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Gross dereliction is more serious in degree vs ordinary dereliction – like gross negligence is more serious vs
“ordinary” negligence. So minor vs serious. The distinction influences the degree of sanction – warning for minor vs dismissal for gross.No – the Code itself does not make vaccinations mandatory. But it does enable employers to make them mandatory. This if it’s a reasonable measure to manage identified health risks associated with Covid-19 – now listed as a “hazardous biological agent”.
The factors are expressed in the rest of the definition of a “workplace” in s213 (c) –
“If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”.
The Constitutional Court considered how these factors should be applied in AMCU v Chamber of Mines & Others (CCT87/16/ [2017] ZACC 3 (21 February 2017).
The Chamber represents mining companies in wage negotiations with NUM, Solidarity and UASA who have majority membership in the gold sector. AMCU had a majority at 5 mines but not across the whole sector. It wanted to negotiate wages for its members at the 5 mines where they had majority membership. It claimed that each mine was a “workplace”.
The employers said No. This was because AMCU’s members were bound by the collective agreement covering the whole gold sector in terms of s23 (1) (d) of the LRA.
The CC agreed with the Chamber and earlier rulings of the LC and LAC on this point. It said that the primary factor is “functional organization” – “location” is a secondary factor.
A workplace is where employees work collectively. It’s not a place where a single employee works. And it may be a single location or a number of locations. The factors to determine the “functional organization” of an operation are the independence of the operation and its size, function, and organization.
On the facts of the AMCU case, the CC found that the 5 mines at which AMCU had majority membership, were not independent operations. Each mining company constituted a single industry-wide workplace. This was even though some of the companies had concluded separate recognition agreements with AMCU at individual mines,
No. The court would most probably find that the employer acted reasonably when it applied its mandatory vaccination rule. This assumes that the employer first consulted with employees about the intention to introduce to rule. And that it provided options to accommodate those who choose not to be vaccinated.
The court would consider the generally accepted science and government assurances that vaccinations are safe. And, that it’s a reasonable measure for an employer to adopt to comply with its general duty of care to provide a safe and healthy working environment.
The employee could submit a claim against the Workman’s Compensation Fund. But this too is doubtful. The Commissioner could rely on the same defence as the employer.
The Fund will not pay compensation if the employee “…unreasonably refuses or willfully neglects to have medical treatment”. The mandatory vaccination rule could be considered as acceptable preventative “medical treatment”.
Yes – they are protected by basic labour laws such as LRA fixed term contracts, BCEA minimum conditions and health and safety regulations. But they’re probably not protected against unfair dismissal.
The LRA only excludes military and state security employees – s2. The BCEA s3.1 also excludes state security employees but also merchant shipping employees and unpaid volunteers serving a charitable cause.The BCEA does apply “…to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law” s1 (2). So, if a trainee or intern is not covered by any other law, such as those for medical interns, they’re covered by labour laws.
S198B (3) of the LRA implies the existence of an employment relationship. It says “…an employer may employ an employee on a fixed term for longer than three months or on successive fixed term contracts.” Labour laws apply when there’s an employment relationship.
One of the justifiable reasons for fixing the term of a contract and renewing it is when the employee is a “student or recent graduate” who’s hired to get work experience. So, if they’re not soldiers, sailors, volunteers or trainees covered by a specific training regulation – they’re covered by labour laws.
Yes, it would be a valid defence. The test to determine the validity of the defence would be an objective one: Would a reasonable person in the employee’s position have understood the rule and the consequences of a breach? If the answer is “no” – the defence would be valid. If it’s “yes” – the defence would not be valid.
Question (a): No – the Financial Manager can’t refuse to restore the Accountant’s salary. He was not entitled to reduce his salary without good reason or prior consultation. The reduction would constitute a unilateral change of a condition of employment. After he has restored the salary, the Financial Manager would be entitled to consult with the Accountant about the apparent salary misalignment. If the Accountant accepts the reduction, the issue would be resolved. If he rejects it, the Financial Manager could proceed with the s189 procedure to correct the misalignment.
Question (b): No – he can’t discipline the Accountant for simply reading the email. The Accountant was apparently an innocent party when he received and read the email. He could be disciplined for misconduct if he then shared the confidential email with others who were not entitled to see it.
Yes – the employer would in my opinion be entitled to dismiss them. At the moment, there’s no specific law which expressly permits or prohibits a mandatory vaccination rule. Nor has there been a test case in the CCMA or the Labour Court on whether and in what circumstances, a dismissal for refusing to comply with a mandatory rule would be fair or unfair.
However, the trend towards science-based mandatory vaccinations at national and global levels will undoubtedly accelerate. So it’s reasonably safe to bet that the weight of public interest and policy will far outweigh the weight of individual constitutional rights. They are not unlimited.
An employer can legitimately introduce a mandatary vaccination rule. This requires a proper OHSA workplace risk assessment, reasonable measures to accommodate vulnerable employees and consultation with relevant stakeholders. If so, the rule would be reasonable in the interests of the greater good. And it would justify dismissal of employees who refuse to take the jab.
Individual resisters will increasingly be marginalized from social events, public gatherings and the workplace. In the end, they will have to bear the consequences of their personal choices.
uoesy statute is is an opinition
The employer would be protected. The purpose of the 6 month right of first refusal is to demonstrate that the employer had a genuine need to retrench the employees.
The practice of including a preferential re-employment clause in retrenchment agreements probably had its origins in retrenchment negotiations with unions. The practice found its way into the LRA as one of the issues for consultation between management and employees in the s189 retrenchment procedure.
This is evident from s189(3)(h) of the LRA. It requires an employer to consult with relevant parties and to provide information about –
” the possibility of future re-employment of the employees who are dismissed.”
This creates a statutory obligation on an employer to at least consider the possibility of including a re-employment clause in the retrenchment agreement. It does not make it compulsory to agree to such a clause -nor does it specify a period.
Six months has become the accepted norm as a reasonable period. If parties agree to six months or a shorter or longer period – they’ll be contractually bound by it. Neither party to the contract would have a right to reduce or increase the period without the other party’s consent.
Yes – the resignation did “expire”. The employer waived the right to terminate A’s employment during the notice period.
They both impliedly agreed to continue the employment relationship with no fixed term – so indefinite employment resumed. The only difference in the continuation was A’s changed “odd job” role instead of his previous management role. This was effectively a demotion by mutual agreement.
As a permanent employee, A enjoyed the full protection of labour laws. This included the right to a fair retrenchment procedure.
I disagree with the view that LIFO was justified to bump B out of his job simply because A had longer service. A had impliedly waived his right to the managerial job and had accepted his demotion. It would be unfair to revive A’s right to his old managerial job at B’s expense.
The employer would not have hired B to replace A when he resigned. A made a choice – and he should be bound by it. He can’t expect the employer to hire B and then retrench him because A’s plan to emigrate did not go as planned.
The phrase is not intended to be a formal legal definition of who is an employee. The formal definition of “employee” is contained in the LRA definitions.
Instead, the phrase is used in the context of one of 7 factors to consider when assessing whether a person is “presumed” to be an employee based on circumstantial evidence. Evidence of any one or more of the factors would be enough to prove the existence of an employment relationship.
The factors appear in both s83A of the BCEA and S200A of the LRA. They serve as a set of indictors which could create the “general impression” that an employment relationship exists between the person and the organization.
Some practical examples which could indicate that a person is “part” of an organization are if the employee has a company email address, uniform, petrol card, direct office phone extension number, name-tag etc.
On the facts as presented – no it won’t succeed. The employment relationship terminated on the contractual date of retrenchment. The CEO can’t unilaterally vary the contract by extending it. The employee was still employed on the date on which the VSP became due and payable. So the employer would be contractually obliged to pay it.
However, the wording of the provision in the retrenchment contract apparently reserved the employer’s right to discipline employees for misconduct committed during the notice period. If so, this may produce a different conclusion.
The provision may have made payment of the VSP conditional on the employee refraining from acts of misconduct during the notice period. If so, the finding of guilt after the contractual termination date could be still be valid. This is because the misconduct was committed during the notice period – precisely as the contract anticipated.
This would entitle the employer to withhold payment of the VSP. The entitlement would derive, not from the employment contract, but from the retrenchment agreement. For this reason, there would be no need for the CEO to “extend the employment relationship” beyond the date of retrenchment.
He for the employer could simply enforce the provision in the retrenchment agreement to the effect that payment of the VSP is conditional on the employee refraining from acts of misconduct during the notice period.
It would be the last day on which the employee “performed work for the employer”. It would make no difference if the reason for stopping the performance of the work was the employer’s instruction or the employee’s decision. At the core of the employment relationship is the employee’s duty to perform the work (or tender to perform it) – and the employer’s recipricol duty to pay for the work performed (wage or salary). It would constitute a breach of the employment contract if either of them failed to perform their respective duty. The effect of the breach would be to terminate the employment contract. The date of the breach would be the date of dismissal.
No, 187(1) (c) does not apply to the individual in this situation. The purpose of the automatically unfair dismissal provisions is to deter employers from dismissing employees for exercising their fundamental constitutional rights. The rights to freedom of association and to strike are relevant examples in this case study. These particular (collective) rights can only be protected if they are exercised by a registered representative union – and if the proper procedures were followed. These were the factors which existed in the Avenge case.
They would not exist in the case of an individual who is not represented by a registered union and is not party to a collective bargaining process. He or she would not be exercising the right to freedom of association or to strike. It follows that his or her dismissal for refusing to accept a change in conditions of employment would not be covered by s187(1)(c). It would instead be covered either by Section 185 (the right not to be unfairly dismissed) or by Section 189 (the right not to be unfairly dismissed for operational reasons).
Yes – the LAC probably did get it right. I say “probably” because the decision was made on a very technical interpretation of the inter-relationship between sections 41(2) and 84 of the BCEA. Section 41(2) specifies severance pay as 1 week for each year of completed service. Section 84 defines “continuous service” for the purpose of calculating the amount of severance pay. It says “continuous” service means uninterrupted service with one employer. But it allows a break in service up to a maximum of 12 months.
Barrier’s employment continued seamlessly after he reached the retirement age of 65. He was retrenched 4 years later and accepted a VSP. His severance pay was calculated for the period after the retirement age and to the date of retrenchment. He reserved his rights to claim severance pay for the period before his retirement as well. The CCMA arbitrator said he was entitled to the period before retirement.
The Labour Court disagreed. It said the period before retirement age did not count because his employment contract had ended on the reaching retirement age.
The LAC said this was wrong – it concluded that both periods before and after the retirement age should be counted. This was because it was “continuous” service as defined in section 84. The employer was ordered to pay severance pay for the period before and after the retirement date.
It is notable that the reason for termination in this case was retrenchment. So the LAC’s focused correctly on the interpretation of the BCEA sections in the retrenchment situation. But what if the reason for termination was not retrenchment – but simply notice of termination for reaching the retirement age? Sections 41 and 84 would not be applicable. There would be no need to consider issues of continuous service or severance pay calculations. This may be a viable and cheaper option for employers?
