T. QOTOYI

1. CASE LAW UPDATE T. QOTOYI

2. The meaning of dismissal –s186(1)(b) Does section 186(1)(b) of the LRA give rise to a reasonable expectation of permanent appointment? University of Pretoria v CCMA [2012] 2 BLLR 164 (LAC) - Employee employed on a series of fixed-term contracts for three years - Unsuccessfully applied for a permanent position - Employer offered her a further fixed-term contract which she declined

3. The meaning of dismissal –s186(1)(b) • - • Employee lodging an unfair dismissal claim on the ground that she should have been appointed permanently • According to the Labour Appeal Court a dismissal as contemplated in section 186(1)(b) will only arise if the following two requirements are present: • A reasonable expectation on the part of the employee that a fixed-term contract on the same or similar terms will be renewed • A failure by the employer to renew the contract on the same terms or a failure to renew it at all • Therefore, the section does not give rise to an expectation of permanent • appointment • The Dirks v The University of South Africa [1999] 20 ILJ 1227 (LC) and McInnes v Technicon of Natal [2000] 21 ILJ 1138 (LC) debate finally laid to rest

4. Constructive dismissal • - • Asra Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others [2012] 33 ILJ 363 (LC) • In determining whether a dismissal constitutes constructive dismissal the following requirements must be met: • The employee terminated the contract • Continued employment had become intolerable for the employee • The employer must have made continued employment intolerable • Employee elected to resign rather than to attend a disciplinary • hearing • - Employee not constructively dismissed

5. Existence of employment relationship • Mokhethi v General Public Service Sectoral Bargaining Council & Others [2012] 33 ILJ 1215 (LC) • - An alleged offer of employment made following false • submission to employer • Peremptory processes prescribed by the Public Service Act • (Proc 103 of 1994) not followed • Applicant reported for work, given uniform appointment • card • The court held that there was no contract and consequently • no employment relationship

6. Dismissal for misconduct • Transnet Rail Engineering Ltd v Transnet Bargaining Council & Others [2012] 33 ILJ 1481 (LC) • Employee dismissed for unauthorised possession of • employer’s property • Employee raising defence of kleptomania at arbitration • Arbitrator holding that like alcoholism, kleptomania, should • be treated as a form of incapacity • - Dismissal found to be unfair • Award set aside and dismissal found to be fair by the • Labour Court because there was no evidence that the • employee was indeed a kleptomaniac

7. Consistency • Mphigalale v Safety & Security Sectoral Bargaining Council & Others [2012] 33 ILJ 1464 (LC) • - Employee found guilty of corruption and dismissed • Previously two employees found guilty of corruption • given sanctions short of dismissal • - Previous decisions made in error • - Employer not required to repeat decisions made in error • - Due to the seriousness of misconduct dismissal held to • be fair

8. Deemed dismissal-s14 of Employment of Educators Act • Mogola v Head of The Department of Education [2012] 6 BLLR 584 (LC) • Discharge of an educator under section 14(1) does not • constitute dismissal as defined in LRA • Employees discharged for being absent from work for more • than 14 days • However, an employer has to consider submissions made • by an employee in terms of section 14(2) • - Employer failed to consider the submissions • - Discharge set aside and employees reinstated

9. Precautionary suspension • Lebu v Maquassi Hills Local Municipality [2012]4 BLLR 411 (LC) • The employee, a municipal manager, suspended pending a • disciplinary hearing • Suspension not in compliance with the Local Government • Regulations for Senior Managers,2010 • Employee not given an opportunity to make representations • as per the Regulations • The court warns against using precautionary suspension • arbitrarily

10. [14] “Suspension is a measure that has serious consequences for an employee, and is not a measure that should be resorted to lightly. There appears to be a tendency, especially in the public sector, where suspension is applied as a measure of first resort and almost automatically imposed where any form of misconduct is alleged.” - Suspension set aside and reinstatement ordered

11. Benefits • Imatu obo Verster v Umhlathuze Municipality (D 644/09) • Employee appointed in an acting capacity on two distinct periods • Not paid an acting allowance for the first period but paid for the • second period • CCMA aligning itself with Hospersa v Northern Cape Provincial • Administration [2000] 21 ILJ 1066 (LC) held that it lacked jurisdiction • as the employee could not prove contractual entitlement to the acting • allowance • The Labour Court held that where an employer regularly exercises a • discretion to provide a non-contractual benefit, such a dispute may be • arbitrated by the CCMA • - An acting allowance can be a benefit even if there is no contractual • entitlement • - However, LAC decision in Hospersa still stands

12. Polygraph test • Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09) [2012] • Employees not promoted after failing to pass the polygraph • test • Polygraph test results used as a key criterion for • promotion • No independent evidence showing that the employees • were previously implicated in some wrongdoing, or • corruption • Exclusive reliance on the polygraph test results to eliminate • the employees from promotion held to be unfair

13. Discrimination • Department of Correctional Services & another v POPCRU • & others[2012] 2 BLLR 110 (LAC) • Male prison employees dismissed for refusing on cultural • and religious grounds to remove dreadlocks • - Female employees not required to remove dreadlocks • Employer failed to show the rational connection between • the instruction and purpose • Dismissal constituting direct discrimination on the grounds • of gender, religion and culture and thus automatically unfair

14. Res judicata plea • Gauteng Shared Services Centre v Ditsamai[2012] 4 BLLR 328 (LAC) • Employee dismissed after lodging a grievance relating to non- • promotion to a permanent position • - Dismissal unfair and employee awarded compensation • Employee further referring a dispute on the grounds that he had been • overlooked for the permanent position because of unfair discrimination • Employer contending that the matter was res judicata • Court stressing that the requirements for a successful plea of res • judicataare that the same dispute between the same parties involving • the same claim and the same issue of law must already have been • adjudicated by a competent court • - Since this was not the case there was no merit in the employer’s res • judicataplea

15. Strike • Equity Aviation Services (Pty) Ltd v SATAWU & Others [2012] 3 BLLR 245 (SCA) • Non-union members dismissed for unauthorised • absence from work after joining a protected strike called • by the majority union • Non-union members required to deliver separate strike • notices to the employer • - Failure to do so rendered their strike unprotected • - Dismissal not automatically unfair

16. BMW SA (Pty)Ltd v National Union of Metalworkers of SA obo members [2012] 33 ILJ 140 (LAC) • Union and the employer concluding a collective • agreement which required the parties to make use of • facilitation in the event of a dispute before embarking on • strike • Only once facilitation had failed would the union be • entitled to strike • Parties not entitled to either follow the agreed procedure • or the statutory procedure in section 64(1) of the LRA

17. Passenger Rail Agency of South Africa v SATAWU • (J 543/12) • Union demanding that two managerial staff • members of PRASA be suspended • Union also demanding that a forensic investigation • be commissioned • Employer arguing that the first demand was unlawful • and that it had already complied with the second • demand • Strike declared unlawful and unprotected