SA UEO Tzaneen

17/01/2025

19/06/2023

RACIST LANGUAGE/COMMENTS………A “NO-NO” IN THE WORKPLACE

Naik / Data Tegra (Pty) Ltd - (2022) 31 CCMA 8.37.36 also reported at [2022] 12 BALR 1245 (CCMA)

Subject matter classification:
Dismissal - Substantive fairness - Misconduct - Racist language - Manager declaring "I want that white man out of here" during altercation over parking bay - Dismissal fair.

Mini Case Summary:
The applicant, a deputy sales director, was charged with two offences involving the use of "insulting, abusive, obscene and racist language", the first arising from an altercation in a parking lot with a colleague, the second for telling colleagues "I want that white man out of here". He was found guilty on the second charge and dismissed. The applicant claimed that after a friendly exchange over the parking incident his colleague had assaulted him, which left him traumatised. The reference to the colleague's race was fortuitous as he merely wished to identify him when reporting the incident, and that he (the colleague) had asked him for a percentage of the compensation he might get from the CCMA. The respondent led several witnesses confirming that the incident had occurred, and that the applicant had also slapped his colleagues, made derogatory comments about women and that the respondent has a zero-tolerance approach to racism.

After three commissioners declined to arbitrate the matter due to objections by the applicant, the Commissioner granted his request for legal representation and noted that the first step in the inquiry was to establish whether the dismissed employee had breached a rule of which he was aware. The requirement of fairness applies to both the employer and the employee, based on the probabilities of the respective versions. The Constitution and the law prohibit hate speech, which includes derogatory remarks uttered by people of any race. Mere labelling may be racially loaded. Racist expressions must be assessed according to the context in which they were uttered. The applicant had claimed that he had used the expression "white man" as a neutral identifier, but he knew his colleague's name. The Commissioner, accordingly, found that the comment was racist.

Turning to whether the applicant should have been dismissed, the Commissioner noted that the applicant was a senior manager who should have set an example. The remark was made in the presence of several colleagues. He had tried to downplay his role in the incident and had shown no remorse. His conduct at the time and during the arbitration indicated that the employment relationship had been destroyed. Dismissal was therefore an appropriate sanction.

For further information, you can contact Sonja Nelson at [email protected] or 082 560 0754

19/06/2023

DISMISSAL FOR SMOKING DAGGA AT THE WORKPLACE UPHELD………..AFTER IT WENT ALL THE WAY TO THE LABOUR APPEAL COURT.

SGB Cape Octorex (Pty) Ltd v Metal and Engineering Industries Bargaining Council and others - (2023) 32 LAC 1.11.7 also reported at [2023] 2 BLLR 125 (LAC)

Subject matter classification:
Practice and procedure - Appeal - Dismissal - Assessment of sanction - Supervisor smoking dagga while at work - Dismissal fair because conduct infringing employer's zero-tolerance policy, which was justifiable and consistently applied.

Mini Case Summary:
The respondent employee, a supervisor, was tested for dagga in his bloodstream after his manager received a report that he had been seen smoking the d rug in the workplace. A CCMA commissioner ruled the dismissal unfair because there was no proof that the appellant had suffered prejudice or that anybody's safety had been compromised. The appellant's review application failed. After being granted leave to appeal on petition, the appellant argued that the employee had been dishonest and that any sanction short of dismissal would have compromised its zero-tolerance policy to the use of d rugs in the workplace.

The Court noted that until he was tested positive, the employee had denied smoking the drug. The appellant (Employer) had consistently dismissed employees guilty of smoking dagga in the workplace. The appellant (Employer) had clearly suffered prejudice because the integrity of its rule had been compromised. The commissioner's finding was that there was no evidence to show that the employee would repeat the offence and ignored his claim that he was addicted to the drug WAS INCORRECT.
THE LAC HELD: Employers are permitted to adopt its own rules to establish the standard of conduct required of their employees. The commissioner and the court below appeared to have ignored this right. The employee had breached a reasonable rule of which he was aware, and which had been consistently applied. Dismissal was justified.

The appeal was upheld.
For further information you can contact Sonja Nelson at [email protected] or 0825600754

05/06/2023

REPORTING FOR DUTY UNDER THE INFLUENCE OF ALCOHOL:

Rather be careful with:

A) BREATHERLIZER TEST ONLY, AND
B) SUGGESTED CHANGE FROM ZERO-TOLERANCE TO “NO-TOLERANCE” POLICY

The above was discussed and scrutinized by the experts in the labour law industry and the summary of the writer, is as follows:

Regulation 2A of the General Safety Regulations of the Occupational Health and Safety Act 85 of 1993 (OHSA) addresses ‘intoxication’ and ‘admittance of persons’ in the workplace as follows:

Intoxication:
(1) … an employer or a user … shall not permit any person who is or who appears to
be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
(2) … [N]o person at a workplace shall be under the influence of or have in his or
her possession or partake of or offer any other person intoxicating liquor or drugs.

Zero-tolerance versus No-tolerance policy:
It is the submission that the notion of ‘no-tolerance’ must be promoted rather than ‘zero-tolerance’ because the latter leads to the irrational conclusion by lay persons that the threshold-cut-off concentration must be ‘zero’.
In our opinion, to discipline an employee for intoxication at work if it is established that the employee has less than 0,1 milligrams alcohol per 1000 millilitres of breath in their system is problematic and irrational.
Sobriety testing:
The option for observational detection of alcohol use, does exist if employees are diagnosed as under the influence with sobriety testing if they are or appear to be under the influence or intoxicated in the workplace.
This must include a tick list consisting of, inter alia the following:
A physical appraisal of the employee would be done to determine the presence of the five physical symptoms of the use of alcohol, i.e.:
1. The smell of alcohol on the employee's breath,
2. Eyes are red,
3. Unsteady on his feet,
4. Speech is impaired,
5. Normal behaviour is changed.

Should three of these symptoms be present and a Breathalyzer confirms that alcohol is present, I will suggest that it is proven, on a balance of probabilities, that the employee is indeed under the influence of liquor.
Section 65 of the National Road Traffic Act 93 of 1996 prescribes that for normal drivers (as apposed to professional drivers, who have more stringent limitations), the concentration of alcohol in any specimen of breath exhaled must be less than 0.24 milligrams per 1000 millilitres.
It is further suggested that one should never allege that the employee was drunk as you would then have to prove the level of intoxication. Rather look at the issue from the point of “is the person capable of performing his duties.”

For further information, please contact Sonja Nelson at [email protected] or 082 560 0754 for further information and assistance with the checklist.

23/05/2023

SAME POSITION, BUT DUTIES CHANGED – REFUSAL TO PERFORM SUCH DUTIES DESPITE FINAL WRITTEN WARNING – DISMISSAL RULED TO BE FAIR

In the, we refer you to the matter Mndebele / Eskom SOC Ltd - (2023) 32 CCMA 8.18.3 also reported at [2023] 5 BALR 544 (CCMA)

Mini Case Summary:

The applicant, a senior human resources advisor, was dismissed for gross insubordination and insolence for persistently refusing to comply with instructions to render services in the respondent's HR Procurement and Supply Chain Department. He claimed that he had previously been employed in the department as an HR generalist and that management had no right to assign him to a new role without a new employment contract, that he was entitled to refuse the instruction and that he should be reinstated. The respondent contended that it had every right to assign employees to new roles and that the applicant had lost nothing by the change of duties.

The Commissioner held that the applicant's argument was without merit as his position remained the same and only his duties had changed. The respondent had proved that in many cases employees had been assigned new roles without concluding new contracts. Furthermore, the applicant had not lodged a grievance about his perceived complaint and the respondent had consulted extensively with him and issued him with a final written warning (which had not been challenged) before finally dismissing him. The dismissal was, accordingly, substantively, and procedurally fair.

The application was dismissed.

You are welcome to contact Sonja Nelson at 082 560 0754 or sonja.nelson@saueo..co.za for further assistance.

23/05/2023

BE CAREFUL NOT TO DELAY A DISCIPLINARY HEARING WITHOUT PROPER REASON OR EXPLANATION

In this we refer you to the matter, Broadcasting, Electronic, Media and Allied Workers Union obo De Klerk / South African Broadcasting Corporation SOC Ltd - (2023) 32 CCMA 7.17.1 also reported at [2023] 4 BALR 345 (CCMA)

Mini Case Summary:
After the applicant employee, then the national sales manager of the respondent ("the SABC") was charged with improperly dealing with a business owned by his wife without declaring his interest, the SABC dropped the disciplinary proceedings and the applicant signed an undertaking in which he was to declare his interest and "take heed" of a possible conflict of interest, be transparent in his dealings with his wife's business and familiarise himself with the SABC's conflict of interest policy. After further investigation the SABC established that the employee was continuing to communicate with his wife's business. The employee denied that he had done anything wrong.

The Commissioner rejected the employee's contention that the SABC had not proved that he had clandestine communication with his wife's business or had leaked confidential information to it. The emails the applicant had sent to his wife breached the SABC's email protocol to the detriment of the corporation's interests. Moreover, the employee did this on several occasions, making him a repeat offender. There was no question that the employee had been subjected to "double jeopardy" as he claimed, because the earlier disciplinary action against him had not been pursued. No written policy was required because it is an implied term of every employment contract that employees will serve their employees faithfully. The employee's criticisms of the charges were overly technical: he understood what he was required to explain and had failed to do so. It was clear that the trust relationship had been destroyed.

Turning to the employee's allegation that his dismissal was procedurally unfair because disciplinary action had been unduly delayed, the Commissioner accepted that the SABC had failed to explain why the inquiry that led to the final charges had taken so long. Prompt disciplinary action is a fundamental requirement of a fair procedure. The dismissal was, accordingly, procedurally unfair.

The SABC was ordered to pay the employee compensation of five months' salary plus the costs incurred by the employer as a result of a postponement.

For further information you are welcome to contact Sonja Nelson at 0825600754 or [email protected]

24/04/2023

SETTLEMENT TO DEMOTE – UNFAIR LABOUR PRACTISE

Demotion will only be fair if a disciplinary hearing was held and the sanction attached thereto is demotion as a sanction short of dismissal!!

Solidarity obo Taliep v Perishable Products Export Control Board and others - (2022) 31 LC 1.11.52 also reported at [2022] 12 BLLR 1141 (LC)

Mini Case Summary:
After being found guilty of failing to spot a rotting fish in a container that had been sealed for export the applicant employee was offered the options of being dismissed or demoted, issued with a final written warning and instructed to pay damages of about R3 000. He accepted the latter options and signed several documents confirming his indebtedness to the respondent and the terms of his demotion, with "all rights reserved". By the time he referred a dispute to the CCMA challenging his demotion, he had been dismissed for unrelated reasons. The arbitrating commissioner rejected the employee's claim that he had agreed to the demotion under duress and held that the demotion did not amount to an unfair labour practice.

The Court noted that in an earlier judgment the LAC had overturned a commissioner's ruling that the existence of an agreement that an employee be demoted deprived the CCMA of jurisdiction to entertain an unfair labour practice claim as the issue was the fairness of the demotion. At common law, employers may not demote employees without their consent. If consent to a demotion shielded the employer from a subsequent unfair labour practice claim it would be impossible to challenge the fairness of any legally valid demotion. Although the respondent had not appeared in the arbitration, the commissioner had asked the employee why he claimed that the demotion was unfair after he had agreed to it. Had the commissioner applied his mind to whether the demotion was unfair, he would have been bound to find that it was not because the employee's unchallenged evidence was that he had not been negligent. His qualified consent to his dismissal was therefore not enough to render the demotion fair.

The award was set aside and substituted with an order that the demotion amounted to an unfair labour practice and the respondent was ordered to pay the employee R138 095 as compensation.

For further information, contact Mari-Louise van Onselen at 082 857 3020 or [email protected]

OR

Sonja Nelson at 082 450 0754 / [email protected]

24/04/2023

POLYGRAPH ON ITS OWN NOT SUFFICIENT TO RENDER DISMISSAL AS FAIR

Hlengani / Menzies Aviation (SA) (Pty) Ltd - (2023) 32 CCMA 8.37.6 also reported at [2023] 4 BALR 362 (CCMA)

Mini Case Summary:

The applicant, an airport supervisor was suspected of theft after a passenger complained that two cell phones had been stolen from his sealed baggage on days when the applicant was on duty. The applicant was charged with theft and subjected to two polygraph tests, which he failed. He was dismissed after the presiding officer found that the trust relationship had been destroyed. The applicant claimed that he was not acting as supervisor on the days in question but had merely helped handle baggage.

The Commissioner noted that the respondent had admitted that it had no evidence to link the applicant to the thefts except for the polygraph results and that no investigation had been conducted before the disciplinary inquiry. The claim that the employment relationship had been broken had to be supported by evidence that the employee was untrustworthy. The only issue was therefore whether the respondent could rely on the polygraph tests alone. These were, at best, an indication of whether a further investigation was warranted. The respondent had, accordingly, failed to prove that the dismissal was for a fair reason.

The applicant was reinstated with effect from the date of his dismissal.

For further information, contact Sonja Nelson at 0825600754 or [email protected]

01/03/2023

UNFAIR DISMISSAL OF EMPLOYEES THAT REFUSED TO WORK OVERTIME!!

Employer must be mindful of section 10 (5) of the Basic Conditions of Employment Act.

This section requires that an agreement to work overtime, concluded during the first three months of employment (typically in a contract of employment), must be renewed after the first 12 months of employment (once off).

Failure to do so will render the initial agreement to work overtime to be of no effect. The subsequent dismissal of an employee for refusing to work overtime will therefore be unfair in the absence of a binding agreement.

For further information, you can contact Sonja Nelson on 0825600754 or [email protected]

26/01/2023

RESTRAINT AND PROTECTABLE INTEREST

The matter below deals with Restraint – Protectable Interest – School attempting to enforce restraint over former headmaster to prevent him taking up a position with a competitor school. Not entitled to enforce restraint is sole purpose is to stifle (throttle/choke) competition.

High Court, Case number D12967/2022 Ashton International College Ballito (Pty) Ltd v Petrus Cornelius Johannes Erasmus.

In this matter, judge van Amstel held, inter alia the following:

1. A restraint clause may not be against public policy and will be regarded as unenforceable if its sole aim is to stifle competition. This was confirmed in Mozart Ice Cream Franchises (Pty) Ltd v Davidoff and Another wherein judge Davis said the following:

In crisp terms, a restraint of trade raises significant questions regarding its enforceability when examined through the prism of public policy. In deciding whether a restraint of trade is contrary to public policy, regard must be had to two principal considerations:
 firstly, agreements freely concluded should be honoured, and
 secondly, each person should be free to enter into business, a profession or trade in the manner they deem fit.

For this reason, unreasonable restraint of trade clauses is contrary to public policy.… An important guideline in the evaluation process is that a restraint should, as far as activities, area and duration are concerned, be necessary to protect the infringed or threatened interest. Furthermore, it is trite that goodwill such as trade connections, interests and confidential information are recognised as protectable interests.

Example:
Where a salesperson in a shoe shop is offered a better salary by a competing shoe shop, he will ordinarily not be bound by a restraint clause in favour of his previous employer, because there is nothing to protect. There is no protectable interest. The only purpose of the restraint will be to prevent a competitor from acquiring his salesperson. The fact that the salesperson may be experienced and competent does not justify restraining him from changing his employment.

Public policy:
Demands that businesses should be allowed to compete, and individuals to work and ply their trade freely, wherever they choose. This is why the law requires a protectable interest for a restraint clause to be enforceable. It is to protect the employer’s confidential information from falling into the hands of a competitor.

In the matter of Ashton International Colleges, it was held that a school is not entitled to enforce a restraint of trade agreement to prevent an employee from moving to a competing school if its sole purpose is to retain, for example, a popular or particularly competent teacher or headmaster, or to prevent a competitor from acquiring his services. The agreement will be unenforceable unless there is a protectable interest.

For further information you can contact Sonja Nelson at 0825600754 / [email protected]

25/01/2023

WHAT TO KNOW BEFORE YOU DISMISS FOR CANNABIS
In the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022), two employees (Employees) tested positive for cannabis whilst on duty.

The Employer had a zero-tolerance policy on alcohol and drug abuse. The Employees both pleaded guilty to the charge of testing positive for cannabis while in the workplace and were dismissed for misconduct. The Employees referred the matter of unfair dismissal dispute to the CCMA disputing that their dismissal was unfair on the basis that, the Constitutional Court had legalised the use of cannabis on one’s private space. The Employees were unhappy with the outcome and took the arbitration award on review at the Labour Court.

The Employers case was based on the regulations of the Occupational Health and Safety Act and that they are very serious about safety and ensuring that the workplace is safe. The Employer has a zero-tolerance in terms of testing for alcohol or drugs as it poses a high risk to themselves or their colleagues or the plant. The Employees were aware of the Employer’s policy on alcohol and drugs, but the Employees argued that they did not contravene with the policy because they did not use drugs but had used cannabis.
In an earlier case heard by the Labour Court in June 2022 - Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, the employee was using cannabis to improve her health and decrease her dependence on prescribed medications.

Her dismissal was overruled. The question is, what was the difference from the matter referred to now? The employee occupied a desk position, and she was not required to operate heavy machinery or to drive employer’s vehicles. That was the reason why her dismissal was unfair. See below.

At the time the employee was tested for cannabis, she was not impaired in the performance of her duties, nor was she performing any duties for which the use of cannabis would be said to be a risk to her own safety or that of her colleagues. The employee was dismissed for repeatedly testing positive for cannabis and breaching the employer’s alcohol and substance abuse policy. It is evident that this case is distinguishable from the case under discussion.

Reasons for the decision in PFG Building Glass:
The Labour Court found that the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes. The Labour Court accordingly agreed with the dismissal in the PFG Building Glass matter.

This case (PFG Building Glass) demonstrates that notwithstanding the decriminalisation of the private use, possession or cultivation of cannabis, employees may be dismissed for testing positive for cannabis while in the workplace, having regard to

 the nature of the workplace,
 provided that the employer has adopted a policy prohibiting the use of drugs in the workplace and
 that its employees have been made aware of such policy.

For further information, you can contact Sonja Nelson on 082 560 0754 or via e-mail at [email protected]

25/01/2023

RACIST COMMENTS BY EMPLOYEE ON SOCIAL MEDIA – DISMISSAL FAIR

Matsepe / First National Bank a division of First Rand Bank Ltd -(2023) 32 CCMA 8.37.2 also reported at [2023] 1 BALR 48 (CCMA)

Subject matter classification:
Dismissal - Substantive fairness - Misconduct - Racist language - Employee posting message on social media saying that Freedom Day was only for whites, whose "days are numbered" - Dismissal fair.

Mini Case Summary:
The applicant, a systems administrator, was dismissed for posting comments on social media alleging that blacks had nothing to celebrate on Freedom Day as whites had stolen their land and whose "days are numbered". The respondent contended that the comments were racist, prejudicial to the bank and devoid of truth. The applicant claimed that he had merely forwarded the views of a politician, with which he agreed, in his private time and that he had not meant to intimidate anybody.

The Commissioner noted that generally employers have no disciplinary authority over employees' conduct outside working hours. However, this rule does not apply when the conduct impacts on the employer's business. The applicant had signed a code of conduct in which he had undertaken not to use offensive language or make comments that might be perceived as discriminatory. The applicant's claim that the respondent had no right to discipline him was therefore "baffling". The phrase "days are numbered" could not be seen as a metaphor, as the applicant claimed. His conduct was reckless, racist, dangerous, and warranted dismissal.

The application was dismissed.