Minister of Labour announced her plans to review and resubmit the controversial labour bills:
In her parliamentary budget vote speech, the Minister of Labour, Ms Mildred N Oliphant, announced her plans to review and resubmit the controversial labour bills. The Minister is also planning to repeal and replace the Occupational Health and Safety Act and said regarding the Basic Conditions of Employment Act, Employment Equity Act, Labour Relations Act and the proposed Employment Services Bill:
Our aim is to create a policy framework to promote decent work, and a policy framework for the provision of public employment services which will enable government to maintain a database of job seekers and job opportunities, as well as matching and placement of job seekers. The Department will during the 2011/12 financial year consult with stakeholders and, on conclusion, present the amended bills to Parliament.
The Occupational Health and Safety Act 85 of 1993 pre-dates the Constitution of the Republic and requires updating, in certain areas. The Department intends to repeal this legislation and replace it with new OHS legislation to ensure a safe and healthy working environment and to protect workers against hazards associated with their work or use of machinery. The Labour inspectorate will be strengthened to monitor and enforce compliance with legislation to ensure that decent work principles are adhered to and address vulnerability in the labour market. The Department was allocated R60 million by National Treasury for the creation of additional inspectors' posts at specialist levels (back)
Theft by an employee’s spouse- can the other spouse be fired?
Mr Jacobs paid heavily for the sins of his wife. Mrs Jacobs confessed to benefiting from a protracted fraud perpetrated by Ms S, who worked in the regional office with the married couple. Mr Jacobs was the regional manager and was fired owing to the conduct of his wife.
When the scam was first uncovered, Jacobs had professed himself bemused at how R1.3m could have been stolen from 'under his nose'. But he admitted that, as manager of the office, he had neglected his duties. Management invited him to make representations as to how the employment relationship could possibly be sustained in these circumstances. Initially, Jacobs said that he could not think how it could. But, after seeing a labour consultant, he changed his tune, and claimed that there was no valid reason to dismiss him. A CCMA commissioner ruled the dismissal substantively fair but procedurally unfair because Jacobs had not been formally notified of the charges. Jacobs was awarded compensation equal to three months' pay. The court held on review that the commissioner had applied far too stringent a test for procedural fairness. Jacobs was fully aware that he had been negligent. The sole issue was whether the employment relationship could be sustained. He had been invited twice to address management on that issue. This was enough in the circumstances to satisfy the audi alteram partem rule. The award was set aside, and the dismissal ruled fair.
Nitrophoska (Pty) Ltd v CCMA & others (Labour Court case no. C109/2010 dated 04/03/2011, unreported) (back)
Does drunkenness on duty constitute incapacity or misconduct?
The respondent employee, a railway yard official responsible for controlling the shunting and coupling of trains, was found to be under the influence of alcohol. She was dismissed after a disciplinary hearing. The arbitrator found that the matter should rather have been treated as a case of incapacity, reinstated the employee, and directed that she be referred to the employee assistance programme for counselling.
On review, the Labour Court found the arbitrator had misdirected himself by treating the case as a matter of incapacity. The judge found no proof that the employee had a dependency problem. If employees who are not alcoholics consciously choose to consume alcohol, they must take responsibility for their actions.
An employee who knows there is a rule against reporting for duty under the influence of alcohol and wilfully indulges the night before commits misconduct even if he or she happened to be 'under stress' at the time, which the employee in this case had claimed. The arbitrator erred by failing to take into account the possible consequences of the employee's action and by disregarding a final warning she had received for committing a similar offence. The award was set aside and the employee's dismissal confirmed.
Transnet Freight Rail v Transnet Bargaining Council & others (Labour Court case no. C644/2009 dated 04/03/201, unreported) (back)
An unlawful administrative act happened- what to do about it?
The consequences of unlawful administrative acts must stand until they are set aside by a competent court.
Mr Ngqele, an opposition councillor, hoped to get rid of the ANC-appointed councillor as Municipal Manager before the recent municipal elections. He launched an urgent application for an order declaring that the MM's contract had been only been for a period of three years, not five as specified in his contract, and that his tenure should have expired long before. The court agreed that the MM's five-year contract was procedurally irregular in terms of the council’s rules, but according to the judge it did not follow that this led to the nullification of the contract. A five-year employment contract existed between the MM and the municipality.
According to the court, Ngqele had two options: the first was to persuade the council to rescind the invalid resolution (although, given the ANC majority, this would probably have been an exercise in futility). The second was to ask a competent court to set aside the resolution as ultra vires. Ngqele had done neither. On the basis of the maxim omnia praesumuntur rite esse acta, the consequences of unlawful administrative acts must stand until they are set aside by a competent court.
Since Ngqele had failed to make out a case for the relief sought, the application was dismissed with costs, and the MM remains in his post until, perhaps, Ngqele summons the stamina and power to have the resolution set aside.
In Ngqele v King Sabata Dalindyebo Municipality & others (Eastern Cape High Court, Mthatha case no. 2607/10 dated 17/02/2011, unreported)(back)
Automatic termination of contract: Labour Brokers and client’s liability
Employers engage temporary employment services ('TES' or 'labour brokers') for various reasons, one being the relative ease with which under-performing or misbehaving placements can be replaced. Unless there is a contractual provision between the client and the TES which limits the client's ability to demand replacements, the client is king. As the law stands at present, the client does not acquire any liability for unfair dismissal if the TES decides to terminate the services of the unwanted employee. Its responsibility is to ensure that the TES complies with the provisions of the BCEA, sectoral determinations, bargaining council agreements or applicable arbitration awards dealing with terms and conditions of employment.
Compliance with the LRA (e.g. unfair dismissal, unfair labour practices, collective bargaining, etc.) is the sole responsibility of the TES. The only time the client may be drawn into a dismissal dispute between the TES and the latter's employee is where the client agrees, or is subpoenaed, to testify about an incident that happened at the client's premises and which led to the client chasing the employee away.
To relieve themselves of their own responsibility to comply with fair dismissal requirements, some labour brokers include a clause such as this one in the employment contracts with their employees: 'This employment contract will commence on <date> and will automatically terminate on expiry of the contract between the broker and the client, alternatively in the event where the Client does not require the services of the employee for whatsoever reason.'
If the client subsequently advises the labour broker that the services of the employee are no longer needed, the labour broker would merely inform the employee in writing that the contract with the client had been cancelled and that, in the absence of alternative positions being found for the employee, the latter's services would no longer be required. There would then be no hearing or consultation with the employee and no severance benefits would be paid .The labour broker's argument would simply be that the contract was terminated automatically as agreed and, as this does not constitute a dismissal under the LRA, the employee has no right to a hearing or termination benefits other than agreed notice pay.
Are such provisions valid? Viewed from one perspective the labour broker's argument is valid: in terms of s 186 of the LRA a dismissal usually involves a termination of the employment contract by the employer. In other words, it is a unilateral act. Therefore, termination by agreement or as a result of the fulfilment of an agreed provision in the contract, (such as in the example above) cannot constitute a dismissal.
On the other hand, the practical effect of this type of provision is to leave the employee totally unprotected in the event of such termination. What do the courts make of this?
In Mahlamu v CCMA & others the arbitrator in a case involving alleged unfair dismissal upheld the labour broker's argument that the presence of a clause like the one under discussion in this article meant that termination of the employees' contracts did not constitute a 'dismissal' under the LRA. However, on review, the Labour Court overturned the award and held that the commissioner had committed a material error of law.
The court held that the provisions of s 5 of the LRA, which protects employees against certain forms of discrimination as well as employer conduct that could undermine their employment rights, read with the constitutional right not to be unfairly dismissed, made this type of 'contracting out' impermissible. This meant that the termination of the employee’s services in this instance constituted a 'dismissal' which therefore required both a substantively fair reason for the dismissal and compliance with a fair procedure.
As the law stands, the client in a scenario such as the one above cannot be held liable for the consequences of an unfair dismissal of an employee by the client's labour broker. However, if the mooted changes to the LRA are implemented, both the client and the labour broker will in principle be liable for such unfair dismissals. Clauses such as the one in the Mahlamu case will no longer be permissible as a valid reason for unilateral termination of employment.
Mahlamu v CCMA & 2 others (Labour Court case no JR1702/09 dated 30 November 2010, unreported) (back)
