Tag: labour law

Biased chairperson a no-no in disciplinary hearings

Under labour law employees have the procedural right to a fair hearing before being disciplined or dismissed for misconduct or poor performance.

The following is a checklist of employee rights that employers holding disciplinary hearings must adhere to – the right to:

• prepare for the hearing
• the assistance of a representative
• an interpreter
• bring witnesses
• cross examine witnesses brought against them
• an impartial presiding officer chairing the hearing.

Other than under a few isolated exceptional circumstances these rights are strongly entrenched.

More employers are starting to afford employees some of these rights but are still falling short as regards the employees’ right to an impartial hearing chairperson. The reasons for this include:

• The employer’s intention is to hold a kangaroo court and get the employee fired regardless of the consequences OR
• Those employees assigned the task of chairing hearings are not properly trained OR
• The employer does not understand what constitutes bias.

There are in fact a number of factors that may suggest that the hearing chairperson could be biased. These include, amongst others, situations where the chairperson:

• Has previously had a clash with the accused employee
• Has prior knowledge of the details of the case
• Is a close friend of the complainant bringing the charge on the employer’s behalf
• Unreasonably turns down requests from the employee for representation, witnesses, an interpreter or other requirements
• Makes a finding that is unsupported by the facts brought before the hearing.

What does not necessarily constitute bias is the refusal of the chairperson to:
• Allow legally impermissible evidence,
• Hear irrelevant testimony or
• Allow unjustified adjournments.

However, it is extremely difficult for a hearing chairperson to distinguish fairly between reasonably and unreasonably turning down the accused’s request for a witness, representative, adjournment or other requirement. The ability to make rulings in this regard that will stand up in court can only be acquired via substantial formal training and solid experience of the hearing chairperson.

In the case of FAWU obo Sotyato vs JH group Retail Trust (2001, 8 BALR 864) the employee confessed to having stolen two bottles of beer from the employer and to drinking one of them during working hours. The arbitrator did not accept the confession as valid and also found that the chairperson of the hearing was biased. This was because the chairperson had caught the accused employee with the beers and had been involved in drawing up the charges. This created a reasonable apprehension of bias and rendered the dismissal procedurally unfair. The employee was reinstated with full back pay.

In SACCAWU obo Mosiane vs City Lodge Hotels Ltd (2004, 2 BALR 255) the employee was dismissed for stealing an item belonging to a guest of the hotel that employed the accused. The arbitrator found the dismissal to be substantively and procedurally unfair because the chairperson of the hearing had been biased and reinstated the employee.

In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings employers must ensure that:

• Hearing chairpersons have no involvement in or knowledge of the case prior to the hearing

• Hearing chairpersons have a solid understanding as to what constitutes apprehension of bias

• They contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and knowledge to carry out the task properly.

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

How the gig economy could shake up employment law

The gig economy has taken over the world, with most people not fully realising its impact. Put simply, the gig economy is a labour market characterised by freelance, flexible, on-demand work rather than the more traditional nine-to-five working model. Instead of being paid a regular salary, workers are paid for each “gig” they do, such as a car journey, food delivery or a cleaning job.

Typically, workers in the gig economy find jobs by registering on websites or apps and signing up for what they want to do. Around 15.6% of the UK’s workforce make up the gig economy. The figure is 34% in the US and expected to rise to 43% by the year 2020. South Africa will, no doubt, follow suit.

The major difference between the gig economy and traditional freelancing or contractual work is the flexibility and transparency that go with it. Gig freelancers can work from wherever they like, whenever they like and for whomever they like.

Timing of jobs is more spontaneous, and apps and websites now automatically connect people to deliver on requirements in real-time.

The major difference between the gig economy and traditional freelancing or contractual work is the flexibility and transparency that go with itBut how many of these gig workers prefer the work to permanent employment, and how many simply cannot find better pay or jobs elsewhere? With South Africa still recovering from recession and an unemployment rate of 27.7%, there’s no doubt that a lot of these “gigs” are performed because there is nothing better out there.

While some may argue that the gig economy empowers entrepreneurs, others argue that it is purely another means of exploiting workers. In most countries, only employees are entitled to the protection of employment legislation, such as being protected from unfair dismissal, and receiving minimum basic benefits such as holiday pay, sick leave and minimum working hours. Independent contractors are not offered such protection and their recourse is limited to what is contained in their service contracts.

UK test case
Last year in the UK, an employment tribunal ruled that Uber drivers are “workers”, and not self-employed contractors as their contracts stipulated. Uber has always maintained that it does not employ any drivers or own any cars. Instead, it provides the technology platform that enables the connection between driver and passenger. In the court case, judges held that the drivers are workers and should be given a basic set of rights under the law, including a national minimum wage. Uber appealed against this ruling, which was heard in September. A ruling is yet to be handed down.

In South Africa recently, the Commission for Conciliation, Mediation and Arbitration (CCMA) issued a ruling that seven Uber drivers who had been “deactivated” from the Uber platform and had subsequently referred unfair dismissal claims to the CCMA were not independent contractors but must be considered employees. This means these drivers are given employee protection in terms of the Labour Relations Act and the Basic Conditions of Employment Act. Uber South Africa has appealed the ruling and is currently awaiting judgment.

British prime minister Theresa MayWith the new world of work and the rise of the gig economy, the line between who is an employee and who is not is becoming increasingly blurred. But will this change how our courts view these types of workers in the future?

Seeming to shed light on this topic in the UK, the Taylor Review of Modern Working Practices was released in July this year with the hope of addressing the widespread deprivation of employment rights in the gig economy. Prime minister Theresa May had requested Matthew Taylor, chief executive of the Royal Society for the Arts, to conduct an independent review into how employment practices in the UK need to change to keep pace with modern business models.

Interestingly, the Taylor Review suggests that the UK government create a new category of worker, the “dependent contractor”, that sits between contractors and those in full employment, and brings with it some benefits and wage protections. It also called for the employment status to have a clearer definition that better reflects the reality of modern working arrangements.

Recommendations
Here are some of the review’s recommendations to the UK government in relation to gig workers:
It should develop legislation and guidance that adequately set out the tests that need to be met to establish employee or “dependent contractor” status.The national minimum wage legislation should be updated so that “dependent contractors” receive at least the national minimum wage, but on a piece-rate basis.

Under these rules, a gig company would have to demonstrate through its data that at times of normal demand, an average person could earn 20% more than the national minimum wage. However, if that person chose to work at a time of low demand, he or she might not earn the minimum wage; the company would have to use its real-time data to warn them of this in advance.

Government should provide maximum clarity on status and rights for all individuals, by extending the right to written particulars to all in employment. At the moment, employers only need to provide a written statement to employees that outlines their employment terms and conditions from the first day of employment. Workers are not entitled to such a statement.

The Taylor Review received a mixed response in the UK. While some have welcomed some of the proposals and agree that current legislation is no longer fit for purpose and needs updating, others have concerns that some of the proposals will materially increase costs and administration for employers.

The UK government will engage with stakeholders across the country before publishing a full response to the review later this year.

Although there are no immediate plans to revise the legislation to accommodate the gig economy, only time will tell as to whether or not a similar approach will be considered in South Africa.

By Amanda Arumugam for Tech Central

Labour brokers: when is it legal?

South African labour legislation severely constrains the few employer rights that exist. It is therefore no surprise that employers  look for alternative means of hiring labour instead of employing workers directly.

One option is to use labour brokers in an attempt to free employers from many labour law responsibilities in return for a fee.Trade unions, who find this loophole to be a thorn in their sides, call this type of arrangement “Atypical Employment” and have instigated new legislation, effective from April 2015 that severely curtails the purposes for which labour brokers.

Even before the 2015 amendments using labour brokers to evade labour law responsibilities was difficult and labour brokers were already taking struggling to cope with the legal responsibilities that they took over.

For example, in the case of Sibiya & others vs HBL Services cc (2003 7 BALR 796) the employees were employed by a labour broker to provide work to a client. The employees refused to change to a new shift system introduced by the client. When the employees arrived for work the next day to render services under the old shift system the broker’s client locked them out and they referred an unfair dismissal dispute.

The arbitrator found that the employees had been dismissed for refusing to work under the new shift system. As the employees were entitled to refuse the change and as no proper dismissal procedures had been implemented the arbitrator ordered the broker to reinstate the employees with full back pay.

In the case of Springbok Trading (Pty) Ltd vs Zondani and Others (2004 9  BLLR 864) the company wanted to transfer a number of its own employees into the employment of a labour broker that was already providing most of the company’s labour. The company claimed that the union had agreed to the transfer.

The union denied this. Those employees who refused the transfer were retrenched and some of them declared and were successful with a dispute in the Labour Court. On appeal the Labour Appeal Court found that:

• The discussions with the union had been conducted by the very same labour broker to which the employer wanted to transfer the employees. Thus the person who consulted with the union had a lot to gain by the transfer and could not be seen to have consulted in good faith.

• The employer’s stated reason for wanting to implement the transfer was not good enough to justify the retrenchment of those employees who refused the transfer. That is, the employer’s alleged wish to avoid the burden of payroll administration did not justify the loss of employees’ jobs.

• It was unlikely that the trade union would have agreed to the retrenchment of its members.• Consultations on the retrenchments were neither completed nor properly conducted.

• The retrenchments were unfair.The employer’s appeal was therefore dismissed with costs.The 2015 amendments shift most of the responsibility from the labour broker back to the original employers who have therefore lost a key means of relief from the heavy constraints of labour legislation.

All employers and the smaller ones in particular, need to learn, with the help of reputable labour law experts, how to continue to run profitable businesses despite the ever increasingly restrictive labour legislation.

To book for our 10 November Johannesburg seminar on achieving a productive and legally compliant workplace, please contact Ronni via ronni@labourlawadvice.co.za or 084 521 7492.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Arbitration is not always final

Either party to an arbitration can take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’.

Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.

An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC) the arbitrator found that the employee had not called a colleague a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”. The Court therefore overturned the decision of the arbitrator, found the employee’s dismissal to have been fair and ordered the employee to pay the employer’s legal costs.

In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The CCMA arbitrator found that the employee had been involved in the theft and upheld the dismissal. The Labour Court found that the employer’s evidence had been sketchy and contradictory and that the CCMA commissioner’s award finding had not been based on the facts. The employer was required to reinstate the employee with 44 months’ back pay plus interest. The employer was also ordered to pay the employee’s legal costs.

In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.

During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer.

The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.

Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.

However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.

By Dr lvan lsraelstam, chief executive of Labour Law Management Consulting.

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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