Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which discusses "Justifying Job Requirements" in the context of defending challenges to how posts are advertised when recruiting. We also discuss three new cases: The first case tells a story of interdict proceedings, with the EFF taking on the role of a trade union. The second case considers whether the Labour Court can declare a building to be unsafe and unhealthy. The third case looks at the prescription of an arbitration award.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When political parties take over the role of a trade union
What can an employer do if a political party attempts to take up workplace grievances of its supporters with the employer? Consider a recent case in which representatives from the EFF arrived at the employer's premises, without any prior notification. A meeting with several employees was held during lunch time, in the street outside the employer's premises. This meeting resulted in a letter from the EFF to the employer. The letter, written on an EFF letterhead, recorded that the EFF had been 'mandated' by the employees to intervene and that a memorandum containing a 'barrage' of demands and grievances would be presented later.
The employer addressed this issue directly with all its employees, placing a notice on the company notice boards, urging employees to follow the prescribed procedures and approach the relevant institutions established by the LRA, should they have difficulties. The employer's workplace was in fact organized, with NUFAWASA being the recognized and majority representative trade union, and with whom the employer had an established collective bargaining relationship.
The 9 page memorandum which was subsequently presented was typed on an EFF letterhead and accused the employer of exploiting and victimizing the employees, and subjecting them to 'appalling and unethical' working conditions. It claimed the EFF would 'unashamedly' take up the plight of the employees. The memorandum then recorded a number of actual demands, including an issue about resolving the wage gap / living wage and equal pay for equal work, permanent positions, 'discontinuation' of the relationship with the union, compliance with the BCEA, reimbursement of money deducted from employees' salaries, reinstatement of employees that had been dismissed, development of skills programs, and terminating exploitative and unjust policies. The employer was given 7 days by the EFF to comply, with a warning that defiance of the memorandum would result in intensifying mass protest action.
The employer instructed its attorneys to respond to this memorandum. In the response it was specifically stated that the EFF was not a registered trade union and lacked the necessary legal status and entitlement to engage with the employer on workplace related issues. The attention of the EFF was also drawn to the fact that there was a majority, recognized trade union, with whom workplace disputes were effectively resolved.
What followed was an unprotected strike with damage to company property and intimidation. The employees' refusal to work persisted, which caused the employer to apply for an interdict in the Labour Court. The employer cited the union, the employees, the EFF and 2 named EFF representatives as the respondents in the application. When the case was heard, 2 EFF representatives addressed the Court but did not file any Court papers. They indicated that no matter what, the employees would continue to refuse to resume their duties irrespective of what the Court might order. They were warned by the Court that their failure to comply with its orders would result in contempt of court with severe penalties.
The LC granted an interim interdict, calling upon the respondents to show cause why a final order should not be granted declaring the strike action to be an unprotected strike, interdicting the EFF representatives and the employees from continuing to participate in the strike and from obstructing the employer's business, and interdicting the EFF and its representatives from unlawfully interfering with the employment relationship between the employer and its employees. The employer also sought a costs order against the respondents.
On the return date, the LC in Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers Union of South Africa (NUFAWSA) and Others (J2648/18) [2018] ZALCJHB 334 (9 October 2018),confirmed the interdict, even though employees had by then been dismissed. The LC was very clear about the intervention of political parties. It confirmed that the deliberate and specific design of the LRA is to designate the task of dealing with workplace disputes and grievances to trade unions. There is no place in this structure for the involvement of political parties. What the EFF did in this case was to undermine orderly collective bargaining and dispute resolution, which are cornerstones of the LRA. As an employer, the applicant was entitled to expect it employees to comply with the LRA when seeking to resolve any disputes they might have with the employer.
The outcome in this case calls to mind an earlier decision, also involving the EFF: National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and Others v Universal Product Network (Pty) Ltd; (2016) 37 ILJ 476 (LC); [2016] 4 BLLR 408 (LC). In that case the Court held that there may be circumstances where the levels and degree of violence and interference by outside parties in a strike tilt the balance toward a finding that the protected strike should be declared unprotected.
Taken together, one hopes that these decisions have been noted by the EFF and other political parties.
The remedy when the place of employment is unsafe and unhealthy
The Public Servants Association (PSA) initiated proceedings in the Labour Court on behalf of its members employed by the Department of Health in the Civitas Building in Pretoria, contending that the building was unsafe. The PSA brought the application in terms of s 158(1)(b) of the LRA, which empowers the Labour Court to grant orders to compel compliance with the LRA or any other employment law.
In an application to the Labour Court, the PSA sought a final order against the Dept. of Health and the Dept. of Public Works, directing the employer in terms of s 8 of the Occupational Health and Safety Act (OHSA):
- to provide and maintain a safe and healthy working environment;
- to comply with recommendations by the National Institute for Occupational Health (NIOH) in respect of air quality and noise;
- to move employees to a safer working environment free of the risks identified;
This case appears to confirm that the Labour Court does not have jurisdiction as a court of first instance to enforce any obligation under the OHSA. Where a statute such as the OHSA empowers inspectors to make determinations on the extent to which an employer is in compliance with its regulatory obligations, it is not for the Court to assume the function of an inspector or perform the functions of an inspector.
Prescription of an arbitration award
On 29 April 2012, a CCMA commissioner issued an arbitration award in terms of which she found that 51 employees were unfairly dismissed and awarded them reinstatement with retrospective effect to 22 January 2012, but limited payment of back pay to two months' remuneration.
Initially, the employer indicated that it was going to pursue a review application but did not do so. The employer claimed it was unable to reinstate the employees and on 15 November 2012, concluded a settlement agreement with the affected employees, which was made an award.
When the employer subsequently refused to reinstate the employees, they applied to the Labour Court for an order holding the employer in contempt for failing to comply with the original award. The employees and their union claimed that the settlement agreement did not supersede the arbitration award and was merely a settlement of monetary claims the employees had against the employer. They argued their claim for reinstatement remained intact based on the award issued on 29 April 2012, saying it was the employer's failure to reinstate them in terms of that award which led to the contempt of court application.
The crisp issue in Xoloani and Others v Mhoko's Waste & Security Services (C202/15) [2018] ZALCCT 32 (5 October 2018) was whether the award which was issued on 29 April 2012 and which was certified on 8 May 2014 as a binding award in terms of section 143(3) of the LRA, prescribed before this contempt application was launched on 17 August 2017.
Based on several Constitutional Court decisions, the Labour Court confirmed that an arbitration award obliging an employer, amongst other things, to reinstate employees amounts to a 'debt' in terms of the Prescription Act. The court concluded that the special plea of prescription must succeed in this case - a period of more than 3 years after the award had passed before the contempt application was launched.
The LC made the point that the award in question was handed down before the 2015 amendments to the LRA which resulted in further changes to s 143. Accordingly, the application of prescription on the facts of this case might not be applicable to awards issued after those amendments were promulgated.
ARTICLE: : JUSTIFYING JOB REQUIREMENTS
by Prof Alan Rycroft
We often see in job advertisements requirements such as "2 years' work experience required" or "university degree required" or "driver's licence required". What does the law say about stated job requirements that may seem arbitrary?Prof Alan Rycroft analyses what the cases have to say about the setting of employment criteria, and whether there are any limits to managerial prerogative in that regard. He provides a useful checklist for employers to apply in assessing whether their stated criteria are defensible.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
November 2018
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