The Labour Appeal Court (LAC) decision about how managers should conduct themselves involved Andre Watson, the chief of referees at SARU, is appropriate given the post-World Cup fever after our triumphant win.
Watson was found to have acted inappropriately when he swore and behaved unacceptably toward the staff who reported to him. The LAC upheld his dismissal.
In addition to the fact that management must conduct themselves appropriately, The case also highlights the interesting option for employers to use section 188(A) of the Labour Relations Act (LRA) in respect of combining a disciplinary enquiry with an arbitration in order to ensure an agile and meaningful outcome. The need for employers to simplify their disciplinary procedures must be a focus area for 2020.
What was also evident from this year’s seminars is that employers are spending more time on disciplinary enquiries than they are on the actual arbitrations flowing from these. Our wish would be for employers to spend more time in preparation for arbitrations and to upskill their employees who attend these to ensure appropriate arbitration outcomes.
One of the first Labour Court (LC) cases about polygraph examinations confirmed that employees who are contractually bound to undergo these examinations in circumstances that warrant it, but refuse to do so, can be dismissed for breach of contract. The development in polygraph technology is advancing at a rapid rate and employers need to manage these situations contractually and on the merits of each case.
Another case which is interesting and – in our opinion – correct, is one in which an employer did not follow its own recruitment procedure and appointed someone outside of the organisation. An aggrieved employee objected but was unsuccessful and the arbitrator ruled that it is an unfair labour practice not to follow an organisation’s own recruitment procedure.
Parties to collective bargaining in the country have spent a lot of time – in the past five years – trying to resolve the issues around violence and intimidation in strikes.
The LAC has ruled that carrying a sjambok, a stick or a PVC pipe to a strike is a dismissible offence on its own and there is no necessity to link those dangerous weapons to any assault. The mere carrying of those weapons is regarded as a dismissible offence. We believe that this finding represents good progress given escalating violence and intimidation in strikes such as the Sibanya Gold strike which was unacceptable to us as South Africans.
If one looks towards anticipated legislation next year, we can expect that the Employment Equity Act (EEA) will be amended and sections 15A and 53 will be enacted. Section 53 is the section that requires a compliance certificate issued by the Department of Labour in order to do business with the State. The proposed amendments in s15A before Parliament will require Employers to achieve sectoral targets imposed by the Minister over a 5 year period. This is a space that employers will have to watch very carefully.
Finally, evidence must receive important consideration in disciplinary matters. We find there is too much hearsay lead at disciplinary enquiries and sometimes at arbitration as well. Hearsay evidence is evidence that cannot be tested and includes documents, video evidence and photographs. Documents also include statements from individuals and there were a number of cases discussed – at our seminars – in this regard. If the employee objects to a document, photo or video a witness is going to have to be led to actually support that evidence in order for it to carry the necessary weight.
Our wish is for all readers to have a good break over the festive period and to gear themselves up to implement simpler and aligned labour relations policies next year. We have become far too technical in regard to simple issues like dismissals internally and our wish would be for you to implement simpler policies and procedures in your company