Contemporary Labour Law - workplace.co.za

1 Managing Editor : P A K Le RouxContributing Editor : Carl MischkePublished by Gavin Brown & AssociatesBox 31380 Tokai 7966 Tel : 021 788-5560 Fax: 021 788-1811 Vol 15 No 11 June 2006 Hon. Consulting Editor : LandmanSection 187 of the Labour RelationsAct, 66 of 1995 (LRA) provides thatif an employer dismisses an employeefor one of the reasons set out in this section,the dismissal is automatically reasons include the employee s participation in, orsupport of, a protected strike or protestaction (see s187(1)(a), Early Bird Farm(Pty) Ltd v Food & Allied WorkersUnion & others (2004) 25 ILJ 2135(LAC) and SA Chemical WorkersUnion & others v Afrox Ltd (1999)20 ILJ 1718 (LAC)); an employer compelling an employee tocomply with a demand relating to amatter of mutual interest (see s 187(1)(c),Frys Metals (Pty) Ltd v NationalUnion of Metalworkers of SA (2003)24 ILJ 133 (LAC) and ChemicalWorkers Industrial Union & othersv Algorax Pty Ltd (2003) 24 ILJ 1917(LAC)); the employee taking action, or intendingto take action against, an employer byexercising any rights conferred by theLRA or participating in any proceedingsin terms of the LRA (see s 187(1)(d),Chemical Energy Paper PrintingWood & Allied Workers Union &another v Glass & Aluminium 2000CC (2002) 23 ILJ 695 (LAC) andKroukam v SA Airlink (Pty) Ltd(2005) 26 ILJ 215 (LAC)).

2 The employee s pregnancy or any reasonrelated to her pregnancy (see s187(1)(e) and, for example, Mashavav Cuzens & Woods Attorneys (2000)21 ILJ 402 (LC)); unfair discrimination against anemployee on one of the grounds listedor envisaged in s187(1)(f), includinggrounds such as race, sex, gender,marital status, age, sexual orientation,and family responsibility. (As far as agediscrimination is concerned see RubinSportswear v SA Clothing & TextileWorkers Union & others (2004) 25 ILJ 1671 (LAC)), and; the transfer of an employee in terms ofs 197 of the LRA or a reason related tosuch a transfer (see s 198(1)(g)).If it is established that the reason why thedismissal took place is one of these listedgrounds the fairness thereof cannot bejustified by the employer, except on two veryWhen is a dismissal automatically unfair ?

3 By Le RouxThe Labour Appeal Courts consider shop steward misconduct ,normal retirement age and aspects of s197 transfersContemporaryLabour LawPage 102 Contemporary Labour Law Vol 15 No 11 June 2006narrow grounds dealing with discriminatory dismissalsin terms of s 187(1)(f). These dismissals are seen ascontradicting the fundamental policies espoused in theLRA and/or the values enshrined in the Constitutionand can therefore not be justified on the grounds seriousness with which the LRA regardsthese dismissals is also evident from the fact that themaximum compensatiopn that can be awarded to anemployee is two year's remuneration instead of 12months as is the case with other unfair can be seen from the decisions listed above (andthere are more), this section has been the subject ofthe attention of our courts on numerous of the more important decision have also beendealt with in CLL, the most recent being the discusssionof the Labour Appeal Court (LAC) decision in thecase of Kroukam v SA Airlink.

4 (CLL p68)In this contribution we will deal with three of the morerecent decisions, namely those of the LAC in BankingInsurance Finance & Allied Workers Union &another v Mutual & Federal Insurance Company(2006) 27 ILJ 600 (LAC) (the BIFAWU decision)and Cash Paymaster Services (Pty) Ltd v Browne(2006) 27 ILJ 281 (LAC) (the Cash PaymasterServices decision) and that of the Labour Court inVan der Velde v Business & Design Software(Pty) Ltd & another JS 371/03 (unreported 1 March2006) (the van der Velde decision). The first decisionis of interest because it deals with the problem of whatactivities of a shop steward are immune fromdisciplinary action. The second deals with agediscrimination. The third is of importance because it isthe first decision to deal with the interpretation of s187(1)(g) and dismissals that take place in the contextof a transfer of a going BIFAWU decisionThe applicant employee in this case was a shop stewardwho, in the exercise of his duties in this capacity,represented another employee, one Munyai, at adisciplinary enquiry and at the subsequent CCMA arbitration where he challenged his dismissal.

5 Thearbitrator found that the dismissal (for the dishonestprocessing of insurance claims) was substantively fairbut procedurally unfair. This was based on a findingthat the chairperson had unfairly refused to grant apostponement and a finding that the company srepresentative at the disciplinary enquiry had actedimproperly. Compensation amounting to R 39 awarded to employer, Mutual & Federal, did not seek to reviewthis award. However, some weeks later it instituteddisciplinary proceedings against the applicant employeeon the basis that he had made dishonest statementsduring the course of the CCMA proceedings and inhis heads of argument when he represented was alleged that he had misled the arbitrator byincorrectly stating that the chairperson of the disciplinaryenquiry had refused to postpone the hearing asrequested by the applicant on behalf of Munyai thematter had in fact been postponed after an initial refusalto grant the postponement was rescinded.

6 Theapplicant employee was dismissed for thismisrepresentation. He then challenged his dismissal inthe Labour Court. He argued that his dismissal wasautomatically unfair because it was in breach of s187(1)(d) he had been exercising his right as a shopsteward to represent an employee in CCMA arbitrationproceedings. He also took the point that his dismissalhad been procedurally unfair because his union hadnot been consulted prior to Mutual & Federal institutingdisciplinary action against him as is required in item4(2) of the Code of Good Practice: Dismissal set outin Schedule 8 to the Labour Court found that, after an initial refusal, apostponement had in fact been granted by the chairmanof the disciplinary hearing. The Court also found thatthe applicant had been deliberately deceitful and hadintentionally misled the CCMA commissioner.

7 Thedismissal was held to be substantively fair. As far asprocedural fairness was concerned, the Court foundthat there had been no obligation on Mutual & Federal That an employee, even when he or she is representing a fellowemployee at a disciplinary enquiry or arbitration hearing, owes certainduties to the employer cannot be doubted. Among these is the duty toact v Mutual & Federal Page 103 Contemporary Labour Law Vol 15 No 11 June 2006to consult with the union. It had not recognised theunion, had not had any contact with the union and hadnot recognised the union s shop stewards as shopstewards. In any event, the Code of Good Practiceonly served as a guideline in this applicant employee than appealed to the LAC agreed with the Labour Court s finding thatthe employee had been deliberately deceitful and hadintentionally misled the CCMA commissioner.

8 But hadthe dismissal been in breach of s 187(1)(d)? Here theCourt posed two questions. Did the applicant employee exercise a rightconferred by the LRA when he representedMunyai at the CCMA proceedings? If such a right does exist, was the applicantemployee dismissed because he exercised thisright?The first question was answered in the LAC accepted that there was no explicit provisionin the LRA which conferred the right on a shop stewardto represent an employee at a CCMA , it relied on item 4(1) of Schedule 8 to theLRA, which states that employees are entitled to berepresented by a trade union representative atdisciplinary enquiries. If item 4 created such right inrespect of disciplinary enquiries this principle a fortiorialso applied to CCMA answer to the second question required aconsideration of the reasons why the employee hadbeen dismissed.

9 The Court referred to its earlierdecision in the Kroukam matter and stated that thisdecision established the principle that, where therewas more than one reason for the dismissal, one mustattempt to establish what the dominant or principal reason for the dismissal was. If the dominant orprincipal reason for the dismissal was the fact that theemployee had participated in union activities and hadacted on behalf of a union, s 187(1)(d) would becontravened and the dismissal would be automaticallyunfair. This was the case even if other reasons hadalso played a lesser LAC came to the conclusion that, although thefacts which gave rise to the employee s dismissal arosewhilst he was exercising a right conferred by the LRA(representing Munyai at a CCMA arbitration), thedominant reason for his dismissal was his dishonestconduct whilst representing Munyai rather than thefact that he was representing the Munyai.

10 The dismissalhad therefore not been automatically LAC also addressed the issue of allegedprocedural unfairness ie Mutual & Federal s failureto consult with the applicant employee s union prior totaking disciplinary steps against him. The employerargued that there was no duty to consult because theunion had not been recognised by it it had minoritysupport amongst the workforce and its representivitywas dropping. The Court found that it was notnecessary that a union had to be representative in orderfor such consultation to be required, and found thatitem 4(2) had therefore not been complied , it was not prepared to order the paymentof compensation for this failure. The applicantemployee had suffered no prejudice and had been ablyrepresented by another employee.