An employee leaves a sealed letter of resignation on his manager’s desk. His manager knows what is in the envelope, but because he has other pressing business to attend to, he leaves the letter where it is. The employee cools down, explains that he resigned in haste, and retrieves his resignation letter, still unread and still sealed. Can it be said that the employee resigned, or does the resignation only take effect once the manager reads it? A recent decision by the Supreme Court of Appeal indicates that a written communication must be read to be effective: an unread communication has no effect.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-4233959
Fax: 021-4232105
Cell: 0824338714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

What happens if an employer transfers a business as a going concern to a new employer? Section 197 of the Labour Relations Act provides that the employees are transferred with the business and the new employer steps into the shoes of the old employer. But what happens if the business is then transferred yet again? This would be a second generation outsourcing, and for some time the question has risen as to whether the employees would be protected by section 197 in the case of a second generation outsourcing. The Labour Appeal Court has now settled this debate by holding that section 197 must be interpreted broadly to include protection for workers who are outsourced again.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

“If an employee for a position misrepresents and/ or qualifications and is appointed to a position on the basis of such a misrepresentation, there is, in my view, no duty on the employer to provide such an employee with counselling, training or assistance. An employee who misrepresents his/her qualifications or experience is dishonest and is not entitled to be appointed to a position in the first place. An employment relationship is based on mutual trust and deceit is incompatible with, as well as destructive of, trust. Moreover, if an employee would, in such circumstances, be required to provide counselling, assistance and/or training to the deceitful employee, it would mean that the employee would in fact be rewarded for his/ her dishonesty or deceit while the employer would be penalized.”

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Employers invariably expect the outcome of a disciplinary enquiry to be the dismissal of an employee. But what happens if the employer does not agree with the sanction imposed by an external chairperson? Can the employer substitute its own sanction without calling another disciplinary enquiry? The employer has the right to do so.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

If an employee discloses information which he or she knows is confidential, the employee is in fact breaching his or her duty to act in good faith in respect of the business of the employer. Dismissal may be fair in a situation where an employee leaks a confidential report.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The essence of negligence lies in the fact that the employee failed to do what a reasonable person in his or her position would have done. Generally, negligence does not warrant dismissal for a first offence, but there are times when the employee is guilty of either gross negligence or, in a worst case, total dereliction of duty. In these cases dismissal may be justified.

“The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm. The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission. To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion.

For further information or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Employees prefer compensation over reinstatement, and CCMA commissioners seem happy to oblige. In a recent case the CCMA commissioner found that the employee’s dismissal was substantively unfair and awarded seven months’ remuneration as compensation. The commissioner calculated the compensation with reference to the employee’s net salary- not the employee’s gross remuneration. The commissioner should have calculated the compensation on the basis of the employee’s (much larger) gross remuneration. The Labour Court agreed.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

A. EXPOSITION OF THE RULE

1. Any party who requires the Commission or a commissioner to subpoena a person in terms of section 142(1) of the Act, must file a completed LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary.

2. A party requesting the Commission to waive the requirement for the party to pay witness fees in terms of section142(7)(c) must set out the reasons for the request in writing at the time of requesting the Commission to issue a subpoena in respect of that witness.

3. An application in terms of subrule (1) must be filed with the Commission at least fourteen days before the arbitration hearing, or as directed by the commissioner hearing the arbitration.

4. The Commission or a commissioner may refuse to issue a subpoena if:

a) the party does not establish why the evidence of the person is necessary.
b) the party subpoenaed does not have a reasonable period in which to comply with the subpoena;
c) the Commission or a commissioner is not satisfied that the party has made arrangements to pay the witness fees and the reasonable travel costs of the person subpoenaed.

5. A subpoena must be served on the witness subpoenaed:

a) by the person who has requested the issue of the subpoena of by the Sheriff, at least seven days before the scheduled date of the arbitration;
b) if so directed by the Commission, accompanied by payment of the prescribed witness fees for one day in accordance with the tariff of allowances published by notice in the Government Gazette in terms of section 142 (7) of the Act and the witness’ reasonable travel costs.
6. Subrules 4 (c) and 5 (b) do not apply if the Commission in terms of section 142 (7) (c), as waived the
requirement to pay witness fees.

B. ANALYSIS OF THE RULE AND CROSS-REFERENCE TO OTHER PROVISIONS

1. Purpose of the rule

The purpose of a subpoena is fourfold, namely:

a) to compel a person who may be able to give information to appear before the CCMA for questioning; or
b) to secure the attendance of a witness, including an expert witness, at arbitration proceedings; or
c) to compel a person who may have a book, document or object relevant to the resolution of the dispute under his or her control or possession, to appear before the CCMA for questioning; or
d) to secure the attendance of a witness to produce any book, document or object relevant to the resolution of the dispute that may be under the control of the witness or in the witness’ possession, in evidence.

The provisions of 142 of the LRA authorise the commissioner who has been appointed to attempt to
resolve a dispute, to facilitate the above.

The section provides:
142 Powers of commissioner when attempting to resolve disputes
1) A commissioner who has been appointed to attempt to resolve a dispute may-
a) a subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute.
b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
d) call any person present at the conciliation or arbitratio9n proceeding or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute.

2) A subpoena issued for any purpose in terms of section (1) must be signed by the director
and must-

a) specifically require the person named in it to appear before the commissioner;
b) sufficiently identify the book, document or object to be produced; and
c) state the date, time and the place at which the person is to appear.

2. Process of issuing a subpoena

Prior authorization is required must request the CCMA or a commissioner to subpoena to subpoena a
person referred to in s 142 (1) of the LRA.

In terms of rule 37(1), the process of facilitating the issue of a subpoena comprises two requirements,
i.e. the prescribed form and a written motivation in the following manner:

a) filing of the completed prescribed LRA form 7.16

b) in addition, filing of a written motivation setting out why the evidence of the person to be subpoenaed is necessary. The motivation deal with the following:

i) the date, time and place at which the person to be subpoenaed will be required to appear; and

ii) reasons why the person to be subpoenaed may be able to give information or evidence assisting in the resolution of the dispute with a reference to the facts of the dispute and which of those facts the witness will testify to; or

iii) reasons, with reference to the facts of the dispute, why a person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, should be subpoenaed to appear before the CCMA to be questioned or to produce such book, document or object, including and identification of the book, document or object; or

iv) reasons why the evidence of an expert witness is necessary and relevant to the resolution of the dispute, with reference to the facts of the dispute and which of those facts the witness will testify to; and

v) if a request is made for waiver of the payment of witness fees, the reasons for such request.

In terms of s 142 (2) of the LRA, a subpoena issued for any purpose in terms of s 142 (1) must be signed
by the director of the CCMA. In practice, the senior convening commissioner of a particular province will
sign the subpoena as the delegate of the director.

For further information on any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The effects envisaged in section 197(2) transpire only if a business is transferred from one employer to another as a going concern. ‘Business’ includes ‘the whole or part of any business trade, undertaking or service’. The term business therefore includes every conceivable form of activity in which employers engage, whether for profit or otherwise, and whether in the private or public sector.

Effects of transfer

According to section 197, the transfer of the whole or part of an employer’s business results in the ‘automatic’ substitution of the ‘new employer’ (i.e. the transferee) for the ‘old employer’ (i.e. the transferor). This substitution has three practical consequences for the employers and the employees concerned: The first is that ‘all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee’. The second is that ‘anything done before the transfer by or in relation to the old employer, including the dismissal an employee or the commission of an unfair labour practice or act of unfair discrimination, is considered to have been done by or in relation to the new employer’. The third is that the ‘continuity of employment’ is not interrupted. The fourth is that the transferred employee’s contract of employment ‘continues with the new employer as if with the old employer’.

Collective agreements and awards

The new employer is also bound any arbitration award or collective agreement that was binding on the old employer before the transfer.

Obligations on the employers after the transfer

For 12 months after the transfer, the old employer is jointly and severally liable with the new employer to any employee who becomes entitled to receive a payment as a result of the employee’s dismissal for a reason relating to the employer’s operational requirements or the employer’s liquidation or sequestration, unless the old employer is able to show that it has complied with the provisions of section197. Furthermore, the old and new employer are jointly and severally liable in respect of any claim concerning any term or condition of employment that arose prior to the transfer.

Transfers in circumstances of insolvency

Transfers of insolvent business are now regulated by section 197A. In these circumstances, the employees of the old employer are also transferred automatically to the new employer. The only difference is that anything done before the transfer by the old employer in respect of each employee is considered to have been done by the old employer, and the new and old employer are not jointly and severally liable for employee’s claims against the old employer that arose before the transfer. Also, an employer facing winding up or sequestration must inform its employees or their union of that fact,

For any further Labour Law related queries, please contact Bernard on:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za