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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.
I agree with Michael … it is very hard to pin down a precise definition of “part of the organisation”. At best I believe it would require the application of the dominant impression test:
Quote from John Grogan’s Workplace Law 13th edition
The LAC has accepted that the ‘dominant impression’ left by the contract and the actual working relationship is the final determinant of the legal nature and consequences of the relationship.
The ‘dominant impression’ test means what its label implies: the contract and relationship built on it must be examined as a whole to determine whether the impression left looks more like an employment relationship than like something else.
While it is impossible to compile an exhaustive list of ‘factors’ to be taken into account, the more significant are the employer’s right to select who will do the work, the power to terminate the relationship, the employee’s obligation to work for a given time and for certain hours, whether remuneration is paid for time worked or for a particular result, whether the employer provides the employee with tools, equipment and office space, and whether the employer has the right to deploy the employee as it sees fit.
“The provision that the date of dismissal shall be the date on which the employee left the service of the employer, if earlier than the date of termination of the contract, appears to contemplate a situation in which the employee left the service of the employer before the expiry of any notice which might have been given. It also means that employees who left their work because of intolerable conditions, and then subsequently resigned, are deemed dismissed on the date they left work [Helderberg International Importers v McGahey NO (2015) 36 ILJ 1586 (LC)].” Grogan J Workplace Law Juta 2020
From this quotation from John Grogan’s book, I suggest that the date of dismissal is the date on the on which the employee was physically present at the employer’s premises.
In circumstances where the employee is not routinely working from the employer’s premises, I think that the most likely approach for identifying the date of dismissal would be to identify the last date on which the employee actually provided work.
INGRID LEWIN
Although the decision in Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd (LC1105/10 dated 11 November 2011) relates to a unilateral change to terms and conditions of employment, it suggests that an employer can either retrench an employee in terms of section 189 or lock out an individual employee if the employee refuses to accept a demand on a matter of mutual interest. Therefore I think that Section 187(1)(c) would apply to an individual employee.
Ingrid DevilliersIf the relief that the employee seeks is likely to impact on the employer then the employer must be joined. Like any other proceeding, however, the employer can choose whether to defend the action or let it go by default or gives notice that he/she/it is prepared to accept the arbitrator’s award without defending the case. There is nothing compelling an employer to participate, However, by not doing so, the employer risks an award against it by default.
INGRID LEWIN
CAN RETRENCHEES WAIVE THEIR RIGHTS TO SEVERANCE PAY?
This is a difficult question. I think I would tend to agree with Michael unless an employer could invoke the contractual claim of “impossibility of performance”. Or in terms of a suspensive condition in the retrenchment agreement that the employer will pay the severance when in a financial position to do so adding that the employer agrees to full disclosure of its financial position monthly.However, a practical way to address the issue of severance where the employer simply does not have the money, is to enter into a mutual termination agreement (along the lines of Patrick’s suggestion) with the employee (so that the employee can claim ordinary unemployment insurance benefits) on terms that as soon as the employer is financially able to do so, the employer will re-employ the employee on the same terms and conditions without loss of service. On this basis, the termination would not amount to a dismissal as defined in the LRA because the termination would be by agreement.
Ingrid Lewin
Perhaps it is the use of the word “power” and “require” that may be causing confusion. As I understand Section 20 (10), if there is no agreement (and I agree with Cameron that, first and foremost, an attempt should be made to get agreement), then the employer can decide, ie has the final say, as to when leave should be taken and section 20(10) enables the employer to do this. I understand the Covid-19 regulation, when it uses the word “require”, to mean that, in the circumstances of Covid and the restrictions placed on employees working at the employer’s premises, the employer, having tried to reach consensus and getting agreement, can then exercise his/her discretion and “require” the employee to use their annual leave if they have to stay at home (without working) due to Covid. Obviously if they are working from home, they must be paid their full salary unless there is agreement to the contrary (see Macsteel Service Centres SA (Pty) Ltd vs. National Union of Metal Workers of South Africa and others (2020) 8 BLLR 772 (LC)).
INGRID LEWIN – FORCED TAKING OF LEAVE
The directive regarding the Covid 19 TERS scheme sets out the following as its purpose:
“2.1 To make provision for the –
(a) Payment of benefits to workers who have lost income or have been required to take annual leave in terms of section 20 (10) of the BCEA due to the Covid 19 pandemic.”
In the early stages, I recall a statement of the Department of Employment and Labour urging employers not to force employees to use their annual leave but rather to apply for TERS benefits. From this, and the purpose of the fund as described in the directive (above), I have understood that employers can require their employees to take paid annual leave and can claim for a reimbursement of some of the money from the TERS fund which has now been extended to 15 March 2021.
In UASA obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020) the employer compelled employees who did not participate in a five month strike to take accrued and future annual leave and then deducted remuneration equal to the non-statutory days to which they were entitled in terms of their contract of employment. The Labour Court determined that Section 20(10)(b) of the BCEA gives an employer a discretion to determine the time when employees take annual leave under the Act, when this hasn’t been agreed, but the BCEA does not give the employer that same discretion in respect of additional leave granted over and above the statutory minimum entitlement.In my view the CCMA was right according to Karan t/a Karan Beef Feedlot v Randall [2012] 11 BLLR 1093 (LAC), where the Labour Appeal Court held that where there is a normal or agreed retirement age and the employee has reached that age, the employer enjoys protection from that date and is entitled to terminate the employee’s contract on the grounds of age at any time thereafter.
INGRID LEWIN
I agree with Michael. The real reason for the dismissal was for operational requirements and not due to their age as that horse bolted when they were kept on after the agreed or normal retirement age. Thus, if the operational requirements procedure was not followed they would, at the very least, have a claim for a procedurally unfair dismissal.
INGRID LEWIN
