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I totally agree with Ali. The latest ruling from the Labour Court in this regard lends support to it. See NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) which held that it does not matter that employees used dagga in private, that they posed no danger on the day they tested positive for dagga, that their period of employment was not insignificant or that they had a clean disciplinary record. Where the employer has consistently applied a ‘Zero Tolerance’ alcohol and drug policy due to its hazardous workplace and its duty to provide a safe working environment, dismissal will be fair.
The employer was wrong because the existence of a suspension does not prevent the lodging of a grievance.
Like Patrick, I believe the employee’s version (that the pill given by the employer was the cause of his drowsiness) is more probable than that of the employer.
If I was representing the employee I would argue as follows.
• The definition of “dispute” includes an “alleged dispute”
• The employee has the right to refer any dispute or alleged dispute to the CCMA.
• The clause in the contract which prohibits the employee from referring his dispute to the CCMA is unlawful in terms of section 5(3) of the LRA and therefore it is unenforceable.In City of Johannesburg v SAMWU & others (2009)5 BLLR 431(LC), the initial demand by the union was for two managers to be suspended for interfering with certain test results, this was later changed to a demand for suspension in accordance with due process and in a manner not constituting an unfair labour practice. This demand was accepted by the court as not being unlawful. Management had, on receipt of the strike notice, asked the court to declare the intended strike unlawful. The court did not agree, finding that the modified demand made by the union was not unlawful.
On this basis, I would argue that the “threat” is not unlawful if there is a justifiable reason for their demand and that their demand was not for the factory manager to be dismissed without a hearing. In these cirumstances, therefore, the employees cannot be disciplined for making the threat. However, if they were demanding a dismissal without a hearing, that would be unlawful.I agree with Michael save to add that the wording of the contract a between contractor and its employees will be decisive as to whether this is a change in work practice or a change to terms and conditions of employment. (Per Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (“NUMSA”) & others) [2012] 6 BLLR 544 (LC))
In its current form Item 12.6 is obligatory and, as per the preamble (Item 2(4)) employers are only allowed to deviate from the “non-obligatory” provisions of the Code for good reason.
However, experienced labour lawyers are in agreement that an interpretation of Item 12.6 making “accommodation” compulsory cannot be sustained legally and that, provided an employer has fulfilled the requirements for a fair incapacity termination and can prove that it is incapable of accommodating the employee in another position, despite its best efforts to do so, the dismissal would be fair. Whether commissioners and judges will rule along these lines remains to be seen. Another tack may be for employers to go the operational requirements route arguing that, for economic reasons, it cannot accommodate the employee and enter into a section 189 consultation process. I have little doubt, though, that should Item 12.6 find its way to the Constitutional court, it will be found to be unconstitutional in that it impinges on the economic rights of the employer
The definition of workplace will depend on the facts of each case. Different operations may be different workplaces only if they are operationally independent. The pivotal concept is independence.
For me, the critical question and the evidence I, as an adjudicator, require to prove knowledge or awareness of the rule has always been: At the time that the employee committed the offence, did he or she know that what they were doing would attract disciplinary action and what the likely sanction would be. It then rests on the employer to adduce evidence to prove, on a balance of probability that:
• at the time the employee committed the offence, they knew that, if caught, they would be disciplined; and
• at the time the employee committed the offence, they knew what the likely sanction would be.There was no basis for the employer to not restore the accountant’s salary. The fact that the employer is saying the reason for not restoring the accountant’s salary is because the accountant’s normal salary was “too high” indicates that the agreement for the reduction was abnormal for everyone and that the intention was to restore everyone’s salaries once things normalized post lockdown.
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In order to be disciplined the accountant must have know or ought to have known that by opening the email he would be disciplined. Thus, If the accountant knew, before he opened the email what it contained and that he was not authorized to read the content and that he knew, by doing so, he would face disciplinary action, then, yes, he should be disciplined. Otherwise, no.The person who should be disciplined for gross negligence is the Financial Manager for making the mistake which has had consequences.
In response to Anna’s question I would like to add that the impracticality that could lead to the possible decision not to reinstate the employee must relate to something other than the employer providing less favourable conditions than those which prevailed prior to the transfer.
Reinstatement, on the same terms and conditions as prevailed at the time of the transfer, would be the primary remedy unless:
(a) the employee did not want to be reinstated; or
(b) evidence is adduced to prove that:
a. the new employer’s provision of conditions at work that are substantially less favourable than those provided by the old employer have rendered further employment intolerable; or
b. it is not reasonably practicable for the employee to be reinstated.
c.
The dismissal cannot “necessarily” be regarded as a constructive dismissal.
Reinstatement, on the same terms and conditions as prevailed at the time of the transfer, would be the primary remedy unless:(a) the employee did not want to be reinstated; or
(b) evidence is adduced to prove that:
a. the new employer’s provision of conditions at work that are substantially less favourable than those provided by the old employer have rendered further employment intolerable; or
b. it is not reasonably practicable for the employee to be reinstated.
c.
The dismissal cannot “necessarily” be regarded as a constructive dismissal.As far as I know, there is no legal obligation on an employer to re-employ a retrenched employee. If the consultation process ends in an agreement in terms of which the employee agrees to the six-month re-employment clause, he/she would be bound by that and would have no claim to re-employment after the six months expires. However, should the employer employ someone else into the position of the employee during or after the expiry of the six months, and the employee can prove, because of that, that there was no fair reason for the employer to retrench him/her, then the employee could refer an unfair dismissal claim in the ordinary course and the arbitrator / judge would determine whether the dismissal was fair or not and whether re-employment was the appropriate remedy in the circumstances.
I agree with Michael with the following addition. The critical fact is that the notice period had not expired and therefore the contract of employment had not yet terminated when A’s duties were changed to that of “odd jobs”(see Mthimkhulu v Standard Bank of South Africa [2021] 1 BLLR 86 (LC) which held that the contract of employment in a resignation situation terminates when the notice period expires). Therefore, unless (as Ivan points out) there is another fair reason for retrenching A instead of B, LIFO must apply.
However, I think (but am not totally sure about this) the position might be different if the notice period had expired AND THEN the employer agreed to keep A on with a change in job requirements. Surely B could argue that A was re-employed in terms of a new, albeit tacit or verbal contract, and because A’s (and not B’s) new position had become redundant, A’s position could be terminated for operational requirements as he would have been employed in terms of a new contract and would therefore be considered to be LAST IN.
