Substantive Fairness in Dismissal

(Source: IR Network LexisNexis)

South African Commercial, Catering and Allied Workers Union obo Maribe / Flamingo Casino – (2019) 28 CCMA 8.37.5 (CCMA) also reported at [2019] 4 BALR 433 (CCMA).

Subject Matter Classification:

Substantive fairness in dismissal – Misconduct – Racist language – Employee warning colleagues that they faced dismissal because they were black after colleague dismissed by white presiding officer – Dismissal fair. 

Mini Case Summary:

The applicant employee was dismissed for declaring while defending a colleague in a disciplinary hearing that “this is a racist issue” and telling employees afterwards that they faced dismissal because they were black. The employee denied making a statement about a racist issue during the disciplinary hearing but admitted that he had told employees afterwards that they faced disciplinary action because they were black.

The Commissioner accepted that the employee had uttered the words “this is a racist issue” and had also told employees that they faced dismissal because they were black. There was clearly a link between the two comments. The employee had not been charged with racism, but with uttering comments which clearly had racist connotations because they were uttered immediately after an employee had been dismissed by a white presiding officer. Moreover, the applicant had previously been warned for making racially charged comments. Dismissal was, accordingly, appropriate in the circumstances.

The dismissal was upheld.

The Future of Work

“The future of work is being shaped by two powerful forces: The growing adoption of artificial intelligence in the workplace, and the expansion of the workforce to include both on- and off-balance-sheet talent.” (Source: Deloitte Insights)

The Future of Work is a current debate around how new technology and global changes will impact three aspects of our work environment. What work will be done (the work), who will do the work (the workforce) and where will the work be done (the workplace).

  • The Work
    We are already seeing artificial intelligence and other technologies (including robotics) make in-roads into the traditional processing and repetitive tasks of the past. This substitution of repeatable tasks will over time most likely push human interventions into areas involving problem-solving, communication, listening, interpretation, and design.
  • The Workforce
    Traditional models of companies engaging permanent, long term workforces in fixed locations have made way for flexible working models with greater use of managed services and outsourcing; independent contractors; gig workers and crowdsourcing.
  • The Workplace
    Digital communication, collaboration platforms and digital reality technologies, along with societal and marketplace changes have already made it easier for teams to be distributed rather than in fixed physical locations. We have already seen industries with bricks and mortar pulling back and closing branches/retail outlets to cut overheads and adapt to changing conditions.

In South Africa, we have a couple of pre-conceived ideas that because we tend to be a semi-skilled labour market the debate around the Future of Work should only be the preserve of specific skilled and wealthy industries and even then; are only future questions and shouldn’t impact our current approach to work, the workplace and the workforce. 

For the next couple of editions of our reporter, we are planning to explore some of the issues/questions raised by the Future of Work and consider how these are pertinent to our organisations today in South Africa.

Business Intelligence Tools and HR

Modern technology offers businesses essential tools to better interrogate data to improve decision making. HRTorQue is working with a number of BI Tools to improve the quality of data available to CFOs and HRDs in the workplace.

Consider these scenarios:

  • You are sitting in an EXCO meeting having presented your HR Strategy and your CEO asks you for specific data on the impact of absenteeism on the business and why it isn’t a key part of your strategy. He/she then follows up with a question on whether your main operating facility workforce is more efficient this year than last. These are key question to your strategy, but you didn’t manage to get all the data before you came to EXCO. By not having the figures handy you undermine an otherwise strong presentation. A BI Tool gives you access to dashboards that you can easily change to interrogate data real time.
  • Your CEO wants to understand how workforce efficiencies have improved over time, what the actual cost of different cost centres is and how variable pay elements (commissions/overtime) relate to actual company sales and performance. His/her hope is to quickly identify where cost creep has occurred and identify whether employment costs are aligned with actual company performance. Usually this analysis would take a few weeks and would include involving finance and operations with ongoing worries about leaking sensitive payroll data. A BI Tool allows you to interrogate more quickly the data from multiple systems to easily answer and stress test this type of analysis.
  • You are tasked with running your employment equity reporting and have no idea how good your existing data in your payroll system is. Instead of re-creating the report or running into troubles at the last minute when you have to change for missing data, a BI Tool allows you to easily analyse and track missing or incomplete data making the filing considerably easier.

Having worked on these platforms for clients, there is no doubt these tools are essential for top management as a way to easily get a response to critical questions, but also importantly to use actual data to make decisions as opposed to people’s viewpoints or speculation. Pooling data from different systems (finance, payroll, ERP) is relatively easy to do meaning more time gets spent on asking the right questions as opposed to gathering data.

Proactive HR

What do you mean by “proactive HR”?

For many employers, HR is largely reactive. Responding to events within the organisation as they arise – grievances, high levels of absenteeism, collective action, operational performance issues. By the time issues escalate to this level it requires significant management attention to resolve.

The concept of proactive HR looks to identify and deal with HR issues before they become problematic and use up senior management time. 

We do this in a number of ways:

  1. We use a series of tools to identify “problem” areas before they escalate. This includes analysing data to identify employees who are disillusioned, not engaged or potential trouble-makers. We then, together with local management, proactively manage these employees before bigger issues arise. In our experience, HR ends up looking fantastic through this process because it allows them to:
    – Clearly show senior management where they are adding value;
    – Impress local management with their ability to see into the organisation (and keep them on their toes); and
    – Improve local management performance by identifying and coaching those local managers who were aware of an issue, but were not sufficiently skilled or proactive to manage their team themselves;
  2. Through daily experience with employee arbitrations, we know that employers tend to win matters consistently when they have the right documentation in place, have gone through a proper process with employees and are fair in their dealings with employees. The second pillar of proactive HR is therefore to get the basics right. This can be done at reasonable cost by just following a few easy steps and in the long run results in significantly lower senior management involvement, time and cost.
  3. The majority of collective employee disengagement, frustration and conflict stems from poor or no communication in the organisation. This is often a more difficult area to get the right balance. We use a number of tools to improve HR communication. This makes HR more visible to all and helps to identify bigger issues before they become problems.

If you would like to know more about proactive HR and how HRTorQue can help, please feel free to contact us at [email protected].

ConCourt Ruling

An Employee is not entitled to make representations prior to a suspension.

On 19 February 2019, the Concourt ruled in Long v South African Breweries that it is not a requirement for an employer to allow an employee to make representations prior to a suspension where the suspension is precautionary and not punitive. In reaching this conclusion, the ConCourt considered the fairness of the suspension and whether the employee is prejudiced in doing so.

Basics of Managing Misconduct, Incapacity and Poor Performance

Course in Zulu

Following feedback from clients, HRTorQue is running a series of workshops in Zulu on managing misconduct, incapacity and poor performance. For more information please contact us on [email protected]. While the course material is in English, the workshop will be held in Zulu and aimed at improving an understanding of the key areas.

The workshop is open to all Zulu-speaking individuals who are involved at a basic level in managing staff and need to identify areas of misconduct, poor performance, and incapacity. The workshop is most suitable to individuals at a supervisory level who can speak English but would gain a better and fuller understanding of the requirements if facilitated in Zulu.

If you would like us to set up specific course for your teams, whether in Zulu or Sotho, we can look to arrange this.

Changes to the Labour Relations Act

The Labour Relations Amendment Act, 2018 was amended in November 2018 to include provision to:

  • Increase the period the Minister has to extend a collective agreement to non-parties from 60 to 90 days and the agreement shall only be extended if parties are sufficiently represented within the scope of the council;
  • Provide criteria for the Minister before the Minister is compelled to extend the collective agreement;
  • Provide for the renewal and extension of funding agreements;
  • Provide for picketing by collective agreement or by determination by the Commission in terms of picketing regulations;
  • Provide for the classification of a ratified or determined minimum service, where minimum service refers to the minimum number of employees in a specific essential service who may not strike;
  • Extend the meaning of ballot to include any voting by members that is recorded in secret with regard to registered trade unions and employer’s organisations;
  • Make way for the establishment of an advisory arbitration panel to deal with long and violent strike action in the interest of labour stability.

It will be interesting to see whether the amendments will improve the position of smaller businesses. In the past many unrepresented businesses have been forced to apply collective bargaining arrangements which have at times entrenched the positions of larger businesses better able to afford the collective conditions.

Paid Paternity Leave – Misleading

Together with the NMW Bill, three other bills were also signed into law on the same day in November 2018. These are the Labour Laws Amendment Bill, amendments to the Basic Conditions of Employment Act, and the Labour Relations Amendment Bill.

The most important aspect of the Labour Law Amendment Bill is that it allows for all parents, including fathers, same-sex couples, adoptive and surrogate parents, to access leave as follows:

  • An employee, who is a parent of a child, is entitled to ten consecutive days of parental leave;
  • An employee, who is an adoptive parent of a child below the age of two, is entitled to:
    • Adoption leave of at least ten consecutive weeks; or
    • At least ten consecutive days of parental leave
  • An employee, who is a commissioning parent in a surrogacy agreement, is entitled to:
    • Commissioning parental leave of ten consecutive weeks; or
    • At least ten consecutive days of parental leave.

The Labour Laws Amendment Act, 2018 also amends the Basic Conditions of Employment Act, 1997 to insert new definitions and make provision for parental, adoption and commissioning parental leave to employees.

It should be noted that a collective agreement may not reduce an employee’s entitlement to parental, adoption or commissioning parental leave.

In addition to this, the Unemployment Insurance Act, 2001, was also amended to make provision for the right to claim parental and commissioning parental benefits from the Unemployment Insurance Fund.

Practical Application:

While the legislation is clear on what was intended in relation to parental leave in practice the reporting by national newspapers has lead to a difficult situation for employers.

It was widely reported that employees would be entitled to paid paternity leave. We can assume reporters did understand the distinction that the “paid” element would be through claiming UIF, as opposed to employers having to foot the bill. Nevertheless, this has created an expectation of payment which cannot be met until the Department of Labour claims processes and the Unemployment Insurance Amendment Act and BCEA are amended to allow applicants to actually claim for this leave. In the interim, we recommend employers communicate internally their approach to paternity leave and look to amend their internal policies when practical to do so.

Alcohol in the Workplace

The year is coming to an end and with this comes the celebrations and functions that are either held at the employer’s premises or off site. Either way the question often arises as to what, if any, the employer’s obligations are when providing alcohol at these functions.

In terms of the OHS Act General Safety Regulation 2A. Intoxication.

  1. An employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
  2. No person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.

Employee ‘intoxication’ is a major concern and you will note that the OHS Act has placed upon employers the duty of prohibiting persons to enter or remain at a workplace who appear to be under the influence of intoxicating liquor or drugs.

These restrictions, together with COIDA and the implications of a possible injury on duty, have legal implications for employers and you should ensure that not only is it vital that these provisions be communicated to all employees, but that you keep a record of these communications. Employers should be in a position to demonstrate that they have made an effort to try and manage employees’ conduct around alcohol consumption, or preventing them from driving when over the legal limit or in an intoxicated state during these functions.

At social functions on the employer’s premises, the employer should ensure that employees have ‘signed off duty’ prior to commencement of the function. This will avoid any possible claims of ‘injuries on duty’, and consider the following steps to reduce possible liability:

  • Advise employees regarding the desired behaviour during work functions. This could include the employer limiting the number of drinks for the duration of the function.
  • Providing access to breathalyser tests.
  • Place a disclaimer in the area or pub.

Whilst year-end functions should be occasions to unwind and relax with colleagues outside of the normal working environment, both employers and employees still have certain responsibilities around their conduct, and would be expected to consider that both interests are not negatively affected.

Unfair Discrimination – What is the Burden of Proof?

Author: Tanya Mulligan (Cowan Harper Madikizela Attorneys www.chmlegal.co.za)

Introduction
In the recent reportable case of Sasol Chemical Operations (Pty) Ltd v CCMA and others (29 August 2018) ZALCJHB 2680/16, the Labour Court evaluated the evidentiary burden placed on employees who contend that they have been subjected to unfair discrimination during their employment. The employee referred a dispute to the CCMA wherein he alleged that his remuneration was disproportionate to the Grade in which he was employed by Sasol. The employee, in his referral form, made no mention of either an equal pay dispute or discrimination based on race and merely requested that his remuneration be corrected in line with his Grade.

The Arbitration
During the arbitration proceedings, it transpired that the employee earned substantially less than a white co-employee, who held the same position and performed the same duties. In view of the evidence led the Commissioner considered the dispute to be an equal pay dispute, culminating in a claim of unfair discrimination based on race. Sasol in justifying the pay differentiation argued that the “white” employee had more experience.

Although the Commissioner accepted that the “white” employee had 7 to 8 years’ experience as opposed to the other employee who only had 3 years’ experience, he held that there was no justification for the differentiation in salary. The Commissioner then found that Sasol had unfairly discriminated against the employee and ordered Sasol to adjust the employee’s salary to be the same as that of his white colleague.

The Appeal
Sasol appealed the award in accordance with section 10(8) of the Employment Equity Act 55 of 1998, as amended (“the EEA”) and contended that the employee did not discharge the evidentiary burden contained in section 11 of the EEA. Section 11(1) of the EEA states “if unfair discrimination is alleged on a ground listed in section 6(1), the employer against who the allegation is made must provide, on a balance of probabilities that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair or is otherwise justifiable”.

The question before the Labour Court was accordingly whether a bare contention of unfair discrimination by an employee triggered the employer’s onus to establish a defence or whether the employee had to present a prima facie case of discrimination.

The Labour Court, in interpreting the meaning of “alleged” as contained in section 11 of the EEA, referred to Labour Relations Law: A Comprehensive Guide (6ed 2015), wherein the authors opined as follows:- “The term “alleged” has not been consistently interpreted by the courts. It must be presumed to mean something less than making out a prima facie case, as would be required in the ordinary course with the burden of proof is not reversed. However, the weight of authority indicates that it means more than an unsupported contention or mere accusation”. The Labour Court accordingly found that a mere allegation of unfair discrimination is not enough to discharge the burden and it does therefore not shift the onus to the employer.

In this case, a claim for unfair discrimination based on race was not advanced and the employee failed to establish any link between the difference in pay and his race. To that end, the Labour Court referred to Rustenburg Platinum Mine v Bester (2018) 39 ILJ 1503 where the Constitutional Court held that the Labour Appeal Court misdirected itself by upholding a case not advanced by the employee. As the Commissioner, in this case, relied on an “unarticulated complaint”, the award by the CCMA was set aside and replaced with one that Sasol did not unfairly discriminate against the employee.

Conclusion
In order to discharge the burden of proof, employees are accordingly required to articulate and substantiate more than a bare allegation. It is also clear that Commissioners of the CCMA should be wary of unnecessarily embarking on an interventionist approach, with the aim of substantiating a bare allegation, as this may indicate a reasonable apprehension of bias.