POSTGRADUATE DIPLOMA IN LABOUR LAW – 2017
E4LLPQ / LLA00A10
ASSIGNMENT 1 – 2017
COVER PAGE
SURNAME: PHOLOSA
SILAWA
INITIALS: MP
E
STUDENT NUMBER: 200918532
201124896
Table of Contents
Question 14
Introduction4
Opinion 4-7
Conclusion ………………………………………………………………………………………………………………………….8
Question 28
Introduction8
Opinion9-12
Conclusion ………………………………………………………………………………………………………………………….12
Bibliography……………………………………………………………………………………………………………………………………13
QUESTION 1
A determination is to be made if Sylvia is to be charged for her actions and whether a disciplinary inquiry, if any, is to further be held against her.
Individuals that reside in the Republic of South Africa are protected by its Constitution. The Constitution through chapter 2 is clear whenit affirms that all individuals have rights, human dignity, equalityand we as the employer have to abide by this and require treating Sylvia in a dignified manner when handling this matter. Sylvia’stheft accusation does not exempt her from being seen as innocent before the law until such a time she is proven guilty. She enjoys the protection of the Constitution, and disregarding her rights, dignity and equality will be going against the constitution
In terms of common law Ibelieve that she is in breach of herduties and obligations as an employee and whether these obligations have been infringed:
Van Niekerk and Smith (eds) [email protected], state that “She is obliged to report for duty and to render competent services” – when determining her behaviour prior to the fall out with her boyfriend she had been coming to work on time and rendering her services. However, since the fall out and her apparent, alcohol abuse she has been consistently arriving for work late and sometimes not showing up to resume her duties. Absenteeism is a serious offense and continuous infringement can lead to a misconduct sanctioning dismissal.
This behaviour is in complete breach of her common law and contractual obligation to the employer. She has also been coming to work intoxicated under her own admission meaning that she is unable to render competent services as being under the influence of alcohol makes you impaired.
Van Niekerk and Smith (eds) [email protected], state “To render services in good faith” – the employee as being incharge of securing the employers finances has failed to comply with her duty and obligation to do so. She was trusted by the employer to collect income from the employer’s costumers and make sure that the company’s finances are secured. She however transferred the monies into her own personal account to further her own interest putting the employer in a financial impediment. Thus breaching there common law obligations, her actions have a potential to bankrupt the employers business as they have trusted that she will safe keep the company’s finances and render it profitable through the successful collection of debt from debtors.
In Standard Bank of SA Ltd v Commission for Conciliation, Mediation and Arbitration and Others (1998) 19 ILJ 903 (L C), the court stated the existence of the duty upon an employee to act with good faith towards his/her employee and to serve honestly and faithfully is one of long standing in common law.
She however failed to do so.
Sylvia’s contravention of her common law obligation is an indication that she has broken a rule and a disciplinary action is to be conducted against her this is to try and correct her behaviour through determining the extent of her contravention, through a thorough investigation and the interrogation of the evidence presented by means of a disciplinary hearing.Labour Relation Act 66 of 1995 Code of Good Practice: Dismissal item 3 (2) states that all should be given an opportunity to state their case and present their evidence should they be accused of contravening a rule in their course of employment. The LRA is a tool used to give the employer an opportunity to use the corrective methods to correct the employee’s behaviour .It also provides for methods to assist both the employer and employee in governing their employment relationship. It provides the employer a mechanism to utilize in protecting their business interest should the employment relationship become irreversible broken and also provides protection for the employee should the employer contravene any of their rights as afforded by the different legislations. The LRA also provides different dispute resolution mechanisms between the parties in order to have a harmonious employment relationship. The LRA also provides for a substantial and procedurally fair disciplinary process that will assist in correcting the employee’s behaviour.
With that said I recommend that a disciplinary hearing and an independent presiding officer be appointed to preside over the matter to be held by Prestige Elite Travels Pty Ltd to try and give their employee Sylvia a prima facie opportunity to state her case and present her case against the allegations. Keeping in mind that a disciplinary hearing is not a form of punishment but a mechanism to try and correct a behaviour, I therefore recommend that a disciplinary hearing be held in order for her to be given an opportunity to dispel any of the prima facie evidence brought against her and advice that the employee be charged with the following charges:
Misconduct:
Charge 1 : You were absent from work without any good reason
The reason for this charge is that she has breached her common law contractual agreement, by not coming to work and performing her duties as contractually required
In breach of Contract of employment
Charge 2 : Gross fraudulent transfer R 1 000 000 of the employers monies into your personal bank account for your own personal gain
She is required to act with the interest of the employer at heart at all times, but she failed to do so and her actions have a negative direct impact on the employer, as the person in charge of the Business’s financials, her actions have the ability to collapse the business and render it bankrupt, especially due to the large sums of monies transferred.
In breach of Common Law obligation to act in good faith
Charge 3: Dishonesty in that you falsified the employers financial books to conceal the fraud
Her actions in doing this show that she is not to be trusted as she continued with dishonest, fraudulent intent by falsifying accounting books to make them appear as if the company was receiving monies but in fact the monies were being transferred into her account
In breach of Common Law to serve with honesty
Incapacity
Charge 4: Being under the influence of alcohol at work
It is clear and apparent that Sylvia suffers from alcoholism and is an alcoholic in this regard, she has been able to abstain from abusing alcohol but a personal situation in her life caused her to relapse and continue the use of alcohol
The LRA provides that the employer should follow a procedurally and substantiallyfair procedure in conducting the disciplinary case
LRA Code of Good Practice: Dismissal item 4 (1) a fair procedure in that-
Conducting an investigation to determine if they are any grounds for dismissal. The employer should notify the employee of all allegations using a form and language that the employee can reasonable understand. The employee should be given an opportunity to state their case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response the assistance of a trade union representative or fellow employee. Be afforded the opportunity to bring witness, and also to cross examine the employers witnesses the use of an interpreter should she so wish. After, the enquiry the employer should communicate the discussion taken, and preferable furnish the employee with written notification of that decision
Substantive fairness
The charges against the employee are of a sever nature and can result in a dismissal, we then need to determine the following:
Valid reason – Sylvia has breached her obligations to the employee in terms of common law as well as her contract of employment
She committed acts that are of a serious nature, her fraud and dishonesty in particular have a potential to render the employment relationship intolerable and subsequently break down in the trust relationship as she was trusted to handle the finances of the employer and in doing so is to exercise honesty and integrity at all times. She has failed to do so, rendering the trust relationship irreversibly broken down, I do note her unblemished disciplinary record and 10 years of service, however the severity of her misconduct can’t be ignored in Toyota South Africa Motors (Pty) Ltd v Radebe ;others2000 3 BLLR 243 (LAC), the court stated that “The first respondent’s length of service was of no relevance and did not mitigate his gross misconduct”. The courts further noted that, “another factor which the commissioner seems to have found to be a mitigating factor in addition to long “clean” service is that, in the commissioner’s view the first respondent was contrite about his misconduct”. The courts found that the commissioner’s focus on those three factors to determine that the dismissal was unfair had no bases as even and alternative sanction should have been sought by the employer was baseless. The code of good practice also supports this view that a dismissal for a first time offender is permitted if the misconduct is sever.
De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & othersstated the following:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”
This case speaks to the severity of her misconduct and the potentials it has to collapse the employers company financially. Taking into account that financial resource is one that is critical in keeping a company afloat and fully functional.
Furthermore, a person of her capacity and role (accountant) is reasonably expected to know and understand that the rule of fraudulent, dishonesty and absenteeism behaviour is one that is unacceptable in the workplace and breaching such rules can lead to her dismissal. She however contravened these rules anyway.
The test is to determine if her defence that she may have beenintoxicated at the time of the incident will rest on the following case:Tanker Services (Pty) Ltd v Magudulela | 1997 12 BLLR 1552 (LAC)”Whether employees are unable to perform their work depends to some extent on its nature. In Tanker Services, the question was whether Mr Magudulela’s faculties had been impaired to the extent that he could no longer perform the ‘skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance’. Having found that he could not safely do so in his condition, the court concluded that Magudelela’s amounted to an offence sufficiently serious to warrant dismissal.”
In Sylvia’s case as the company accountant; her duties are to insure that she acts in the best interest of the employer, maintains integrity, ethical and is honest at all times. She was however not at all acting in the interest of the employer when shefraudulently transferred the monies into her own account, notwithstanding the large amount that she transferred. She further flouted her moral, ethical and honest duty by deliberately falsifying the employer’s finances to conceal her theft. Meaning that she was unable to perform her duties and exercise reasonable judgement as expected of her should she have been sober.In applying the courts decision it will mean that her misconduct will also result in a dismissal.
With that in mind the Incapacity charge must be dealt with as follows:
It is important to note that my dismissal recommendation is not based on the employee’s incapacity ill health due to being an alcoholic. I believe that in this regard the employer has an obligation to assist the employee through any means of counselling and rehabilitation. I also question why her manager failed to detect and handle her behaviour before it deteriorate, as her sudden relapse due to a failed relationship led to her return to abusing alcohol. I therefore determine that she is indeed an alcoholic and advice that counselling and rehabilitation be given to address her incapacity. See Naik v Telcom SA (2000) 21 ILJ 1266 (CCMA)
Once the disciplinary hearing has been concluded and a sanction has been handed she must also be given the reasons for the derived sanction and notified of her rights to refer the matter to the CCMA or other dispute resolution agencies should she feel that the matter was procedurally or substantially unfair.
In conclusion the employee’s dismissal is not based on her incapacity due to her alcoholism,but based on that she failed to perform her duties while under the influence of alcohol as it has made her unfit to perform her duties reasonably, as well as committing inter alia misconduct while under the influence. The misconduct is of a serious nature that the employment relationship is irreversibly broken down. The employer cannot trust the employee with the company finances thus also making her incapable to perform her duties at Prestige Elite Travels Pty Ltd.
QUESTION 2
A determination is to be made whether Gunther Ganter has a case against theSilver Service Restaurant and what legislation protects him, while also looking at his course of action against the restaurant.
Every citizen of South Africa ought to be treated with fairness, dignity and respect regardless of their sex, age, gender & religion. Chapter 2 s 9 of the constitution consists of the Bill of Rights which state that: “the cornerstone of Democracy in South Africa enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Chapter 2 s 9 of the Constitution further highlights that everyone is equal before the law and has the right to equal protection and benefit of the law.Equality defined is the enjoyment of all the rights and freedoms of South Africa, in order for equality to be achieved there is legislation put in place to promote the achievement of equality and the protection of persons or categories of persons disadvantaged by unfair discrimination.
Gunther Ganter (GG) is a cordon bleu chef. He received his training at the Le cordon Bleu, the most prestigious culinary training school in Paris (which has been operating and training students since 1895). In addition he has over ten years’ experience having worked in various world-class restaurants. GG undergoes a “religious awakening” and decides to undergo a transgender operation, GG is protected by Section 15 (1) of the Constitution which states that:” Everyone has the right to freedom of conscience, religion, thought, belief and opinion”. Thissectiondoes not prevent legislation recognizing systems of personal ; family law under any tradition, or adhered to by persons professing a particular religion. At the beginning of 2017 GG applies for a position as head cordon bleu chef at a Silver Service Restaurant, he arrives at the interview dressed as a woman but speaks like a man. Mr Straight Laced (SL) of the restaurant, who is the head of human resources of the restaurant conducting the interview, should consider Chapter 11 S 5 of the EEA which states that:” Every employer must take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any employment policy or practice”. The purpose of the EEA Act 55 of 1998 is to achieve equality in the workplace by creating equal opportunities and fair treatment in employment through the elimination of unfair discrimination. The employment policy or practice in the EEA defines the scope of the prohibition against unfair discrimination and extends the statutory prohibition to every aspect of the employment relationship, recruitment procedures, advertising and selection criteria, appointments and the appointment process.
During the interview SL enquires about GG’s appearance, GG was honest enough to explain that it is due to his religious beliefs he is changing his gender. In asking this question SL should consider that section 10 of the Constitution states that:” Everyone has inherent dignity and has the right to have their dignity respected and protected” and thus he should not judge or discriminate against GG.The interview ends and two weeks later GG receives a letter from SL who states that there is no place in the restaurant for someone with such strange appearances of beliefs. This constitutes discrimination and in this case the employer had discriminated not only on the basis of gender but also of religion and sexual orientation.The Labour Court has held that discrimination occurs when people are not treated as individuals or when characteristics are assigned to people which amount to generalized assumptions about people or groups of people. See Hurley v Mustoe.
There are two forms of discrimination fair and unfair, in this instance it has been established that discrimination has taken place however it is not yet clear what form of discrimination transpired. The EEA Act is a guide and states that unfair discrimination relates to: “a person may not unfairly discriminate directly or indirectly against an employee in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief political opinion, culture, language, birth or other arbitrary ground”. It is not unfair discrimination to- (a) take affirmative action measures consistent with the purpose of this Act; or (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
SL’s discrimination is directly related to GG’s gender, sexual orientation and to some extent his religion/belief thus making the discrimination unfair. It is evident that in the interview SL had issues with GG’s appearance and out of all the candidates interviewed GG is the most qualified for the position but unfortunately was denied the opportunity based on his appearance and beliefs. Direct Discrimination is when the discrimination is arising from criteria on which differentiation is based are themselves unfair. Based on the definition the form of discrimination we are dealing with is direct discrimination since the employer referred to GG’s sexual orientation, gender and religion as the reasons why GG was not considered for the position.
GG recalls reading a newspaper article in which the Constitutional Court decision said that any person has the right to freedom of religion no matter how bizarre or illogical such religion may be. There is Legislation put in place to combat discrimination, GG can refer to Chapter 2 of the Constitution of the Republic of South Africa, 1996 mainly focusing on Sections 7, 9, 10 and 15 which talk about the Bill of Rights, Equality, Freedom of Religion and Human Dignity respectively. GG can also refer to the EEA Act 55 of 1998 mainly focusing on Sections 2, 4, 5, 6 and 11. The Constitution and Legislation outline the boarders in which the company should operate and the rights an employee has when it comes to equality and the process of being employed.
Disputes concerning unfair discrimination must be referred to the CCMA within 6 months of the alleged omission which constitutes unfair discrimination. The case will be heard for conciliation, if the dispute is not resolved during the conciliation process then both parties can consent to proceed with the Arbitration process or they can refer the matter directly to the Labour Court for adjudication immediately after the conciliation process..GG can take the first step by filing for unfair discrimination on the grounds of his sexual orientation, religion and gender at any CCMA office and the matter will be set down for conciliation. The Conciliation process allows both parties to state their case in front of a commissioner who will facilitate the process, this is a platform for both parties to come to a mutual agreement. If all fails during conciliation then the commissioner will issue an arbitration certificate, once set down for arbitration both parties can state their case with the use of witnesses and facts relating to the charges brought against or laid by them respectively. Based on the facts given to the commissioner he/she will then decide on the outcome in which both parties must comply. Either party can then go to the Labour Court for adjudication if they do not agree with the arbitration award. The CCMA is an independent body established by law to carry out a range of workplace dispute resolution and prevention functions. The CCMA is entrusted to resolve such issue free of prejudice and favouritism while also considering the Constitution of the Republic of South Africa, 1996 and relevant Legislation, each commissioner is qualified and competent to handle each case effectively. The CCMA process is a free and fair process and is open to employees, organizations, trade unions and employer organizations.
In a similar case Swart v Mr Video (Pty) Ltd 1997 2 BLLR 249 (CCMA) “Discrimination What constitutes using age as criterion for compatibility inappropriate employer refusing to consider applicant for position because she was three years older than specified age is unfair discrimination Applicant awarded compensation”. The CCMA further stated that “As to compensation, the Commission pointed out that, although there was no indication of whether the applicant would have been appointed had she not been older than 25 years, the higher compensation made possible for an automatically unfair dismissal indicated that the legislature regarded such compensation as punitive. The applicant was accordingly awarded compensation equivalent to three month’s remuneration if she was offered a suitable and acceptable position, or to six months’ remuneration if an alternative position could not be found”.
The Swart v Mr Video (Pty) Ltd 1997 2 BLLR 249 (CCMA) case is very similar to the unfair discrimination that took place between GG and Silver Restaurant, these two cases are very similar in a sense that the discrimination forms part of s 6 (1) of the EEA, although it was not clear whether GG would be employed by the restaurant, fact still remains that he was discriminated against. In the Swart v Mr Video (Pty) Ltd 1997 2 BLLR 249 (CCMA case the commissioner stated that “Unfair discrimination is also prohibited in the South African Constitution”. The Constitution binds every individual and company in South Africa and should be abided by, it is evident the SL’s conduct is unconstitutional and his failure to comply with the Constitution requires an appropriate sanction.
It is the employer’s duty to eliminate discrimination in the workplace and during the recruitment process thus once the employer is charged with an unfair discrimination case the burden of proof will lie with the employer, in this instance we will refer to the EEA Act 55 of 1998. The EE Act 55 of 1998 states that:”If unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove on a balance of probabilities, that- (a) did not take place as alleged or (b) Is rational and not unfair, or is otherwise justifiable”. In the Ehlers v Bohler Uddeholm Africa (Pty) Ltd 2010 JOL 26216 (LC) case the employer failed to comply with the EEA and LRA by discriminating against and dismissing an employee based on their gender, the courts rule strongly condemned the attitude of the respondent to the applicant’s gender reassignment. “It found that the true reason for the applicant’s dismissal was the fact that she was a transsexual who was in the process of undergoing a sex change. The applicant’s dismissal by the respondent was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. The respondent was ordered to reinstate the applicant from her date of dismissal to the same position that she held before her dismissal. The claims for compensation and damages were dismissed”.
In another case: Department of Correctional Services and Another v Police and Prison Civil rights Union(POPCRU) and Others (CA 6/2010) 2011 ZALAC 21; (2011) 32 ILJ 2629 (LAC) (27 September 2011), Employees were discriminated against based on their religion and beliefs and were then dismissed for refusing to follow the company code of conduct by not cutting their dreadlocks, the Labour court ordered reinstatement from date of dismissal and 20 months compensation of annual salary including and any salary increase that would have occurred during that period for employees who refused reinstatement.
Before GG can take action against the prospective employer he needs to establish whether discrimination has taken place, the second is whether it is unfair and forms part of the listed grounds in section 6 (1) of the EEA. GG will then go to the CCMA and file a unfair discrimination charge against Silver Service Restaurant as stipulated by s 10 (2) of the EEA, he will base his case on S 6 (1) of the EEA which highlights the grounds of discrimination against him, GG will highlight that he has been discriminated against based on his sexual orientation, gender, belief and religion which are listed grounds in the EEA.
GG is also in possession of a written letter which clearly supports his claim and increases the chances of success in an unfair discrimination claim. The cases above have indicated that discrimination is a serious issue and has been dealt with severity, based on the outcomes of the indicated cases, GG has a high chance of success and possibly be compensated for the discrimination he has suffered.
In closing the comment of the court highlights the importance of the Constitution and the importance of companies enforcing it in their processes and procedures. In Prince v President, Cape Law Society and Others 2002 (2) SA 794 (SA) court held that.”The right to freedom of religion is especially important for our constitutional democracy which is based on human dignity, equality and freedom. Our society is diverse. It is comprised of men and women of different cultural, social, religious and linguistic backgrounds. Our Constitution recognizes this diversity. This is apparent in the recognition of the different languages; the prohibition of discrimination on the grounds of, among other things, religion, ethnic and social origin; and the recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all human beings. Freedom is an indispensable ingredient of human dignity.”
Bibliography
Constitution of the Republic of South Africa, 1996
Department of Correctional Services and Another v Police and Prison Civil rights Union(POPCRU) and Others (CA 6/2010) 2011 ZALAC 21; (2011) 32 ILJ 2629 (LAC) (27 September 2011)
Employment Equity Act 55 of 1998
Ehlers v BohlerUddeholm Africa (Pty) Ltd 2010 JOL 26216 (LC)
https://0-www.mylexisnexis.co.za.ujlink.uj.ac.za/Index.aspxLabour Relation Act 66 of 1995
Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (1998) 19 ILJ 285 (LC) at 289E-F(2000) 21 ILJ 1051 (LAC) also reported at 2000 JOL 6467 (LAC) – Ed at para 22
Prince v President, Cape Law Society and Others 2002 (2) SA 794 (SA)
Standard Bank of SA Ltd v Commission for Conciliation, Mediation and Arbitration and Others (1998) 19 ILJ 903 (L C)
Swart v Mr Video (Pty) Ltd 1997 2 BLLR 249 (CCMA)
Tanker Services (Pty) Ltd v Magudulela | 1997 12 BLLR 1552 (LAC)
Toyota South Africa Motors (Pty) Ltd v Radebe ; others2000 3 BLLR 243 (LAC)
Van Niekerk and Smith (eds) [email protected],3rd Edition (2016)
Vodacom (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1412-05) 2010 ZALC 168 (11 November 2010)
www.labourguide.co.za/ccma-information/364-get-the-power-of-the-ccma-behind-you
