CASE LAW UPDATE T. QOTOYI

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

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)A reasonable expectation on the part of the employee that a fixed-term contract on the same or similar terms will be renewed (b)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

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

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

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

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

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

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, Employee not given an opportunity to make representations as per the Regulations - The court warns against using precautionary suspension arbitrarily

[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

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

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

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

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 judicata are 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 judicata plea

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

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

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