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The LAC decision was correct to overturn the arbitrator’s ruling.
The common cause facts in the case were that Mothlang –
• Obtained the employees’ passwords – not just once, but repeatedly each time they changed them monthly over a two-year period .
• Used the updated passwords to log in to the employer’s payroll and human resources system.
• Used the access to the system to appoint ghost employees on the system.
• Processed a signed form appointing a ghost employee which he got from one of the employees.
• Fraudulently paid the ghost employees on the employer’s system.With all these facts stacked up against them…the two employees could not explain how Mothlang obtained their passwords. The facts overwhelmingly point to their complicity in Mothlang’s fraudulent scheme. The collective weight of the facts (all undisputed) shifted the evidentiary burden onto the employees to prove it was improbable that they had shared their passwords with Mothlang. A task too far…!!
The LAC criticised the arbitrator for taking an over technical approach by dealing with the hearing as if it were a criminal trial. He ignored the compelling conclusion of guilt on the probabilities…the test for guilt in an employment setting. He instead found the employees not guilty because the employer “…were never charged in relation to the condition of their [passwords] but were charged for actual theft” but had charged them with “actual theft”.
No, it would not have excused him from bypassing the internal dispute resolution procedures before resigning. The purpose of the grievance procedure is to first exhaust all internal channels before referring a dispute externally to the Council. This is regardless of whether he thinks it would be futile to do so. It would defeat the purpose of the grievance procedure if an employee could simply rely on his or her subjective opinion to bypass the procedures.
Ironically, it would have helped Matjan in the grievance hearing if he had produced tangible evidence, say in an email, that his employer had threatened to punish him if he lodged a grievance. And it would have been compelling evidence in his subsequent constructive dismissal case to show that he was forced to resign due to intolerable working conditions.
Yes – in addition to the LIFO criterion, the employer can select the poor performer amongst the three for retrenchment based on the criterion of skills and performance requirements. It would be safer if the employer had previously counselled the employee about his or her poor performance and could show some evidence to show the performance was sub-standard. This would help to dispel the perception that the selection was based on an arbitrary and or subjective opinion.
I agree with Michael’s assessment and conclusion.
Any form of misconduct which connects the perpetrator to his or her employer reflects on the image and reputation of that person’s employer. If the person is identified as an employee, he or she effectively represents the employer’s values and standards of conduct in his or her interactions with third parties – such as staff and customers in a supermarket. It follows that misconduct in public which would constitute misconduct in the workplace warrants disciplinary censure by the employer as if it happened in the workplace. And it could warrant dismissal if the misconduct was serious.
The principle applies equally to an employee who does something good in public which aligns with the employer’s values and standards of conduct – for example, if the person wearing the employer’s uniform spots a shoplifter and reports him to the manager, or assists a customer who suffers a heart attack in the store. The supermarket would praise the employee and think well of the employer by association.
It’s generally understood that personal and employer reputations can be harmed by negative actions and enhanced by positive actions. For this reason, it’s not necessary for the employer to “prove the disrepute”. Proof of the facts and context in which the act occurred provides the evidence.
She is clearly an independent contractor. It follows that she can’t claim deemed employment simply because she earns less than the threshold. She must first qualify as an employee to do so.
It must be calculated on the employee’s salary as it was in the years before the reduction and on the lower amount for the period after the reduction.
No – the employer has a clear right, if not a civic obligation, to report a crime such as the alleged fraudulent misrepresentation to the SAPS. It may be perceived as a “threat” to persuade the employee to sign the MSA – but it’s not unfair or unlawful if the accusation is legitimate. If it’s not, the threat could itself constitute a crime of intimidation.
In this case, the fact that the employee hastily signed the MSA in response to the threat is a telling sign that the threat was probably legitimate – and it reveals of a guilty frame of mind.
I don’t think the “zero earnings” argument is relevant. The purpose of the path to arbitration in the CCMA for job applicants below the threshold is to provide a speedy remedy for vulnerable employees who claim discrimination at the entry point of employment. This necessarily implies that “earnings” for the job the applicant applied for would have been below the BCEA threshold. The value of the earnings for the job would have been stated and known before appointment. And it could be anything from zero up to the threshold. Without this remedy, “vulnerable” applicants would have to refer a discrimination dispute to the Labour Court which has general jurisdiction over discrimination disputes – a path which is beyond the reach of most vulnerable would-be employees.
The arbitrator’s duty is to make all reasonable efforts to contact the absent party and to find out the reason for the absence. Some of the examples referred to in the question would be reasonable efforts to satisfy the duty. It would not be reasonable to expect an arbitrator to apply some of the other examples – such as establishing if the party’s electronic system was working.
No – a mother is not entitled to both 4 months maternity leave and 10 days parental leave.
The BCEA is silent on this point. But there’s an existing principle in the BCEA to the effect that two types of leave must not run concurrently: For example, Section 5(a) says annual leave and notice periods may not run concurrently with any other periods of leave or during a notice period.
And there’s another general principle which applies a “purposive” interpretation for ambiguous or conflicting legal language and provisions.
The purpose of maternity leave is to provide time off work for a mother before, during and after the birth. The longer 4-month period aligns with this purpose.
The purpose of parental leave is to provide time off for a parent on the birth of a child. The purpose of “parent” means someone other than the mother – such as a father, spouse, relative etc. And the shorter 10 day period aligns with this purpose.
Yes – I agree with Ali that it would be fair to give a harsher sanction to an employee who operates heavy machinery than to a fellow employee does a less risky job. Context matters.
However, a zero tolerance rule for the type of misconduct, regardless of the risk factor, would enforce the parity principle. This would justify the same harsh sanction for all offenders of the zero tolerance rule.
Yes the employer was correct. The correct way for the employee to complain about the unfair suspension would be to refer an unfair labour practice dispute to the CCMA or bargaining council in terms of s186(2)9b) of the LRA.
Yes a commission only employee is entitled to the statutory leave entitlements. This applies if he or she is a full time employee and not an independent contractor.
The leave periods are the same as employees with salaries. The calculation of leave pay can be based on the average commission earnings in the past 3 or 6 months.