Would you like MyLawyer to contact you? Please complete the fields below.

Tag: Labour Relations Act

The employer’s responsibility in workplace harassment

July 11, 2022 / / Comments Off on The employer’s responsibility in workplace harassment

This article will briefly discuss the common law option available to employees who are exposed to a form of discrimination in the workplace, specifically sexual harassment and the employer’s failure to adequately address the issue.  The focus of the discussion will be on a recent High Court case, Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack.

The Plaintiff, a former Municipality employee, was sexually assaulted by her immediate supervisor. The work environment became unbearable for the Plaintiff and she could no longer cope due to Post Traumatic Stress Disorder she experienced. Accordingly, the Plaintiff resigned from her position at the Municipality.

According to section 186(1)(e), read with section 191 of the Labour Relations Act, 66 of 1995 (“LRA”), the conventional remedy afforded to an employee in a similar position would be a constructive dismissal claim that can be lodged at the CCMA. The essential feature of a constructive dismissal is that the employee terminates the employment relationship due to the intolerable nature thereof. The decision of the employee is not entirely voluntarily as it is caused by the employer’s actions and/or omissions. Even though the employee makes the decision to resign, it is still seen as a form of dismissal.

Section 6(3) of the Employment Equity Act, 55 of 1998 (“EEA”) provides that sexual harassment is seen as a form of discrimination and, therefore, an employee would also be entitled to the remedies afforded by the Act, which includes a claim for damages and compensation.

Notwithstanding the aforementioned conventional remedies, the Plaintiff pursued a delictual claim sourced in common law.

The plaintiff’s claim for damages consisted of past and future medical expenses, past and future loss of income, general damages, and contumelia in the sum of R4,028,416.80. The issues of liability and quantum were separated, and the court was first asked to determine whether the employer and the perpetrator are liable, jointly, and severally, to pay the damages.

In the first judgment, the court found that the employer and the perpetrator were liable to pay the Plaintiff such damages as she may be able to prove she suffered in consequence of the sexual harassment.

In determining the quantum, the court looked at the facts of the matter, specifically the impact of sexual harassment in the workplace and the employer’s decisions after becoming aware of the offence.  The court criticised the employer for the inadequate manner in which it handled the matter. The employer, on contentious legal advice and without any satisfactory reason, took a decision not to suspend the perpetrator. Furthermore, the employer elected to instruct the perpetrator to rather remain at their Klipplaat office and not have any contact with the plaintiff, who was based in the Jansenville office. In addition to failing to ensure that the perpetrator did not have contact with the plaintiff, the employer also failed to prioritise disciplinary proceedings against the perpetrator. A hearing was only held more than half a year after the harassment. The enquiry chairperson recommended a sanction of two weeks’ unpaid suspension.

The employer raised legal arguments in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) to avoid liability, which the court rejected.

The court concluded that the employer had failed in its legal duty to protect the Plaintiff from further trauma occasioned by any interaction with the perpetrator pending the disciplinary enquiry. The court, referring to Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC), where it was held that the employer had effectively supported the harasser by not sanctioning him, found that the stance adopted by the employer demonstrated a disturbing lack of appreciation of its legal obligation to have provided the Plaintiff with a safe working environment. As a result, the court found the employer and the perpetrator to be jointly and severally liable, the one paying the other to be absolved, to pay the damages to the Plaintiff in the amount of R4 million.

What is also noteworthy to mention is that subsequent to the aforesaid judgment, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was gazetted on 18 March 2022, which serves as a guideline for employers when dealing with harassment in the workplace.

As outlined in the aforementioned judgment, employees who are subject to discrimination in the workplace, which are not adequately dealt with by the employers, will be eligible for not only the conventional claims contained in the LRA and EEA but also for delict. The employee will thus be able to decide on which grounds to pursue their claim.

Employers have a duty to all employees to show respect to victims of discrimination that occurs in the workplace and to provide a safe working environment. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has been enacted to provide guidance to employers to ensure that these cases are dealt with adequately. A delictual claim will also be available to employees who are exposed to other forms of discrimination in the workplace, as listed in the EEA.

Reference List: 

  • Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack (2021) 42 ILJ 1545 (ECG)/ (2021) 32 SALLR 6 (ECG) REPORTED CASE.
  • PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG).
  • Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC).
  • Labour Relations Act, 66 of 1995.
  • Employment Equity Act, 55 of 1998.
  • South African Labour Law Reports 2021 37th Annual Seminar-B van Zyl.

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. Errors and omissions excepted (E&OE)

Is depression a ground for discrimination?

May 18, 2022 / / Comments Off on Is depression a ground for discrimination?

In a matter of Legal Aid South Africa v Jansen, the Labour Appeal Court had to decide whether the Employer’s decision to dismiss Mr Jansen, who was struggling with depression and continued being absent from work a result thereof, was fair. Mr Jansen argued that his behaviour was a result of his deteriorated mental health.

Mr Jansen commenced his employment with Legal Aid South Africa during 2007. In 2010 he was diagnosed and treated for depression. Over the following years,  Mr Jansen was absent from work on numerous occasions, which he attributed to his depression.  Mr Jansen would take unauthorised leave and eventually he received a final written warning for it.

As his condition deteriorated, he continued to be absent from work without following his employer’s leave policy. He was eventually charged with being absent for 17 days, breaching his employer’s policy, showing insolence towards a superior, and insubordination by refusing to fulfil his duties. Mr Jansen pleaded guilty to the offences. However, he justified his actions on the basis of his deteriorated mental health. Legal Aid South Africa, however, proceeded to dismiss him.

Mr Jansen proceeded to challenge the fairness of the dismissal on two grounds. Firstly, he argued that it was unfair in that he was discriminated against on the grounds of disability (in terms of section 187(1)(f) of the Labour Relations Act,66 of 1995) and argued it to be an unfair discrimination case in terms of the Employment Equity Act, 55 of 1998.

The Labour Court (LC) found that Mr Jansen had proven a prima facie case and held that he was unfairly discriminated against after hearing the evidence of his clinical psychologist, who testified and explained his mental condition.

Legal Aid South Africa appealed the decision to the Labour Appeal Court (LAC). The LAC took into consideration that even though Mr Jansen had admitted to the transgressions, he, nevertheless, maintained that his behaviour was a direct result of the depression. The depression, he argued, obscured his ability to conduct himself in such a manner where he could appreciate the wrongfulness of his behaviour, which consequently effected his self-control.

The LAC confirmed that incapacitating depression is a form of illness that places a duty on the employer to implement the procedures set out in items 10 and 11 of the Code of Good Practice.

The LAC held that dismissal for reasons of misconduct would be inappropriate and substantively unfair in the event that it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions. Instead, the employer ought to approach the issue in terms of incapacity or an operational requirements perspective. Conversely, it can also be a mitigating factor if an employee’s depression does not impede on their cognitive and conative abilities. Their depression may, nevertheless, diminish their culpability. According to the LAC, the onus lies with an employee to prove the claim that their depression impacted their conative ability.

Regarding the automatic unfair dismissal claim, the LAC held that,

“for an employee to succeed in an automatically unfair dismissal claim based on depression, the question is different. Here the inquiry is not confined to whether the employee was depressed and if his depression impacted on [sic] his cognitive and conative capacity or diminished his blameworthiness. Rather, it is directed at a narrower determination of whether the reason for his dismissal was his depression and if he was subjected to differential treatment on that basis. Here too, the employee bears the evidentiary burden to establish a credible possibility (approaching a probability) that the reason for dismissal was differential treatment on account of his being depressed, and not because he misconducted himself.” 

Even though Mr Jansen suffered from depression, he had failed to construct a plausible case to prove that his acts of misconduct were caused by his state of depression. The clinical psychologist who treated Mr Jansen could also not place any evidence before the court that his depression caused the acts of misconduct. Accordingly, The LAC upheld the appeal, and the decision of the LC was set aside and substituted with an order dismissing the application.

Therefore, based on the approach of the LAC, if it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions, then dismissal for reasons of misconduct would be inappropriate and substantively unfair. Depression can also serve as a mitigating factor in certain circumstances. The onus, however, to prove the direct link between the illness and the misconduct, is on the employee.

Reference List:  

  • Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC)
  • Labour Relations Act, 66 of 1995
  • Employment Equity Act, 55 of 1998
  • South African Labour Law Reports 2021, 37th Annual Seminar. Author: B van Zyl.

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. Errors and omissions excepted (E&OE)

What is a reasonable expectation of renewal?

June 29, 2021 / / Comments Off on What is a reasonable expectation of renewal?

An employee has been employed on a fixed-term employment contract for a number of years. Each consecutive year, the fixed contract is renewed at the election of the employer. After the fixed contract expired, the employer decides not to renew the employee’s contract. Is the employee entitled to a renewal of the fixed-term employment contract based on previous renewals?

Section 186(1)(b) of the Labour Relations Act (“the Act”) makes provision that one of the definitions of a dismissal is that an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it at all. The requirement that such expectation of the employee must be reasonable is one of the most important considerations and will be dealt with in-depth hereunder.

In terms of case law, the Labour Court held that the purpose of the above section of the Act is to prevent the unfair practice by employers of keeping an employee on a temporary basis, without employment security such as pension and medical aid until such time as the employer wants to dismiss the employee without complying with the obligations imposed by the Act in respect of permanent employees.

“Rolling over” a contract is when a fixed-term contract is continuously renewed by the employer after the expiry of each term. It is not against the law or forbidden for an employer to renew such a contract once or twice but, when a contract is rolled over for a third or fourth time, the employee may develop a right to expect that the employer will continue to renew the contract. In other words, the number of times that a fixed-term contract has been rolled over may contribute towards an expectation of another similar contract after the natural expiry of the last contract.

The employee’s expectation of renewal is open to the interpretation of the Courts and may depend on the facts in the circumstances. In Malandoh v SABC, the employee was employed on a renewable fixed-term contract, which was rolled over for eight consecutive periods. The employee was then informed that it would not be renewed again. It was found that the contract itself created no expectation of renewal. On the other hand, in Thiso & Others v King Sabata Municipality, the employer’s refusal to renew fixed-term contracts after it had automatically renewed them for four consecutive years, was held to constitute a dismissal.

In Dierks v University of South Africa, it was decided that, in determining whether an employee has a right of reasonable expectation, the following factors are to be taken into account:

  1. the significance or otherwise of any contractual stipulation;
  2. undertakings by the employer;
  3. the practice of the employer with regard to the renewal of employment;
  4. the availability of work;
  5. the purpose of concluding the fixed-term contract;
  6. failure to give reasonable notice; and
  7. the nature of the employer’s business.

The above list is not exhaustive and other factors may also need to be considered.

In University of Pretoria v CCMA and others, the Labour Appeal Court was faced with a decision on whether section 186(1)(b), mentioned above, extended to include the expectation by an employee of permanent employment? The applicant in this matter was employed by the university on a number of fixed-term contracts for three consecutive years. During this period, the employee applied for one of several permanent positions that the university had vacant but was unsuccessful in her application. She was, however, offered another fixed-term contract of employment but failed to accept the contract and opted to refer the matter to the CCMA as an unfair dismissal in terms of section 186(1)(b). The Court noted that specific reference was made to fixed-term contracts only. According to the Court, the legislature opted to specifically limit this right of expectation to fixed-term contracts and that the expectation of permanent employment cannot be dealt with under the current section 186(1)(b) unless the Act is amended.

With the above-mentioned in mind, it may, therefore, be prudent for you to discuss your situation with a labour specialist that can review your circumstances and fixed-term contract and advise you on the correct steps going forward.

Reference List:

  • The South African Labour Guide
  • University of Pretoria v CCMA and Others (LAC) (unreported case no JA38/2010, 4-11-11)
  • Dierks v University of South Africa (J399/98) [1998] ZALC 126
  • Malandoh v SABC [1997] 5 BLLR 555 (LC)
  • King Sabata Dalindyebo Municipality v Commission for Conciliation Mediation and Arbitration and Others (P437/03) [2005] ZALC 47

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. Errors and omissions excepted (E&OE)

Constitutional rights and the limits of vaccination policies

April 19, 2021 / / Comments Off on Constitutional rights and the limits of vaccination policies

The distribution of a COVID-19 vaccine is seen as a fundamental component to ending the pandemic. However, mandatory vaccinations in the workplace should be treated with caution by all employers. As it stands, there is currently no legislation in South African law that specifically requires an employee to be vaccinated against COVID-19.

As a point of departure, the Occupational Health and Safety Act mandates all employers to provide and maintain a working environment that is safe and without risk to the health of their employees. In the same breath however, the National Health Act states that a health service, which includes the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat the person will result in a serious risk to public health.

Invariably, the question that now arises is whether an employer may, after considering these two pieces of legislation, enforce a compulsory vaccination policy in the workplace.

The South African Constitution states unequivocally that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over one’s body. The Constitution, however, also limits the right to bodily and psychological integrity to the extent that it is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom. In essence, an employer’s obligation to ensure a safe and healthy working environment must be balanced with the employees’ constitutional right to bodily integrity when determining whether there are justifiable grounds to limit the right.

Furthermore, section 5(2) (c) of the Labour Relations Act bars an employer from prejudicing an employee for the employees’ failure or refusal to do something that the employer may not lawfully permit or require the employee to do. Similarly, section 187(1) (f) of the Labour Relations Act prohibits dismissals that discriminate against employees based on their religion, conscience, belief or culture. A similar prohibition is also contained in section 6(1) of the Employment Equity Act, which is also stands as a safeguard for employees.

In light of the aforementioned legislative framework, a court of law may be hesitant to uphold an employer’s decision to dismiss an employee for refusing to subject themself to a COVID-19 vaccination. Therefore, it stands to reason that, an employer has an extremely limited scope to enforce a vaccination policy in the workplace. A challenge that an employer will have to face is the ability to provide the court with compelling reasons that, under the circumstances, the rights of the employee to refuse the vaccine are outweighed by other constitutional rights such as the right to a safe environment or the right to life by way of an example.

In conclusion, there is no current legislation in South Africa that permits an employer to enforce a vaccination policy in the workplace or to dismiss employees for their refusal to be vaccinated. Therefore, as a general rule, an employee may not be dismissed for his or her refusal to be vaccinated. Employers do, however, have a limited scope to deviate from this general rule and may implement a vaccination policy in the workplace, provided that compelling reasons for its implementation exist. Employers are however, advised to do so with caution and to obtain expert advice before the implementation of such policies. Employers are encouraged to motivate employees to agree to be vaccinated through means of education as opposed to coercion. At My Lawyer we have a number of labour law experts who will gladly assist both employers and employees in this regard.

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. Errors and omissions excepted (E&OE)

Unbearable working environments

March 12, 2020 / / Comments Off on Unbearable working environments

Constructive dismissal is defined as a situation in the workplace, created by the employer, that renders the continuation of the employment relationship intolerable to the extent that the employee has no other option but to resign.

In CEPPAWU & another v Glass & Aluminium, the Court explained it best, stating that constructive dismissal involves a resignation due to the work environment becoming intolerable for the employee as a result of conduct on the part of the employer. Section 186(1)(e) of the Labour Relations Act (“LRA”) states that in circumstances where an employee terminated a contract of employment, with or without notice, because the employer made continued employment intolerable, the termination of the contract would constitute a dismissal.

In Pretoria Society v Loots, the Court referred to Jooste v Transnet Ltd t/a SA Airways and stated that the first requirement of an employee is to prove that the sole motive behind the resignation was the employer’s intolerable conduct. In addition to the above, the employee must prove that the employer was solely responsible for the intolerable conditions and that there was no other way of resolving the matter.

There have been many referrals of constructive dismissal to the CCMA that have not succeeded. Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessments, being overlooked for promotions are all examples of referrals that have not succeeded in the past, as the employee cannot prove the employer’s sole responsibility for the intolerable work conditions.

There are, however, some instances in which employees have succeeded, e.g. a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee. In Van der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being demoted as a result of a restructuring exercise. The employer’s failure to consult with the employee was considered unfair and provided sufficient basis for a claim of constructive dismissal. Other matters, such as sexual harassment resulting in the employee’s resignation, may also constitute a constructive dismissal. These areas of constructive dismissal are difficult to handle as there are no “one-size-fits-all” rules. Each case is dealt with on its own merits.

In National Health Laboratory Service v Yona & Others, the Labour Appeal Court did not consider that a resignation on one month’s notice could be construed as a constructive dismissal. In Volschenk v Prima Africa (Pty) Ltd, the Court found that it was inconceivable that an employee would resign on two months’ notice if the employer had made conditions intolerable. This position should not be interpreted as establishing a general principle that resignation on notice is a bar to a claim of constructive dismissal. Resignation on notice can have a bearing on whether a resignation will be construed as constructive dismissal, especially when regarding the factors the employee claims made their employment intolerable.

Employers should note that while constructive dismissal may be difficult to prove, it is not impossible. Tactics like victimization, harassment and/or false disciplinary steps in the hopes of eventually getting the employee to resign, will not work. Legal advice should always be obtained from a legal professional before acting on any matter that may have an effect on the employment relationship.

Reference List:

  • CEPPAWU & Another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC); [2002] 5 BLLR 399 (LAC).
  • The Labour Guide.
  • The Labour Relations Act 66 of 1995.
  • Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC);
  • Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC);
  • Van der Riet v Leisurenet t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC);
  • National Health Laboratory Service v Yona and Others (PA 12/13) [2015] ZALAC 33; [2015] 10 BLLR 1002 (LAC); (2015) 36 ILJ 2259 (LAC) (12 May 2015);
  • Volschenk v Pragma Africa (Pty) Ltd (C414/13) [2014] ZALCCT 24; [2014] 11 BLLR 1146 (LC); (2015) 36 ILJ 494 (LC) (27 May 2014)

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. Errors and omissions excepted (E&OE)

THE ROLE OF A RECOGNITION AGREEMENT AT THE WORKPLACE

October 22, 2018 / / Comments Off on THE ROLE OF A RECOGNITION AGREEMENT AT THE WORKPLACE

I have been approached by a trade union to enter into a Recognition Agreement with them. The trade union is of the opinion that it is entitled to be recognised at my business given that they represent a certain number of employees. Do I have to enter into discussions with the trade union?

A trade union will be successful in gaining recognition at a workplace if it can prove to the employer or to the CCMA that it has sufficient representation amongst the employees. The question is, what constitutes sufficient representation?

The Labour Relations Act (“LRA”) splits “trade union representivity” into two categories:

  1. Full representivity based on a simple majority of members employed at a workplace (50% + 1); and
  2. Partial representivity based on the concept of “sufficient” representation (20% – 50%).

If a trade union can prove that its members at the workplace represent a majority of all the employees employed at the workplace, the union will be legally entitled to recognition. That is, it will be entitled to organisational rights provided for by the LRA.

These rights are:

  • Access to the workplace by a union official to meet with its members and to conduct elections.
  • Deduction and pay over of union subscriptions.
  • Election of trade union representatives (i.e. shop stewards).
  • Leave for trade union activities.
  • Disclosure of information.

If a union does not have a majority but does become merely “sufficiently” representative it only has the right to access to the workplace, deduction of union subscriptions and leave for union activities. The concept of a “sufficiently representative trade union” is not defined by the LRA, which leaves it to the arbitrators at the CCMA to decide whether the union is sufficiently representative or not.

The LRA requires that:

  1. ln order to qualify for sufficient representation, the union must be registered with the Department of Labour.
  2. Arbitrators who are attempting to establish whether a union qualifies as sufficiently representative must, in terms of the LRA, consider:
    1. The need to avoid excessive numbers of trade unions in a workplace.
    2. The need to minimise the financial and administrative burden on the employer.
    3. The nature of the workplace.
    4. The nature of the rights sought.
    5. The nature of the sector (industry) into which the workplace falls.
    6. The organisational history of the workplace or any other workplace of the employer.

If a union approaches an employer for organisational rights, the parties are required to meet to try to conclude a collective agreement. Where such meeting(s) fails to result in an agreement, the union is required to refer the dispute to the CCMA for purposes of conciliation.

It is therefore crucial for employers to be able to assess at the outset whether the trade union concerned is sufficiently representative or not. This is because, if the answer is “yes”, there is no point in refusing recognition.

Why would an employer sign a Recognition Agreement?

The purpose of a Recognition Agreement is to enable the employer to keep a tight control over the activities of the union and of the shop stewards. Without such an agreement the shop stewards can run riot. That is, they can stir up trouble and squander valuable production time dealing with union issues instead of earning the money they are paid.

Shop stewards have several trade union duties that can take them away from their normal production work. These shop steward duties include:

  • Wage negotiations. This may involve the shop steward in leading or assisting with the negotiations and in numerous preparatory and feedback meetings.
  • Hearing employees’ grievances and negotiating in this regard with the employer.
  • Representing employees at disciplinary hearings. This does not only use up time at the hearing itself. It can necessitate the shop steward spending protracted periods of time preparing for the hearing and dealing with appeals.
  • Attending training courses and conferences arranged by the trade union for purposes of developing the shop stewards’ knowledge and skills.
  • Holding meetings with members regarding union issues.
  • Representing members at the CCMA or bargaining council.

The Recognition Agreement must only contain the aforementioned organisational rights and nothing more. Anything else which the union might suggest is subject to negotiation and the employer is not obliged to accept it.

The employer should never include anything that is a management prerogative. The employer should not hand over management to the union.

References:

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. Errors and omissions excepted (E&OE)

CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

April 18, 2018 / / Comments Off on CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

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. Errors and omissions excepted (E&OE)

References:

MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani 2005 2 All SA 479 (SCA)

Ivan Israelstam “Disciplinary Hearings: When should external counsel be permitted?” – http://www.labourguide.co.za/most-recent/1295-lawyers-may-be-allowed-at-disciplinary-hearings

Molope v Mbha and Others (JR1950/02) [2005] ZALC 48 (1 February 2005)

The Right to representation – https://www.labourguide.co.za/discipline-dismissal/673-the-right-to-representation

© 2024

Theme by Anders Noren — Up ↑