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 asks 'How precise must disciplinary charges be?' in light of a recent Labour Appeal Court judgment. We also discuss three new cases - two from the LAC and one from the ConCourt: The first case asks whether the ability to speak Chinese can be a fair inherent requirement for a job. The second case explores when reinstatement must be ordered after a finding of unfair dismissal. In the third case, the Constitutional Court investigates when costs should be awarded against the losing party in labour disputes.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
The ability to speak Chinese: a fair inherent requirement for a job?
In De Bruyn v Metorex Proprietary Limited (JA 40/2020) [2021] ZALAC 18 (21 July 2021) it was held that where an employer defends an allegation of an automatically unfair dismissal in terms of s 187(2)(a) on the basis of an inherent requirement of the job, this must refer to a permanent attribute or quality, forming an essential element and an indispensable attribute which must relate in an inescapable way to the performing of the job.
Where unfair discrimination is alleged, the test of whether a requirement is 'inherent' is a proportionality enquiry. The employer must show that the requirement is rationally necessary for the performance of the job. The employer must also show that it is impossible to accommodate the employee without imposing undue hardship or unsurmountable difficulty.
Read more (Worklaw subscriber access only)
When is reinstatement required for an unfair dismissal?
Section 193(2) of the LRA requires reinstatement or re-employment for an unfair dismissal unless certain specified circumstances exist. In VSB Construction ta Techni-Civils CC v NUM obo Mngqola and Others (PA11/2018) [2021] ZALAC 21 (23 July 2021) it was held that in the absence of exceptional circumstances, it is impermissible to couple a finding of unfair dismissal with a finding that reinstatement would not be appropriate under s193(2).
The LAC confirmed that an arbitrator must order reinstatement unless one of the exceptions in s193(2) of the LRA applies. The LAC found that exceptional circumstances had not been established in this case - no evidence was led during the arbitration to support that reinstatement would be an inappropriate order.
Read more (Worklaw subscriber access only)
When should costs be awarded in labour disputes?
In Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (CCT 192/20) [2021] ZACC 26 (7 September 2021) the Constitutional Court held that reasons based on considerations of law and fairness must be provided where courts deviate from the rule that costs do not automatically follow the result in labour matters. In labour matters, costs remain a matter of discretion: but courts must exercise this discretion judicially.
The Constitutional Court lamented that it was still being called upon to overturn LC and LAC costs orders that have applied the general rule, rather than recognising that labour-related disputes constitute an exception to the general rule. The Constitutional Court emphasised that when the LC and LAC order costs, they discourage the proper resolution of disputes, and instead encourage other unauthorised means of dispute resolution.
Read more (Worklaw subscriber access only)
ARTICLE: How precise should disciplinary charges be?
By Prof Alan Rycroft
The Code of Good Practice: Dismissal requires that "the employer should notify the employee of the allegations using a form and language that the employee can reasonably understand". The purpose of this notice is to alert the employee to the specific charges so that s/he can prepare to answer to those charges. But it remains a problem for employers to decide how to classify or describe the misconduct and how much information needs to be provided.The LAC in Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 (5 August 2021) highlighted that the Court has repeatedly held that there is a major difference between the wording of charges in criminal matters and in disciplinary proceedings, and that an unduly technical approach to framing disciplinary charges should be avoided.
Drawing from this judgment, Prof Alan Rycroft article discusses key practical problems employers face in preparing disciplinary charges in cases of misconduct.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
September 2021
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