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Yes – I agree that A takes over the employees of B in terms of S197. This is because the service which B provides has all the features of a self contained business as a going concern.
Yes – I agree that A takes over the employees of B in terms of S197. This is because the service which B provides has all the features of a self contained business as a going concern.
No it does not. There should be no question whether Amcu is a genuine union. It has over 200 000 members and, as Michael says, it does all the things which you’d expect a genuine union to do. The only thing it hasn’t done is to convene its AGM within the period prescribed in its Constitution. This is an important non-compliance issue which can be corrected. But it doesn’t detract from its status as a genuine union.
The Labour Court confirmed the double jeopardy rule in Toyota v CCMA [1] as follows –
“The established law about an employer being disallowed from interfering in the outcome of a disciplinary inquiry where the chair has the power to make a final decision, which is the crucial issue in this appeal, has, as its aim, the protection of workers from arbitrary interference with discipline in a fair system of labor relations. This principle is worthy of preservation.”
However, it indicated that an exception may apply if the Chairperson failed to follow or apply the employer’s procedures or policies properly. This is because the failure could result in an irregular outcome which in turn could cause inconsistencies in the employer’s application of discipline.
This does not give employers the freedom to hold a second inquiry simply if it doesn’t like the outcome of the first one. Nor can it replace the sanction with a harsher one unless the Chairman’s decision was only a recommendation.
[1] Toyota S.A. Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 317/10, D276/10) [2012] ZALCD 7 (6 June 2012)
No it does not. If the employee has been found not guilty in the internal inquiry it means he or she has been exonerated by the employer. The de novo rule does not entitle the employer to effectively recharge the employee on the same charges in the external CCMA arbitration. This would constitute double jeopardy for the employee.
Yes, the formal letter would constitute a progressive disciplinary warning. A reasonable person reading the letter would understand it to mean that the conduct is unacceptable and serious enough to warrant dismissal if repeated. This serves the purpose of a warning which is to alert the employee and put him or her on terms to refrain or face possible dismissal.
Question 1: There’s no specific number but the level of expectation would be high even after the first renewal. In the absence of other justifications, the renewal for a second time would almost guarantee a permanent employment status or at least further renewals.
Question 2: Previous renewals are relevant and as stated earlier, even a single renewal could be decisive.
Question 3: Factors include evidence of an employer’s oral or written statements of intention to renew the FTC after expiry; whether the FTC is on the facts a disguised permanent employment contract; whether the work is still required; whether other employees on similar FTC’s have had their contracts renewed or made permanent; whether the employer has subsequently replaced the FTC employee with another employee on FTC to do the same work.
I agree with Michael and Ingrid’s opinions. If the parties can’t agree on how much time would be reasonable in a particular case, I recommend that they convene the inquiry and request the chairperson to make a ruling on the issue. This passes the responsibility to a neutral person to make an objective decision. In so doing, it lowers the risk of an procedural irregularity.
In Private
An employee would be protected if he is found at work with a small quantity of cannabis in his pocket for personal use – because it would qualify to be “in private”. More so if the employee found a private spot out of sight from other employees and on the employer’s private property to smoke a joint…in private.Policies
However, an employer also has rights – and they have a public interest character to them. They include the interests of other employees, risks to safety, productivity etc.
And there are existing examples of how employers already limit individual rights in the workplace environment. Bans on guns or the use or possession of alcohol and drugs, including dagga in the workplace are already well accepted limitations on the rights to use them elsewhere. There’s no reason why the Con-Court judgement changes the legitimacy of such a policy just because it has added cannabis to the range of things an employee can do outside the workplace but not in it.Effects and Testing
What about an employee who comes to work after using cannabis in private before or outside the workplace? How do you test if he or she is “stoned” at work? Employers already use biological blood and urine tests to assess if an employee has consumed alcohol or drugs. Medical evidence shows that alcohol stays in the blood stream for about 24 hours and cannabis stays for much longer – for about 21 says.
And employers have practical physical tests to easily assess if an employee is “under the influence” of alcohol or other “intoxicating substances” – bloodshot eyes, slurred speech, unstable etc. But it’s not so easy to assess if an employee who tests positive for using cannabis is “under the influence”. This calls for a scientifically validated test to assess if an employee is stoned at work and thus liable for disciplinary action. Hopefully a generic test will emerge from the pending regulations.Conclusion
An employer will still be entitled to apply its existing policies and rules, including tests, which prohibit and detect the use and possession of substances such as cannabis at the workplace. If an employer does not have an existing policy, it would be prudent to formulate one in consultation with employees so there’s no uncertainty. In the absence of a clear rule, employees may test the boundaries of their new found rights by lighting up at work.October 2018
LLOT: Is legal representation allowed in Disciplinary Inquiries?There is no automatic right to legal representation in internal disciplinary Inquiries or in dismissal cases before the CCMA which concern misconduct or incapacity.
This conclusion follows by necessary implication from a precedent setting case decided after the 2005 Molope case by the Supreme Court of Appeals (SCA) in September 2013.
The Law Society of the Northern Provinces (LSNP) took the Department of Labour to task in the High Court to claim that Rule 25(1) (c) of the CCMA Rules was unconstitutional. It claimed that the Rule discriminated unfairly against attorneys’ constitutional rights concerning the free choice of their profession which denied LSNP members work.
The High Court agreed with the LSNP and declared the Rule unconstitutional and invalid. However, the SCA overruled this judgment and confirmed that the Rule is not unconstitutional. It said the LSNP’s complaint that the exclusion deprived attorneys of work was not a valid reason to find the Rule unconstitutional. It follows from this judgement that the same reasoning would apply to internal disciplinary inquiries. In other words, it is not unconstitutional to exclude legal representation in inquiries.
However, this is not the final word on the right to legal representation. The Supreme Court of Appeal in two cases found that the Chairperson of an inquiry has the discretion to decide whether legal representation should be allowed in a particular case. This is despite a condition in an employer’s Disciplinary Code and Procedure which prohibits legal representation…as most do.
The SCA said the Chairman may deviate from the Code, not only because a Code is a guideline, but also because as a matter of fairness and justice, the need for flexibility to allow for legal representation is required to meet the constitutional imperative of fairness. The Chairman must consider the factors set out in Rule 25 (1) (c) in exercising the discretion.
I agree that the representative can be an external person. There are several reasons for this view.
Firstly, the LRA makes no reference in the body of the Act to representation in disciplinary or incapacity inquiries – except the need to inform a union when one of its shop-steward is facing an inquiry. However,the LRA Code of Good Practice: Dismissal (Schedule 8) fills the gap by stating that an employee “…is entitled to the assistance of a trade union representative or fellow employee” [Section 4 (1)]. The effect of creating this limited right of representation and restricting it specifically to a union representative or fellow employee, is that it necessarily excludes someone, such as an external lawyer, who is not a union rep or fellow employee.
Secondly, and unlike inquiries, the LRA does make specific reference in the body of the Act [s189(1)(d)] to representation in retrenchment consultations. This gives it more legal “force” compared with inclusion only in a practice. Also unlike inquiries, it does not restrict representation to only union representatives and fellow employees. There must be a reason for this deliberate difference. It must be that representation is not restricted to internal persons. And by implication, it does not exclude external representation.
Thirdly, the rationale for the differences can be explained by the differences between the reasons for disciplinary and incapacity inquiries on the one hand and the reasons for retrenchment consultations on the other. The reasons for the former have to do with the fault or the incapacity of the employee. The reasons for the latter have to do with the operational needs of the employer – not the fault of the employee. For this reason, the right to external representation in a retrenchment consultation serves as an appropriate counter-balance to the employer’s significant right to effect changes in its business for operational reasons which could lead to job losses.
I disagree with the notion that the labour broker continues to be an “employer” in any capacity after its employee is deemed to be an employee of its client after three months of employment. If this were the case, the labour broker would effectively continue to be a “co-employer” or “dual employer” with the client after deeming.This would perpetuate the traditional triangular relationship, albeit in a more limited way, after deeming. It was precisely this relationship which the ConCourt rejected in the Assign judgement in so far as it applies to employees below the threshold.
In doing so, it cut the broker out of the triangular relationship which exists between the broker, the employee and the client after deeming. In my opinion, the supposed retention of the dual employer relationship despite the “sole employer” ruling after deeming on the basis of the court’s reference “for the purposes of the LRA” is unsustainable.
The labour courts have a well established tradition of interpreting and applying the labour laws in a “purposive” way. The idea is to cut through the technical legal arguments and the range of possible interpretations to identify and apply the real purpose for which the particular the law was intended.
In the Assign judgement, the court identified the real purpose of the deeming provision is to provide a measure of job security for vulnerable employees below the BCEA minimum threshold. It applied this purpose by ruling that the client becomes the “sole employer” after deeming.
If it had intended to limit the scope of the deemed employment relationship only to the LRA and to thus retain the broker in the triangle for the purposes other than for the LRA – for the BCEA etc – it would have said so. The fact that it did not, does not sustain the argument that the dual employment relationship continues alongside the sole employment relationship which the court ruled is the real purpose of the deeming provision.
Apart from the legal considerations, the retention of the employee’s “limited dual relationship” with the broker simultaneously with his or her “full sole employer” relationship with the deemed employer would be impractical to manage and would inevitably lead to a range of new disputes.
The deemed employer could retain a relationship with the broker after deeming – not as a dual employer – but as an outsourced contractor to provide payroll and other admin services for the deemed employees. In this sense, although the Assign judgement cuts the broker out as an employer of deemed employees below the threshold, brokers are free to adapt their relationships from employer to service providers.
In this way, they can continue their relationships with their clients in commercial relationships. They can also continue as labour brokers for employees below the threshold if the jobs are genuinely temporary – and if the employees earn more than the threshold. To this extent, I agree that the Assign ruling certainly does not “ban” labour brokers – but it does exclude their continued role as an employer in the triangular relationship where vulnerable employees below the threshold are concerned.
I think it’s “good”. Free market instincts incline me to simply allow the forces of supply and demand to determine the price of labour. But this Darwinian “survival of the fittest approach” only works in more or less equal societies. They exist in both a successful socialist countries system, like Sweden and Norway, and in successful free market countries like the US and the UK.
SA is neither of these – it’s a bit of both. We have enclaves of seriously successful businesses operating on free market principles in a massive sea of unemployed and desperate people. There’s a dangerous tipping point in this equation which we dare not push too far. If not quick fix solutions, there must at least be buffers to manage the discontent lest it tip us into chaos.
The NMW provides a modest buffer. It’s significant, not just for its money value – but also because it signals a message that society cares. A caring society offers hope – which feeds endeavour. And it’s a small handbrake on the “race to the bottom” in which the price of labour is driven to exploitative poverty levels by the oversupply of labour. We all strive for personal progress – and we all value our personal dignity. The NMW signals a small step to realise these basic human needs. .
Patrick Deale
