Tag: labour law

Witnesses are key in arbitration

Legal procedure makes it immensely difficult for a party at arbitration to win its case without witnesses.

For example, should an employer send, no witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because the testimony of witnesses normally forms the crucial core of the procedure at any arbitration hearing.

The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules.

This entails explaining:

• that the employer is normally required to present its case first. This will be done via witnesses, documents and other evidence

• the right to cross examine that witness

• the arbitrator has the right to ask the witness questions for clarity and the employer is allowed to re-examine the witness, but only regarding the issues raised during cross examination

• once all the employer’s witnesses have been heard the employee presents his/her case according to the abovelisted steps.

Thereafter the arbitrator must:

• Hear closing statements

• Assess the evidence and make the award.

The evidence that the arbitrator assesses for purposes of deciding in favour of the employer or employee falls into three broad categories. Viz:

• Documents

• Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand

• Witness testimony

While all three types of evidence are very important the testimony of witnesses is the most crucial of all. This is because it is difficult (and often impossible) to bring documentary or other evidence without using witnesses as a channel. For example, should the employer’s representative need to bring a letter or a video tape as evidence against the employee, the representative will need to validate the letter or video by bringing, as a witness, the author of the letter or the person who filmed the video. Thus, witnesses are normally the conduit for all other evidence.

In the case of NUMSA obo Buthelezi vs Falcon & another (2003, 10 BALR 1110) the employee was dismissed for attempting to steal paint as reported via a sworn statement from the security guard who had caught him. However, as the security guard did not give evidence at the arbitration hearing the arbitrator found the dismissal to be unfair and ordered the employer to reinstate the employee with full back pay.

Not only are witnesses the most crucial source of evidence they are also the most difficult source of evidence to utilise. There are many reasons for this:

• Unless properly managed witnesses can disappear or fail to turn up at the arbitration hearing

• Unless properly prepared witnesses forget important details

• Witnesses can be bribed or otherwise persuaded to lie

• Unless expertly handled witnesses may get nervous during the arbitration hearing. They may therefore get flustered and so make mistakes.

Due to the fact that witnesses are the most crucial means of winning a case at arbitration and, at the same time, the most difficult evidentiary element to control any party at arbitration should use the services of a labour law expert to:

• Identify well in advance all the witnesses that will be needed

• Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them

• Work out which witnesses will be used to validate which documents and other evidence.

By Ivan Israelstam, CEO of Labour Law Management Consulting

Ignore Labour Law at your peril

Employers constantly complain that labour law does not allow them to fire employees for breaking the rules. However, employers need to understand that:

• Labour law definitely does allow employers to dismiss employees.

• The CCMA has frequently upheld the dismissal of employees fired for misconduct. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired.

• It is not the firing of employees that the law has a problem with. Instead, it is unfair dismissals that result in the employer being forced to reinstate the employee and/or being forced to pay the employee exorbitant amounts of money in compensation.

• In order to be free to fire employees who deserve dismissal employers need to understand and accept the difference between fair and unfair dismissal. This is because, if the employer has an employee who is causing mayhem or is costing the employer money or is otherwise undesirable, the employer cannot afford for the employee to be reinstated. The reason for this is that it is exceptionally difficult later to dismiss or discipline an employee who has been reinstated by the CCMA or other tribunal.

So while the law does allow dismissals it also requires the employer to be able to prove that the dismissal was both procedurally and substantively fair.

“Procedurally fair” relates to whether the employee was given a fair hearing.

Whether a dismissal is “substantively fair” relates to the fairness of the dismissal decision itself rather than to the disciplinary procedures. Specifically the employer would have to show that:

• The employee really did break the rule

• The rule was a fair one

• The penalty of dismissal was a fitting one in the light of the severity of the offence. AND

• The employee knew or should have known the rule.

Properly trained CCMA arbitrators consider all the above factors together with the circumstances of each individual case in deciding if a dismissal was fair and whether the employee should stay dismissed or should be reinstated.

In the case of Mundell vs Caledon Casino, Hotel and Spa (Sunday Times 15 May 2005) the employee was dismissed for two reasons. Viz:

• She distributed a R15000 tip amongst her colleagues
• She allowed a colleague to take home five cans of cool drink

It was reported that:

• The rule requiring employees to hand in tips to management to go into a monthly kitty had not been given to Mundell
• Mundell had no way of knowing that she was not allowed to distribute the tip money herself
• The tip had been given by the client at an open gathering
• A number of managers were involved in sharing out the tip
• The cool drinks had been intended by the client for consumption by the staff
• Giving the cool drinks to the employee was not serious enough to merit dismissal
• The employer’s failure to prove that the employee knew of this rule rendered the dismissal unfair
• The employer was required to pay the employee six months remuneration in compensation.

The outcome of this case proves that the inability of employers to make dismissals stick is not primarily because of the law but rather because of the lack of labour law expertise of many employers.

By  lvan lsraelstam, Chief Executive of Labour Law Management Consulting

Time is money

The Basic Conditions of Employment Act (BCEA) sets the fundamental conditions of service for all employment situations, ranging from the domestic to, with variations, the industrial.

When it comes to hours worked per week in business, particularly overtime, the BCEA is precise – the maximum normal working time allowed is 45 hours per week, any overtime is voluntary and may only be worked in agreement between employer and employee.

Nicol Myburgh, head of HR Business Unit at CRS Technologies, an HR and HCM specialist services provider, offers a broad perspective on the matter and the company’s view, which, as he explains, is only a guideline.

Myburgh says there are terms and conditions that have to be taken into consideration – including the fact that the above regulation excludes lunch breaks. “Lunch breaks are, by law, not defined as working time and will therefore be unpaid,” and does not mean the employee must work 45 hours per week normal time.

“The normal working hours are determined by mutual agreement between employee and employer, in this aspect the act only provides the maximum limit of 45 hours, and does not mean the employee MUST work 45 hours per week normal time. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time,” says Myburgh.

As CRS Technologies explains all overtime is voluntary and may only be worked by agreement between employer and employee.

Labour legislation is also clear on overtime, defined as time worked in excess of the normal working hours. “The maximum permissible overtime is three hours per day or 10 hours per week. The employee must be paid at one and a half times his/her normal wage rate except for Sunday work and work on public holidays, which must be paid at twice the normal wage rate. The employees aren’t necessarily paid for overtime, instead by mutual agreement, they can be granted time off in lieu of payment calculated by the same formula mentioned above,” Myburgh continues.

By mutual agreement

However, this segment of the law is only applicable to employees earning below the earnings threshold, as determined by the Minister, and is currently R205 433,30.

As CRS Technologies executives explain, overtime payment or time off in lieu thereof for employees earning above this threshold is not compulsory, but rather a mutual agreement between employer and employee.

Employees earning above the threshold for overtime who are not compensated by employers have the right to refuse to participate in overtime work.

While it is true that each industry has its own variations and is governed by specific dynamics, legislation regulating overtime is applicable irrespective.

“No employee may work more than 45 hours per week normal time and the no employee may work more than 10 hours per week overtime. However, while the BCEA sets the fundamental minimum rules, there are legislated variations based on sectoral or industry operational requirements. A sectoral determination, a Bargaining Council Main agreement or a union agreement, etc. may bring about variations on the conditions mentioned above since these documents are viewed as extensions of the act. These are known as delegated legislation,” says Myburgh.

CRS Technologies refers to the security industry as an example.

The company explains that Sectoral Determination 6: Private Security Sector, regulates among other conditions the maximum normal working hours to 48 hours per week for a security officer.

“and the Metal and Engineering Industries Bargaining Council regulates the conditions for employees operating in the industry, among other conditions the ordinary hours of work shall not exceed 40 in any one week for employees on day shift and/or night shift or employees working on the two and/or three-shift system,” Myburgh explains.

A further example is the retail industry, where overtime provisions allow for extended shopping hours.

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