Transcript Case Law Update Mr Thanduxolo Qotoyi

CASE LAW UPDATE
T. QOTOYI
The meaning of dismissal –s186(1)(b)
Does section 186(1)(b) of the LRA give rise to a
reasonable expectation of permanent appointment?
University of Pretoria v CCMA [2012] 2 BLLR 164 (LAC)
- Employee employed on a series of fixed-term contracts
for three years
- Unsuccessfully applied for a permanent position
- Employer offered her a further fixed-term contract which
she declined
The meaning of dismissal –s186(1)(b)
-
Employee lodging an unfair dismissal claim on the ground that she should have
been appointed permanently
According to the Labour Appeal Court a dismissal as contemplated in section
186(1)(b) will only arise if the following two requirements are present:
(a)
(b)
A reasonable expectation on the part of the employee that a fixed-term
contract on the same or similar terms will be renewed
A failure by the employer to renew the contract on the same terms or a
failure to renew it at all
Therefore, the section does not give rise to an expectation of permanent
appointment
The Dirks v The University of South Africa [1999] 20 ILJ 1227 (LC) and
McInnes v Technicon of Natal [2000] 21 ILJ 1138 (LC) debate finally laid to rest
Constructive dismissal
-
Asra Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others
[2012] 33 ILJ 363 (LC)
In determining whether a dismissal constitutes constructive
dismissal the following requirements must be met:
The employee terminated the contract
Continued employment had become intolerable for the employee
The employer must have made continued employment intolerable
- Employee elected to resign rather than to attend a disciplinary
hearing
- Employee not constructively dismissed
Existence of employment relationship
Mokhethi v General Public Service Sectoral Bargaining
Council & Others [2012] 33 ILJ 1215 (LC)
- An alleged offer of employment made following false
submission to employer
- Peremptory processes prescribed by the Public Service Act
(Proc 103 of 1994) not followed
- Applicant reported for work, given uniform appointment
card
- The court held that there was no contract and consequently
no employment relationship
Dismissal for misconduct
Transnet Rail Engineering Ltd v Transnet Bargaining
Council & Others [2012] 33 ILJ 1481 (LC)
- Employee dismissed for unauthorised possession of
employer’s property
- Employee raising defence of kleptomania at arbitration
- Arbitrator holding that like alcoholism, kleptomania, should
be treated as a form of incapacity
- Dismissal found to be unfair
- Award set aside and dismissal found to be fair by the
Labour Court because there was no evidence that the
employee was indeed a kleptomaniac
Consistency
Mphigalale v Safety & Security Sectoral Bargaining Council
& Others [2012] 33 ILJ 1464 (LC)
- Employee found guilty of corruption and dismissed
- Previously two employees found guilty of corruption
given sanctions short of dismissal
- Previous decisions made in error
- Employer not required to repeat decisions made in error
- Due to the seriousness of misconduct dismissal held to
be fair
Deemed dismissal-s14 of Employment of
Educators Act
Mogola v Head of The Department of Education [2012] 6
BLLR 584 (LC)
- Discharge of an educator under section 14(1) does not
constitute dismissal as defined in LRA
- Employees discharged for being absent from work for more
than 14 days
- However, an employer has to consider submissions made
by an employee in terms of section 14(2)
- Employer failed to consider the submissions
- Discharge set aside and employees reinstated
Precautionary suspension
Lebu v Maquassi Hills Local Municipality [2012]4 BLLR
411 (LC)
- The employee, a municipal manager, suspended pending a
disciplinary hearing
- Suspension not in compliance with the Local Government
Regulations for Senior Managers,2010
- Employee not given an opportunity to make representations
as per the Regulations
- The court warns against using precautionary suspension
arbitrarily
[14] “Suspension is a measure that has serious
consequences for an employee, and is not a
measure that should be resorted to lightly.
There appears to be a tendency, especially in the
public sector, where suspension is applied as a
measure of first resort and almost automatically
imposed where any form of misconduct is alleged.”
- Suspension set aside and reinstatement ordered
Benefits
Imatu obo Verster v Umhlathuze Municipality (D 644/09)
- Employee appointed in an acting capacity on two distinct periods
- Not paid an acting allowance for the first period but paid for the
second period
- CCMA aligning itself with Hospersa v Northern Cape Provincial
Administration [2000] 21 ILJ 1066 (LC) held that it lacked jurisdiction
as the employee could not prove contractual entitlement to the acting
allowance
- The Labour Court held that where an employer regularly exercises a
discretion to provide a non-contractual benefit, such a dispute may be
arbitrated by the CCMA
- An acting allowance can be a benefit even if there is no contractual
entitlement
- However, LAC decision in Hospersa still stands
Polygraph test
Sedibeng District Municipality v South African Local
Governing Bargaining Council and Others (JR 1559/09)
[2012]
- Employees not promoted after failing to pass the polygraph
test
- Polygraph test results used as a key criterion for
promotion
- No independent evidence showing that the employees
were previously implicated in some wrongdoing, or
corruption
- Exclusive reliance on the polygraph test results to eliminate
the employees from promotion held to be unfair
Discrimination
Department of Correctional Services & another v POPCRU
& others[2012] 2 BLLR 110 (LAC)
- Male prison employees dismissed for refusing on cultural
and religious grounds to remove dreadlocks
- Female employees not required to remove dreadlocks
- Employer failed to show the rational connection between
the instruction and purpose
- Dismissal constituting direct discrimination on the grounds
of gender, religion and culture and thus automatically unfair
Res judicata plea
Gauteng Shared Services Centre v Ditsamai [2012] 4 BLLR 328 (LAC)
- Employee dismissed after lodging a grievance relating to nonpromotion to a permanent position
- Dismissal unfair and employee awarded compensation
- Employee further referring a dispute on the grounds that he had been
overlooked for the permanent position because of unfair discrimination
- Employer contending that the matter was res judicata
- Court stressing that the requirements for a successful plea of res
judicata are that the same dispute between the same parties involving
the same claim and the same issue of law must already have been
adjudicated by a competent court
- Since this was not the case there was no merit in the employer’s res
judicata plea
Strike
Equity Aviation Services (Pty) Ltd v SATAWU & Others
[2012] 3 BLLR 245 (SCA)
- Non-union members dismissed for unauthorised
absence from work after joining a protected strike called
by the majority union
- Non-union members required to deliver separate strike
notices to the employer
- Failure to do so rendered their strike unprotected
- Dismissal not automatically unfair
BMW SA (Pty)Ltd v National Union of Metalworkers of SA
obo members [2012] 33 ILJ 140 (LAC)
- Union and the employer concluding a collective
agreement which required the parties to make use of
facilitation in the event of a dispute before embarking on
strike
- Only once facilitation had failed would the union be
entitled to strike
- Parties not entitled to either follow the agreed procedure
or the statutory procedure in section 64(1) of the LRA
Passenger Rail Agency of South Africa v SATAWU
(J 543/12)
- Union demanding that two managerial staff
members of PRASA be suspended
- Union also demanding that a forensic investigation
be commissioned
- Employer arguing that the first demand was unlawful
and that it had already complied with the second
demand
- Strike declared unlawful and unprotected