Tag: labour law

By Lizle Louw and Shane Johnson for  Webber Wentzel

Following the Constitutional Court’s Prince judgment, cannabis use, possession and cultivation in South Africa has been decriminalised with adult persons now permitted to use, possess and cultivate cannabis in a private place for personal consumption.

Given that Prince does not deal with the effects of the decriminalisation of cannabis in the workplace, many unanswered employment related questions emerge which we set out below.

What can be said, at this stage is that Prince does not affect an employer’s obligation to maintain a safe working environment for all of its employees, which includes prohibiting employees who are “intoxicated” from entering the workplace, and policies and testing applicable to alcohol use in the workplace are not likely to be appropriate in dealing with cannabis use.

Cannabis in the workplace
In terms of Prince, the use, possession and/or cultivation of cannabis by adults is permitted “in private”. Although cannabis use, possession and cultivation is not confined to one’s “home” or a “private dwelling”, it is likely to be difficult for an employee to argue that the workplace is a “private” space, especially given that the use of cannabis in public or in the presence of non-consenting adult persons is not permitted.

The more difficult issue is where employees use cannabis in private, outside of the workplace, and thereafter report for duty. Cannabis can affect an employee’s occupational capacity in various ways, including performing tasks more slowly, performing poorly when handling routine, monotonous tasks, difficulty in multi-tasking, difficulty in taking instructions from superiors, difficulty in making crucial decisions (especially in high risk situations), difficulty in operating machinery and/or motor vehicles. It is these consequences that an employer will have to consider when the employee reports for work and test positive for cannabis use.

The above scenario may not seem very different to employees using alcohol in private and then reporting for work. The difference, however, between alcohol and cannabis in relation to workplace policy is that for as long as alcohol is detected in the human body, it results in impairment; Cannabis may be detected in the human body for months after use, which at that time may no longer cause impairment.

Testing of employees for cannabis
Medical testing of employees remains regulated by section 7 of the Employment Equity Act (EEA). Medical testing of employees is permitted if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. An employer who wishes to test an employee for cannabis may be able to justify such testing relying on the provisions of the EEA. A number of tests (some of which are not available in South Africa at present) are used to test for cannabis: breath, blood, oral fluid (saliva), urine, sweat and hair.

Saliva tests will show cannabis use in the past 24 hours (which could be an indication that the employee is still impaired) but hair testing will show cannabis use for up to months after use (which could mean that the employee is no longer impaired). It will not necessarily be the actual testing that will be problematic, but what one does with the test results.

Workplace policies and procedures
Most employers enforce a zero tolerance approach to the use of any drugs and/or alcohol in the workplace. Prior to Prince it was relatively easy to deal with cannabis at work as cannabis use, possession and cultivation was a criminal offence. Following Prince, and given that traces of cannabis may remain in the body for months after use (which does not automatically result in impairment) employers may need to regulate cannabis as a separate issue and by implication through a separate policy and procedure. Zero tolerance policies may not be justifiable.
Employers and their occupational medical practitioners should consider the safety requirements at the workplace and determine whether a zero tolerance approach is justifiable or whether there is an acceptable limit of cannabis trace after some time of use. This may include conducting a screening test (such as a saliva test) that will show immediate past use and then conducting further tests to establish the level of impairment.

New paternity leave law looms

By Qama Qukula for Cape Talk

Last year, President Cyril Ramaphosa signed a landmark law that provides new fathers with 10 days consecutive paid leave after the birth of their child.

But many questions remain about the amendments, what they mean, and when they come into effect.

According to Business Tech, labour minister Thulas Nxesi referred the amendments and the corresponding regulations to the Unemployment Insurance Board for consultation. The next steps will see the amendments gazetted for public comments before the legislation is finalised.

Employment law expert Anli Bezuidenhout tackled some frequently asked questions about parental leave and how it will apply to fathers.

Who pays?
Paternity leave will be paid out of the Unemployment Insurance Fund (UIF), it will not be the employer’s responsibility.

How much?
Employees will be given a partial payout. It can be up to 66% of the father’s salary.

Can dads bargain?
Employees can negotiate some kind of co-payment with their employer to pay the balance of their salary and establish a work back contract for when they return to work.

When must the leave be taken?
The leave may commence when the child is born. Bezuidenhout says the Act provides the scope for fathers to negotiate with their employers.

What must employers do?
Employers need to amend their employment contracts to make them compliant with this new law.

What happens to family responsibility leave?
The three days of family responsibility leave will still exist and remains separate from parental leave.

However, it cannot be used when a child is born. It can be used in cases when a child falls sick or passes away.

Victimising employees is risky

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

One of the legal terms and concepts that appear to confuse employers and employees is ‘victimisation’. This is partially because the labour statutes do not deal fully with the concept of ‘workplace victimisation’.

The LRA does appear to deal with the issue of victimisation in a partial and indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. Also, chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:

• Interfering with the rights of employees or job applicants relating to trade union membership or or activities;

• Prejudicing an employee or job applicant due to his/her legitimate disclosure of information or exercising of any right conferred by the LRA;

• Unfair promotion, demotion, suspension, discipline, training or provision of benefits

• Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act.

• Unfair discrimination and harassment.

While labour law does, as outlined above, deal with many types of employee mistreatment that could constitute ‘victimisation’ there are a number of large gaps in the LRA and EEA. For instance, these acts do not specifically or directly prohibit an employer from shouting at assaulting or making unfair threats against an employee. The acts also do not specifically prohibit the employer from moving the employee out of his/her office into a draughty passage or from transferring the employee from location to location as a means of victimising the employee. Section 186(e) does consider a forced resignation as a dismissal but this does not help an employee who cannot afford to resign in order to escape victimisation. Employees are also not sure how to go about exercising their legal rights in this regard. For example, in the case of NEHAWU obo Mashigo & Others vs Department of Health (2004, 11 BALR 1362) the employees lodged a grievance against the employer due to unhappiness with their employment benefits. They were later dismissed and referred a dispute for unfair dismissal to their bargaining council. The arbitrator ruled that:

The bargaining council had no jurisdiction to deal with such a dispute of unfair discrimination. Despite having ruled itself to have no jurisdiction the bargaining council nevertheless issued an award to the effect that the dismissal was not unfair. This case illustrates that arbitration awards can be made which ignore victimisation allegations. However, employers should not make the mistake of believing that they are free to victimise their employees, as this is not the case.

For example, in the case of OCGAWU obo Fex & Others vs Highway Motors (2004,3 BALR 369) three employees raised a number of complaints with the employer. Thereafter, the employer reduced their working hours to 24 per month and hired new employees to perform the work on a full-time basis. The three employees referred this to the CCMA as an unfair labour practice (suspension). The CCMA held that the employer had unfairly victimised the three employees and ordered the company to pay each one the equivalent of 12 months’ remuneration.

This case illustrates that, before employers act against employees in any way, they need to get expert advice from a reputable labour specialist.

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

Source: Fin24

A landmark court ruling by the Constitutional Court that decriminalised the private and personal use of cannabis could leave employers in a pickle when it comes to health and safety in the workplace, experts have said.
This is because it may be difficult to determine for certain whether an employee is under the influence of cannabis or not when they come to work, which could have implications – particularly for employees performing potentially hazardous work.

The Occupational Health and Safety Act states that no person who is or appears to be intoxicated may enter or remain at a workplace. They may also not have in their possession, partake of, or offer any other person intoxicating liquor or drugs, it adds.

The exception is medicine in any form such as CBD Gummies, Vape or Liquid consumption, where the employer may only allow them to perform their duties if the side effects are not a threat to anybody’s health or safety.

Why it’s hard to test for cannabis
Gerhard Roets, Construction Health & Safety Manager at the Master Builders Association North, says the cannabis ruling left the construction industry scratching heads over how to ensure employee safety.
“In practical terms, the issue for employers is how to determine whether workers are under the influence of cannabis or not when they come to work.”

This is because the metabolism of cannabis is complex. Delta 9-tetrahydrocannabinol (THC) is the psychoactive substance in cannabis that provides the “high”.

Hemp oils derived from cannabis seeds are used medicinally – the health benefits are associated with the non-psychoactive cannabidol (CBD). But hemp products may contain some THC, which could also show up in drug tests. See the full review of the drug tests in order to know exactly what might or might not show up. Furthermore, a standard urine test just screens for the metabolites of cannabis, which can show up long after the psychoactive effects have worn off. There are rumors that, some experts who know how to clone weed are attempting to create a strand that, does not remain in the system for nearly as long. This would make it even more difficult to test for.

All this means is that a positive test may not reveal anything that incriminates the employee.

“One needs to understand that the Court’s ruling only decriminalises the possession, consumption and private cultivation of cannabis for private use in a private space. This means that employers remain responsible for providing and maintaining a work environment that is safe for all,” says Roets.

The Master Builders Association believes the main issue is that there is not an effective, standardised testing method available that can be used across industries.

“Until the testing issue is resolved, and the state of being ‘under the influence of cannabis’ is medically defined, employers will have to tread carefully,” says Roets.

But do you need a test?
Labour lawyer Michael Bagraim, also a DA MP and the party’s spokesperson on labour, says regardless of grey areas around testing, employers will have to rely on good old-fashioned observation for now – and employees should be aware that they don’t need a positive test in order to risk dismissal.

“Just like alcohol, cannabis intoxication is not acceptable at the workplace,” he told Fin24.

“On many occasions, and there have been many cases to this effect, the dismissal takes place after physical interpretation of intoxication. For instance, with alcohol you would notice slurred speech, bloodshot eyes, erratic behaviour and even breath smelling of alcohol. On the strength of the witness who notices this, a disciplinary inquiry is held and the individual can be dismissed.”

He says it is “slightly more difficult” with cannabis, but “you can palpably see if someone is intoxicated or not”.

“An eye witness is often stronger than the outcome of a positive result in a test,” he explains. “On many occasions an employee refuses a test and you cannot force someone. Also, cannabis can be detected for over a month after its use. A person might not be intoxicated but will still fail the test. A much stronger argument is an individual noticed to be intoxicated, with erratic behaviour.”

Professor Halton Cheadle, partner at specialist labour law firm BCHC, told media earlier this month that companies may have to reconsider their policies that deal with substance abuse. It’s important to review policies to ensure employers are equipped to take care of their employees’ safety, Cheadle said.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Xenophobia deters many South African employers from employing immigrants. However, many other employers are not at averse to employing aliens whether they are in the country legally or illegally.

Some of the reasons for the high number of illegal immigrants gaining employment in South Africa include:

• Job seekers from outside our borders provide potential employers with false identity documents or work permits

• Employers do not always think of asking prospective employees for proof of their right to work here

• Other employers, aware of the holes in the law enforcement system in South Africa, close a blind eye to such legal requirements because they couldn’t be bothered

• Some employers believe that an illegal immigrant will be more likely to do his/her work properly and obey the employer’s rules for fear of being reported to the Department of Home Affairs

• Illegal immigrants are often willing to accept lower remuneration than is paid to legal employees

• Employees without legal papers are often more willing to accept poor treatment, transfers to out of the way locations, extra work and not being registered for unemployment insurance

• Many skills are difficult to find in South Africa and many employers do not care whether they obtain these skills legally or illegally.

It is therefore not surprising that so many employers turn a blind eye to the law’s requirements. However, they do this at their peril because the courts have the power under the Immigration Act to repatriate illegal immigrants and to impose heavy fines on offending employers.

Immigration legislation very strictly prohibits the employment of foreign nationals unless extremely stringent, rigid and unrealistically lengthy procedures are first carried out. That is, the employer is, before employing an immigrant, required to prove that it has done everything in its power to recruit a South African into the post in question and that no such South Africans are available. By the time the employer has dragged itself through this time consuming process the foreign national with the rare skills has accepted a job in another country. These restrictive regulations are, under the latest amendments, currently becoming even more rigid and draconian.

What then must employers do when they discover that some employees are working illegally? Such employers obviously need to terminate the employment of such employees. However, what is not so obvious is how the employer should go about such terminations.

An employer cannot dismiss a suspected illegal alien before checking up on these suspicions. This is because, if the employee is incorrectly fired for being illegal, it may constitute an unfair dismissal and/or unfair discrimination on the grounds of ethnicity. This could result in the employer having to pay the employee compensation up to the equivalent of 24 months remuneration.

The wise employer’s first step is to investigate thoroughly all allegations that employees are working illegally.

Secondly, especially where the employee’s status is unclear, the employer should hold a hearing to establish the truth of the matter before firing the employee. This will give a properly qualified chairperson the opportunity to look thoroughly into the legality of the employee’s status.

Thirdly, where the hearing proves that the employee is working illegally the chairperson should end the employment relationship making it clear that this has been done purely for reasons of immigration law.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Employers are entitled to use confessions as evidence in disciplinary hearings.

However, just because an employee makes a confession this does not allow the employer to fire the employee on the spot.

This is because:

• Even where the employee does confess s/he is still entitled to a proper hearing

• The confession may have been coerced

• The employee may not have understood what he was doing when he/she signed the confession

• The act to which the employee confessed may not amount to misconduct serious enough infringement to merit dismissal.

• The CCMA might find, for technical reasons, that the confession was invalid.

We need to look at each of these factors more closely:

Even where the employee does confess he/she is still entitled to proper procedure

The Labour Relations Act (LRA) gives employees the unassailable right to a hearing and not even a confession of murder will allow the employer to deviate from this principle.

Even where the employee properly confesses to an act of misconduct it may not be a serious enough infringement to merit dismissal

Dismissal would be unfair where the employee admits to having arrived half an hour late for work especially if this is a first or second offence because dismissal must be reserved for repeated offences or for gross misconduct.

The CCMA might find, for technical reasons, that the confession was invalid

For example, in the case of FAWU obo Sotyato vs JH Group Retail Trust (2001, 8, BALR 864) the employee signed a confession that he had stolen two bottles of beer. However, the CCMA ruled out this confession on the grounds that it had not been sworn before a commissioner of oaths.

The confession may not have been made willingly

If the confession was made under duress it will not qualify as a confession at all. At best it will constitute a meaningless statement coerced out of the employee; and at worst it will act as proof that the employer was seeking a scapegoat or was trying to concoct a false case against the employee as a means of getting rid of him/her for unacceptable reasons.

The employee may not have understood what he was doing when s/he signed the confession

The employee may be asked to sign a confession document but may, for example, think he/she is signing acknowledgement of receipt of a notice of a disciplinary hearing. Should this be proven the confession will become invalid.

Confessions that are properly made and wisely used can be valuable at disciplinary hearings. The challenge for the employer is therefore to obtain the expertise necessary to ensure that once a confession is made that it sticks and is appropriately used.

Employers: beware of unfair labour practices

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Section 186(2) of the LRA defines “Unfair labour Practice” as “any unfair act or omission that arises between an employer and an employee involving-

(a) unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee);
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 on account of the employee having made a protected disclosure defined in that Act.”

The word “unfair” is mentioned several times in the above definition. For example, under part (b) of the definition the section mentions “…any other unfair disciplinary action…” However, without an explanation of what ‘unfair’ means the entire definition of an unfair labour practice is meaningless. For example, there are many fair actions relating to discipline and many unfair ones. How do we distinguish between these? In addition to the definition of ‘unfair’ that I proposed above it is useful to examine the way in which arbitrators attempting to resolve labour disputes decide whether an act of an employer is fair or unfair.

In the case of Bosman vs SA Police Services (2003 5 BALR 523) Bosman and a black female had been shortlisted as candidates for promotion. The selection committee decided that the black female should be promoted for reasons of population group representivity. However, the committee was unable to prove at arbitration:

  • That the appointment of the black female would have promoted representivity and
  • That the black female was the best suited candidate

In the light of this the arbitrator found that the failure to promote Bosman was unfair and ordered the employer to promote her. The ‘unfairness’ decision here was made on the basis that:

  • Bosman had been proven to be the best candidate and therefore had the right to be promoted and
  • The decision to promote the black female was inappropriate because she was not the best candidate and there was no proof that her promotion would have served the purpose of affirmative action.

At the root of many “unfair” practices is the employer’s attempt to gain something. There is nothing wrong per se with an employer gaining something, as long as the employee or job candidate does not lose out unfairly as a result. Thus, an employer is entitled to protect its interests or save money by disciplining an employee or changing the employee’s benefits provided that the discipline is merited or the loss to the employee is justified.

As always, the challenge for the employer is to judge when its actions are merited and justified. Due to the complexity of the law such judgement cannot be done via guesswork. Every employer must therefore obtain comprehensive and in-depth expertise in labour law via the use of a reputable labour law expert and via training of all levels of management in the application of labour law.

The meaning of ‘unfair’

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

The Labour Relations Act (LRA), born from the Constitution, provides that “every employee has the right not to be-
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.”

Section 187 of the LRA provides that a dismissal is automatically unfair if it has an unfair reason. The section then lists the reasons for dismissal that would be unfair. For example, if the employee was fired because he/she had exercised his right to take action against the employer in terms of the LRA, this retaliatory dismissal would be automatically unfair. Again, we have an example of the employer’s interference with an employee’s right being defined as “unfair”.

‘Unfair’ is one of the most frequently used terms in labour law. The CCMA receives tens of thousands of referrals each year from employees claiming unfair treatment at the hands of their employers. It is therefore most surprising that this term is not defined in any of the statutes. The result of this is that the decision as to what is “unfair” has to be made by trade unions, employees, employers, judges, arbitrators, and legal practitioners in each individual case where unfairness is being alleged.

While the legal meaning of the term ‘unfair’ is extremely illusive every employer needs to have a proper grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees.

Section 188 of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove-
(a) that the reason for the dismissal is a fair reason; and
(b) that the dismissal was effected in accordance with a fair procedure.

This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is. However, common law has established guidelines in these regards and these guidelines have been codified in Schedule 8 of the LRA. For example, item 7(b) includes a requirement that any person deciding whether a misconduct dismissal was fair must, amongst other things determine whether the dismissal was an appropriate sanction for the contravention of the rule that was contravened by the employee.

The word “appropriate” here again gives us a clue to what is “unfair”. That is, if the employer’s decision or action is inappropriate it could be unfair in labour law. The word “appropriate” in a labour law context implies that the employer’s action must be appropriate in the context of the specific situation in which the action was taken. Another way of putting this is that “the punishment must fit the crime”. If the employee is fired for a minor infringement or where circumstances reduce his/her liability a dismissal would usually be inappropriate and therefore unfair.

In summary, the act of an employer would be seen to be unfair if it is one-sided, unnecessary and/or inappropriate under the circumstances or infringes the employee’s rights. As employees have a vast number of very strong labour law rights employers need to ensure they understand these rights. They need to avoid taking any action affecting employees before checking with their labour law expert that it would be safe to take such action and how to go about it.

Be prepared for con-arb at the CCMA

By Ivan Israelstam, chief executive of Labour Law Management Consulting

The CCMA hears over 180 000 cases a year. This can result in backlogs and delays in resolution of disputes. As a consequence the law provides for a speedier dispute resolution process called con-arb, which stands for conciliation-arbitration.

Regardless of whether con/arb is applied the process always begins with conciliation. This is a peace-making process whereby a CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement and a quick resolution of the dispute. The conciliating commissioner has no authority to make an award (judgement).

On the other hand arbitration is a judicial-type process that usually occurs if a conciliated settlement is not achieved. At arbitration the employer and employee do not negotiate an agreement. Instead, they bring and present evidence as in any court case so that the arbitrator can make a finding.

Con-arb is when, instead of scheduling the arbitration for a later date, it is held on the same day, the very minute that conciliation fails! Thus, the parties have no time after the conciliation meeting to prepare their evidence and arguments for the arbitration!

Therefore, on receiving any con-arb notice a party who does not want con-arb must lodge a formal objection at least 7 days in advance of the set hearing date. However, such an objection will not be valid if the dispute concerns an unfair dismissal relating to probation or an unfair labour practice relating to probation.

As mentioned, the purpose of con-arb is to cut down drastically the time period between conciliation and arbitration. It could also have the effect of forcing the parties to make every effort in trying to settle the matter at conciliation. This is because they are aware of the arbitration that will take place immediately conciliation fails.

It is essential for employers and employees who receive con-arb notices to:

• Realise straight away that it is a con-arb that has been scheduled
• Understand what con-arb means for them in practice
• Begin immediately with preparations for the con-arb.

This is particularly so because the parties seldom get more than 14 days advance notice of a con-arb.

The parties need to enter into intensive preparations the moment they receive a con-arb notification because:

• 14 days is very little for purposes of preparation
• The parties have to prepare for both conciliation and for arbitration
• Preparation for arbitration in particular takes a great deal of time.

Included in these preparations should be:

• The preparation of the witnesses of truthful, relevant and accurate testimonies
• Collecting and preparing documentary and other evidence
• Responses to anticipated evidence that the opposing party could bring
• Preparation of case arguments and case law.

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