Industrial Law journal Preview
                                                                                                                                  July 2019
 
 
Dear Industrial Law Journal subscriber
We take pleasure in presenting the July 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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The Juta General Law
 
Dismissal or Resignation
 
During a retrenchment restructuring the employee no longer qualified for the position she held and declared that she was prepared to leave instead of being demoted. The employer construed her conduct as a resignation. The Labour Court disagreed, finding that she had been dismissed. On appeal, the Labour Appeal Court confirmed that a resignation is a unilateral termination of employment by the employee who must evince a clear and unambiguous intention not to go on with the contract of employment that would lead a reasonable person to believe that the employee harboured such an intention. In this matter, the employee’s acquiescence was not an unambiguous intention to end the contract without more, she expected to remain in employment until she was retrenched with retrenchment benefits (21st Century Life (Pty) Ltd v Nombewu at 1493).
 
Dismissal — Racial Context
 
The employee had been dismissed, inter alia, for making allegations of racism against his manager. His dismissal was upheld by the CCMA but set aside on review. On appeal, the Labour Appeal Court found that unjustified allegations of racism against a superior in the workplace can have very serious and deleterious consequences. Employees who allege tacit racism should do so only on the basis of persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose. Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as ‘playing the race card’, can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace (Legal Aid SA v Mayisela at 1526).
 
The employee had inadvertently sent a WhatsApp meme depicting a young white boy holding a beer can and with a cigar in his mouth bearing the caption ‘Growing up in the 80’s before all you pussies took over — might as well die young’, to a black supervisor. Although he apologised, the employee was dismissed. In CCMA proceedings, the commissioner, in considering whether the meme was racially derogatory and offensive, found that there was no hidden racist connotation in the meme — the ordinary reader, not concerned with race, colour or creed, would accept it as meaning that children born in the 1980s were tougher than the generation thereafter who were weaklings. The commissioner accordingly found that the dismissal was unfair (Meyer and Onelogix (Pty) Ltd at 1664).
 
The employee had been dismissed after referring to herself as a ‘teef’ (bitch) and ‘kaffir’ in an altercation with her supervisor. She was dismissed, and in CCMA arbitration proceedings, the commissioner found that it was immaterial that the employee had used the racial slur in relation to herself and not her supervisor. The term was unacceptable in the workplace, it was racist and degrading and could not be tolerated given the history of the country. The dismissal was upheld (SA Commercial Catering & Allied Workers Union on behalf of Maloka and Truworths Ltd at 1680).
 
The employee, while representing a black colleague in a disciplinary hearing before a white chairperson, had remarked that ‘this is a racist issue’ and told his colleague that he risked dismissal on account of race. The employee was dismissed for making a racist comment and, in CCMA arbitration proceedings, the commissioner noted that the test whether the remark was racist was whether objectively the words were reasonably capable of conveying to the reasonable hearer that the comments had a racist meaning. The commissioner found that the comments were clearly race related, could not be tolerated in the workplace, and seriously undermined harmonious working conditions. The dismissal was upheld (SA Commercial Catering & Allied Workers Union on behalf of Maribe and Flamingo Casino at 1685).
 
A coloured police officer was dismissed for referring to a black female colleague as a ‘dom apie’. In proceedings before the SSSBC, the arbitrator found that, although the term was offensive, the employee had been unaware that it was offensive and had apologised immediately. Moreover, the employee had 20 years’ service and a clean record, and the sanction of dismissal was inappropriate. The arbitrator also found that, as the disciplinary proceedings had not been finalised within 60 days as required by the SAPS Discipline Regulations 2006, but had in fact only been instituted 16 months after the incident, the lengthy delay militated against the seriousness of the offence and the sanction of dismissal. The dismissal was set aside and the employee reinstated (SA Police Union on behalf of Moorcroft and SA Police Service at 1693).
 
Dismissal — Constructive Dismissal
 
In Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd & others (at 1539) the Labour Appeal Court confirmed the well-established principles relating to constructive dismissal, and found that, in this matter, the clash between the employee and his superiors had not objectively reached the level of intolerability. The grievance procedure existed for the very purpose of resolving conflicts over run-of-the-mill disagreements between subordinates and their superiors. The employee, however, resigned before the grievance procedure had been exhausted. In the circumstances, his resignation was petulant, premature and ill-considered. In the premises, it could not be concluded that he was constructively dismissed.
 
Dismissal — Negligence
 
The employee had been dismissed for falsifying overtime claim forms, but both the CCMA and the Labour Court found that he had been negligent and that his offence did not justify dismissal. On appeal, the Labour Appeal Court agreed — it found that the employee had been careless and negligent and not dishonest or intent on defrauding his employer (Drs Dietrich, Voigt & Mia t/a Pathcare v Bennett NO & others at 1506).
 
Dismissal — Reason for Dismissal
 
The employee had been dismissed for poor time keeping. This was upheld by the CCMA. On review, the Labour Court rejected the employee’s representative’s submission that his participation in union activities was the reason for his dismissal, that it had been automatically unfair and that the CCMA had no jurisdiction to determine the dispute. On appeal, the Labour Appeal Court found that the employee’s dismissal, based on conduct, could not have morphed into an automatically unfair dismissal on the basis of the statements, which lacked cogency, made by the employee’s representative during the arbitration. The commissioner was, in any event, not bound by a party’s categorisation of the nature of the dispute. The court was accordingly satisfied that the commissioner did not misconstrue the nature of the enquiry that she was enjoined to adjudicate, and the court below could not be faulted for rejecting the argument that the dispute before the commissioner fell outside the jurisdiction of the CCMA (Hotbake Systems (Pty) Ltd t/a The Rich Corporation of SA v Commission for Conciliation, Mediation & Arbitration & others at 1516).
 
Dismissal — Probationary Employee
 
In SA Qualifications Authority v Mbeki & others (at 1646) the Labour Court confirmed that, in terms of item 8(1)(j) of the Code of Good Practice: Dismissal, an employer may only dismiss a probationary employee after the employee has been invited to make representations. In this matter, the employer had called the employee to a performance assessment without giving her advance notice that it was considering terminating her employment because of continued poor performance. The dismissal was therefore procedurally unfair.
 
Disciplinary Penalty — Irretrievable Breakdown in Trust Relationship
 
The Labour Appeal Court has confirmed that an employer who relies on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. In Drs Dietrich, Voigt & Mia t/a Pathcare v Bennett NO & others (at 1506) the LAC found that, as no evidence was tendered that the continued employment relationship had been rendered insufferable, dismissal of the employee for negligent time keeping was not fair. However, in Autozone v Dispute Resolution Centre of Motor Industry & others (at 1501) the LAC found that dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably posed an operational difficulty which justified dismissal. Similarly, in Kock v Commission for Conciliation, Mediation & Arbitration & others (at 1625), the Labour Court found that deliberate and repeated insubordination by an employee is per se destructive of the employment relationship, and the employer is not required in such circumstances to prove the breakdown of the relationship.
 
Strike — Secondary Strike
 
In AngloGold Ashanti Ltd & others v Association of Mineworkers & Construction Union & others (at 1552) the Labour Court was required to determine whether the substantive requirement for a secondary strike set out s 66(2) of the LRA 1995, namely whether the nature and extent of proposed secondary strikes at companies in the mining industry would be reasonable and proportional in relation to the possible direct or indirect effect that they might have on the business of the primary gold mining employer, had been fulfilled. This entailed an assessment aimed at determining whether the harm caused by the secondary strikes to the secondary employers was in proportion to the effect or impact or potential effect or impact on the business of the primary employer. On the facts, the court found that the secondary strikes would have a major impact on the secondary employers, that harm to the secondary employers was not in proportion to the effect on the business of the primary employer, and that the secondary employers would not be able to exert any influence over the primary employer; consequently, the secondary strikes were therefore unprotected. It found further that the negligible effect the secondary strikes might have on the primary employer was outweighed by the major effect they would have on the country’s economy.
 
Retrenchment — Consultation during Protected Strike
 
During the course of a protracted protected strike, the respondent gold mining company gave notice of proposed large-scale retrenchments. In an urgent application in terms of s 189A(13) of the LRA 1995 to suspend the retrenchment process until the strike ended, the applicant union argued that it did not have ready access to a substantial number of its striking members to obtain instructions from them to enable the union to engage in a meaningful consensus-seeking process. The Labour Court found that the responsibility to secure a mandate for the purposes of retrenchment consultation was that of the union and that its failure to discharge this responsibility did not translate into procedural unfairness on the part of the employer party. Section 67(5) of the LRA acknowledged that a protracted strike might give rise to a need to retrench. The protection against dismissal enjoyed by protected strikers did not extend to a stay of retrenchment pending the resolution of the strike. The court found further that, at the early stages of retrenchment, there were no issues that required individual consent, and that the company’s decision to proceed with consultation was not unfair (Association of Mineworkers & Construction Union & others v Sibanye Gold Ltd t/a Sibanye Stillwater & others (1) at 1597).
 
Collective Agreement — Extension to Non-parties
 
At the time the respondent gold mining company entered into a collective agreement concerning wages and conditions of employment with a coalition of three unions, they did not have majority representation. The fourth union, AMCU, did not reach agreement with the company, and its members embarked on a protracted protected strike. The union coalition increased its membership and, having achieved majority representation, entered into an amendment to the collective agreement containing a peace clause. This agreement was extended in terms of s 23(1)(d) of the LRA 1995 to all non-parties. In an urgent application by AMCU to declare the extension unlawful, the Labour Court found that s 23(1)(d) did not deal with the timing of a collective agreement or an extension agreement and did not exclude it from being introduced through an amendment to the original collective agreement. It therefore rejected AMCU’s argument to the effect that the section could not be used to deprive employees of the right to strike where that right had already accrued and that, once that right had accrued, the employees were entitled to continue to strike. The court also rejected AMCU’s contention that the collective agreement could not be extended with retrospective effect (Association of Mineworkers & Construction Union v Sibanye Gold Ltd t/a Sibanye Stillwater & others (2) at 1607).
 
Quote of the Month:
 
Murphy AJA in Legal Aid SA v Mayisela & others (2019) 40 ILJ 1526 (LAC):
 
‘Although one naturally may be sympathetic to [an employee] who has subjectively experienced a negative performance assessment as racial discrimination, unjustified allegations of racism against a superior in the workplace can have very serious and deleterious consequences. Employees who allege tacit racism should do so only on the basis of persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose. Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as “playing the race card”, can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace. … Moreover, false accusations of racism are demeaning, insulting and an attack on dignity, more so when the person attacked, by reason of a previously disadvantaged background, probably has suffered personally the pernicious effects of institutional and systemic racism.’
 
In Memoriam
 
JUDGE ANTON STEENKAMP
 
The tragic death of Judge Anton Steenkamp of the Labour Court at the age of 57 has robbed the labour law community of an esteemed and valued member. Anton sustained a fatal snake bite in Mpika, Zambia on 20 May 2019 while travelling through southern Africa with his wife, Catherine. Anton had served on the Labour Court bench since 2010 and was due to spend the third court term of 2019 as an Acting Judge in the Gauteng High Court.
 
Anton grew up in Cape Town, where he matriculated from Bellville High School in 1980 before studying law at Stellenbosch University.  There he edited Die Matie newspaper and was chairperson of the first NUSAS local committee in 1986. Brendan Barry, NUSAS president at the time and later a colleague at labour and human rights law firm Cheadle Thompson and Haysom (CTH), remembers Anton as a courageous student journalist and activist who was the main point of contact between NUSAS and progressive students at Stellenbosch and who drove the establishment of the local NUSAS branch.
 
He moved to Johannesburg after graduating with a BA LLB and worked as a journalist on the progressive Afrikaans language newspaper, Vrye Weekblad. The editor, Max du Preez, described Anton as a ‘worthy, hard-working and brave reporter’ who was also ‘a fun guy with joy in his soul’.
 
He then joined the Independent Board of Inquiry into Informal Repression, which had been established at the initiative of the South African Council of Churches to investigate police hit squads. Anton made a number of public addresses criticising the Harms Commission of Inquiry for covering up the murderous activities of the Civil Cooperation Bureau.
 
In 1991 he commenced articles of clerkship at CTH and was admitted as an attorney in 1993. Anton fitted into the robust milieu of the firm and developed close friendships with many of his colleagues.
 
When Anton and Catherine moved to the Cape in 1996, he and I established a Cape Town office for CTH, where we were subsequently joined by senior partner, Halton Cheadle. Anton became a partner the following year, quickly building up a dynamic union-side labour law practice. His principal clients included the Food and Allied Workers Union, the National Education Health and Allied Workers Union, the National Union of Metalworkers of South Africa, and SASBO – The Finance Union (SASBO) as well as Namibia’s mining and food sector trade unions.
 
In late 1996, Anton represented SASBO in a recognition dispute with Boland Bank, which became the first successful organisational rights dispute handled by the Cape Town Commission for Conciliation, Mediation and Arbitration. In a hotly contested private arbitration in 1998, Anton persuaded the arbitrator to reinstate a large group of brewery workers. His clients expressed their gratitude by donating to him the quota of beer provided to them by the brewery. He and Halton Cheadle successfully defended the award in review proceedings. In a case combining Anton’s passions for law and media, he represented Noseweek editor, Martin Welz, in a successful defence to a defamation claim intended to force the publication’s closure.
 
Anton excelled in his appearances in the Labour Court taking on, often single-handedly and with great success, large teams of attorneys and counsel representing employers. He was meticulous in his preparation, a sharp cross-examiner in both English and Afrikaans and produced tight and persuasive heads of argument. I always marvelled at his ability to win difficult cases.
 
Between 2002 and 2010, he was a director in the labour law practices of Sonnenberg Hoffmann Galombik Inc/ENSafrica and, thereafter, at Bowmans. In this period he argued and won the case of the ndependent Municipal &  Allied Trade Union & another v City of Cape Town (2005) 26 ILJ 1404 (LC) entailing a precedent-setting decision on the discrimination against diabetics.
 
Anton was a conscientious mentor to young lawyers. Bradley Conradie of Bradley Conradie Halton Cheadle, and Ebrahiem Abrahams, the Director of Employee Relations at Stellenbosch University, are two of the prominent lawyers who have expressed their gratitude to Anton for his role in guiding their careers. Anton was active in the South African Society for Labour Law, serving as its Western Cape president in 2003 and its national president, from 2004 to 2006.
 
Anton’s love of studying earned him two LLM degrees: one from the  University of Pretoria and a second from the University of Notre Dame, Indiana in International Human Rights Law which was awarded summa cum laude.
 
Anton wrote extensively on labour law contributing articulate chapters to leading publications, including Labour Relations Law: A Comprehensive Guide, Labour Law through the Cases, South African Labour Law and the 2018 publication Strikes and the Law. He frequently refereed articles for the Industrial Law Journal.
 
Professor Darcy du Toit, with whom he worked on several of these publications, paid the following tribute:
 
‘As a colleague and a friend Anton was utterly steadfast, modest, leading by example … and producing work of the highest quality only. This was consistent with his work on the bench, where the boldness he showed in breaking new ground to extend the boundaries of justice will hopefully have set precedents for others to follow.’
 
Anton delivered timeous judgments that were succinct, clear and well-reasoned. Among his most prescient judgments are Esquire System Technology t/a Esquire Technologies v Cronjé & another (2011) 32 ILJ 601 (LC), in hich he warned of the emerging abuse of restraint clauses, and Dyokhwe v De Kock NO & others (2012) 33 ILJ 2401 (LC) that outlawed the practice of employers forcing employees to continue their employment through labour brokers at ower wages. In Henred Freuhauf (Pty) Ltd & another v Marcus NO & others (2014) 35 ILJ 3147 (LC), he turns an explication of the principles governing bargaining council demarcation disputes into a literary tour de force.
 
In the wake of Anton’s untimely passing, there was an enormous outpouring of sadness and grief on social media and in the press. Friends, colleagues, trade unions and others, who had known Anton during his rich and varied life, paid warm tributes.
 
The Association of Mineworkers and Construction Union described him ‘as a man of integrity who contributed greatly to the South African labour market’. Michael Bagraim, attorney and Democratic Alliance MP, referred to him as ‘one of the most even-handed and meticulous judges in the country’.
 
Judge President Bashir Waglay, on behalf of the Labour Court and Labour Appeal Court, remembers Anton as having
 
‘a deep love of his country and a zest for life. He will be remembered for his independence, his integrity and his significant contribution to labour law jurisprudence in South Africa as a practitioner, scholar and judge’.
 
Anton is survived by his wife, Catherine, and his two children, Stewart and Marion.
 
He will be greatly missed.
Paul Benjamin
Director of CTH
Board Member of the ILJ
 

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