Workplaces and Bargaining Units: They Co-exist in Practice, but Can They Co-exist in Law?

by | Jan 14, 2024 | ILJ, ILJ V44 I4

Workplaces and Bargaining Units: They Co-exist in Practice, but Can They Co-exist in Law?

Authors Shane Godfrey & Rochelle Le Roux

ISSN: 2413-9874
Affiliations: Honorary Research Associate, Faculty of Law, University of Cape Town; Professor, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2110 – 2138
https://doi.org/10.47348/ILJ/v44/i4a2

Abstract

The Labour Relations Act 66 of 1995 (LRA) relies on the broad concept of ‘workplace’ as the basis for both the statutory assertion of organisational rights and its application of majoritarianism. Nonetheless, many recognition agreements continue to adopt ‘bargaining units’ as their reference point. However, when there is a dispute about organisational rights, the limited legislative recognition of bargaining units becomes evident and anomalous. This article, through an historical analysis of the concept of bargaining unit and a review of recent jurisprudence, highlights the disjuncture between a ‘workplace’ as defined in the LRA and ‘bargaining units’ as they exist in many recognition agreements in many workplaces. While arguing that the LRA provides scope for a more nuanced approached to the assertion of organisational rights, legislative amendments providing greater discretion to arbitrators to recognise the realities in the workplace are explored.

Notes: The Deception of Polygraph Testing — As a Test for Deception

by | Jan 14, 2024 | ILJ, ILJ V44 I4

Notes: The Deception of Polygraph Testing — As a Test for Deception

Authors Reynaud Daniels & Jeremy Phillips

ISSN: 2413-9874
Affiliations: BA (University of Cape Town); LLB (University of the Western Cape); Director, Cheadle Thompson & Haysom Inc (CTH); BA LLB (University of Cape Town); LLM (University of Fort Hare); Associate, CTH
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2139 – 2150
https://doi.org/10.47348/ILJ/v44/i4a3

Abstract

Polygraph testing is a common tool utilised by employers to investigate suspected misconduct and maintain discipline in the workplace. It delivers a definitive answer one way or another on whether a suspected employee is guilty. However, it does not do so accurately or reliably. Experts have estimated that about half of the time, the polygraph returns a false negative, which often leads to disciplinary action, and even dismissal. For this reason, the Labour Court and Labour Appeal Court have warned against the admission of polygraph evidence, and the weight attributed to it. Despite this, commissioners (and occasionally judges) afford polygraph evidence far greater status than deserved or permitted. Its evidential yield is so negligible, and its results so unreliable, that its admission as evidence cannot be justified.

Notes: Breathalyser and Laboratory Blood Samples as Evidence for Dismissal: A Critical Analysis of Samancor Chrome Ltd (Western Chrome Mines) v Willemse & others (2023) 44 ILJ 2013 (LC)

by | Jan 14, 2024 | ILJ, ILJ V44 I4

Notes: Breathalyser and Laboratory Blood Samples as Evidence for Dismissal: A Critical Analysis of Samancor Chrome Ltd (Western Chrome Mines) v Willemse & others (2023) 44 ILJ 2013 (LC)

Author Simphiwe P Phungula

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town, LLB, LLM, PhD (UKZN)
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2151 – 2161
https://doi.org/10.47348/ILJ/v44/i4a4

Abstract

To discourage the existence of alcohol in the workplace, employers develop policies that provide for the dismissal of employees found with alcohol in their bloodstream. Some employers set the bar higher by adopting an approach that allows the employer to dismiss the employee for the mere presence of alcohol in an employee’s bloodstream. This raises several issues, focused on in this note, including, inter alia, the extent to which breathalyser results may be legally challenged; the reasonableness of policies determining the level of accepted alcohol limits in an employee’s bloodstream; as well as the reasonableness of sanctions imposed by employers.

Notes: The Exclusion of Vicarious Liability of Employers for the Intentional Unlawful Conduct of their Employees: Fujitsu Services Core (Pty) Ltd v Schenker SA (Pty) Ltd [2023] ZACC 20

by | Jan 14, 2024 | ILJ, ILJ V44 I4

Notes: The Exclusion of Vicarious Liability of Employers for the Intentional Unlawful Conduct of their Employees: Fujitsu Services Core (Pty) Ltd v Schenker SA (Pty) Ltd [2023] ZACC 20

Author Karin Calitz

ISSN: 2413-9874
Affiliations: Emeritus Professor, Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2162 – 2176
https://doi.org/10.47348/ILJ/v44/i4a5

Abstract

The question whether employers can exclude their vicarious liability for the intentional unlawful conduct of their employees in exemption clauses came to the fore in litigation between Fujitsu and Schenker. The High Court found that Schenker, whose employee stole Fujitsu’s property, was vicariously liable and that it could not be exempted by a widely formulated exemption clause not specifically including theft. The Supreme Court of Appeal and the Constitutional Court held that the exemption clause indeed exempted Schenker from liability. In light of the important policy consideration of deterrence by employers underlying the doctrine of vicarious liability, exempting employers on widely formulated non-specific exemption clauses should be regarded as being against public policy.

Workers’ Social Security in South Africa: COIDA amended

by | Jan 14, 2024 | ILJ, ILJ V44 I3

Workers’ Social Security in South Africa: COIDA amended

Author George I B Kahn

ISSN: 2413-9874
Affiliations: Human Rights Lawyer and Director at Richard Spoor Inc. Attorneys (RSI)
Source: Industrial Law Journal, Volume 44 Issue 3, 2023, p. 1395 – 1415
https://doi.org/10.47348/ILJ/v44/i3a1

Abstract

This contribution briefly outlines the history and background of workers’ compensation in South Africa, with a focus on its legal purpose and function. In doing so, the genesis of the Compensation for Occupational Injuries and Diseases Act (COIDA) during apartheid and its development into the constitutional era is considered. This includes an analysis of the latest Compensation for Occupational Injuries and Diseases Amendment Act (COIDAA) and a critique of the likely success, partial success and/or failure of the amendments to rectify some of the problems stemming from the legislation. It focuses on the elements of rehabilitation, rationalisation, restrictions, privatisation, constitutionalism, parity, decriminalisation, governance, and compliance as contained in the amendments.

Recurring Problem of Interpretation: Determining the Date of an ‘Ongoing’ Act or Omission

by | Jan 14, 2024 | ILJ, ILJ V44 I3

Recurring Problem of Interpretation: Determining the Date of an ‘Ongoing’ Act or Omission

Authors Molatelo Makhura, Jeremy Phillips & Amos Gwebityala

ISSN: 2413-9874
Affiliations: LLB (University of the Witwatersrand); Director, Cheadle Thompson & Haysom Inc (CTH); BA LLB (University of Cape Town); LLM (University of Fort Hare); Associate, CTH; LLB (University of the Western Cape); Candidate Attorney, CTH
Source: Industrial Law Journal, Volume 44 Issue 3, 2023, p. 1416 – 1431
https://doi.org/10.47348/ILJ/v44/i3a2

Abstract

The Labour Relations Act 1995 (LRA) aims to achieve the effective and expeditious resolution of labour disputes. That the LRA prescribes time periods in which disputes must be referred bears this out. Despite this, certain disputes are referred well outside the prescribed time periods without consequence as they are characterised as ‘recurring and ongoing’ unfair act or omission disputes. Consequently, our courts have grappled with the question whether an act or omission can recur and, if so, under what circumstances. This article seeks to make sense of two recent, but ostensibly contradictory, Labour Appeal Court judgments, both of which addressed the allegation that the employees suffered recurring and ongoing unfair acts or omissions. We analyse what the legal position is, or at least ought to be, regarding the date on which an alleged ongoing act or omission occurs.

Adjudicating Layoffs and Short Time

by | Jan 14, 2024 | ILJ, ILJ V44 I3

Adjudicating Layoffs and Short Time

Author Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor Emeritus, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 44 Issue 3, 2023, p. 1432 – 1443
https://doi.org/10.47348/ILJ/v44/i3a3

Abstract

Disputes arising from the introduction of short time or layoffs face the difficulty of being framed incorrectly, often resulting in unsatisfactory arbitral awards or court judgments. Whether short time or a layoff is an unfair labour practice, or an unfair dismissal, or a unilateral change to terms and conditions depends on various factors. The principles from the relatively few reported cases are outlined for future adjudicators to consider. The content of an agreement for short time and layoff is suggested.

Case Notes: Compliance with a Fair Procedure? Rescued from Another Dimension to the LRA: Reflecting on Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022) 43 ILJ 1757 (CC)

by | Jan 14, 2024 | ILJ, ILJ V44 I3

Case Notes: Compliance with a Fair Procedure? Rescued from Another Dimension to the LRA: Reflecting on Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022) 43 ILJ 1757 (CC)

Author Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 44 Issue 3, 2023, p. 1444 – 1462
https://doi.org/10.47348/ILJ/v44/i3a4

Abstract

Unfairness, as regulated by the Labour Relations Act 66 of 1995 (LRA), assumes a distinction between substantive unfairness and procedural unfairness. It was always taken as a given that this divide was maintained in s 189A of the LRA which regulates large-scale operational requirements dismissals (retrenchments). Nonetheless, recent Labour Court jurisprudence proposed that s 189A(13) of the LRA introduced a further dimension to the LRA and specifically large-scale retrenchments, namely, compliance with a fair procedure (as something distinct from procedural fairness). This proposition was rejected by the Constitutional Court in Solidarity obo Members v Barloworld Equipment Southern Africa & others (2022) 43 ILJ 1757 (CC). Apart from exploring the Constitutional Court’s reasoning, this note revisits the distinction between procedural unfairness and substantive unfairness in the case of retrenchment and the difficulties presented by it, and further reflects on a number of collateral issues raised by this judgment — among others, the Labour Court’s jurisdiction regarding disclosure of information in the context of s 189A(13) of the LRA.

Dismissals for Cannabis Use: Determining Substantive Fairness

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Dismissals for Cannabis Use: Determining Substantive Fairness

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 683 – 701
https://doi.org/10.47348/ILJ/v44/i2a1

Abstract

Since the Constitutional Court’s legalisation of the use of cannabis in private, dismissals for workplace infractions arising from testing positive for cannabis are on the rise. Such dismissals have been justified by employers on the basis of zero-tolerance policies. The standpoint being endorsed by the courts is that as long as the employer can justify the need for a zero-tolerance approach, dismissal is the automatic default position for the breach of the workplace rule. While the law on the workplace implications for cannabis use is still in its infancy, there is a substantive body of law, applicable to cannabis use, on dismissals for alcohol use in which zero-tolerance policies are also applied. Surprisingly, these established principles in respect of alcohol use have not been engaged with by the courts in dealing with cannabis related infractions. This article seeks to evaluate the recent court decisions and to determine whether the legal principles that are developing accord with the legislative framework and judicial requirements in determining the substantive fairness of a dismissal.

(Im)mobility as Group Disadvantage: Are Vehicle Requirements in Candidate Attorney Recruitment Justifiable?

by | Jan 14, 2024 | ILJ, ILJ V44 I2

(Im)mobility as Group Disadvantage: Are Vehicle Requirements in Candidate Attorney Recruitment Justifiable?

Author Davy Rammila

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa, LLB, LLM (Johannesburg), LLD Candidate (Johannesburg)
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 702 – 723
https://doi.org/10.47348/ILJ/v44/i2a2

Abstract

Nearly three decades since the fall of apartheid, South Africa, to a considerable extent, has not achieved the level of transformation desired in respect of the attorney’s profession. Efforts at encouraging or supporting diversity have not been helped by a recent trend which has transformed the entry requirements for the profession from those based on educational qualifications and equity to those based on [unequal] economic and social privilege. As the number of black graduates grew, recruiters increasingly required applicants for practical vocational training contracts to own, or at least have access to, motor vehicles as a minimum requirement for eligibility. This contribution evaluates the validity of these requirements within the existing employment law framework and establishes that socio-economic circumstances affecting ethnic majorities of South Africans operate against the imposition of such requirements. The contribution acknowledges the amended rules introduced by the Legal Practice Council in 2021 to address the issue. However, it argues that the enforcement mechanisms of the council have at times proven inadequate. It suggests that such shortcomings in enforcement emphasise the continued importance of labour law in resolving employment disputes within the profession. It concludes that vehicle requirements are incapable of justification under the available defence of the inherent requirement of the job in terms of the Employment Equity Act.