Monday, March 11, 2019 – 05:00
In the mid 1990s, the old labour legislation was repealed, and was replaced by our current Labour Relations Act (LRA) negotiated between government, employers and trade unions. Due to the fact that parties had substantially different agendas they were often unable to agree on a number of important details of law, which were therefore omitted from the LRA. Some detail as to the intention of the law is provided in the form of codes of good practice. For example, included in Schedule 8 of the LRA is, The Code of Good Practice: Dismissal, which guides parties as to procedures and principles that should be followed.
Despite these codes the LRA still lacks some important detail such as: whether an employer may fairly increase the penalty imposed on an employee. However, case law has filled this particular gap by prohibiting this as a normal practice. For example, in the case of Fourie vs Capitec Bank (2005, 1 BALR 29) Fourie was dismissed for failing to take out arrear cards. The arbitrator found that the employee had previously been given a final warning for the very same incident of poor performance. The dismissal was therefore found to be unfair and the employer was required to pay the employee compensation equivalent to 6 months’ remuneration.
However, case law has sometimes, instead of providing clarity, resulted in confusion because certain of these judicial decisions have appeared to contradict each other. This has been very detrimental to the process of developing clear guidelines based on consistent patterns of case law in recent years.
For example, the case of Toyota South Africa (Pty ) Ltd vs Radebe & others (2000, 3 BLLR 243) involved the dismissal of Radebe for fraud and gross dereliction of duty. The CCMA decided that the dismissal was too harsh and ordered the company to re-employ Radebe. Toyota applied for a review of the arbitrator’s decision but the LC turned this down. Toyota then appealed to the Labour Appeal Court (LAC), which found that Radebe’s misconduct was so gross as to render the CCMA’s decision highly irregular. The LAC therefore overturned the decisions of the CCMA and LC. At about the same time the LAC overruled the decision in an earlier case where the same court had previously decided that the ‘reasonable employer test’ must be applied. (Nampak Corrugated Wadeville vs Khoza (1999, 2 BLLR 108 LAC). The LAC in the Toyota case rejected the ‘reasonable employer’ principle and held that each arbitrator and judge must independently assess each dismissal. Here the LAC’s decision contradicted three other decisions including one made by the LAC itself. The fact that judges feel free to overturn each others decisions at will and the LAC’s position that each dismissal must be assessed independently strongly suggests that CCMA, LC and LAC decisions do not constitute precedents on which later decisions must be based.
Another example of confusing silence is the LRA’s silence as to whether or not an employee, who alleges unfair dismissal, is obliged by law to accept a reinstatement offer from the employer. Not only is the LRA silent on this, but there are as many CCMA/LC decisions requiring that the employee accept such reinstatement offer, as there are decisions to the contrary.
While it is clear from the above that we cannot take any one case decision as gospel employers are still advised to keep up with case law in their efforts to discover what fair treatment really means. This is because:
- in many areas the CCMA and courts have agreed with each other, and principles based on patterns of decisions are beginning to emerge in some areas of labour law.
- there are a few case law decisions that, while not yet part of a pattern, have been so well conceived and reasoned, that they provide valuable guidelines to employers and employees.
The real challenge when turning to case law for help is to be able to:
- Understand fully what the arbitrator or judge is saying in his/her finding and in grasping the meaning of the reasoning behind the decision
- Understanding why two courts come up with different findings
- Identify those case decisions that are truly relevant to our own case
- Identify patterns and principles arising from a series of cases
- Accurately and validly apply the principles of case law to our own case
- Be able to argue why a case decision refuting the outcome we seek should not be accepted
- Be able to use case law wisely in implementing discipline and dismissal at the workplace.
The ability to use case law wisely and effectively in the light of the pitfalls outlined requires highly intricate skills developed over many years. Employers therefore, require intensive guidance from experienced experts in labour law, in order to be able to apply the inexact science of case law analysis and application.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za.
To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or firstname.lastname@example.org