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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 "Applying "deemed" dismissals in the context of SA labour legislation," in the light further recent labour court decisions on this issue. We also discuss three other new labour appeal court judgments: The first case dealt with a delay in the start of the disciplinary hearing. The second case set requirements for how to prove wage discrimination. The third case dealt with the impact of errors in an arbitrator's award.
RECENT CASES
Delay in starting the disciplinary enquiry
In Tshabalala v Moqhaka Local Municipality and Another (JA88/2024) [2024] ZALAC 60 (21 November 2024) the LAC had to decide, where an employer is obliged in terms of Local Government Regulations to commence the disciplinary hearing within 3 months of suspension, if a disciplinary hearing starts when the charges are delivered to the employee or when the hearing itself starts.
Regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers, 2010 provides for the precautionary suspension of senior municipal employees.
Regulation 6 (6)(a) provides -
'If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.'The employee was employed by the Moqhaka Local Municipality as the municipal manager. On 1 March 2024 she was suspended, with immediate effect, pending an investigation into alleged misconduct. On 31 May 2024 the employee was served with a notice to attend a disciplinary hearing, accompanied by charges. On 3 June 2024 the employee reported for work, contending that her suspension had lapsed.
On 13 June 2024, the employee filed an urgent application in the Labour Court contending that a continuation of her suspension beyond a period of three months was in breach of her employment contract. Specifically, the employee said that her contract of employment incorporated the Regulations, and that the municipality was in breach of Regulation 6 (6)(a).
In its judgment, the Labour Court held that a disciplinary hearing commences upon the service of the disciplinary charges and the notice of disciplinary charges. In this case, the disciplinary proceedings against the employee therefore commenced when she was given the notice to attend the hearing, which was before the expiry of the three-month period, and her suspension had not lapsed.
The Labour Court's decision was taken on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
Proving pay discrimination
In Passenger Rail Agency of South Africa v Hoyo (CA04/2023) [2024] ZALAC 57 (6 November 2024) the LAC provided guidelines how pay discrimination can be proved.
The employee was a Production Manager who lodged a grievance with PRASA in which he took issue with the fact that he earned a salary which was less than that earned by two of his subordinates who, compared to him, performed lesser roles with reduced responsibilities. He claimed to have been discriminated against on the basis of race and/or in not receiving equal pay for work of equal value. After conciliation at the CCMA was unsuccessful, he referred an unfair discrimination claim to the Labour Court for adjudication.
The Labour Court rejected PRASA's contention that the pay disparities between the employee and his subordinates were not based on race. The Court noted that PRASA had not taken the steps required of it in terms of section 27(2) of the EEA to progressively reduce income differentials, with the employee's two subordinates being the "beneficiaries of collective bargaining". The Court therefore concluded that PRASA had not proved that unfair discrimination did not take place or that the discrimination was rational or otherwise justifiable, with the employee, as an African man, found to have been hurt by the fact that PRASA had not attempted to redress the injustices of the past.
On appeal the Labour Appeal Court considered whether the difference in pay between employees performing the same work or work of equal value was as a result of a listed ground for differentiation prohibited by law.
Read more (Worklaw subscriber access only)
Errors by the commissioner: when do they affect the outcome?
In National Union of Metalworkers of South Africa obo Motloung and Others v Polyoak Packaging (Pty) Ltd, the Metal and Engineering Industries Bargaining Council and Others (DA02/23) [2024] ZALAC 66 (17 December 2024) the LAC had to consider whether errors by the commissioner resulted in a reviewable irregularity.
During a national strike in the plastics industry in 2018, the Labour Court granted an interim interdict requiring Polyoak's employees to maintain a distance of at least 150 metres from the Polyoak plant.
Polyoak later charged only those employees that it could positively identify as having participated in misconduct and appointed a senior commissioner of the CCMA to conduct the disciplinary hearing. The charges were, first, that the employees had breached the terms of the interim interdict; second, that they had intimidated and harassed employees, suppliers, customers, and deliveries to Polyoak; and third, that the employees had interfered with Polyoak's business.
At the disciplinary hearing Polyoak introduced a number of silent video recordings. One showed employees toyi-toying at the access gate of another employer affected by the strike, Mpact Plastics. The video showed a fire being lit by two Polyoak's employees. Two other Polyoak employees are shown feeding the fire. Two other videos formed the basis of charges against the employees. At the disciplinary hearing, the union conceded that the employees identified by name in the photographs (or screenshots) extracted from the video footage and submitted in evidence, were correctly identified. In her findings, the chairperson of the hearing found the union's version improbable, at times absurd, and more often than not fabricated. Of the 23 employees initially charged with misconduct ,21 employees were found guilty and summarily dismissed. One of the employees was identified by the chairperson as having been involved in a separate incident and was found on that basis to have committed misconduct and dismissed.
The union disputed the fairness of the employees' dismissal and referred the matter to the bargaining council for arbitration. The arbitrator came to a different conclusion with respect to 6 employees, finding that they were in the wrong place at the wrong time.
Both Polyoak and the union filed applications in the Labour Court to review and set aside the arbitrator's award. Neither application was directed at the arbitrator's finding in regard to the employees he considered to have been fairly dismissed. Of the remaining 10 employees, those whom the arbitrator had found to have been unfairly dismissed, the review filed by Polyoak was directed at that decision and the remedies of reinstatement and compensation granted by the arbitrator.
The Labour Court concluded that the arbitrator's finding, reinstating the six employees, was not rationally linked to the evidence and that the distinction drawn by the arbitrator between them and those employees whose dismissals were upheld, was arbitrary.
The matter was taken on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
ARTICLE : Applying "deemed" dismissals in the context of SA labour legislation By Prof Alan Rycroft
"Deemed dismissals" occur when termination of employment is automatically triggered on the occurrence of an event. The term "deemed dismissal" is used, but causes confusion because the employer does not dismiss the employee in the ordinary way. Instead the employment is terminated automatically "by operation of law" on the occurrence of an event.
The "deemed dismissal" provision applies to many employees, mainly in the public service, the education sector, and the police department. The following serve as examples:
- In Section 17(3)(a) of the Public Service Act, an employee would be deemed to have been dismissed for misconduct if the employee is absent from work without the consent of their head of department and is absent for longer than one month.
- In terms of Section 36 of the Public Service Act and regulation 15 of the Public Service Regulations, if a municipal employee is elected to the provincial or national legislatures or as a councillor, the employee is regarded to have resigned on the day before the assumption of office.
- Section 36(1) of the South African Police Act provides that an employee who is convicted of an offence and is sentenced to a term of imprisonment (which is not wholly suspended and without the option of a fine) shall be deemed to have been discharged from the Service with effect from the date following the date of such sentence.
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In terms of section 14(1) of the Employment of Educators Act, unless the employer directs otherwise, permanently employed educators will be deemed to have been dismissed for misconduct in the following instances:
- Where the educator is absent for longer than 14 days, without the consent of their employer;
- Where the educator is absent from work, without the consent of their employer and assumes a new position;
- Where the educator is suspended and they resign or assumes a new position, without the consent of the employer; and
- Where disciplinary proceedings are taken against an educator, and they resign or take up a new position without the employer's consent.
On one level, deemed dismissal provisions are an efficient way to terminate an obviously broken employment relationship. There is no need to conduct a disciplinary or incapacity enquiry where the facts are uncontested.
But there are important questions:
- Is a deemed dismissal a dismissal as defined in S 186(1) of the LRA?
- If a deemed dismissal does not fall within the LRA's definition, can the dismissed employee still challenge the termination at the CCMA or bargaining council?
- If the CCMA or bargaining council has no jurisdiction to hear the matter, what can the terminated employee do?
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Bruce Robertson
January 2025
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