pay the employer’s costs (Sibanyoni and Pick ’n Pay (Pty) Ltd Northern Region at 2139).

 

The employer, Eskom, cancelled a voluntary severance and voluntary early retirement programme when it appeared that the programme was not affordable. Several employees approached the CCMA claiming that the withdrawal constituted an unfair labour practice relating to benefits. The commissioner found that the CCMA lacked jurisdiction to force an employer to pay a voluntary severance package to employees still in its employ as this would constitute a termination of employment (Solidarity on behalf of Gradwell & others and Eskom Holdings SOC Ltd at 2147).

 

An employee claimed that she was entitled to share in a buy-back scheme concluded between the employer and certain key executive employees as this constituted a bene#t in terms of s 186(2)(a) of the LRA 1995. The CCMA commissioner found that the employee had never been a party to the original agreement and could, therefore, not be a party to the later buy-back scheme (Todd and Business Connexion Group (Pty) Ltd at 2153).

 

A CCMA commissioner found, in National Union of Mineworkers on behalf of Mhlempu and Umso Construction (Pty) Ltd (at 2159), that short time does not constitute a ‘benefit’ in terms of s 186(2)(a) of the LRA 1995. He found that the LRA included no reference to short time, and that the employee’s claim fell within the ambit of the main agreement to which the parties were bound. The employee’s claim for unfair labour practice was therefore misplaced.
 

Practice and Procedure
In Baise v Mianzo Asset Management (Pty) Ltd (at 1987) the Labour Appeal Court found that, where the Labour Court exercises civil jurisdiction in terms of s 77(3) of the Basic Conditions of Employment Act 75 of 1997, the regime for costs in civil claims is applicable, ie that costs follow the result.

 

The Labour Court noted the caution expressed earlier that, while rule 11 of the Labour Court Rules allowed parties to use the procedure in rule 23 of the Uniform Rules where a statement of claim was excipiable, the exception was to be determined by applying rule 6 of the Labour Court Rules, and rule 23 was merely a guide as to when and how an exception should be #led. In this matter the court dismissed an exception where the pleadings, in addition to claiming unfair discrimination on the basis of geographical location, also claimed unequal pay for work of equal value (Gamagara Local Municipality v Independent Municipal & Allied Trade Union on behalf of Mzuza & others: In re Independent Municipal & Allied Trade Union on behalf of Mzuza & others v Gamagara Local Municipality at 2085).

 

In Prinsloo v Expidor 163 CC t/a The League of Gentlemen & another (at 2113) the Labour Court found that it was not necessary to join the sole member of the employer close corporation following a default arbitration award against the close corporation. The member had been properly cited in the CCMA referral and attended the conciliation hearing, although he failed to attend the arbitration proceedings. In the circumstances, it was clear that the member had been afforded an opportunity to be heard before the default award, and the application for joinder was not necessary.

 

Quote of the Month:
Froneman J in National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) at (2019) 40 ILJ 1957 (LC):

 

Neither our criminal law nor our civil law generally requires us to be our neighbour’s keeper. To expect employees to be their employer’s keeper in the context of a strike where worker solidarity plays an important role in the power play between worker and employer would be asking too much without some reciprocal obligation on an employer’s part.

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