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October 2008–

The CCMAil is distributed quarterly. If you would like to make a contribution, subscribe or have any comments, e-mail [email protected]

CCMAilRevolutionising Workplace Relations

October 2008C O N T E N T S

CCMA CASE ALERTS.................................................................................................................................................................2

LABOUR COURT AND APPEAL COURT JUDGMENTS..............................................................................................................4

DECISIONS: OTHER DISPUTE RESOLUTION FORUMS ............................................................................................................ 7

DECISIONS: AUSTRALIAN INDUSTRIAL COMMISSION ............................................................................................................ 9

STATISTICS .............................................................................................................................................................................. 12

21st ANNUAL LABOUR LAW CONFERENCE ............................................................................................................................ 16

• Wither unfair labour practice ........................................................................................................................................... 17

• Developments in trade union law................................................................................................................................... ..20

• Liability of trade unions ................................................................................................................................................. ..22

• SETAs: Are they a success?........................................................................................................................................... 27

• The case law update for the public sector (1)................................................................................................................... 29

• The case law update for the public sector (2)................................................................................................................... 32

GLOBAL TRENDS

• Labour market consequences of globalisation: Pathways to decent work in a global economy.......................................... 34

LABOUR RELATIONS IN AFRICA

• Trade unions in Africa..................................................................................................................................................... 36

EDITORIAL TEAMAlucia Mdaka

Lucky MoloiNersan Govender

Poso MogaleSamuel Denga

October 2008–


By Samuel Denga

GAPT2446-08 Sibanyoni v Vizual Security (Pty) Ltd –Commissioner: van WykDismissal – Theft and unauthorised possession of companygoods – Dismissal fair.

The applicant, a security guard, was dismissed after adisciplinary hearing which was held in his absence. Hechallenged his dismissal as procedurally unfair.

The applicant contended that on the day in question, he wasapprehended by two colleagues when he exited through themain gate. He claimed that they had “planted” the bread in theboot of his car so that he could be dismissed.

The respondent argued that the applicant had contravened therule which stipulated that no one should take what does notbelong to him. The respondent’s witness testified that after theapplicant had knocked off, he apprehended him in possessionof eight loaves of bread belonging to the respondent’s client.The applicant was invited to two disciplinary enquiries, butnever attended any of them. The witness also testified thatmisappropriation of bread belonging to the respondent’s clienthad placed the entire contract with the respondent’s client atrisk. The respondent’s witness claimed that about 18 securityguards would be without jobs if the respondent’s clientterminated the contract with the respondent.

Noted: That the applicant was employed to safeguard therespondent’s client assets instead he stole from the client. Therespondent’s client can no longer trust the applicant to guard itsassets.

Held: That the applicant’s dismissal was both procedurally andsubstantively fair. The application was dismissed.

Case references

Anglo American Farms t/a Boschendal Restaurant v Komjwayo(1992) 3 (6) SALLR 1 (LAC)Grogan AJ in Carter v Value Truck Rental (Pty) Ltd (2005) 1BLLR 88 (SE)Khanum v Mid-Glamorgan Area Health Authority (1978) IRLR215Nedcor Bank Ltd v Jappie (1998) 10 BLLR 1002 (LAC)Sidumo & Another v Rustenburg Platinum Mines Ltd & Others(2007) 12 BLLR 1097 (CC)Standard Bank of South Africa v CCMA & Others (1998) 6BLLR 622 (LC)

NW683-08 Ntekiso v Anglo Gold Ashanti t/a Tau Lekoa –Commissioner: MatlalaDismissal – Employee alleged he was dismissed – Employeeresigned - No proof of dismissal.

The commissioner was called upon to determine whether theapplicant was dismissed or had resigned. The applicant claimedthat he was told by his supervisor that he was no longer fit towork and must apply for medical boarding so that he could notlose his benefits. After the company doctor had examined him,he was told that he could not be recommended for medicalboarding as he was still fit to work. Later on, he was advised toconsult his private doctor, who also did not recommend him formedical boarding.

The respondent’s witness claimed that he had promoted theapplicant to his current position, had a good relationship withhim and that he would never dismiss him. He testified that anaudit in the applicant’s section had revealed severaldiscrepancies in his job. The applicant was given a final writtenwarning for poor work performance after counselling and adisciplinary were held. The witness also testified that later on,the applicant had developed epilepsy, which became worse andhe was hospitalised. The witness further testified that theapplicant had come to his office with his union representativeand told him that he wanted to resign.

Noted: That if the applicant thought that he was forced toresign, he would have pursued a case of constructive dismissal.

Held: That the applicant was not dismissed, but had resignedon his own free will. The application was dismissed.

GAJB28383-06 Jiyana v Gauteng Provincial Legislature –Commissioner: CellierUnfair labour practice – Employee alleged reduction of salaryand suspension of benefits - No proof of unfair labour practice.

The commissioner was called upon to determine whether therespondent had committed an unfair labour practice. Theapplicant alleged that her salary was reduced. She contendedthat she had lodged a grievance, but it was not attended to. Shealso contended that while on maternity leave, a draft policy wasapplied to her, whereby, her medical, provident fund and otherbenefits were suspended for four months.

She claimed that the relationship with her supervisor wasvolatile. The applicant further contended that her supervisorlabelled her as a “trouble maker”.

The respondent’s witness testified that he had facilitated ameeting between the applicant and her supervisor. The

October 2008– The CCMAil is distributed quarterly. If you would like to make a contribution, subscribe or have any comments, e-mail [email protected]

respondent claimed that the applicant’s grievances had beenaddressed and resolved, but the applicant did not acknowledgethe concerns that her supervisor had raised. He denied that theapplicant’s salary had been tampered with in an unlawfulmanner.

Noted: That the applicant could not submit any proof of herallegations.

Held: That there was no evidence to prove that the respondenthad committed an unfair labour practice. The application wasdismissed.

ECEL347- 08 SATAWU obo Nel v Vehicle Delivery Services(Pty) Ltd – Commissioner: CahillNegligence – Employee dismissed for ignoring safety rules –Employee causing accident while offloading vehicle – Dismissalfair.

The applicant, a carrier driver, was dismissed after a vehicletransported in his carrier was damaged in an accident while hewas offloading it. He challenged his dismissal as being bothprocedurally and substantively unfair.

The applicant testified that on the day in question, thedealership where he was supposed to deliver the vehicles wasalready closed, but he decided to offload their units. One of thevehicles was a non-runner. He claimed that he contacted hissupervisor by cell phone, but he did not answer. Later on, hestarted to offload the vehicle. The applicant also claimed that interms of the applicable company procedures, he untied theanchor straps of all four wheels as the car was stable. Hecontended that he opened the driver’s door so as to push thecar. He further claimed that as he was pushing the carbackwards with his right foot, his foot slipped, causing all hisweight to shift to his right hand side. He indicated that he onlyrecalls lying on the ground when the rescue team arrived toassist him.

The respondent’s witness testified that he had initiated aninvestigation on the same day that he became aware of theapplicant’s accident. He claimed that he inspected videofootage of the incident. Subsequent to that, the applicant wascalled to a disciplinary hearing and charged with:

• gross negligence in that he had caused extreme damageto the respondent’s vehicle.

• failure to comply with a direct instruction, and• breach of internal safety rules in that his actions placed

himself and fellow employees’ lives at risk.

Noted: That the applicant did not comply with the rule whichrequired that a non-runner vehicle must be firstly engaged in agear, and the hand brake must be pulled up fully before thedriver undo anchor straps. Had the applicant complied with theprocedure, the vehicle would not have ran down the ramp on itsown.

Also noted: That the applicant had never lost consciousnessafter the accident, he knew exactly what had happened.

Held: That the dismissal of the applicant was both procedurallyand substantively fair. The application was dismissed.

Case references

Fidelity Cash Management Services v CCMA & Others (2008) 3BLLR 197 (LAC)NUM & Another v Amcol Colliery t/a Arnot Colliery & Another(2000) 8 BLLR 869 (LAC)Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others (2000) 21ILJ 1232 (LC)Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd &Others (2007) BLLR 1097 (CC)


By Alucia Mdaka

Labour Appeal Court: JA 48/04Maepe v CCMA & Another: Judges Zondo & JappieSexual harassment.

The appellant was employed by the first respondent as aconvening senior commissioner. He was charged with variousincidents of sexual harassment and improper conduct. Theincidents of sexual harassment involved one of the firstrespondent’s employees (the complainant). The charge ofimproper conduct was with regards to a conversation that theappellant had with the complainant about the registrar of thefirst respondent in Eastern Cape region. At the time of beingcharged, the appellant was not suspended and had continuedwith his duties until the time of his dismissal. At the disciplinaryenquiry, the appellant was found guilty of both charges, andissued with a final written warning on the charge of improperconduct but dismissed for the charge of sexual harassment.

The appellant then challenged the fairness of his dismissal byreferring a case to the CCMA. At the CCMA, it was noted thatthere was no evidence led by the first respondent to show thatthere was material damage to the employment relationship orthat the employer regarded continued employment relationshipintolerable. The commissioner held that dismissal was not anappropriate sanction, and ordered reinstatement. A final writtenwarning valid for 12 months was recommended.

The first respondent then approached the Labour Court (LC) toreview and set aside that award. It contended that thecommissioner had committed a gross irregularity in that he hadfailed to consider and attribute weight to the fact that theappellant had given false evidence both in the disciplinaryinquiry and in the arbitration proceedings. The first respondentclaimed that, had the commissioner done so, he would not havefound the appellant’s dismissal unfair, and granted the appellantany relief. The LC noted that the appellant’s duties required himto act with honesty and to maintain good repute of the firstrespondent. It was also noted that he was entrusted by law toadminister the oath and encourage those appearing before himto be honest. The LC, therefore, held that the appellant’sdismissal was fair and the award was reviewed and set aside.

The appellant, therefore, approached the Labour Appeal Courtto appeal the LC’s decision on the basis that his dishonesty wasnot raised before the commissioner. He argued that the Court aquo had correctly held that the appellant’s conduct in givingfalse testimony under oath was relevant only in relation to thedetermination of what relief the appellant was to be granted.

Therefore, the issue of dishonesty could not deprive him ofreinstatement.

Noted: That the Court a quo had noted that the giving of falseevidence could not render valid an otherwise invalid reason.

Also noted: That the appellant was in a position of trust andrequired to act with honesty and integrity. His disregard of thesanctity of the oath indicated that he was not a fit and properperson to hold the position that he had. Had the commissionerapplied his mind to that issue, he would not have orderedreinstatement.

Held: That as to the LC’s finding that the dismissal was fair, theCourt noted that, after stating that the giving of false evidencewas relevant to relief, rather than the fairness of the dismissal,the Court a quo had ruled the dismissal fair. It was held that itwas not clear why the Court a quo had interfered with thearbitration award. The appellant’s dismissal was unfair. The firstrespondent was ordered to pay the appellant compensationequivalent to 12 months’ salary.

Labour Court: C52/07“Kylie” v CCMA & Others: Judge Cheadle (Acting)Practice and procedure - Interpretation of statutes - Rightsunder labour legislation - Brothel owners and sex workersfalling within statutory definition of “employer” and “employee”,but not entitled to relief under labour legislation – Constitutionalright to fair labour practices - Brothel owners and sex workersnot falling within scope of right - Courts and arbitrators lackingpower to afford relief to dismissed sex workers.Grievance (residual) unfair labour practice – Workingrelationships - Contract of employment – Validity – Contractbetween brothel owner and prostitute invalid and contra bonosmores – Such contracts unenforceable under common law,labour legislation and constitution.

The applicant was a sex worker who was employed in amassage parlour to perform sexual services for reward. Shewas dismissed by the third respondent for misconduct and hadapproached the CCMA to challenge her dismissal. The secondrespondent ruled that the CCMA lacked jurisdiction to entertainthe matter due to the fact that her work was prohibited by theSexual Offences Act 23 of 1957 (the Act). The CCMA held thather contract of employment was invalid. It was also held that s23 of the Constitution of the Republic of South Africa Act 108 of1996 (Constitution) and the Labour Relations Act 66 of 1995(LRA) did not apply to workers who did not have a valid and


enforceable contract. The applicant then approached the LC toreview and set aside the award issued by the third respondent.

On review, the applicant argued that both the Constitution andthe LRA, properly interpreted, extended the labour protectionsto sex workers despite the illegality of their work. She alsoargued that the public policy concerns regarding theenforcement of illegal transactions ought to be left to a decisionmaker’s discretion when the remedy of a statutory claim isbeing determined.

The applicant further argued that in terms of s 23(1) of theConstitution, a fair labour practice right applies to everyone,which in the context of another right is a term of general importand unrestricted meaning. The rights to life and to dignityvested in everyone “including criminals convicted of the vilestcrime”’. Similarly, the right to fair labour practices also vests ineveryone including sex workers because a denial offundamental protections against exploitation would be a grossdefamation of their dignity. Furthermore, she argued that theLRA had to be interpreted in light of the interpretation of s 23 ofthe Constitution and that it, accordingly, applied to all workersincluding sex workers.

The applicant contended that the definition of an employee interms of s 213 of the LRA only included employees under avalid and enforceable contract on a number of grounds. Thefollowing are the grounds:

• That the definition is cast widely and focuses on theemployment relationship rather than law. The form orexistence of a valid and enforceable contract is not thefocus of the definition and, accordingly, the LRA as amatter of statutory construction should apply to allworkers even sex workers,

• That the statutory definition of employee under the LRA isnot confined to employees at common law and notdependent on the existence of an enforceable contract ofemployment,

• That the LAC has held that in determining whether aperson is an employee for the purposes of the LRA, acourt should have regard not to the labels but to therealities of the relationship between the parties, and

• That if the definition of employee in the LRA admits onlythose employees under a valid and enforceable contractof employment, that would have the drastic consequenceof excluding workers without such a contract from thebasic protection of a raft of employment laws on healthand safety, basic conditions of employment, andunemployment insurance.

Noted: That organised prostitution and brothel keeping isprohibited by the Act. It was noted that there is a fundamentalprinciple of public policy that courts, by their actions, ought notto sanction or encourage illegal activity.

Also noted: The scope of the labour rights in s 23 of theConstitution extends to workers, employers and their respectiveassociations. The question is whether the scope includes sex

workers, their employers and the associations to which theybelong.

Further noted: That the wording of the definition of employeein terms of the LRA is wide enough to encompass those withouta valid contract of employment. That does not mean that theright not to be unfairly dismissed applied to those without a validcontract of employment.

Held: That the scope of a constitutional right is either a matterof interpretation of the right itself or a matter of limitation arisingfrom a law of general application. It was held that sex workersand brothel keepers are not rights holders for the purposes of s23 of the Constitution.

Also held: That the applicant’s claim for compensation basedon the statutory right to fair dismissal was unenforceable. Theapplication was dismissed.

Labour Court: JR1354-03CWU & Others v CCMA & Others: Judge BassonPractice and procedure - Appeal and review - Application toreview brought in terms of s 158 of LRA - Applicant broughtcondonation application for non-compliance with time limits -Misconception of duties as arbitrator - Matter referred back toCCMA for arbitration.

The applicants were dismissed after being found guilty oncharges of poor time keeping, delaying mail, violence andrefusing to obey instructions. They referred a dispute to theCCMA challenging the fairness of their dismissals. In theirreferral forms, the reason for their dismissal was indicated as“misconduct”. Prior to the commencement of the arbitrationproceedings, the parties submitted various documents whichthey intended using in support of their respective cases. Areading of those documents indicated that there were variousindications that the applicants were dismissed for participatingin an unprotected strike action rather than misconduct. Thedocuments also indicated that there was an agreement enteredinto by both parties that disputes of such a nature should bereferred to the LC for adjudication. The arbitrator, withoutevidence being led, concluded that the CCMA lackedjurisdiction to entertain the matter and ordered that it should bereferred to the LC for adjudication.

The applicants then approached the LC to seek to review andset aside the ruling issued by the first respondent on the basisthat the commissioner had failed to apply his mind properly tothe issues before him. They contended that the commissionerhad taken into account an alleged agreement that had not beenreached. They also applied for condonation for late filing of thereview application. The applicants’ reason for the late filing wasthat they had approached the Legal Aid Board (the Board) onJanuary 2003, which undertook to handle the review. In April2003, the Board withdrew from the matter, and around May2003 the matter was referred to their union but the union hadfiled the review application on 11 August 2003.


Noted: That where the blame may be attributed to thenegligence of an attorney or representative, the courts wouldequally be reluctant to grant condonation except in exceptionalcircumstances. It was noted that the following factors weretaken into account when determining whether to grantcondonation or not:

• the employees were laymen from a rural environment,• the employees were misled by their representatives, and• the employees had taken reasonable steps to ensure that

their matter is being pursued.

Held: That the condonation for the late filing of the reviewapplication was granted.

Also noted: That in Future Mind (Pty) Ltd v CCMA & Others(1998) 11 BLLR 1127 (LC), it was held that arbitrators areobliged to determine the real issue in dispute when consideringjurisdiction. If it then appears that the dispute was erroneouslyreferred to the CCMA, then only may the arbitrator with theconsent of the parties proceed with the matter. If such consentcannot be obtained, the matter should be referred to the LC.

Further noted: That the charge sheet revealed that theemployees’ charges were related to misconduct. It was furthernoted that the chairperson’s conclusion did not support aconclusion that the applicants were dismissed for participationin an unprotected strike action.

Held: That the commissioner had committed misconduct inrelation to his duties. The ruling was reviewed and set aside,and the matter was remitted to the CCMA.

Labour Appeal Court: JA16/06State Information Technology Agency (SITA) (Pty) Ltd vCCMA & Others: Judges Davis, Leeuw & TlaletsiPractice and procedure – Appeal and review – S 145 of theLRA - Court determines question of employment relationship.

The third respondent was employed by the South AfricanNational Defence Force (SANDF) until he was retrenched. Interms of the severance agreement and regulations, it wasagreed that the third respondent could not be lawfully employedby the SANDF or any of its service providers. The appellant,

SITA, then approached the third respondent with a proposalthat he should work for it. Since both the applicant and the thirdrespondent were aware that an employment relationship wouldbe unlawful, they formed a scheme in terms of which the thirdrespondent would be employed by a close corporation (CC),and would render service to the appellant through that entity.When the appellant lost certain contracts with the SANDF, itterminated its relationship with the CC and with the thirdrespondent. The third respondent then referred an unfairdismissal dispute to the CCMA. The arbitrator issued an awardthat the appellant and the CC were jointly and severally liable topay compensation to the third respondent, as both entities werefound to be employers of the third respondent.

The third respondent then approached the LC to review and setaside the arbitration award. On review, the LC held that thethird respondent was an employee, that he had been unfairlydismissed. The Court a quo reviewed the award and orderedthat only the appellant was liable to payment of thecompensation which was awarded. On appeal, the appellantcontended that the court a quo had erred by finding that thethird respondent had been in its employ.

Noted: That the major obstacle confronting the appellant wasthe judgment in Denel (Pty) Ltd v Gerber (2005) 9 BLLR 849(LAC), in which the Court had adopted a “reality test” whendetermining whether a person whose services were engagedthrough the medium of a CC was an employee. It was notedthat in the light of Denel’s judgment, there are three maincriteria that was considered for determining the existence of anemployment relationship. They are:

• The principal’s right to supervise and control,• The extent to which the person providing the service

forms an integral part of the employer’s organisation, and• The extent to which the service provider is economically

dependent on the employer.

Held: That the third respondent provided his services alonewithout the control of the CC. It was held that the workingrelationship was, therefore, between the appellant and the thirdrespondent. Furthermore, the third respondent waseconomically dependent on the appellant. The appeal wasdismissed with costs.


By Poso Mogale

Metal & Engineering Industries Bargaining Council: MEGA17716Cunningham v Engineering & Crane Maintenance (Pty) Ltd:Panellist LevyInjury on duty – Failure to disclose injury – Dismissal unfair.

The applicant had suffered a seizure after a bolt had struck himon the head. Upon his discharge from the hospital, he wascalled to a disciplinary hearing and was dismissed. The reasonfor his dismissal was that he had failed to disclose that he hadpreviously suffered a head injury prior to joining the respondent.The respondent contended that due to the applicant’s injury itwas unsafe to employ him.

Noted: That the applicant’s claim that he had been“bombarded” with questions at the disciplinary hearing had notbeen contradicted.

Also noted: That the applicant had disclosed his medicalcondition prior to joining the respondent.

Held: That the applicant’s case should have been treated asone of incapacity and not as misconduct. It was held that therespondent was obliged to enquire into the applicant’s medicalcondition and consider alternatives. Since the respondent hadfailed to do so, the applicant’s dismissal was held to besubstantively unfair.

Also held: That while disciplinary hearings may be informal,they should not deteriorate into a disorder. The applicant’sdismissal was, therefore, also held to be procedurally unfair.

Public Health & Welfare Sectoral Bargaining Council,Kroonstad: PSHS430/07/08Lenono v Department of Health, Free State: Panellist VenterNon-renewal of fixed term contract – Final decision rested withMEC or head of department – application dismissed.

This was a dispute regarding non-renewal of a fixed termcontract. The arbitrator had to determine whether the applicanthad a reasonable expectation of the renewal of her contract.Another issue for determination was whether a dismissal hadoccurred in terms of s 186 of the Labour Relations Act 66 of1995 (LRA).

Noted: That in any dispute concerning the non-renewal of afixed term contract, a person with the necessary authority tobind the employer should have created that expectation. It wasnoted that a reasonable expectation would be created if the

employee was permitted, by default, to continue working afterthe contract had expired.

Also noted: That the respondent was willing to appoint theapplicant to a permanent position. The applicant wasinterviewed for the position but was not successful.

Held: That the respondent had a wide discretion in filling vacantposts. It was held that where that discretion had beenexercised, there is little room for interference.

Also held: That the applicant was aware that the final decisionas to her appointment rested with the MEC or the head ofdepartment. She, therefore, had no basis for her allegedexpectation that she would receive a permanent position. Theapplication was dismissed.

Case references

Alvillar v NUM (1998) 7 CCMA 7.19.3Arries v CCMA & Others (2006) 11 BLLR 1062 (LC)Malandoh v SABC (1997) 18 ILJ 544 (LC)

Metal & Engineering Industries Bargaining Council: MEGA17282Motlaase v Renolit South Africa: Panellist MambaRetrenchment – Applicant’s job outsourced – No properconsultation.

The applicant was retrenched after he had lodged a grievanceregarding charges that were laid against him. He was chargedwith fraud, poor work performance and insubordination. Therespondent claimed that the reason for the applicant’sretrenchment was that his work had been outsourced.

Noted: That the letter inviting the applicant for consultation hadindicated that the decision to retrench him had already beentaken. It was noted that no alternatives to retrenchment hadbeen considered prior to dismissing the applicant.

Held: That the consultation was, accordingly, a pretence. Therespondent had also failed to prove that significant savingswould be gained by dismissing the applicant. The applicant’sdismissal was, therefore, held to be both procedurally andsubstantively unfair. The respondent was ordered to reinstatehim with retrospective effect.


Case references

CWIU v Johnson & Johnson (Pty) Ltd (1997) 9 BLLR 1186(LC)NEHAWU & Others v The Agricultural Research Council &Others (2000) 9 BLLR 1081 (LC)Ntshanga v South African Breweries Ltd (2003) 8 BLLR 789(LC)NUM & Others v Alexkor Ltd (2005) 1 BLLR 28 (LC)

National Bargaining Council for the Chemical Industry:GPChem 3928Maitin v Colgate Palmolive (Pty) Ltd: Panellist DreyerTermination of contract – Applicant an independent contractor.

After his retrenchment, the applicant had formed a companythat had concluded an agreement to collect and deliver mail forthe respondent. His vehicle, subsequently, broke down and hehad to use public transport. The respondent then cancelled thecontract, as it feared that the security of its mail wascompromised.

The applicant claimed that he was unfairly dismissed. However,the respondent argued that he was an independent contractorwho had rendered services through his own business.

Noted: That the contract for the mail delivery service wasbetween the respondent and “Lock‘s Contract Services”. It wasnoted that as the applicant had not raised a presumption ofemployment in terms of s 200A of the LRA, the onus of provingthat he was an employee rested on him.

Also noted: That the applicant had claimed that the contractwas awarded to him on sentimental grounds as an alternative toretrenchment.

Held: That after the applicant was retrenched, his statuschanged from that of an employee to an independentcontractor. It was held that the council, therefore, lackedjurisdiction to arbitrate the dispute. The application wasdismissed.

Case reference

OK Bazaars (a division of Shoprite Checkers) v CCMA & Others(2000) 21 ILJ 1188 (LC)


By Lucky Moloi

U2008/3036 Larry Hafner v Rail Corporation New SouthWales – Commissioner: LarkinTermination of employment - Misconduct.

The applicant lodged a dispute challenging the termination ofhis employment contract as being harsh, unjust orunreasonable. The applicant was employed as a transit officer,and was dismissed for using excessive force to detain andarrest an offender, and for issuing inaccurate information whenreporting the incident.

The employer viewed such as a serious breach of its Code ofConduct, which regulates how employees should deal with thecustomers.

The applicant claimed that the offender displayed offensivebehaviour in that he (the offender) was threatening passengersand had also threatened the applicant. He stated that he hadapplied the principles that had been taught in his training. Theapplicant rejected the evidence of the CCTV as being wrong.The respondent relied on that evidence in terminating theapplicant’s services. CCTV footage, as presented by therespondent, showed the applicant using excessive force.

On the allegation of inaccurate reporting of the incident, theapplicant admitted that he had provided inaccurate information,but not with the intention of withholding the truth.

Noted: That the applicant had admitted under cross-examination that the CCTV footage did not show violentbehaviour on the part of the offender.

Also noted: That the applicant had conceded that some of theinformation he had provided was inaccurate. The applicant hadtestified that he did his best to accurately report what hadhappened.

Further noted: That s 652(3) of Workplace Relations Act(WRA) states that:

“in determining, for the purposes of the arbitration, whether atermination was harsh, unjust or unreasonable, the Commissionmust have regard to:

(a) whether there was a valid reason for the termination relatedto the employee’s capacity or conduct (including its effect onthe safety and welfare of other employees),

(b) whether the employee was notified of that reason,

(c) whether the employee was given an opportunity to respondto any reason related to the capacity or conduct of theemployee,

(d) if the termination related to unsatisfactory performance bythe employee – whether the employee had been warned aboutthat unsatisfactory performance before the termination,

(e) the degree to which the size of the employer’s undertaking,establishment or service would be likely to impact on theprocedures followed in effecting the termination,

(f) the degree to which the absence of dedicated humanresource management specialists or expertise in theundertaking, establishment or service would be likely to impacton the procedures followed in effecting the termination, and

(g) any other matters that the Commission considers relevant.”

Held: That the applicant’s behaviour constituted a valid reasonfor termination of employment. The termination was not harsh,unjust or unreasonable. The application was dismissed.

U2008/4305 Geoffrey Charles Hurst v Camec (Pty) Ltd –Commissioner: WilliamsTermination of employment – Operational reasons – Whethergenuine or not.

The applicant had filed an application for relief in respect of histermination of employment on the grounds that the terminationwas harsh, unjust or unreasonable, that it was contrary to s659(2)(f) of the WRA, and that it involved a failure to give noticecontrary to s 661 of the WRA.

The respondent argued that the termination of employment ofthe applicant’s services were for genuine operationalrequirements.

The applicant’s employment was terminated because therespondent no longer wished to have a part-time salesrepresentative but rather only a full-time position. The applicantwas consequently made redundant and paid severance payaccordingly. The respondent was of the view that having a part-time sales representative position was not an optimalarrangement. The fact that the applicant's position was part-time created a number of inefficiencies and communication


breakdowns between customers, the applicant and othermembers of staff, which was less than ideal in terms ofcustomer service. At the same time the respondent's businesshad experienced a significant growth in work load.

The respondent was of the view that the problems would beovercome by replacing the part-time position with a full-timesales representative position. However, the applicant declinedto accept the full-time position citing family responsibilities.

The applicant alleged that the real reason for the terminationwas because of earlier approaches he had made regarding hisemployment arrangements. However, the applicant did notprovide anything as evidence in support of his belief thatapproaching management was in reality the reason that hiscontract was terminated. The applicant’s statement in thisregard is mere speculation.

Noted: That the part-time position held by the applicant wasmade redundant, which caused the applicant to be terminated.The commissioner noted that the reasons for making theapplicant’s position redundant had to do with the efficiency andorganisational arrangement within the business.

Also noted: That there was no evidence to support thespeculation by the applicant that the decision to replace thepart-time position with a full-time position was a fabrication or asham deliberately designed in the knowledge that the applicantwould not be able to accept full-time employment to engineerhis termination.

Held: That the operational reasons for the applicant’stermination were genuine.

C2008/2704 Bovis Lend Lease (Pty) Ltd v Construction,Forestry, Mining & Energy Union Communications,Electrical, Electronic, Energy, Information, Postal,Plumbing & Allied Services Union of Australia –Commissioner: Senior Deputy President WatsonAlleged industrial action – Threatened at various employersites.

This application was lodged by Bovis Lend Lease (Pty) Ltd (theapplicant), pursuant to s 496(1) of the WRA, seeking orders tostop and prevent industrial action directed against theConstruction, Forestry, Mining and Energy Union (CFMEU), theCommunications, Electrical, Electronic, Energy, Information,Postal, Plumbing and Allied Services Union of Australia (CEPU)and employees engaged by various subcontractors performingwork on major construction projects, in which the applicant isthe principal contractor.

The circumstances resulting in the industrial action alleged bythe applicant concerned a decision by the applicant to introducenew swipe card technology to regulate entry onto its projects.The system, known as the blue glue system, involved theissuing to employees of electronic swipe cards, on which theinduction information in respect of individual employees was

stored and requiring employees to swipe a reader at turnstileswhen accessing or leaving the projects.

The applicant submitted that the industrial action by theemployees and the unions within the meaning of s 420 of theWRA had occurred and further industrial action was probable. Itsubmitted that the acceptance and offering for work only incircumstances where the applicant did not insist that access tothe projects was governed by the blue glue system constitutedindustrial action, being a ban or limitation or condition on theperformance of work. The applicant submitted that the banrelated to a condition of the performance of work properlyintroduced by the principal contractor of the projects, to controlentry to the sites. It submitted that the requirement to complywith the blue glue system was supported by its responsibilitiesunder State Occupational Health and Safety legislation and theexpress terms of agreements it had entered into withsubcontractors.

The unions submitted that the refusal by employees to obtainand use the swipe cards did not constitute industrial actionbecause the direction of the applicant to the subcontractors tohave their employees obtain and use the swipe cards wasunlawful. The directive was viewed to be unlawful because:

• it did not comply with s 37 of the Building andConstruction Industry Improvement Act,

• it was in breach of a collective agreement, and• it was in breach of the contracts of employment in that it

unilaterally imposed a new term of employment.

The unions submitted that as the direction to employees wasunlawful, employees were entitled to refuse to comply and suchrefusal could not constitute industrial action.

The applicant rejected the proposition of the unions that therequirement by the applicant that the relevant employeescomply with the system was unlawful. It submitted that itsdirection to its subcontractors and the requirement that theydirect their employees to comply with the blue glue system wasconsistent with the requirements of the Victorian OccupationalHealth and Safety Act 107 of 2004. The applicant alsosubmitted that its direction to subcontractors was lawful and anyemployee who accepted employment with a subcontractorworking on the relevant applicant’s projects was subject to animplied term that they would comply with all lawful conditionsimposed by the principal contractor in relation to access to theprojects. The applicant stated that the direction was not a claimpertaining to the employment relationship and did not involve abreach of the subcontractors’ enterprise agreements because itdid not involve a change to the conditions of employment of therelevant employees.

Noted: That there was sufficient direct evidence to supportfindings that the employees of subcontractors on the projectshave refused to obtain and use the swipe card, and that each ofthe unions had organised such a refusal.


Also noted: That the introduction of the swipe card, as acondition of entry onto the projects did not constitute a ban orlimitation or restriction on the performance of work. Rather, itconstituted a condition of entry onto the projects, applicable toall persons, including entry by subcontractors’ employees inorder to perform their work, which fell reasonably within thescope of the obligations upon the applicant, as the entitycontrolling the projects, to manage and control the workplaceunder relevant Occupational Health and Safety legislation.

Held: That the direction by the applicant to its subcontractorsdid not result in a claim for a new matter which could have beenincluded in the relevant enterprise agreements. The direction inrelation to the obtaining of and use of the swipe cards related toaccess to the projects, consistent with the implied term ofemployment contracts and did not constitute a claim for new oradditional terms and conditions of employment. The relevantagreements required the provision of appropriate informationabout company safety rules and site specific matters.

Also held: That a refusal or failure to obtain and use the swipecard to access the projects constituted industrial action in that itwas a limitation or restriction on the acceptance of or offeringfor work by employees in that they have indicated that theywere not prepared to attend and perform work if they wererequired to comply with a lawful direction as to the means ofaccessing the projects. There is no “right” to access theprojects. The commissioner held that the terms of the ordersought by the applicant were properly directed to stopping orpreventing further probable industrial action.

C2008/2642 National Union of Workers (NUW) v LinfoxAustralia (Pty) Ltd – Commissioner: Vice President WatsonClosure of operation – Proposed redeployment – Whethersuitable alternative employment – Significance of additionaltravel time and toll expenses.

Linfox (the respondent) had provided warehousing and logisticservices to Gillette. A pack facility at the same site was alsooperated by Linfox until it was closed on 30 June 2008. Allemployees engaged in that part of the operation wereredeployed to other Linfox sites. The respondent argued that ithad adopted and applied a policy to redeploy employees toother Linfox sites in the event of site closures. It implementedretrenchments as a last resort.

On various dates during August 2008, Linfox identified 28vacant positions at five eastern suburbs sites and notified 28

employees of redeployment to those facilities. No furtherpositions were available in the eastern suburbs of Melbournefor the remaining three employees. The respondent consideredredeployment of the remaining three to other sites by givingthem higher rates, travelling allowances, and being offeredappropriate positions in other sites.

The respondent submitted that it was under a duty to avoidretrenchments, it did so only as a last resort. It exercised a rightto redeploy the employees under contracts of employment andthe certified agreement. The NUW submitted that as the jobs atScoresby were no longer required to be done by anyone, theemployees were redundant within the terms of the CertifiedAgreement.

Noted: That a potential redundancy situation arises when a roledisappears, work disappears or an operation of the employer ata particular work location disappears. Whether this leads to thetermination of employment of the affected employees dependson what the employer decides to do with the employeesconsequent to the relevant event. Whether an obligation arisesto pay or negotiate redundancy pay depends on the wording ofthe relevant instrument creating the redundancy entitlement orobligation to negotiate. If another position is found for theemployee, and this position is within the scope of the contract ofemployment, then at common law the redeployment to thatother position will not constitute an express or constructivetermination of employment.

Also noted: That Certified Agreement clauses have been heldto provide for no entitlement to redundancy pay, even when theemployment has been terminated, because the work has beentransferred to another employer. Clause 16.8 of the CertifiedAgreement states that acceptable alternative employment isoften with a different employer and necessarily under a newcontract of employment. The rationale for these provisions wasthat redundancy pay is intended to compensate employees forthe loss of employment, not changes in work location orconditions.

Held: That the employees were not redundant under theircontracts of employment or the Certified Agreement. Thecommissioner held that the redeployment to the other site wassuitable alternative employment. It was held that there was noobligation to pay or negotiate a redundancy payment withrespect to the employees under the circumstances.


A total of 12812 referrals were received nationally from the retail sector from 01 January to 31 July 2008.

Top ten referring employers in the retail sector

The top ten employers accounted for 1734 (14%) of the 12812 referrals. The graph below is based on a total of 1734 referrals. Thehighest referrals were received from Shoprite Holdings, which accounted for 25%. Spar and Pick ’n Pay accounted for 16% and 15%respectively. Woolworths followed them with a total of 12%. Score Supermarkets and Pep each contributed an amount of six percentto the referrals. Foschini Group, Fruit & Veg City, Edcon Group and Mr Price Group each constituted a total of five percent.

5% 5% 5% 5%6% 6%

12%

15%16%

25%

0%

5%

10%

15%

20%

25%

30%

Edcon Group Foschini Group Fruit & VegCity

M r PriceGroup

Pep ScoreSupermarkets

Woolworths Pick n Pay Spar ShopriteHoldings

Referrals by employer

N = 1734

Employer Count PercentageShoprite Holdings 446 25%Spar 282 16%Pick ‘n Pay 266 15%Woolworths 202 12%Score Supermarkets 105 6%Pep 102 6%Mr Price Group 84 5%Fruit & Veg City 80 5%Foschini Group 87 5%Edcon Group 80 5%Total 1734 100%

Referrals by region

The Johannesburg regional office received the highest amount of referrals amounting to 22% followed by Western Cape and Durbanregional offices with 18% and 12% respectively. The regional office of Tshwane accounted for eight percent while Limpopoaccounted for seven percent of the referrals. Referrals that were received by Free State amounted to six percent and those that werereceived by the Mpumalanga regional office amounted to five percent. North West, Port Elizabeth and East London regional officeseach received a total of four percent of the referrals. Northern Cape and Richards Bay regional offices individually received twopercent of the referrals while Head Office had a mere one percent.


Referrals by region

4% 4%6%

22%

8%

1%

12%

5%2%

7%5%

2%4%

18%

0%

5%

10%

15%

20%

25%

ECEL ECPE FS GAJB GATW HO KNDB KNPM KNRB LP MP NC NW WE

Referrals by issue

Unfair dismissals accounted for a significant amount of 82% of the referrals. This amount can be attributed to various factors, forexample, the fact that the retail sector is vulnerable to theft by both employees and customers. The sector is also dominated by ahigh number of contracts, casual and temporary employees who, when their contracts are not renewed or are not called in for work,refer unfair dismissal disputes to the CCMA. This poses a challenge from a labour relations perspective for both the employers andtrade unions. The graph below illustrates that unfair labour practices, non-jurisdiction issues and matters of mutual interestcontributed six, four and three percent respectively. Collective bargaining and “other” (BCEA, EEA & SDA) disputes amounted to twopercent each, followed by severance pay disputes with only one percent.

Referrals by issue

2% 3% 4% 2% 1%

82%

6%

0%

20%

40%60%

80%

100%

Collectiv eBargaining

Mutual Interest Non Jurisdiction Other - BCEA,EEA& SDA

Sev erance Pay(BCEA)

Unfair Dismissals Unfair LabourPractices

Referrals by jurisdiction

Out of the 12812 referrals 79% were found to be within CCMA jurisdiction, while 20% were held to be out of jurisdiction. Thosereferrals whose jurisdictional status was still to be determined amounted to one percent.


Referrals by jurisdiction

1%

79%

20%

0%10%20%30%40%50%60%70%80%90%

Condonation Pending In Out

Processes conducted

Arbitrations, con/arbs and conciliations constituted the largest part of the referrals, with each accounting for 28%, 27% and 26%respectively. A total of eight percent of the referrals comprised of preliminary points, followed by pre-conciliations with an amount ofseven percent. Rescission applications accounted for five percent. Other processes such as s 189A facilitations and pre-dismissalarbitrations amounted to an insignificant amount of just under one percent, combined together.

Processes

28%

0.08%

27%

5%7%8%

26%

0%5%

10%15%20%25%30%

Arbitration Con/Arb Conciliation In Limine Pre-Conciliation Rescission Other (Facilitation,Pre-dismissal arb

etc)

Outcome

The graph below depicts that settlement of the cases constituted a majority of the outcomes with a total of 37%. Those that had outof jurisdiction as an outcome amounted to 21%. Cases that were withdrawn amounted to nine percent and those that were notsettled and completed also amounted to nine percent. Awards in which both parties were present were rendered in eight percent ofthe referrals while default awards were rendered at six percent of the referrals. Cases that were dismissed because the applicantwas in default constituted a total of seven percent. Enforcements (S143 applications) and settlements by parties each accounted forone percent of the referrals. Referrals that had certificate issued, not rescinded, pending Labour Court appeal, postponed sine dieand rescission granted each represented less than one percent of the referrals.


Outcome

8% 7% 9%

0.25%

6%0.45%

9%

21%

0.39% 0.28% 0.14%

37%

1% 1%0%5%

10%15%20%25%30%35%40%

Arbit

ratio

nAw

ard

Case

Dism

issed

:

Case

With

draw

n

Certif

icate

Issue

d

Defau

ltAw

ard

Not

Resc

inded

Not S

ettled

and

Out o

fJu

risdic

tion

Pend

ingLa

bour

Postp

oned

Sine

Die

Resc

inded

Settle

d

Settle

d by

Partie

s

Enfor

ceme

nt

Awards in favour of

The graphical illustration below reveals that just above half (55%) of the awards that were issued were rendered in favour ofemployees whereas 44% was rendered in favour of employers. This is a challenge to the retail employers to go back to their drawingboards to investigate why the employees won most cases. It could be that most awards were issued in the absence of the employerparty. If that is the case, were the employers not notified or did the employees not have the correct address, or was it just wilfuldefault on the part of the employers. A mere one percent of the awards was rendered in favour of neither party.

In favour

44%

1%

55%

0%10%20%30%40%50%60%

Employ ee Employer Other

Conclusion

The statistics reveal that a mammoth task lies ahead with regards to Dispute Management (DM) of the CCMA interventions as perCode of Good Practice Dismissal. DM had been actively involved with the organisations in providing workshops and training on howbest to use the CCMA. The programmes aims to raise the awareness of the CCMA services, empowering shopstewards, employers,and trade union officials on dispute prevention, managing conflict, information sharing and problem solving initiatives. It was alsoengaged on bilateral briefings with the organisations on their case referrals and outcome trends that were based on their statisticalanalysis. The huge amount of unfair dismissals that have occurred in the retail sector indicate that progressive discipline is not thecommonly used method. Notwithstanding the fact that the retail sector is vulnerable to theft by both the employees and customers,employers have to invest in ensuring that proper mechanisms are put in place such as disciplinary codes and ensuring that thosecodes are known, reasonable and lawful, installation of reliable security system, ensuring that issues such as polygraph tests areagreed to with the unions and incorporated into collective agreement and contracts of employment, employee assistanceprogrammes and staff rewards. Trade unions find it difficult to organise in sectors that are dominated by casual and contractemployees It is, therefore, ironic that most cases went in favour of the employees, taking into cognisance the fact that the level ofsophistication for the employees is low. The CCMA also has a role to play in providing training to minimise the amount of disputes.


21ST ANNUAL LABOUR LAW CONFERENCE:25TH - 27TH JULY 2008 HELD AT THE SANDTON CONVENTION CENTRE, JOHANNESBURG

By Alucia Mdaka

Introduction

In 2007, the Annual Labour Law Conference focused on “Transformation: Expectancy and constraints”. This year, the 21st AnnualLabour Law Conference, held at the Sandton Convention Centre, in Johannesburg on 25 to 27 June 2008, focused on “LegalCompetitive Advantage: Equity, Skills and Productivity”. The conference was jointly organised by the Institute of Development andLabour Law (University of Cape Town), the Faculty of Law (University of KwaZulu-Natal) and the Centre for Applied Legal Studies(University of Witwatersrand) and facilitated by Butterworths, a member of the LexisNexis group. The honourable Mr. R Zondo,Judge President of the Labour Appeal Court, made the official opening and welcomed everyone at the conference.

The topics presented at the conference covered a broad spectrum of areas, including aspects such as:

• SETAs, Are they a success?• Load-shedding, job shedding and competitive advantage,• Developments in trade unions,• Case law update: Public sector issues, and• Wither the unfair labour practices.

Presentations were also delivered by various guest speakers including Ms. Nerine Kahn, Mr. Dawie Roodt, Mr. Rudi Dicks, Mr.Tebogo Moseki, Ms. Gill Connellan, Mr. Jim Freeman, Mr. Limmy. Manyi, Prof. Andre van Niekerk, and Prof. Edward Webster.

Various workshops were further held covering aspects such as:

• Discrimination case law update,• CCMA: What we wish the parties would do better in arbitration,• After Chirwa: Is dispute resolution in the public services any clearer,• Incorporating mental stress claims into South African workers’ compensation framework,• The National Credit Act: Implications for employer-employee loans,• Braamfontein versus Bloemfontein: Comparing the approaches of the Supreme Court of Appeal and the Constitutional Court

to labour law,• BEE & EE: Does National Economic Development and Labour Council add value to the policy making process, and• An employee’s obligations to report wrongdoing: Protected disclosures and corruption-are employees sufficiently protected?

For the benefit of our readers, selected presentations from the conference have been summarised in this publication.


WITHER UNFAIR LABOUR PRACTICESPresented by Shamima GaibieSummarised by Poso Mogale

Introduction

In introducing the paper, the presenter indicated that theemployment relationship could be viewed as one that is basedon three distinct stages. The first being the application andcommencement of employment, followed by the middle andlongest part of the relationship, for as long as that employmentcontinues and the third one being termination of thatrelationship by either dismissal, resignation or retirement.

She mentioned that an examination of recent case law wouldreveal that even though the second part of the relationship isthe middle and the longest, it yields an insignificant amount ofcase law.

Section 186(2) of the Labour Relations Act 66 of 1995 (LRA)

Unfair labour practice is defined in section 186(2) of the LRA asfollows:

“(a) Unfair conduct by the employer relating to the promotion,demotion, probation or training of an employee, (b) The unfair suspension of an employee or any other unfairdisciplinary action short of dismissal in respect of an employee, (c) A failure or refusal by an employer to reinstate or re-employa former employee in terms of any agreement, and (d) An occupational detriment, other than dismissal, incontravention of the Protected Disclosures Act 26 of 2000(PDA) on account of the employee having made a protecteddisclosure as defined in that Act.”

Nature and scope of the protection

The speaker pointed out that it was apparent that protectionsafforded by the unfair labour practice definition apply only inrespect of an existing employment relationship.

Employer reliance on section 186(2) of the LRA

The language used in sub-paragraphs (a) to (d) indicates thatthe section applies in actions of the employer against theemployee. In National Entitled Worker’s Union v Commissionfor Conciliation, Mediation & Arbitration & Others (2007) 28 ILJ1223 (LAC), the president of the appellant union had resignedwith immediate effect. The appellant felt aggrieved andcontended that his resignation had violated “the employer’sconstitutional right to fair labour practice”. It sought an order

declaring that the failure of the LRA and the Employment EquityAct 55 of 1998 (EEA) to provide employers with a remedyagainst unfair labour practices by the employees wasunconstitutional. The Court was, accordingly, required todetermine whether the president’s resignation had constitutedan unfair labour practice against the union. The appeal wasdismissed with costs. It was held that there was no need forlegislation conferring protection on employers. The Court was ofthe view that employers are sufficiently powerful as comparedto individual employees, to be able to deal with “unfairresignations” adequately without a statutory remedy.

Exhaustive list of unfair labour practices in section 186(2)of the LRA

The Labour Court (LC) has held in NAWA v Department ofTrade & Industry (1998) 7 BLLR 701 (LC), that the list of unfairlabour practices as contained in section 186(2) is exhaustive.The term “involving” in section 186(2) indicates a limitation ofthe nature of unfair labour practices to those mentioned in (a) to(d). Accordingly, unless the particular conduct complained offalls within the scope of one situation listed in (a) to (d), it wouldnot amount to an unfair labour practice.

Section 186(2)(a) - unfair promotion/demotion

Disputes concerning unfair promotions or demotions involve ananalysis of the following principles:

• Whether there has been a promotion or a demotion, andwhether there is an existing relationship between theemployee and the employer who had advertised thevacancy,

• A comparison of jobs between the existing job (or theprevious job) and the job which the applicant had appliedfor (or in respect of which the applicant had beendemoted),

• The unfairness, if any, of the employer’s conductinvolving an analysis of both substantive and proceduralfairness, and

• The relevance, if any, of acting appointments.

The difference between an applicant for a higher post and apromotion

Generally speaking, the LC is of the view that if an existingemployee had successfully applied for a higher post, that would


result in a promotion. In Vereeniging van Staatsamptenare oboBadenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA)it was held that the existing relationship between the employerand the employee would convert an ordinary application inrespect of another position into a promotion.

Comparison of jobs

In determining whether the new position amounts to apromotion or a demotion, a comparison of the job currently heldby the employee with the job applied for should be conducted. Itwas held at the CCMA, in Joint Affirmative Management Forumv Pick ‘n Pay Supermarkets (1997) 18 ILJ 1149 (CCMA), thatone would have to look at a number of factors includingdifferences in remuneration levels, fringe benefits, status,different levels of responsibility, authority or power, and Jobsecurity issues etc.

Unfairness of the employee’s conduct

An applicant in an unfair labour practice dispute must establishboth the substantive and procedural unfairness in order tosucceed.

Substantive fairness

In Provincial Administration, Western Cape (Department ofHealth & Social Services) v Bikwani & Others (2002) 23 ILJ 761(LC), it was held that the courts are reluctant to interfere withthe decision of an employer in the selection and appointmentprocess. In the same vein, the CCMA in Public ServantsAssociation obo Dalton & Another v Department of PublicWorks (1998) 9 BLLR 1177 (CCMA) held that it may be difficultto justify the choice of a particular candidate in precise terms,and that an employer is at liberty to take into account subjectivefactors when considering an appointment or promotion.

Procedural fairness

Employers are required to follow their own procedures in theselection and recruitment of employees. That is also applicableto promotions. Accordingly, in the event that an employerfollows an incorrect procedure, a court may draw an inferencethat the entire process of selection and evaluation of theapplicant was unfair.

Acting appointments

It is a common perception among employees that once they areexpected to act in other positions for a certain period of time,that entitles them to be appointed to that post. The courts andarbitration authorities are of the view that no such entitlementexists and that the only entitlement must be that the employeeoccupying the position must be heard before the finalappointment is made.

In De Nysschen v GPSSBC & Others (2007) 28 ILJ 375 (LC),the applicant who had been acting in an upgraded post forseveral years had applied for appointment to that post when it

was formally advertised. The selection committee submitted afinal report which recommended that the applicant be appointedto that post and that Mr. M, who had also applied for the post,be appointed to another post for which he was better qualified.

Some months later, a final report was issued by the selectioncommittee in terms of which it was confirmed that the applicantbe appointed to that post. The selection committeerecommended that Mr. M was suitable for appointment to thethree posts that he had initially applied for, including the onethat the applicant had applied for. The MEC decided to appointMr M to the disputed post.

In review proceedings, the LC was of the view that the arbitratorhad to give reasons for his acceptance of the department’sevidence that Mr. M was the stronger candidate incircumstances where the applicant had acted in the position for5 years and Mr. M had not. This was even more so incircumstances where Mr. M had initially been recommended foranother post before the second and final report recommendedhim for the disputed post.

The Court found that there was no compelling evidence tosupport the view that Mr. M was indeed the stronger candidate.The appointment of Mr. M, in the circumstances, was indicativeof a certain arbitrary reasoning which was unreasonable andunfair and was unjustifiably perpetuated in the arbitrationaward.

In determining the appropriate remedy, the Court was of theview that since a de novo hearing will not change the inherentunfairness of the failure to retain the applicant in her actingpost, it was held that the applicant should be appointed andremunerated as if she had been successful in her application.

The second decision was that of Willemse v Patelia N.O. &Others (2007) 28 ILJ 428 (LC). In this matter, the applicant, adeputy director in the department of environmental affairs andtourism (the department), had been acting in the post ofdirector: bio-diversity management for various periods since1996. He had applied for an appointment to the post when itwas advertised. The selection committee recommended him,noting his exceptional qualifications for the post and the factthat his promotion would open up a position in middlemanagement where representivity was lacking. The actingdirector-general of the department (DG) did not accept thatrecommendation, as the applicant was not representative of thedemographics of the country as mandated by the EEA.

The Court found that the evidence presented by the applicantshowed that at the time that he was refused promotion, thedepartment had already achieved and exceeded itsrepresentivity targets at that level, in respect of race andgender. In addition, the acting DG had disregarded the policydirective that provided that, once representivity targets hadbeen reached, all applicants should compete equally. If he hadapplied that policy directive, the applicant, whose qualificationsfor the job were beyond question, would have been promoted.It was also apparent from the policy directive that representivity


had to be looked into at the particular level and not in thedepartment as a whole. The acting DG testified that he hadconsidered the department as a whole, in rejecting the selectioncommittee’s recommendation. It was held that he had,accordingly, not acted in accordance with the department’spolicy.

The Court held that the department’s conduct in refusing topromote the applicant was unfair and that it had appliedaffirmative action in an arbitrary and unfair manner. The Courtordered that the applicant receive the same salary and benefitsas he would have received had he been promoted.

The presenter indicated that it is clear from assessment of theabove two cases, that where a person has been acting in aposition for several years, the onus of establishing why anothercandidate was appointed should be thoroughly scrutinised. Theemployer would have to indicate on what basis was the othercandidate stronger than the incumbent.

Unfair conduct: Protected disclosures

In terms of section 186(2)(d) of the LRA, an unfair labourpractice means any occupational detriment, other thandismissal, in contravention of the PDA on account of employeehaving made a protected disclosure as defined in the Act.

In terms of the PDA, an occupational detriment includes being:

• subjected to a disciplinary action,• dismissed, suspended, demoted, harassed or intimidated,• transferred against the employee’s will,• refused a transfer or promotion,• subjected to a term or condition of employment or

retirement which is altered or kept altered to theemployee’s disadvantage,

• refused a reference, or being provided with an adversereference from the employer,

• denied appointment,• threatened with any of the above actions by an employer,

and• otherwise adversely affected in respect of employment,

profession or office, including employment opportunitiesand work security.

Accordingly, if any action taken by the employer falls within theabove definition, the requirement of occupational detriment insection 186(2)(d) would be established. In that case, there aretwo other requirements that must be satisfied: The first is thatthe disclosure must have been a protected one in terms of thePDA, and secondly, there must be a causal link between theprotected disclosure and the imposition of the occupationaldetriment. In terms of the PDA, “disclosure” is defined as anydisclosure of information regarding any conduct of an employer

or an employee of that employer, made by an employee whohas reason to believe that the information concerned shows ortends to show one or more of the following:

• That a criminal offence has been committed, is beingcommitted or is likely to be committed,

• That a person has failed, is failing or is likely to fail tocomply with any legal obligation to which that person issubject,

• That a miscarriage of justice has occurred, is occurring oris likely to occur,

• That the health or safety of an individual has been, isbeing, or is likely to be endangered,

• That the environment has been, is being or is likely to bedamaged,

• Unfair discrimination, and• That any of the above matters has been, is being or is

likely to be deliberately concealed.

In general terms, such disclosures become protected when theyare made to certain persons and officers under certainconditions. The disclosure must be in good faith, the employeemust reasonably believe that it is “substantially true” and that itmust not be made for “personal gain”. It is also required that theemployee must have reason to believe that if the disclosure ismade to the employer he or she will suffer an occupationaldetriment, that the same information was previously disclosedto the employer and no action was taken by the employer, orthat the matter was exceptionally serious.

In Tshishonga v Minister of Justice & ConstitutionalDevelopment & Another (2007) 4 BLLR 327 (LC), it was heldthat employees have a duty to disclose information concerningthe wrongdoings of their employers but also to preserve theemployer’s right to confidentiality. In this case, the applicantmade disclosures to the public protector, the auditor generaland a cabinet minister seven months prior to his publicdisclosure. The Court also held that the applicant’s approach tothe media was justifiable and that his suspension hadconstituted an unfair labour practice.

Conclusion

None of the cases referred to above establish new law orprinciple. Each year new factual circumstances give rise only tothe application of established principles to new situations.Wither unfair labour practices? It is not anticipated that thissection of the LRA will develop much further. In any event,section 186(2) has a specific purpose, being to level the playingfields during the employment relationship. To that end, the lownumber of cases during the preceding years might beartestimony to the view that the parties are aware of theboundaries and parameters of their relationship.

Reference

Gaibie, S. 2008. Wither unfair labour practices. Presentationmade at the 21st Annual Labour Law Conference, 25-27 June2008. South Africa


DEVELOPMENTS IN TRADE UNION LAWPresented by Professor Alan Rycroft & Tammy Cohen

Summarised by Alucia Mdaka

Introduction

In their presentation, the co-presenters indicated that the aim ofthe paper was to give an overview of the recent developmentsin trade union law. They also indicated that they have tried toassemble cases that were significant and some of which wereinformative and interesting with the hope that they wouldprovoke debate.

Freedom of association

The co-presenters mentioned that section 4 of the LabourRelations Act 66 of 1995 (LRA) gives employees an ultimatumto join and hold office in unions. The presenters substantiatedtheir argument by discussing the case of IMATU & Others vRustenburg Transitional Council (1999) 12 BLLR 1299 (LC). Inthis case, the employer had adopted a resolution in terms ofwhich it prohibited senior employees on particular grades fromserving in executive positions and participating in trade unions.Following the objection by the union, the employer withdrew therequirement that senior employees were prohibited fromparticipating in union activities but refused to withdraw theirprohibition from those serving in executive positions. Theunion’s contention was that the amended resolutioncontravened the provisions of the LRA and the Constitution ofthe Republic of South Africa Act 108 of 1996 (Constitution).

The employer argued that its senior employees could notsimultaneously discharge their obligations as trade union officebearers because they were responsible for directing anddisciplining staff and that they had access to confidentialinformation. Brassey AJ said that when employees join a union,they commit themselves to a body whose primary objective is tomaximise the benefit its members derives from theirrelationships with their employers. The question that arose washow does one reconcile this with the common law obligation onan employee to serve the interest of the employer? Brassey AJheld that dismissal in such circumstances might have beenlawful under common law.

However, the Constitution granted every employee the right tojoin and hold office in a union and to participate in its activities.The Court said that had the legislature wished to draw adistinction in this regard between management and ordinaryemployees, it would have done so expressly. It was also notedthat employees were obliged to engage only if a union’s lawful

activity did not affect their positions as managers. Furthermore,if the Constitution was to be interpreted to exclude them fromthe right to join and take office in unions, it could not beestablished where the line should be drawn. However,employees who joined unions are still required to perform thework for which they were engaged. The resolution was declaredunlawful and set aside.

Union representation in appointment disputes

The co-presenters mentioned that there is a general rule in lawthat when a person has an interest of such nature that he/she islikely to be prejudicially affected by any given action, suchperson must be joined either as plaintiff or defendant. Thepotential effect is tested by asking whether or not he/she has adirect and substantial interest in the proceedings. The rule isfound in both the Magistrates’ Court and High Court Rules. Forexample, section 41(1) of the Magistrates’ Court Act 84 of 1944(the Act), provides that “any number of persons, each of whomhas a separate claim against the same defendant, may join asplaintiffs in one action if their right to relief depends on thedetermination of some question of law or fact which, if separateactions were instituted, would arise in each action”. Similarly, aplaintiff may also join two or more defendants in one actionwhenever the plaintiff alleged that he/she had suffereddamages and the defendant is responsible for the saiddamages.

Section 42(1) of the Act provides that if the effect of anarbitrator’s or judge’s decision is to set aside the appointment,the successful applicant does, prima facie, appear to have adirect and substantial interest in the proceedings. In PSA vDepartment of Justice & Others (2004) 25 ILJ 692 (LAC), theCourt held that it is trite law that a third party should be joined inproceedings if he/she is shown to have a direct and substantialinterest in the matter and has not consented or undertaken tobe bound by any judgment that may be given in the matter. Anexample of the case that the Court had referred to whendetermining the PSA’s case was the one of AmalgamatedEngineering Union v Minister of Labour 1949 (3) SA 637 (A). Itwas noted that in this case, the Court had made the followingcomments on the issue of non-joinder:

• Where a party has a direct and substantial interest in thearbitration proceedings he/she must be joined in suchproceedings or be given an opportunity to be heard,


• That failure to join the affected party amounts to a grossirregularity,

• That an adverse order made in the absence of theaffected party would not be binding on that party, and

• That where there has not been joinder it is not a gooddefence to say that the affected party had knowledge ofthe proceedings and decided not to join.

As in the case between National Commissioner of the SouthAfrican Police Services v SSSBC & Other (2005) 26 ILJ 903(LC), the Court had adopted and applied these guidelines. Theco-presenters indicated that in the PSA’s judgement, it has notbeen uncommon for both parties to be members of the sametrade union. Therefore, there is a difficulty on the side of theunion with regards to representation. They also pointed out thatanother difficulty in the PSA’s judgement was that there waslack of clarity about who should be joined because it was notjust a successful candidate who had a direct and substantialinterest in the dispute. They argued that if joinder is required indismissal disputes where the employer has appointed someoneinto the position of the dismissed employee, the position seemsanalogous.

Pre-retrenchment consultation

According to the co-presenters, pre-retrenchment consultationis one of the most difficult tasks of a trade union to engage inwith the employer. The reason for that is because the aim of thetrade union is to preserve and enhance jobs, and not tonegotiate the creation of redundancy. They indicated that thathad resulted in the increase of disputes due to trade union’sfailure to engage in consultations and that leads employers tocontinue with the retrenchment in a procedurally unfair manner.An example of the case they gave was the one of CWIU &Others v Latex Surgical Products (Pty) Ltd (2002) 23 ILJ 1386(LC). It was held that if the union fails to raise an alternative toretrenchment it cannot later complain that the employer did notoffer such an alternative.

They mentioned that pre-retrenchment consultation is a two-way process and if an employee or a union withdraws from it, itwill not be unfair for the employer to finalise with theretrenchment exercise. The case between SACCAWU & Othersv Gallo Africa (2005) 26 ILJ 2397 (LC) seems to be relevant tothe issue. In this case, after the employer had experienced ahuge financial loss, it engaged in a national restructuringexercise. Four employees were included in a bumping exerciseand offered alternative positions by being transferred to anotherbranch in Johannesburg. They required the employer to covertheir relocation costs that was refused, instead they wereoffered loans to cover the relocation costs. The employeeswithdrew from the on-going consultations and their serviceswere terminated. They then referred a dispute to the LabourCourt (LC) alleging that their services were terminatedprematurely because the issue of relocation was not resolved.The LC accepted that there was a need to restructure and, thatwith regards to the employer’s failure to pay relocation costs,the employer had consulted with them as required by the LRA.The employees’ dismissals were held to be fair.

Representativity

The issue of representativity arose in the case of PSA v SSSBC& Others (2007) 28 ILJ 1300 (LC). The union had approachedthe LC to seek an order declaring them to be a member of thebargaining council. It also sought that the bargaining council’sconstitution be amended regarding the threshold for admissionto membership. The Court held that the admission of the unionto the bargaining council would not serve any significantpurpose. The application was dismissed.

Reference

Professor Rycroft, A. 2008. Developments in trade union law.Presentation made at the 21st Annual Labour Law Conference,25-27 June 2008. South Africa


LIABILITY OF TRADE UNIONSPresented by Tamara Cohen

Summarised by Samuel Denga

Introduction

In her presentation, Ms. Tamara Cohen emphasised that whiletrade unions have to be protected from civil liability in order toenable them to effectively perform their functions, they maysuffer liability in certain instances. A trade union may be heldliable in delict if it breaches the duty of care owed to anemployer or its members if such breach is wrongful. The liabilitymay be incurred through the conduct of the union itself orthrough the conduct of the union members or officials, where aunion is vicariously liable for their actions.

Compensation for losses arising out of unprotected strikeaction

The presenter stated that a strike that does not comply with therequirements stipulated in section 64 of the Labour RelationsAct 66 of 1995 (LRA) is an unprotected strike and attracts civilliability. Section 68 of the LRA empowers the Labour Court (LC)with exclusive jurisdiction to interdict any person fromparticipating in an unprotected strike or lock out. The LC mayorder the payment of just and equitable compensation for anyloss attributable to or conduct in contemplation or furtherance ofthe strike or lock out.

She stated that in terms of section 68 (1) (b) of the LRA, a tradeunion or its members, or both, can be held liable for lossesoccasioned by the unprotected strike. Striking employees maybe held liable because they participated in the strike which isthe direct cause of the employer’s loss. A trade union may alsobe held liable if it calls for an unprotected strike or fails to takesteps to end the strike. If there is a collective bargainingrelationship between the union and the employer, thatrelationship presupposes a responsibility on the part of theunion to ensure that its members comply with the provisions ofthe LRA. If the trade union fails to do so, it may be held liablefor the losses suffered.

In Mangaung Local Municipality v SAMWU (2003) 3 BLLR 268(LC), the Court held that where a trade union has a collectivebargaining relationship with the employer and its membersembark on an unprotected strike of which the union is aware,and fails to intervene, the union is liable in terms of section 68(1) (b) of the LRA to compensate the employer any lossesincurred as a result.

Awarding “ just and equitable” compensation

The presenter mentioned that the LC is required to award theemployer just and equitable compensation for losses incurredduring a strike. The compensation must be fair. Suchcompensation is not punitive, but it is intended to compensatethe claimant for the losses sustained. The compensation mustbe attributed to the strike action and may compensate for profit,productivity, loss of income and overtime payments to non-striking employees. It must not be equitable to the full losssuffered but should depend upon the facts of the case, thegravity of the breach and the respective blameworthiness of theparties.

According to section 68 (1) (b) of the LRA, the following factorsmust be taken into consideration in awarding fair compensation:

(i) Whether attempts were made to comply with the provision ofthis Chapter and the extent of those attempts?

It is necessary for the court to assess the good faith of theunion and employees to establish whether bona fide attemptswere made to comply with the provisions of the LRA.

(ii) Whether the strike or lock out or conduct was premeditated?

A predemeditated strike shows the union’s wilful disregard ofthe provisions of the LRA. Premeditated wrongful conduct willbe viewed as more blameworthy when awarding compensation.

(iii) Whether the strike or lock out or conduct was in response tounjustified conduct by another party?

If statutory provisions are not complied with, an unprotectedstrike may justify a reduced award of compensation.

(iv) Whether there was compliance with an interdict?

When the party deliberately did not comply with an order of thecourt, it is a serious misconduct and is indicative of a lack ofregard for authority. Such conduct will weigh heavily against thedefaulting party when the court awards compensation.

(v) The interests of orderly collective bargaining.

If there is a collective agreement between employers andunions, both parties must bargain in good faith. They must


comply with a collective agreement and act in accordance withlegislative provisions. A trade union is required to take steps toensure compliance in this regard by its members.

(vi) The duration of the strike or lock out or conduct.

The duration of the strike action influences the extent of the losssuffered and is accordingly of relevance in awardingcompensation.

(vii) The financial position of the employer, trade union oremployees respectively.

The financial positions of both the employer and the unionneeds to be taken into consideration when compensation isawarded. In reality, the compensation should be influenced byaffordability.

In Rustenburg Platinum Mines v Mouthpiece Workers Union(2002) 1 BLLR 84 (LC), the union was ordered to paycompensation to the employer for the employees’ participationin an unprotected strike. The union was recognised by theemployer as it was representing 13 000 out of the workforce of30 000. Following an industrial action, an interdict was granted,prohibiting the union and its members from “promoting, inciting,instigating and participating in unprotected strike action”.Despite the interdict, the union and its members embarked onan unprotected strike. During the strike, union officials werevideo taped urging the employees not to return to work.Members of another union claimed that they were intimidatedand distanced themselves from the strike. The employer’slosses in production and profit during the strike was estimatedto be approximately R15 million, and compensation wasclaimed for this amount. Later, the claim was reduced to R100000. Due to the weak financial position of the union, the Courtordered for periodic monthly payments.

The Court held that:

• the union’s failure to distance itself from the strike and itsconduct, indicated that the union instigated the strike,

• the union did not comply with the requirements of theLRA,

• the strike was premeditated,• the strike was not in response to an unjustified conduct

on the part of the employer,• two interdicts had been granted against the union and its

members and had not been adhered to,• the union’s conduct was highly irresponsible and erosive

of orderly collective bargaining,• the losses sustained by the employer were significant

even though the strike was short-lived, and• the R100 000 compensation claimed by the employer

was fair and should be awarded.

How can a union avoid liability?

The presenter suggested that in order for a trade union to avoidliability, it should take the following steps:

• ensure that members comply with the provisions ofChapter IV of the LRA prior to commencing strike action,

• ensure that shop stewards are acting with full authorityand are aware of the procedural requirements of the LRA,

• ensure that union members are educated as to theprocedural requirements for a protected strike and legalconsequences of an unprotected strike,

• in the event of unprotected strike action, repudiate suchindustrial action in writing to the union representatives,striking members and employer as soon as possible afterthe strike commence, and

• behave in a manner consistent with the repudiation byencouraging employees to return to work anddiscouraging continued strike action.

Compensation for losses arising out of a protected strike

Section 23 of the Constitution of the Republic of South AfricaAct 108 of 1996 guarantees employees the right to strike. TheLRA regulates the right to strike by stipulating proceduralrequirements for a protected strike and extending protection tostrikers that comply with these requirements. Employees andtrade unions that participate in protected strikes are protectedfrom civil liability and employees are protected against unfairdismissal.

However, this protection does not indemnify employees andtrade unions from civil liability for unlawful actions arising out ofprotected strike action, such as criminal offences. A union canbe held liable for acts of its members if the employer can provethat there was a wrongful act committed by the union membersand that the union was legally liable for its members’ actions.The wrongful act must constitute an offence and must havecaused the losses incurred by the employer.

In Mondi Ltd (Mondi Kraft Division) v Chemical Energy PaperPrinting Wood & Allied Workers Union & Others (2005) 26 ILJ1458 (LC), the employer sued the union for delictual damagesincurred as a result of the conduct of striking workers during aprotected strike. It was during a protected strike that a group ofstriking workers ran through the workplace and switched off theemployer’s machinery. The employer claimed that it hadincurred damages of R673 000 as a result and claimed fordelictual damages from the union. It claimed that the union wasvicariously liable for the unlawful acts of its members, as theacts were committed with the support and encouragement ofthe shop stewards at the workplace.


• the LC had jurisdiction to determine delictual claims, andclaims arising from the commission of criminal offences,due to unprotected and protected strikes,

• in order for the union to be held vicariously liable for itsmember’s actions it must be proved that they acted withcommon purpose by authorising the employee’sbehaviour, and

• a union is not liable for the unauthorised acts of itsmembers even if the act was part of an authorised strike.


Therefore, the Court found that there was insufficient evidenceidentifying the employee for switching off the employer’smachine, and no evidence showed that the shop stewards wereinvolved. A union could not be held vicariously liable in theabsence of such evidence.

Compensation to union members for wrongful advice

Trade unions serve as vehicles with which their members mayvoice their demands and interests. They act as spokespersonsfor employees in disciplinary hearings and represent theirinterests in bargaining situations. Trade unions are required toact within their mandate and in their members’ best interest. Afailure to do so may render the union liable in delict to itsmembers due to breach of the duty to care.

In South African Municipal Workers’ Union v Jada (2003) 24 ILJ1344 (W), employees engaged in an unprotected strike inprotest over the dismissal of four shop stewards. The employerdismissed them after they had failed to heed to an ultimatum toreturn to work. The dismissed employees instituted a delictualaction against the union claiming that the actions of the unionorganisers, in instigating the strike and the continuation of it andin not taking steps to prevent their dismissal constituted abreach of union’s duty to care for them. The employees claimedthat it is the duty of care that arose from the contractualrelationship between the union and its members and wasembodied in the union’s constitution. The Court held that theunion was vicariously liable for the acts of its organisers andwas delictually liable to its members. The matter was taken onappeal to the High Court (HC).

The HC held that:

• the strikers took the decision to strike on their own, evenif they were encouraged to do so by the union official,

• as the strikers were aware that they were participating inan unprotected strike, they broke their contractualrelationship with their union,

• as the union embarked on industrial action beyond thescope of the union’s collective bargaining process therewas no duty of care owed in that regard,

• the employees were found to have voluntarily acceptedthe risk in which they found themselves and could notclaim damages from the union, and

• the union is the body through which its members act andthe members remain responsible for its actions. It wastherefore, difficult to find a duty of care in thesecircumstances.

How can a union avoid liability?

The presenter suggested that unions should ensure that theydo not:

• knowingly encourage members to embark upon illegalaction with the belief that it is legal,

• knowingly fail to intervene in employee’s illegal actions,where they could reasonably have been expected to doso,

• put employees at risk of dismissal without advising themof such risks, and

• act outside of their mandate.

Costs orders against a union

In terms of section 200 of the LRA, a union acting on behalf ofits members becomes a party to the dispute and acquires locusstandi to represent its members by virtue of its status.According to section 162 (3) of the LRA, the LC may make acost order against a party to the dispute including any personwho represented that party in proceedings before the Court. Interms of section 162 (2), the LC may take into consideration theconduct of the parties during the proceedings.

When a trade union is not a party to the dispute and acts in arepresentative capacity the only basis for the awarding of costsagainst it is where such costs are awarded de bonis propriis.This would be appropriate where the trade union conducts thelitigation in an improper manner or where the union is the reallitigant, and abuses the court process by litigating through itsmembers. In such case, it would be fair for the court to grant acost order against the union and its members jointly.

In Simelane & Others v Letamo Estate (2007) 28 ILJ 2053 (LC),a cost order was made against the union and the employeesjointly. The union had acted in an unruly and obstructivebehaviour during retrenchment consultations, refused to consultpending the disclosure of full financial statements that wereunavailable at the time and irrelevant to the process. The Courtheld that the union was frustrating the joint consensus seekingprocess required for a fair dismissal. As the union was a partyto the dispute, the Court was prepared to award costs againstthe union.

Union’s mandate

A trade union is defined in the LRA as “an association ofemployees whose principle purpose is to regulate relationsbetween employees and employers”. In terms of section 200 (1)of the LRA, a registered trade union may act in any one or moreof the following capacities in any dispute to which any of itsmembers is a party:

• in its own interest,• on behalf of any of its members, and• in the interest of any of its members.

A trade union performs actions that promote members’interests, such as collective interests, that have not beenexpressly mandated. In Manyele & Others v Maizecor (Pty) Ltd& Another (2002) 23 ILJ 1578 (LC), the Court confirmed thatunlike legal representatives, unions do not have to obtain apower of attorney or obtain the leave of the CCMA or LC torepresent its members. It is the institutional embodiment of itsmembers and such is a party to the proceedings. Trade union


members cannot reject collective agreements with which theyare not happy, or escape their effects, by resigning from theunion. Trade union representation is based on the principle ofmajoritarianism, in terms of which a union is bound to act onbehalf of the majority of members affected by a decision.

Trade union members are bound by the agreement concludedif:

• the union’s action benefited the majority of members, and• the union representative had acted in good faith.

If a shop steward who acts on behalf of its members andconcludes an agreement on their behalf, union members arebound by the agreement unless they disagree that the shopsteward had authority to bind them. In Mhlongo & Others vFood & Allied Workers Union & Others (2007) 28 ILJ 397 (LC),the applicants were represented by the union in unfair dismissalproceedings. The union acting on behalf of members concludeda settlement agreement with the employer but before thesettlement agreement was concluded, the applicants terminatedthe union’s mandate to act on their behalf. Employees sought toreview and set aside the settlement agreement, alleging thatthe union did not have a mandate to negotiate on their behalfand that the agreement was not binding on them. The Courtfound that, despite the applicant employees’ alleged terminationof the union’s mandate, the applicants had not terminated theirmembership with the union. Such termination had to complywith the union’s constitution. The employees were not entitledto negotiate on their own on certain issues unless the union hasrefused to act on their behalf or their membership has beenterminated, as the employer deals with the employees in acollective manner.

Trade union’s right to represent its members is not unlimitedand is expected to uphold its member’s interests andconstitutional rights in the exercise of their duties. The LC isprovided with authority in terms of section 158 (1) (e) of theLRA to determine disputes between registered trade unions andtheir members about alleged non-compliance with the union’sconstitution.

Misconduct of union representatives

In terms of section 97 (3) of the LRA, union representatives areindemnified from civil liability for acts conducted in furtheranceof their lawful duties. The dismissal of an employee forexercising any right or participating in any proceedings in termsof the LRA is regarded as automatically unfair. According to theCode of Good Practice on Dismissal, the union must be notifiedof any disciplinary action against a shop steward.

In Adcock Ingram Critical Care v CCMA & Others (2001) 9BLLR 979 (LAC), a shop steward was dismissed for a threat hemade against his manager saying: ”You can treat this as athreat, there will be more blood on your hands”’. The LAC heldthat employees who step into the role of worker representativesdo so only temporarily and thereafter resume the role ofemployees. The Court held that, negotiating parties should treat

each other with the respect they both deserve. If shop stewardsbehave disrespectfully to their employers during collectivebargaining, they undermine not only the negotiations but alsothe employment relationship. But the normal rules ofinsubordination cannot be applied to shop stewards duringcollective bargaining.

In Kroukam v SA Airlink (Pty) Ltd (2005) 12 BLLR 1172 (LAC)the appellant, a pilot and a chairman of the union wasdismissed for gross insubordination and having a disruptiveinfluence on the respondent’s operations. He claimed that hisdismissal was a result of his role as chairman of the union, andhis dismissal would be automatically unfair, as he wasparticipating in union activities. The Court held that, not all theincidents that gave rise to the charges against the appellantwere linked to his union activities, which rendered the dismissalautomatically unfair. If the employee who had been victimisedmust lose his job because management no longer trusted himthat would undermine the constitutional right to fair labourpractice.

In Banking Insurance Finance & Allied Workers’ Union &Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600(LAC), the Court was required to consider whether thedismissal of a shop steward was automatically unfair. The shopsteward had dishonestly alleged that the chairman of thedisciplinary proceedings had unreasonably refused theemployee’s request for postponement of the hearing. Due to hisdishonesty, the shop steward was dismissed for misconduct.


• an employee that represents a fellow employee at adisciplinary hearing does so in the capacity of a fellowemployee, and as such owes the employer the duty to acthonestly,

• an employee representing a fellow employee has theright to do so to the best of his or her ability without fearof recrimination or reprisal,

• this right is not an unbridled licence but is constrained bythe duty to do so honestly, and

• the record of the arbitration and the disciplinary enquiryshowed that the shop steward did not merely have amomentary lapse of honesty but that he was downrightdevious, unscrupulous and deceitful.

Developments in strike law and some recent cases

Lawful demand

In TSI Holdings (Pty) Ltd & Others v NUMSA & Others (2006) 7BLLR 631 (LAC), the employees embarked upon a strike insupport of a demand that an allegedly “racist” supervisor bedismissed. The LAC held that while it is permissible for workersto strike in support of a demand that their employer should fairlydismiss another employee, such a dismissal would have tocomply with the procedural and substantive fairnessrequirements of the LRA. As the employees failed to providesufficient evidence of the alleged racist remark, the demand


violated the supervisor’s right not to be unfairly dismissed andas such fell beyond the range of permissible strike demandsenvisaged by the LRA.

Existence of a dispute

In Leoni Wiring Systems (East London) (Pty) Ltd v NUMSA &Others (2007) 6 BLLR 512 (LC), the employer had given anotice in terms of section 183 (3) of the LRA of impendingretrenchments. After an unsuccessful consultation, the unionwrote to the employer stating that although it was not happywith the retrenchment decision, the consultation process wasuseless. A list of employees selected for the first round ofretrenchments was agreed with the union. In terms of section189A of the LRA, the union is allowed to strike upon notice of alarge-scale retrenchment. The employer applied to the LC foran interdict prohibiting the strike. The Court held that there wasno dispute as the union had accepted that the employees wouldbe retrenched.

Picketing rules

Section 69 of the LRA regulates picketing in support of a strikeand that on site picketing requires the employer’s permission. InShoprite Checkers (Pty) Ltd v CCMA & Others (2007) 5 BLLR473 (LC), the Court reviewed a decision of the commissionerthat had given permission for the six on site picketers. It heldthat the onus of proving that the withholding of permission isunreasonable rests on the trade union, an onus that was notdischarged in this matter.

Parties to strike action

In SATAWU & Another v Equity Aviation Services (Pty) Ltd(2006) 11 BLLR 1115 (LC), the Court held that the union wasentitled to recruit members during the strike. SATAWU was amajority union and had concluded an agency shop agreementwith the employer. When wage negations failed, SATAWU gavenotice of a strike. While the minority union declined toparticipate in the strike, some of its members joined the strike

and applied for membership. The employer regarded the strikeaction of non-SATAWU members as unprocedural anddismissed them. The Court held that even if employees werenot SATAWU members, they were entitled to join the strikeeven if they were not directly affected by the issue in dispute.

Procedural requirements, ultimatums and hearings

In NUM & Others v Billard Contractors CC & Another (2006) 12BLLR 1191 (LC), the Court held that an ultimatum was similarto a final warning and its purpose is to provide for a cooling offperiod before a final decision to dismiss is taken. The Courtconsidered the procedural requirements for a fair dismissal ofemployees participating in an unprotected strike. A hearing,which is a requirement of pre-dismissal procedure, considerswhether it is fair to issue a final warning in the form of anultimatum by considering, whether strikers were engaged in anunprotected strike. The Court held that it is necessary to have ahearing both before an ultimatum and after the ultimatum hasexpired.

Conclusion

In order to avoid liability, trade unions need to take actions toavoid unauthorised action by its shop stewards or its members,and to distance itself from the unprotected strike. They musttake steps to bring the strike to an end as soon as possible. Theemployer may end up suing trade unions and its members forany damage caused by an unprotected and protected strikeaction. Trade unions and its members must adhere to thepicketing rules in order to avoid liability. As employees have theright to strike, they must respect the rights of non-strikers andthe property of the employer.

Reference

Cohen, T. 2008. Liability of trade unions. Presentation madeat the 21st Annual Labour Law Conference, 25-27 June 2008,South Africa.


SETAs: ARE THEY A SUCCESS?Presented by Tebogo Moseki

Summarised by Samuel Denga

Introduction

In his presentation, Mr. Tebogo Moseki stated that the SectorEducation and Training Authorities (SETAs) were created underthe Skills Development Act 97 of 1998 (SDA). SETAs wereestablished to promote and facilitate the delivery of education,training and development, and contribution to the creation ofemployment opportunities especially for the previouslydisadvantaged. The main aim of the SDA is to develop the skillsof South African workforce and to improve the quality of life ofworkers and their prosperity of work. In addition, to improveproductivity in the workplace and competitiveness ofemployees.

The presenter is involved with the Foodbev SETA. In hisintroduction, Tebogo explained that one needs to be carefulwhen dealing with any question raised for panellists in terms ofthe brief, especially in relation to the topic that deals with theSETAs. He further emphasised that it is a public knowledgehow the image of some SETAs have been portrayed by themedia.

From your experience, have SETAs been a success orfailure?

The presenter argued that since its inception, the SETAs wereunder tremendous pressure from all stakeholders to deliverskills in line with the skills development framework. SETAs havebeen struggling with management problems, lack of capacity aswell as leadership. They were expected to deliver and meet theNational Skills Development Strategy targets. There was a lackof funding from the national skills fund and a mix up in thesection of Some Industrial Classification (SIC) code perindustry.

There was also lack of information about the existence ofSETAs, their functionality and where they can be locateddespite the awareness campaign embarked upon by theDepartment of Labour (DoL). Despite all the above mentionedproblems, SETAs came up with strategies to forge ahead anddeliver skills as required by employers.

He argued that most of the SETAs had met the skillsdevelopment targets as per the National Skills DevelopmentStrategy One and they are now working for the National SkillsDevelopment Strategy Two. It was possible through the co-operation between the appointed training providers,

enterprises and the SETAs themselves. The DoL had made ahuge success of the SETAs as a pilot project. The Employmentand Skills Development Lead Employer was a success thatboosted the participation of employers in training theunemployed workers.

Is the learnership system doing enough to meet the skillscrisis and how could it be improved?

The presenter mentioned that at the Foodbev SETA, thingswere not always going according to what the leadership,management and the stakeholders expected. Later on, systemswere put in place in order to meet the desired outcomes. Heemphasised that SETAs need to assist stakeholders by givingthem a template so that they must be able to provide accurateand precise information to the industry. This will helpstakeholders to deal with less paper work and meet with therequirements of the SDA. Enterprises must be able to provideSETAs with information that will allow enterprises to discloseenough information without doubt that their trade secrets will beexposed to other enterprises.

He suggested that there must be pre-assessment tools forlearners. That could help to avoid unnecessary drop-outs. Inaddition, training providers must align the learnership contentwith skills required by the employers, so that the learners canbe employable. Furthermore, learnership systems need toaddress availability of opportunities for service providers andmust be made more attractive and ensure adequate availabilityof service providers.

From your experience, is skills development for existingemployees happening in a systematic manner?

Tebogo argued that skills development in the South Africanworkforce has never been an easy process. The SETAs had todeal with a number of issues before everyone in their sectorunderstand the purpose of the SDA. Many employers indifferent sectors of the economy present Workplace Skills Planfor compliance purpose only.

The presenter also argued that skills development ishappening, but not in a systematic manner as there is no careerpath taking place for existing employees. Employers areproviding training for learnerships in order to meet SETAs


targets and so that they be allocated with funds. Someemployers engage on short programmes as per training needsand budgets.

He suggested that DoL needs to encourage that thedevelopment of all employees must happen in a systematicmanner. Human resources development policies of manycompanies are now addressing the training needs of theiremployees and that of the enterprises. Training needs andproper skills audit are taking place.

Is enough being done to improve the skills of job seekers?

Due to the high rate of unemployment in South Africa, hesuggested that all stakeholders in different sectors of theeconomy must be involved in the development of skills for jobseekers. The presenter stated that not enough had been doneto improve the skills of job seekers. He argued that someemployers train the unemployed to meet with the indicators ofthe National Skills Development Stretegies. There is a commonapproach for training job seekers in order for the SETAs to bescored as good performers by DoL.

The presenter also argued that training of job seekers must notbe limited to school leavers and undergraduates, but also tosenior unemployed workers who are still looking to beemployed. There are many job seekers who had beenretrenched for various reasons, as they lack skills needed bydifferent sectors of the economy.

Conclusion

The skill crisis cuts across all sectors of the economy, it cannotbe said that enough had been done to deal with the crisis.SETAs have played their role in skills development, but it is upto the stakeholders to come on board and take the process oftraining forward. Much can be done to facilitate the training ofunemployed workers, but very little had been done so far.Others argue that skills development is not the panacea tosolve the unemployment crisis in South Africa, as there is aneed for both direct and foreign investment.

Reference

Moseki, T. 2008. SETAs: Are they a success? Presentationmade at the 21st Annual Labour Law Conference, 25-27 June2008, South Africa


THE CASE LAW UPDATE FOR THE PUBLIC SECTORPresented by Shanta Reddy

Summarised by Poso Mogale

The case law update for the public sector

Ms. Shanta Reddy presented latest case law update on thecase law update for the public sector.

In Dwane- Alpman v Premier, Eastern Cape (2008) 29 ILJ 541(E)

In this matter, the employee was employed as a special legaladvisor to the premier of the Eastern Cape province in terms ofsection 12(A) of the Public Service Act (PSA). In terms of thecontract of employment the employee was placed on 12 monthsprobationary period. A performance agreement had to beconcluded between the employee and the Premier within onemonth of commencement of the employment relationship.Termination could be effected in various ways, one of whichwas on one month’s written notice.

The Premier alleged that the employee had refused to followinstructions to complete the performance agreement with itsdirector-general (DG). As a result, the Premier terminated theemployee’s contract on one month’s written notice. Theemployee approached the Labour Court (LC) on an urgentbasis to reinstate her contract of employment pendingcompliance with the various terms thereof. The Premier hadterminated the employee’s service by relying on the ability toterminate a probationary employee’s service on one month’swritten notice. The termination was not based oninsubordination.

The LC held that despite the DG requesting the employee tomeet with her to finalise the performance agreement, theemployee could not be found guilty of insubordination, as shedid not refuse to meet with him. She was available to meet withthe DG but had also required the input of the Premier. Theemployee’s last letter to the DG was not responded to and heremployment was terminated shortly thereafter.

In response to the letter of termination, the employee hadreferred the premier to the mediation and arbitrationproceedings contained in the contract of employment, whichshe submitted, were obligatory. The Premier in evidence at theLC, admitted that there was no hearing afforded to theemployee.

The Premier’s representatives raised a point in limine that therewas no contract of employment in place, as the performanceagreement had not been concluded. The Court dismissed thatpoint, as it was common cause that a contract of employmenthad been entered into and that the further requirement ofconcluding a performance agreement did not nullify the contractof employment. In the period between the signing of thecontract of employment and the contemplated date for theconclusion of the performance agreement the employee wasexpected to perform services.

The Court found that the Premier had not complied with therequirements of the contract of employment and that theemployee was entitled to make representations prior to thedecision to dismiss her was made and enforced. On that basis,the employee was reinstated pending the mediation andarbitration processes.

The presenter indicated that this judgment implied that when anemployee approaches the LC for urgent relief pendingmediation and/or arbitration processes, those remedies do nottake into account the employee’s right to work, the substantialand financial stress that the employee and his/her children maysuffer and the employee’s inability to make decisions regardinghis/her future. The ordinary remedies that are available in laware not satisfactory. Considerable time will be lost as a result offollowing those routes.

Bothma v Transport Education & Training Authority & Another(2008) 29 ILJ 634 (LC)

The employee had urgently approached the LC to interdict theholding of a disciplinary hearing against him. The employeewas the accused in a pending criminal case and his bailconditions prevented him from interacting with, amongst otherpeople, employees of the first respondent – his employer.

The LC dismissed the application as the employee had notshown that he had no other remedies available to him. TheCourt accepted that the employee, if he was dismissed, hadrights to challenge the dismissal through conciliation andarbitration. The Court was of the view that even if the hearinghad continued in the employee’s absence, it may be possiblethat the employee could be found not guilty. The employeecontented that, as a result of his bail conditions, he could not


participate in the hearing and, therefore, could not cross-examine the employer’s witnesses.

The LC was not satisfied that the bail condition would preventthe employee from being properly heard. The employee did notexplain to the Court which of the first respondent’s witnessescould be defined as those falling under the bail condition thatprevented him from interacting with.

The Court also found that the employee had not taken anysteps to have the bail conditions relaxed so that he could fullyparticipate in the disciplinary hearing. On that basis alone, itwas held that approaching the Court was not the only remedyavailable to the employee. The Court was not satisfied that ifthe application was not granted the employee would be withoutsubstantial redress in the future.

It was, therefore, held that there were no clear rights availableto the employee, the balance of convenience did not favour theemployee and there was no irreparable harm that would besuffered by the employee. Accordingly, the application wasdismissed with a punitive costs order.

MEC for Health – Gauteng v Mathamini & Others (2008) 29 ILJ366 (LC)

In this matter, the employee was dismissed for dishonesty. Hehad altered a document authorising payment foraccommodation after the chief executive officer (CEO) hadsigned it. At arbitration, the dismissal was set aside, as theCEO would have approved the alteration had the employeesought her approval and also because that was the employee’sfirst offence.

The arbitrator had reasoned that the employee ought to havereceived a written warning instead of being dismissed.

In a review application before the LC, it was held that mitigatingfacts in dismissals for dishonesty do not restore the trustrelationship that has broken down. The Court set aside thearbitrator’s decision as an employer could not be expected tokeep a dishonest employee in its employ.

Member of the Executive Council, Department of Roads &Transport Eastern Cape & Another v Giyose (2008) 29 ILJ 272(E)

In this decision, the employee had challenged the employer’sdecision to transfer her. The High Court (HC) called for aharmonisation of administrative law legislation, common lawcontract of employment and labour legislation. The HC foundthat the legislation and common law should be interpreted,developed and applied to give expression to the fundamentalright fair labour practices in the Constitution of the Republic ofSouth Africa Act 108 of 1996 (Constitution) under section 23(1).

It was held that an employer who wishes to transfer anemployee must do so in a procedurally and substantively fairmanner. Just as an employee has the right to a fair dismissal

hearing, the employee has a right, in administrative law, labourlaw and common law of contract, to a pre-transfer hearing.

Section 39(2) of the Constitution allows the common law right tobe heard to be developed in conformity with the constitutionalright to fair labour practises. That development of the commonlaw right to be heard includes not only the recognition of theright to a pre-transfer hearing but also to the remedy it carries,mainly reinstatement to the previous position and access to theHC.

Noyo v Minister of Agriculture & Land Affairs & Others (2008)29ILJ 564 (E)

In this matter the employee was arrested and detained by theSouth African Police Services on charges of robbery. He wasallowed to see his wife whilst in detention. Upon his release, hereported for work, and was informed that he was on suspensionpending a disciplinary hearing. At the hearing, charges were notput to the employee, he did not plead to any charge, nowitnesses were called, incorrect factual information was reliedon. No proper record was kept and information favourable tothe employee was suppressed. The employee was dismissed.His appeal was also dismissed. The employee then approachedthe HC to review and set aside his dismissal.

In the proceedings before the HC, the employer for the first timereferred to section 17(5)(a) of the Public Service Act (PSA). Theemployer contended that in terms of that section, the applicantwas deemed to have been dismissed, as he had been absentfrom work for a certain period. If he intended challenging hisdismissal, he ought to have invoked section 17(5)(b) of the PSAto be reinstated.

The HC held that the employee be reinstated with costs. Theemployer then made an application for leave to appeal, whichwas refused. The employee then approached the HC for anorder reviewing and setting aside the employer’s variousdecisions. The employer contended in papers before the HCthat it could not reinstate the employee because he had notinformed it of his arrest and detention and had failed to indicatethat there was good cause for his reinstatement.

The Court found the disciplinary hearing to have been amockery of justice. The employer knew that the employee wasdetained but withheld that from the enquiry. The chairperson’srecord of the proceedings differed substantially from thetranscript of the proceedings and had prejudiced the employee.

The chairperson’s record was relied on at the appeal hearingwhich led to the dismissal being upheld. It was held that thedisciplinary hearing and appeal were irregular and flawed andhad to be set aside.

The Court considered the employer’s reliance on section17(5)(a) of the PSA. It found that the employer could haveeither relied on section 17(5) and deem him to have beendismissed or it could have charged him with misconduct interms of the disciplinary code. Once the employer had made its


election, it was bound by it. The Court found that the employerhad elected to proceed against the employee by way of adisciplinary hearing in terms of the code. The Court also foundthat the employer had fabricated the redundancy of theemployee’s post, which was created as a last resort. It had alsocondemned the delay by the employer in providing the reasonsfor not reinstating the employee.

The Court made a finding that section 17 of the PSA wasinconsistent with section 165 of the Constitution in that itassumed the function of a juristic person. There is no room inthe principles of the rule of law for deeming legislation likesection 17(5)(a), which created norms of binding effect withoutthe intervention of an officer to whom the legislative processhas been delegated. In the absence of a delegation that sectionis flawed.

It was, therefore, held that the employee could not be deemedto have been dismissed in terms of section 17(5)(a) of the PSA.It was also held that if the Court was incorrect in its view above,the discretion afforded to the employer in terms of section17(5)(b) was not clearly defined, or structured as required bythe Constitution.

Section 1 read with section 3 of the LRA requires compliancewith Articles 7 and 8 of the ILO Convention 158 of 1982(Convention 158), when the employment of a worker has been

terminated. In the present matter, the Court found that theemployer had not complied with the requirements of section 34of the Constitution in that it had not afforded the employee ahearing, had not informed him of his rights to appeal and did notcomply with the requirements of the rule of law. It had also notapplied the audi alteram partem principle when the employeereported for duty.

In conclusion the Court’s opinion was that section 17(5)(a) wasinconsistent with the Constitution and in order to cure its flaws,it will be necessary for parliament to add to it by bringing aboutthe existence of a functionary who must exercise the necessarydiscretion in terms of that section.

The Court found that in the light of the history of the matter andthe incomprehensible and malicious attitude and bias on thepart of the employer against the employee, it would be adereliction of duty if the Court referred the matter back to theemployer. The Court, accordingly, set aside the suspension ofthe employee and set aside the convictions and dismissal of theemployee by the disciplinary body, with costs.

Reference

Reddy, S. 2008. Case law update in the public sector.Presentation made at the 21st Annual Labour Law Conference,25-27 June 2008. South Africa.


THE CASE LAW UPDATE FOR THE PUBLIC SECTORPresented by Nicci Whitear-Nel

Summarised by Alucia Mdaka

Introduction

Ms Nicci Whitear-Nel indicated that the aim of this paper was toreveal the very nature of the most recent case updates in thepublic sector. The issues discussed concerned the remedy ofunfair dismissals, common law right to procedurally fairdisciplinary enquiry, rescissions, missed promotion anddishonesty as a dismissible offence. Other issues that broughtinteresting arguments were questions of whether members ofparliament were employers, employees, or both and lastly,whether an employer can claim an unfair labour practiceagainst an employee?

Remedy for unfair dismissal

In Republican Press (Pty) Ltd v CEPPWAWU & Others (2007)11 BLLR 1001 SCA, the Court had overruled the Labour AppealCourt’s (LAC) judgement that reinstated employees may onlyreceive back pay to the maximum prescribed in terms of section194 of the Labour Relations Act 66 of 1995 (LRA). Whitear-Nelindicated that that had created problems because reinstatedemployees were entitled to more back pay than an employeewho elected for compensation rather than reinstatement.

Common law right to procedurally fair disciplinary enquiry

The presenter discussed the principles of protected industrialaction. The examples she gave were the cases of BoxerSupermarket (Pty) Ltd v CEPPWAWU & Others (2007) 11BLLR 1001 SCA, and the one of Old Mutual Life Assurance COSA Ltd v Gumbi (2007) 8 BLLR 699 (SCA). She indicated thatthe principle established was that the Labour Court (LC) hadheld that an employee has a common law right to aprocedurally fair disciplinary enquiry before terminatingemployment. The practical effect is that an employee maychoose to sue for compensation for unfair procedural dismissalsin terms of civil law or in terms of the LRA to the CCMA,bargaining council or the LC.

Dishonesty as a dismissible offence

In BEMAWU obo Pather & Others v SABC (2008) 3 BALR 251CCMA, it was held that dismissal may only be appropriate foran employee who is only “slightly dishonest”.

Missed promotion

When determining if the employer’s failure to promoteconstitutes an unfair labour practice, the basic test is whetherthe employer’s conduct was fair and rational. The example ofthe case she gave was the one of Dedering v UNISA(unreported GAPT8187-06).

Rescission

Ms Whitear-Nel mentioned that section 144 (a) of the LRAprovides that an arbitration award may be rescinded incircumstances where it is erroneously sought or made in theabsence of any party affected by the award. She stated that theLAC had not interpreted the section to include “good cause” asa basis for rescinding the award. In cases between ShopriteCheckers (Pty) Ltd v CCMA & Others (2007) 10 BLLR 73 (LAC)and Total Facilities Management (Pty) Ltd v CCMA & Others(2008) 1 BLLR 73 (LC), it was held that when determiningwhether to grant rescission, the following factors should beconsidered:

• The explanation for either party’s failure to attend theproceedings, and

• Whether the party has a prima facie defence.

Are members of parliament employers, employees or both?

In SAPS v POPCRU (2007) 10 BLLR 978 LC, the Court drew adistinction between who were members of the South AfricanPolice Services (SAPS), and those who were employed by theSAPS. It was held that tea makers, financial administrators,cleaners and human resources personnel were not consideredas essential services and that they were free to embark onprotected strike action.

Can an employer claim an unfair labour practice against anemployee?

In NEWU v CCMA (2007) 28 ILJ 1223 (LAC), the LACconfirmed the LC’s judgment that the LRA provides remediesfor the employee to claim for an unfair labour practice. It washeld that employers have sufficient bargaining and economicpower at their disposal and other remedies that they couldutilise.


What standard must be used to determine whether thesanction applied was fair?

An example of the case that Whitear-Nel gave with regards tothe issue was the one of Sidumo & Another v RustenburgPlatinum Mines Ltd & Others (2007) 12 BLLR 1097 (CC). In thiscase, the Court held that all factors relating to the dismissalshould be considered and not just to defer the employer’sdecision. It was also held that the CCMA must set aside the

commissioners’ decision only if it is satisfied that a reasonabledecision maker would not have reached it.

Reference

Whitear-Nel, N .2008. Case update: Public sector issues.Presentation made at the 21st Annual Labour Law Conference,

October 2008–


LABOUR MARKET CONSEQUENCES OF GLOBALISATION: PATHWAYS TO DECENT WORK IN A GLOBAL ECONOMYBy Espen Løken, Åsmund Arup Seip and Jon Erik Dølvik

Summarised by Poso Mogale and Dimakatso Kunutu

Introduction

The term “globalisation” is used to describe integration ofintellectual concepts, trade, finance, property and labour acrossnation state borders and continents. Three important aspectsconcerning globalisation should be emphasised:

• Globalisation has made industries and services moremobile. Regulation of any kind, be they fiscal labour orindustry related can set off a rise in production costs andunleash threats of industrial flight,

• Finance has become deregulated and global whereaslabour is still, for a large part, tied to the nation state,

• Increasing migration opens new prospects and posesnew challenges. Outward migration can be desirable forcountries lacking jobs and in need for foreign currency. Itcan improve personal welfare, increase productivity, andfacilitate technological transfer and growth. However,mass migration can also lead to brain drain detrimental tomany developing countries, and

• The effects of globalisation are disputed. Some point tothe increasing poverty in parts of the world and the loss ofmanufacturing jobs in the industrialised countries. Othersargue that globalisation expands world production andincreases the wealth, income and employment that canbe shared.

The effects of globalisation along different dimensions

Economic growth and poverty

The growth has been significant. However, patterns of regionalgrowth vary widely. The inequitable distribution of wealthproduces large regional differences as well as growingdisparities within countries. Poverty measured by thepercentage of the population living on less than USD 1 a dayhas declined significantly in recent years. The growth of theChinese economy has contributed considerably to the reductionof poverty.

Child labour

Although it is difficult to measure the number of children doingchild work, the International Labour Organisation (ILO) hasestimated that about 218 million children between the ages offive and seventeen were involved in child labour. Of these, over50% work in the Asia-Pacific region and 25% work in Sub-Saharan Africa. Most child labour in rural areas is found in

agriculture and domestic service. Urban children work mostly intrade and services.

Investment in primary and lower secondary education iscorrelated with decrease in children’s work participation.

Informal sector

The World Bank defines informal activities as a result of one oftwo strategies:

• Coping strategies (survival activities) - casual jobs,temporary jobs, unpaid jobs, subsistence agriculture,multiple job holding, and

• Unofficial earning strategies (illegality in business) - taxevasion, avoidance of labour regulation and othergovernment or institutional regulations.

Reduction of the informal sector and growth in formal sector iscrucial to secure decent work. The rights and security thatfollows employment and participation in proper jobs do notcover workers in the informal sector. Unskilled work is beingredefined as a service and is contracted out of the enterprise,often, to foreign service providers who may bring lower paidworkers.

Globalisation appears to accelerate such structural change inthe labour market and, thereby, tends to uphold or enlarge theinformal sector.

The development of social partners

Sparse data seems to indicate a declining trend in unionmembership in large parts of the world and lack of globalinformation on membership of employer’s organisations. Whiletrade unions tend to concentrate on issues related to collectivebargaining and political regulation, employer’s organisations arealso concerned with a variety of services demanded byenterprises.

One of the challenges facing trade unions relate to recruitmentdifficulties in the private sector as well as in organising aworkforce that is becoming more diverse, mobile andmultinational. If enterprises increase their use of contractorsinstead of regular employment, that can aggravate theproblems of recruitment and representativity.

October 2008–


Research on globalisation

The list below highlights some of the results from the researchon globalisation:

• Globalisation has created more employment –Employment has come with increase in trade. Exportindustries in some developing countries have shown thatincrease in formal sector jobs has reduced povertysignificantly.

• Globalisation tends to have a positive effect on wages indeveloping countries – An important finding was thatglobalisation seems to lead to an increase in wages in theexport sectors and decrease in wages for non-skilledworkers in sectors competing with imports.

• Globalisation can have a negative effect on wages indeveloped countries – Studies on the effect ofglobalisation on wages in developed countries, especiallyUSA, have generated debate. The conclusion, althoughcontested, is that globalisation has had a certain effectbut is not the main factor behind the fall in wages for non-skilled workers in the USA.

• Globalisation tends to reinforce instability in labourmarkets – Research shows that globalisation has led toless stability in labour markets. That has resulted in moreeconomic insecurity in developed countries.

• Unemployment has not increased because ofglobalisation – Although globalisation may makeemployment more insecure for many, growing and morediverse, flexible labour markets can make it easier to findnew jobs. Research suggests that unemployment has notincreased over-all because of globalisation, butrestructuring of industrial sectors has caused increase inturnover, hence less job stability.

• Globalisation has reinforced structural changes andassociated loss of jobs and mobility.

• Capital does not flow to areas with the lowest workingstandards – While an ILO study from 2003 showed thatstronger freedom of association and collective bargainingrights were associated with higher manufacturing exports,the study found no such positive effects for exports oflabour-intensive products.

• Globalisation tends to alter the balance of power betweenlabour and capital.

• Globalisation does not increase child labour.• The conditions of women have been improved by

globalisation – Globalisation seems to have broken downtraditional values and gender practices in many countriesthat have hindered women’s liberation and entrance intothe labour market.

• Globalisation may weaken the capability of the nationalstates to provide social insurance – Globalisation may, asa result of tax competition and higher factor mobilityweaken the capacity of nation-states to provide socialinsurance.

Conclusion

There are still challenges on issues such as, inter alia, poverty,child labour, health and safety, core labour standards andworkers voice which needs to be remedied before the vision ofglobalisation is within sight.

Despite recent setbacks, economic globalisation has, in thepast decades, been strengthened and regulated by thedynamics of market forces and international trade agreements.So far, institutions that take care of social and labour issues,environment and democratic participation remain predominantlynational in scope and have not been equally strengthened atthe global level. In order to advance social justice and makeglobalisation work in a more fair and sustainable way, it seemscritical to bridge this gap and achieve a better balance oninteraction between the economic and social dimensions ofglobal governance.

Reference

Espen Løken, Åsmund Arup Seip and Jon Erik Dølvik. Labourmarket consequences of globalisation: Pathways to decentwork in a global economy. ILO Department of Communicationand Public Information. International Labour Office, Geneva.www.ilo.org

October 2008–


TRADE UNIONS IN AFRICA: WEAK BUT FEAREDPresented by Hubert Rene Schillinger

Summarised by Alucia Mdaka\

Introduction

Trade unions in Africa are often weak organisations with manyinternal problems, trapped between an ongoing informalisationof the African economies and the consequences of neo-liberalglobalisation. They are often seen to be a relict of the past.

Historically, African labour unions at first were an importantdriving force of an anti-colonial liberation struggle before theywere transformed into transmission belts of ruling parties andgovernments after independence. Schillinger, the author of thisarticle, indicates that in exchange for giving up fundamentalfreedom, the African unions received a job security for theirmembers and privileges for their leaders. A rude awakeningwas caused by the debt crisis in the eighties and the ensuing ofeconomic liberalisation which led to massive job losses in theformal economy and declines in union membership. That ledmany countries to reform their labour law to the disadvantagedworkers. The concomitant political liberalisation created thepolitical space for breaking the close and dependentrelationship with government, and provided for the emergenceof the independent trade unions.

Schillinger also indicates that although their power to influencewages and working conditions and to defend workers hassuffered enormously and tend to be quite weak, it would bewrong to write-off the African trade unions. He mentions thatthere are encouraging signs that foreign investment is pickingup after a long period of suffering in investments thus creatingnew opportunities for trade union organisations. Above all, inmany countries, they remain a political force to be reckonedwith as they continue to be one of the few societal organisationsin Africa with sizeable constituency, country-wide structures andpotential for mobilising members on social or political matters.

Trade unions as political actors for democratic change

By the end of the eighties/beginning of the nineties, the rise ofan African democracy movement against the dictatorship andmismanagement led to an open rupture. In countries such asCongo-Brazzaville, Niger or Malawi, trade unions declared theirindependency from the ruling of single-party and transit to multi-party democracy. In “Francophone Africa and Lusophonecountries” of Angola, political liberatisation had split within theunion movement, the emergence of independent trade unionsand competing trade unions federations. In Zambia, the trade

unions spearheaded an opposition movement, the Movement ofMulti-Party Democracy.

South Africa is often cited as the best example for theimportance of trade unions in political transformation process.For example, the Congress of South African Trade Unions(COSATU) which is one of the largest, the strongest andpolitical in Africa, became a central pillar of the oppositionagainst the apartheid regime, especially at times of the state ofemergency from mid 1986 to 1988. In the following transitionleading to the 1994 elections, COSATU was represented invarious negotiation forums as part of the African NationalCongress (ANC). A considerable portion of political leadershippersonnel of the post-apartheid era was later recruited fromtrade union ranks.

It was mentioned that the influence of organised labour on thepolicies of the new government after the 1994 elections wasinitially high. For example, the Reconstruction and DevelopmentProgramme which initiated its struggle against the socio-economic legacy of apartheid, largely drew from COSATU.However, from 1996 onwards, the political rule of the ANC hadbeen consolidated and that had led to its influence to dissolve.The relationship is characterised by persistent strong tensionbetween the alliance partners.

Zimbabwe is another example underlining the potentialimportance of unions in the fight for democracy and freedom.Schillinger states that the trade unions in Zimbabwe took tolead the protest and, later, to the opposition movement with theaim to replace the increasingly despotic regime of PresidentMugabe by democratic means. From within the trade unionfederation, the Zimbabwe Congress of Trade Unions and othergroups, a new party, Movement for Democratic Change wasfounded in 2000. Trade unions presently play a similar role inthe small southern Kingdom of Swaziland under the absolutistrule of its monarch, King Mswati III.

Schillinger further mentions that in Nigeria, trade unions for thepast three years, have been experiencing several strikesagainst price hikes of state-subsidised petrol called for by theNigerian Labour Congress (NLC). That had led to the creationof trade-union-supported political party, which participated forthe first time with its candidates in the local elections in 2004.The Nigerian government had reacted to that by introducing abill that aims at weakening and splitting the labour movementand to limit the NLC’s rights to strike.

October 2008–


Trade unions and labour relations

Schillinger states that when comparing the trade unions’ role inpolitics, the influence of workers’ organisation in Africa hasremained weak in the traditional fields of labour relations, interms of job security, social policies, improvement of wages andworking conditions except the industrially developed countriessuch as South Africa and Mauritius. However, collectiveagreements play a subordinate role in fixing wages and workingconditions in most countries. Although centralised bargainingrarely exits in most African countries, collective agreementsoften need prior approval. For example, in Tanzania, theapproval of the Industrial Court was rejected due to its beingdetrimental to the economic well being of the country. Thelimitations of centralised bargaining often exists due tocomplicated rules and protracted procedures that make legalstrikes in support of trade unions demand virtually impossible inmany countries.

Open repression against independent trade unions in Africa isexceptional and limited to countries where unions are part of apolitical power struggle with an anti-authoritarian or dictatorialregime, such as Zimbabwe and Swaziland. In the debatearound structural adjustment, deregulation and globalcompetition, African unions have found themselves in anincreasingly hostile political environment. Many governmentshave reformed existing labour law under the banner of labourmarket flexibility by dismantling or weakening certain tradeunions and workers’ rights in order to offer more attractiveconditions to foreign investors. They have bypassed theexisting labour legislation by introducing special economiczones in which the national labour legislation does not fullyapply.

High unemployment rates, which makes every formal jobappear to be a privilege, is curbing the fighting spirit of workersto wage losses, and deteriorating working conditions. Thedecline of workers’ rights are tolerated without real resistanceover a long period. When labour conflicts occasionally occur,the affected employers can generally count on theunderstanding of the authorities and their active support, if sorequired. This may not always go as far as in Uganda where,two years ago, the state president personally ordered thedismissal of 300 striking women workers in a foreign textileplant. Moreover, institutions of social dialogue betweengovernment and social partners on labour and social policyissues usually do not have real weight in such an environment,even in cases where they are actually functioning and not justexist on paper. Trade unions in Africa today are fighting anuphill battle, their weak economic power position is furthereroding through the continued decline in formal employmentand the respective loss of members. Their political possibilitiesof influencing policy decisions have also been reduced in alabour-unfriendly policy environment, marked by the neo-liberaldoctrine of the international financial institutions. In addition,African trade unions are often having serious internal problems,such as severe financial problems.

Trade unions and the informal sector

The few hesitant attempts by labour unions, to organise thegrowing army of workers in the informal sector instead of formalsector employees with fixed or stable employment, whoserelative and even absolute numbers have been steadilydeclining, have so far not yielded any significant results. This isnot at all surprising despite all the calls for trade unionorganisation of the informal sector, such as in Benin, Ghanaand Mozambique. People who usually attempt to make a livingin the informal economy are usually self-employed, and salariedworkers. One thing they have in common is that, unlike workersin traditional big businesses or administrations, they cannot bereached in large numbers at the same place and the same pointin time. Hence, on average, recruitment and servicing ofmembers in an informal environment come at a higher cost tothe union. At the same time these higher membership costscompare with, at best, purely symbolic membershipcontributions, due to the low and irregular income in informalwork.

Without external donor support for specific trade union projects,organising in the informal sector becomes a loss in makingbusiness for the notoriously understaffed African trade unions.Call for a stronger trade unions presence in the informal sectoroften overlook that the traditional trade union toolboxpresupposes an employer and an employee relationship andmay not be easily applicable. In Asia, for example, the informalsector includes a considerable number of only formally self-employed home workers, day labourers and other casualworkers who are producing for established formal enterprisesand for international firms through chains of subcontractors. InAfrica, the sector is dominated by self-employed or independentoperators, such as street vendors, shebeen owners, repairworkshops, and artisans, who are doing business directly withlocal consumers.

Direct support to informal sector workers in Africa mainly meansapplying the traditional toolkit for small and medium enterprisesdevelopment and the promotion of self-help organisations, suchas advisory services for business start-ups, skills training, andmicro credit schemes. Trade unions are the most suitableactors for offering such services. Furthermore, attempts madeby trade unions, for example, one of the South African unions,the National Union of Mineworkers to organise retrenchment oftheir members may not always be successful on a sustainablebasis, if one looks at the historical track-record of this type ofcompanies elsewhere in the world. On the other hand, there isroom for closer political co-operation between labour unionsand informal sector organisations, for instance to lobbygovernment on employment or poverty issues. Informal sectorgroups may need to make use of trade union organisations andbargaining skills to negotiate support for informal businessesfrom government or local authorities, and labour unions. In turn,they may need to align themselves with or affiliate informalsector associations in order to strengthen their political positionas the legitimate “workers’ voice”. However, this certainlyrequires a more pro-active approach in alliance building than inthe past.

October 2008–


The future of trade unionism in Africa

According to Schillinger, as long as the dynamics of mostAfrican economies are predominantly limited to the survivaleconomy of the informal sector and a thorough modernisation isnot forthcoming, the prospects of stronger unionism are slim.African labour unions could be written off as relicts of the past,as there are important counter-trends as well. Current trends inforeign investment in Africa clearly point to new and not yet fullyexploited potentials for trade union organisation that exist evenin times of globalisation, although the number of jobs createdmay not yet be very significant, in relation to the unemploymentproblem. Interestingly, most of the new foreign investment inAfrican economies is neither based on the availability of cheaplabour nor do labour costs play a significant role. Targeting thecontinent’s natural resources and mineral wealth, mainly takesplace in the mining and energy sector which currently receivesmost foreign direct investment.

In view of the high capital outlay associated with theseinvestments, social peace must have preference over tradeunion-free zones and low wages from an investor’s point ofview. Therefore, it is quite unlikely for unions to encounter hugeresistance against trade union representation of the employeesat the workplace and regulated labour relations. New niches offormal economic activity with good potential for trade unionorganising also arise from the expansion of South Africancompanies to the rest of the continent.

Stiff opposition to trade unionism only occur where foreigncompanies are either engaged in labour-intensive production forexport markets, or originate from countries with poor labourrelations and harsh working conditions like in the African textileand garment industry. With the abolition of the quota-systemafter the expiry of the international textile agreement at the endof 2004 and the threat of relocation of many of the plants, theconditions for the trade unions in this sector had become moredifficult.

Conclusion

Schillinger concluded that by stating that in many countries,trade unions remain an important political force which has to betaken into account by the political power holders. Despite theirmassive membership losses, trade unions continue to be one ofthe very few societal organisations in Africa with a sizeableconstituency, countrywide structures and the potential formobilising members on social or political matters. Moreover,they are in a position to mobilise international solidaritycampaigns, and whenever massive violations of trade union orhuman rights occur. It is for these reasons that also in future,trade union mobilisation will play an important political role, inparticular in situations of political transition, in the struggleagainst authoritarian regimes and protests against thedeterioration of living conditions of the broad population, suchas in the case of drastic increases of administered prices forbasic food, energy and transport.

Reference

Schillinger, H.R. 2005. Trade unions in Africa: weak butfeared. Occasional Papers: International DevelopmentCooperation on Global Trade Union Program.http://library.fes.de/pdf-files/iez/02822.pdf. Accessed

September 2008.

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