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 on "Artificial Intelligence in the Workplace". We also discuss three new cases: The first case considers whether there was a transfer of a business unit to several service providers under section 197 of the LRA. The second case looks at how an arbitrator or judge should deal with either untested or unreliable evidence. In the third case, the Labour Court considers how accurate an employer needs to be when it gives notice of the number of employees that it contemplates retrenching.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Can there be a section 197 transfer to several service providers?
In Mobile Telephone Networks (Pty) Ltd and Others v CCI SA (Umhlanga) (Pty) Ltd and Others (JA 12/2023) [2023] ZALAC 10 (15 June 2023) it was held that when an enterprise outsources a discreet business unit to competing service providers for fixed periods, the termination of the contract of one of the service providers does not automatically trigger a transfer as a going concern under section 197 of the LRA. The service provider must prove objectively that a business had been transferred as a going concern.
CCI was contracted to perform a call centre service for MTN for five years. When the contract lapsed, the call centre services provided by CCI were shared between other service providers. CCI argued that this constituted a section 197 transfer and the Labour Court agreed. The matter was taken on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
Dealing with unreliable and untested evidence
In South African Revenue Service v National Education, Health And Allied Workers Union obo Kulati and Another (JA101/2021) [2023] ZALAC 11 (21 June 2023) SARS dismissed four employees for dishonesty. Three of them were employed as customs inspectors and were found to have falsified customs documentation in return for equal shares of a R60 000 bribe. The fourth employee, a junior inspector, was dismissed for failing to disclose the bribe to SARS.
The LAC held that when it is suggested that a witness is not speaking the truth on a particular point, this must be drawn to the attention of the witness in cross-examination to afford them an opportunity to give an explanation and defend their character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct.
An arbitrator must carefully consider the totality of the evidence, including those facts that were not in dispute. Where a witness is shown to have given false evidence on one point, it does not follow that a conclusion must be drawn that their evidence on another point cannot safely be relied upon. The LAC noted that maxims such as "once untruthful, always untruthful" and "false in one thing, false in all" do not apply in our law of evidence.
Read more (Worklaw subscriber access only)
Accuracy in the number of employees the employer contemplates retrenching
In Solidarity obo Member v Die Humansdorpse Landbou Kooperasie Ltd (P46/23) [2023] ZALCPE 10 (26 May 2023) the employer needed to embark on a retrenchment process. It issued a section 189(3) notice to 63 of its employees, indicating that it was contemplating retrenching between 35 and 45 employees for operational reasons. At issue in this dispute was whether the numbers involved in the contemplated retrenchment meant that section 189A of the LRA applied.
The Labour Court held that in a section 189(3) notice, the number of employees likely to be affected refers to the employees the employer contemplates dismissing. The LRA does not intend two different categories of employees, namely those who must receive the notice and must be consulted, and the other category being those the employer actually contemplates dismissing who must also be consulted.
Due to the serious nature of the retrenchment process and its implications for those affected, the number of employees affected cannot be a product of mere conjecture. It has to be based on the actual information at the employer's disposal and must lead to everyone who may be affected being part of the process, regardless of what may ultimately be the outcome.
Read more (Worklaw subscriber access only)
ARTICLE: Artificial Intelligence in the Workplace
By Prof Alan Rycroft
Worklaw subscribers will be aware that with the arrival of Chat GPT, Artificial Intelligence (AI) is big news. Drawing from various references, this article aims to alert Worklaw subscribers to the latest developments in AI and its potential application in the workplace.AI refers to computer technology that uses algorithmic tools to perform tasks that usually require human decision-making. At its best, AI is capable of advancing the quality, accuracy and precision of decisions and processes. AI allows organizations to automate mundane and labour-intensive tasks.
AI can be used to analyse data and draw insights to make decisions quickly and more accurately. In industries such as finance and healthcare, AI has been used to guide decisions made based on enormous amounts of complex information. Combined with its ability to process large amounts of data quickly and accurately, AI eliminates or minimizes human error.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
August 2023
Copyright: Worklaw
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