Month: August 2015

Can I still make a case of unfair labour practice if I have settled?

A2_bIn this article we will discuss whether, in the face of an agreement between an employer and an employee in terms of which an employee accepts a demotion to a lower position, the employee is nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication. Builders Warehouse (Pty) Ltd, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an Administrative Manager, taking into account her health and performance. Builders Warehouse (Pty) Ltd held an incapacity hearing and the external Chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The Chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse (Pty) Ltd and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse (Pty) Ltd had committed an unfair labour practice by demoting her.

The question here is whether, in the face of an agreement between Builders Warehouse (Pty) Ltd in terms of which the employee accepted demotion to a lower position, she was nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states the following:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepts demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

In conclusion, it is clear from the Builders Warehouse case that, although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

Bibliography

  • Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC
  • Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Me, my neighbour and that tree

A1_bThe house was just perfect – the right neighbourhood, well-established garden, beautiful trees waving graciously in the summer breeze with just the right amount of shade next to your swimming pool and veranda. And as the trees are those of your neighbour, no problem with pruning or the leaves, said the estate agent. You fell in love and your family loves the new home.

Autumn arrives. The leaves have changed colour and you have actually taken the competition-winning photographs right from your doorstep! When the leaves started falling, the swimming pool pump required repairs twice due to blockage and your Saturday golf has been replaced with hauling loads of leaves to the garden refuse. During the first thunder storm of the new season the wind ripped a branch off and whipped the branch through your electric fence, taking all off the wall.

The acorns made dents into your brand new pride and joy, whilst the ripe fruit falling down on your lawn has started to rot whilst you were at the beach house. You can’t wait for them to leave this weekend to jump over the fence with your chainsaw … Problems with trees from adjacent gardens are as old as townships itself and since man moved into closer proximity to each other.

To merely jump over the fence and prune, or worse, cut down the tree to your satisfaction will not only constitute trespassing but also malicious damage to property. Many disgruntled neighbour has approached the courts demanding relief. The courts have carefully considered the basis on which you can approach the court, now generally considered as “nuisance”.

You will have to prove to the court that the inconvenience caused to you by your neighbour’s tree is more than you just being fanciful, elegant or having dainty modes and habits of living.  The inconvenience caused must materially interfere with your ordinary physical comfort and your human existence.

The standard that the court will consider regarding this infringing of your health, well-being or comfort in occupation of your property, will be that of a normal person of sound and liberal tastes and habits. The test of reasonableness shall be applied taking into account general norms acceptable to a particular society. Actual damage to your property is not a requirement.

The court will, however, also consider the nuisance, even if the tree(s) is actually causing damage, balancing this with your responsibility to tolerate the natural consequence of the ordinary use of the land. In other words, the court will consider the dispute and the decision will involve balancing the competing interests of you and your neighbour.

The judgement of Judge De Vos in Vogel vs Crewe and another 2003 (4) SA 50 (T) raised a further very important aspect – the environment.

In a world where trees and nature are considered all the more important for our well-being and that of the earth, all the more careful consideration should be taken before a demand for the cutting down of a tree is granted.

Judge De Vos noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen. And, like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance.

With our increasing awareness of the importance of protecting our environment, we need to become more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours, and consequently, the neighbours’ trees.

Before you sell your property and move to another neighbourhood altogether, consider a friendly discussion with your neighbour and his pruning company of choice, from YOUR side of the fence.

Explain to your neighbour which branches of which trees are problematic or show him the cause for your concern. And be willing to reach an agreement somewhere in the middle, taking the type of tree, its form of growth and the balance of the tree into consideration. It will not suffice to demand the removal of a large branch unbalancing the tree which will then fall over during the next storm taking down your wall!

If all your efforts, including friendly letters and e-mailed correspondence fall on deaf ears, you are allowed to prune all branches as from the point that it protrude over the wall into your property. You are not allowed to lean over the wall to cut those branches at the neighbour’s side of the wall. You will also be responsible for removing the branches from your property after you have pruned the tree in this manner.

So take your cup of tea, and have a good, impartial look at that “offending” tree. See the insects, the birds fluttering around and the odd lizard. Tranquil, is it not? Must that tree go, or can you tolerate its existence, maybe with a little pruning? Cutting it down, you might just open a view into your neighbour’s garden (or house), which is even less pleasing!

Consider the environment. Tolerate that tree. In the summer you will relish the shade.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Claims from the Road Accident Fund

A3_bIn terms of current legislation, the Road Accident Fund (RAF) is entitled to offer undertakings or guarantees to a Plaintiff who is in the process of instituting a claim against the Fund. The fact that an undertaking is offered instead of a traditional lump sum payment has certain positive and negative aspects to it. It is important to know when to accept or reject certain offers from the Road Accident Fund.

In terms of Section 17(4) of The Road Accident Fund Amendment Act[1], there are 2 categories of undertakings that can be offered by the Road Accident Fund.

Firstly, in terms of Section 17(4)(a) of the Act, an undertaking may be offered by the Road Accident Fund when the Claimant has a claim for medical expenses. When the Claimant has actually paid the amount required for whatever treatment was needed, the Fund will refund the proven amount. In terms of Section 17(4)(a) the Claimant has no option as to whether the amount may be accepted or not and when the Fund makes an offer in terms of future medical costs, it has to be accepted by the Claimant.

In terms of Section 17(4)(b), the Road Accident Fund is entitled to make an offer to the Claimant for an undertaking to pay the Claimant’s future loss of earnings. Payment would only be suspended when the Claimant reaches his predicted retirement age, or if the payments are made to the deceased breadwinner’s dependant. The payment will cease when the dependant’s right to maintenance is suspended.

This type of undertaking differs from the type as mentioned in terms of Section 17(4)(a), however, as the Claimant or his/her representative is not obliged to accept the offer that is made by the Road Accident Fund. There must be consensus between the Road Accident Fund and the Claimant regarding the content of the undertaking and the instalments paid to the Claimant must then reflect the agreement that was reached. This was established in the case of Coetzee v Guardian National Insurance Co Ltd.[2]

In this regard it is important to note that it is often advantageous for the Claimant if an initial lump sum is paid instead of an undertaking for the payment of a periodical amount. When future loss of income is paid in terms of a periodical payment from the Fund, payments will be terminated if the Claimant dies. This would be different if an initial lump sum was paid, because even if the Claimant dies before the predicted date, as future losses are calculated, the Fund will not be able to have any amount repaid to them by the Claimant. Of course this will benefit the Claimant’s estate and family, as a bigger amount will be paid than where an undertaking was made.

The benefit of accepting an offer by the Fund is that the Fund will be more likely to make a settlement offer to the Claimant when it is done in the form of an undertaking. This will be preferred by the RAF as it will have a lesser impact on the Fund’s cash flow. The important thing to consider is that a fair settlement should be negotiated between the RAF and the Claimant, bearing the aforementioned factors in mind.

It will be beneficial for a Claimant to appoint an attorney to make sure that the Claimant receives fair compensation from the Fund.

[1] Road Accident Fund Amendment Act 19 of 2005

[2] Coetzee v Guardian National Insurance Co Ltd 1993 (3) SA 388 (WLD)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Public Nuisances: Legal rights in terms of legislation

A4_bPersons who commit disruptive acts of unacceptable behaviour in public places may be warned, arrested and subsequently prosecuted by the authorities. The offender shall be liable for a fine, imprisonment or both upon conviction. How is this enforcement of our rights achieved by an ordinary citizen?

A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience or welfare of a community.[1]

Legislation offers relief in this respect, in specific by-laws of local Municipalities. A by-law is a law that is passed by the Council of a municipality to regulate the affairs and the services it provides within its area of jurisdiction[2]. A municipality derives the powers to pass a by-law from the Constitution of the Republic of South Africa.

With regards to Public Nuisances one would look to By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007[3]. The main body of this by-law lists certain acts that are deemed prohibited behaviour and are therewith criminalised. Various acts including begging, using abusive or threatening language, being under the influence of drugs or alcohol and causing a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound are listed therein.[4]

Should anyone and his conduct fall within this definition and perform any or multiple prohibited acts of public nuisance, the authorities are to be alerted immediately. The authorities have the power to instruct the offender to immediately cease the offending behaviour, failing which he will be guilty of an offence.

Section 23 states that any person who contravenes or fails to comply with any provision of this by-law or disobeys any instruction by the authorities enforcing this by-law, shall be guilty of an offence. This offender shall be liable to a fine or imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

It is therefore evident that by identifying certain acts of unacceptable, aggressive, threatening, abusive or obstructive behaviour of persons in public the offender may be ordered to immediately cease such offending conduct or be arrested for not complying with any order to do so. 

Reference List:

  1. http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  2. http://legal-dictionary.thefreedictionary.com/Public+Nuisance
  3. http://openbylaws.org.za/
  4. https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[1] http://legal-dictionary.thefreedictionary.com/Public+Nuisance

[2] https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[3] http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/

[4] Section 2 By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

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