Notes: Incompatibility in the Workplace as a Ground for Dismissal in South Africa: A Review of Cases

by | Jan 17, 2024 | ILJ, ILJ V45 I1

Notes: Incompatibility in the Workplace as a Ground for Dismissal in South Africa: A Review of Cases

Authors PT Mtunuse & T Ncetezo

ISSN: 2413-9874
Affiliations: Senior Lecturer, School of Law, Walter Sisulu University; Lecturer, Department of Management, Walter Sisulu University
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 41 – 52
https://doi.org/10.47348/ILJ/v45/i1a3

Abstract

Incompatibility occurs in a workplace when an employee does not work amicably with colleagues, fellow employees, and clients. However, in certain circumstances, incompatibility may occur due to the employer’s actions against employees. Incompatibility is not listed as a ground of fair dismissal in the Labour Relations Act (LRA) 66 of 1995, but arises from case law. Incompatibility is classified variously under incapacity, operational requirements, or misconduct. This note aims to investigate circumstances in which an employee may be dismissed for incompatibility at the workplace. A review of cases will be undertaken to expose disparities in courts’ decisions. The authors will recommend that there should be an amendment to s 188(1)(a)(i) of the LRA to include incompatibility as one of the grounds for a fair dismissal for the purpose of ending inconsistencies in our labour law jurisprudence.

The Regulation of Educator Misconduct in Public Schools

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

The Regulation of Educator Misconduct in Public Schools

Authors Cecile de Villiers & Christoph Garbers

ISSN: 2413-9874
Affiliations: Postdoctoral Fellow in Law, Stellenbosch University; Associate Professor, Stellenbosch University
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2079 – 2109
https://doi.org/10.47348/ILJ/v44/i4a1

Abstract

The individual educator and her or his conduct are of central importance to the delivery of a quality basic education. This calls for a clear and co-ordinated response to address and prevent inappropriate educator conduct. Three broad deficiencies in current education legislation are identified. First, legislation provides for two types of educator, two different employers and two different sets of rules applicable to educator conduct in the same workplace. Secondly, the rules regulating the conduct of departmental educators contain an inappropriate legislative distinction between and description of ‘serious misconduct’ and ‘misconduct’, an unnecessary range of sanctions between a final written warning and dismissal and deficiencies in procedure. Thirdly, despite a clear overlap between the responsibilities of the employers of educators and the professional body for education, there is inadequate alignment between their roles, while gaps remain. The analysis relies not only on the provisions of the legislation itself, but also statistics and arbitration awards emanating from the Education Labour Relations Council. We argue that education legislation fosters an inappropriate managerial response to educator misconduct and suggestions for improvement are made.

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.