Sexual Harassment — Liability of Employer
In Amothole District Municipality v Commission for Conciliation, Mediation & Arbitration & others (at 109) the Labour Appeal Court was satisfied that the evidence before the CCMA clearly showed that the conduct complained of was consensual, and that the employee had failed to prove sexual harassment. The employer was, in the circumstances, not liable in terms of s 60 of the Employment Equity Act 55 of 1998.
Dismissal — Dishonesty
The employees, both shop stewards, were dismissed for giving false testimony in unsuccessful unfair labour practice proceedings against their employer. An arbitrator found their dismissal to be substantively unfair, and this was upheld on review by the Labour Court. On appeal, the Labour Appeal Court found that the fact that the employees did not prevail in the unfair labour practice claim did not automatically render their witnesses’ testimony untruthful or dishonest — a finding to the contrary would have a chilling effect in that potential witnesses would be deterred from voluntarily testifying in arbitration proceedings. It accordingly dismissed the appeal (Buscor (Pty) Ltd v Ntimbana NO & others at 125).
Dismissal — Conflict of Interest
A senior municipal official had entered into a business deal with the municipality relating to the provision of accommodation to persons at her guesthouse during an annual cultural event. The Labour Appeal Court noted that senior public service employees were required to declare potential or actual conflicts of interest in terms of the Senior Management Service Handbook and the Public Service Code of Conduct and to take steps to avoid conflict. It was satisfied that the employee had failed to do so in this instance, and this justified her dismissal (Head of
Department: Sport, Arts, Recreation & Culture, Free State v National Education Health & Allied Workers Union on behalf of Masekoa & others at 147).
Dismissal — Gross Insubordination
In Masscash (Pty) Ltd t/a Jumbo Cash & Carry v Mtsotsoyi & others (at 162) the Labour Appeal Court found that the employee’s repeated, persistent and wilful defiance of his employer’s reasonable instruction amounted to gross insubordination, and justified his dismissal.
Dismissal — Breach of Employer’s Drivecam Policy
The employer’s drivecam policy prohibited its truck drivers from obstructing cameras installed in their trucks to prevent them from recording. The employee breached the policy twice and was dismissed. The Labour Appeal Court found that breach of the policy was a dismissible offence even for a first-time offender except under exceptional circumstances. The employee was aware of the policy and his dismissal was therefore fair (Reinhardt Transport Group (Pty) Ltd v National Bargaining Council for the Road Freight & Logistics Industry & others at 172).
Dismissal — Breach of Employer’s Alcohol and Drug Policy
The Labour Appeal Court, in SGB Cape Octorex (Pty) Ltd v Metal & Engineering Industries Bargaining Council & others (at 179), confirmed that an employer had the prerogative to adopt disciplinary rules establishing the standard of conduct required of employees, and that the purpose of adopting such rules was to create certainty and consistency in enforcing discipline. In this matter the employee had tested positive for smoking cannabis at work in breach of the employer’s alcohol and drug policy and was dismissed. The court confirmed that the employer had a zero- tolerance policy, and that its golden rule was that anyone who violated the policy prohibiting drug use at the workplace would face dismissal even for a first offence. The court accordingly found the dismissal to be fair.
Where the employees tested positive for cannabis use in contravention of the employer’s alcohol and drug policy and were dismissed, the Labour Court noted that the Constitutional Court had decriminalised the use of dagga in private and the right to institute criminal proceedings against individuals using dagga, but it did not offer protection to employees who contravened disciplinary codes. In this matter the employer had a zero- tolerance policy for alcohol or drug use, the employees were aware of the policy, the policy was applied consistently and it was justified because of the hazardous nature of the workplace and the employer’s duty to provide a safe working environment. The court found, therefore, that the dismissal of the employees had been fair (National Union of Metalworkers of SA on behalf of Nhlabathi & another v PFG Building Glass (Pty) Ltd & others at 231).
Disciplinary Penalty — Interference in Penalty Handed Down by Chairperson
In Augustus and Sun International (at 248) a CCMA commissioner found that, where a disciplinary appeal chairperson had issued the employee with a final written warning for alleged assault, the employer could not change the final written warning to dismissal where there was no provision in its disciplinary code permitting it to do so. Similarly, in Smith and Faurecia Interior Systems (Pty) Ltd (at 284), a MIBCO arbitrator found that, where the employer substituted an external chairperson’s sanction with dismissal without advising the employee or permitting her to make representations, the employee’s dismissal was procedurally unfair.
Employee — Determination
A radio presenter was employed by the SABC on successive fixed-term contracts to present an on-air radio programme. He was informed that his contract would not be renewed, and referred an unfair dismissal dispute to the CCMA. The commissioner found that the CCMA had no jurisdiction to determine the dispute as the presenter was not an employee. On review, the Labour Court restated the well-established criteria for determination of the existence of an employment relationship, and upheld the commissioner’s finding that the presenter was an independent contractor and not an employee (Goliath v SA Broadcasting Corporation SOC Ltd & others at 185).
Transfer of Business as Going Concern — Existence of Going Concern
When the employees were notified that their contracts of employment were terminating, they approached their employer which informed them that they were no longer employed by it as there had been a transfer of the business in terms of s 197 of the LRA 1995 some years earlier and the employees’ contracts had transferred to another entity. In unfair dismissal proceedings before the CCMA, the commissioner found that there had never been a transfer in terms of s 197 but that the employer had merely outsourced its security services as an arrangement of convenience. The applicants were therefore still its employees and had been unfair dismissed (Myeza & others and Leading Hospitality Solutions & another at 264).
Temporary Employment Service — Whether Service Provider a TES
The packaging function in the client’s business was outsourced to a service provider. The union referred a dispute to the CCMA in terms of s 198 of the LRA 1995 to determine whether the service provider was a temporary employment service. The commissioner found that the service provider was engaged to perform a service to the client and not to supply labour; it billed for products packed not people supplied; and provided the same packaging services to other businesses. The service provider was therefore not a temporary employment service as envisaged by s 198 (National Association of SA Workers on behalf of Members and Global Material Technologies SA Inc & another at 275).
Unfair Labour Practice — Promotion
The municipality’s recruitment and selection policy empowered the divisional head of workforce capacity management to authorise deviations from the policy. The Labour Appeal Court found that this power did not originally vest in the city manager, but emanated from the policy itself, and therefore that, had the city manager approved the promotion of the employee, this would have been illegal. The court concluded that the failure to promote the employee was not unfair (Ekurhuleni Metropolitan Municipality v Mabusela NO & others at 137).
In Mashaba v University of Johannesburg & others (at 156), the Labour Appeal Court confirmed that the discretion of an employer to promote is not assailable unless it is exercised capriciously or is vitiated by malice or fraud. It found that, in this matter, the failure to shortlist an unqualified candidate did not constitute an unfair labour practice.
Basic Conditions of Employment Act 75 of 1997 — Compliance Orders
Where the Director-General: Department of Employment & Labour has applied to have a compliance order made an arbitration award, the objecting employer may employ either of two processes — it may either oppose the enforcement proceedings brought under s 73 of the LRA 1995 or it may refer a dispute to the CCMA in terms of s 69(5) of the LRA (Mystra (Pty) Ltd t/a Silverton Spar & Tops v Thoka NO & others & Six Similar Cases at 204).
