Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'legal responses to lay-offs.' We also discuss three new cases: The first case rules on what conditions must exist before stock shrinkage can be treated as 'team misconduct'. The second case deals with what must be established to prove that racial discrimination is the reason for wage differentials. The third case asks whether an employer is obliged to investigate all possible causes of misconduct, before dealing with the matter as a misconduct case.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When is a charge of 'team misconduct' inappropriate?
'Team misconduct' is a controversial term that describes the situation where the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible: the employees are dismissed because, as individual components of the group, each has failed to ensure that the group acts or performs appropriately.
In South African Commercial Catering and Allied Workers Union and Others v Makgopela and Others (JA38/2021) [2023] ZALAC 8 (14 March 2023) it was held that our law does not allow a determination of guilt simply by association. Where team misconduct is relied upon, there must exist either a factual basis or sufficient grounds for inferring that all employees were indivisibly culpable as members of the team for failing to ensure compliance with the employer's rule. A reliance on generalised facts, arising from a scant investigation into the alleged misconduct, does not provide a sufficient basis on which to infer that collective responsibility exists.
Read more (Worklaw subscriber access only)
Proving race discrimination
In SACCAWU obo Mabaso and Others v Masstores (Pty) Ltd t/a Makro (JS 618/19) [2023] ZALCJHB 49 (9 March 2023) it was held that it is not enough for an employee alleging unfair discrimination to merely allege that a 'comparator' earned more because of his/her race. Something more is required to prove discrimination; the unequal treatment must be based on attributes and characteristics attaching to a person before it can fall within the meaning of "discrimination".
Read more (Worklaw subscriber access only)
Is an employer obliged to investigate all possible causes of misconduct?
In Pahlanga v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd and Others (C564/2019) [2021] ZALCCT 48; [2021] 11 BLLR 1129 (LC); (2022) 43 ILJ 212 (LC) (9 July 2021) it was held that an employer is not obliged to eliminate all possible explanations for what appears to be deliberate and wilful misconduct of an employee, in circumstances where other possible explanations were not previously known to the employer, or were not obviously apparent.
The guidelines in the Code of Good Practice: Dismissal cannot be interpreted to mean that, merely because an employer considers the possibility that there might be an explanation for misconduct which could reduce an employee's accountability for their actions, the employer has an obligation to conclude an investigation to determine whether or not that is the case before it can finalise a misconduct disciplinary inquiry.
Read more (Worklaw subscriber access only)
ARTICLE: Legal responses to lay-offs
By Prof Alan Rycroft
During the Covid lockdown, and now again with load-shedding, employers are trying to find ways to avoid retrenchment. One of the ways being used is a 'lay-off': a temporary 'no work-no pay' arrangement without the termination of the contract of employment, also sometimes referred to as 'short-time'.But if the lay-off is either imposed unilaterally, or continues indefinitely, and is opposed by a group of employees or an individual employee how do they frame a dispute?
- Could it be an unfair labour practice dispute?
- Could an unreasonably long lay-off constitute an unfair dismissal?
- If imposed unilaterally, what remedy does a group of employees or an individual employee have for a unilateral change to terms and conditions of employment?
- Could a lay-off due to reasons such as loadshedding or the Covid lockdown be defended by an employer under the legal principle of 'force majeure' or impossibility of performance?
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Bruce Robertson
April 2023
Copyright: Worklaw
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