Category: Our Publications
Home / Articles /
Transfer of Business as a Going Concern

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

DOUBLE JEOPARDY

If employees have been acquitted at a disciplinary inquiry, or if the presiding officer has imposed a penalty less severe than dismissal, they cannot generally be subjected to a second inquiry in respect of the same offence. An essential requirement of the double-jeopardy rule is that the charges against the employee in the second hearing are the same as they were in the first. This does not mean, however, that the employer can simply redraft the charges in different. The true test is whether the charges relate to the same cause of action (i.e. the same alleged misconduct).

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

Particular disciplinary Offences

Gross dishonesty

Dishonesty in the employment context can take various forms, including theft, fraud and other forms of dishonesty. Theft is regarded by the labour courts as one of the most serious forms of disciplinary offence, normally justifying dismissal first instance, regardless of the value of the property involved, the employee’s length of service, the absence of prior warnings, or whether the employee subsequently returned the property.

As in all cases of misconduct the employer must prove on a balance of probabilities that the employee committed the offence or was an accomplice to it. A proper inquiry must be held in cases of alleged theft, during which the employer is obliged to satisfy itself that the employee is guilty. Other forms of dishonesty also justify dismissal. Fraud is a common example. The courts have upheld the dismissal of employees for falsely claiming that a company car had been hijacked, falsely claiming overtime pay for work not performed, and falsely claiming qualifications, while persisting with the lie.

Conflict of interest

Employees are required to devote their energies to advancing their employer’s interest. Conduct in which employees intentionally place themselves in situations where their own interests conflict with those of the employer therefore renders the employment relationship intolerable and justifies dismissal. This typically occurs when employees enter into relationships with their employers competitors or engage in business activities which actually or potentially conflict with their employers’ business interest.

Wilful damage to property

To justify dismissal, damage to property must be willful and serious.

Assault and fighting

Assault is defined as the unlawful and intentional application of force to a person, or a threat that such force will be applied. The force can take a number of forms, and need not necessarily involve the actual application of physical force; threats of violence may suffice. The employer is entitled to dismiss even if the assault takes place off the work premises, provided that it relates to the employment situation.

Gross insubordination

The labour courts have distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer’s instructions). Insolence has been held to warrant disciplinary action and, where appropriate dismissal. It is with impudence, cheekiness, disrespect or rudeness. Insolence justifies dismissal only if it is willful and serious. Insubordination is a more serious offence than mere rudeness because it presupposes a calculated breach by the employee of the duty to obey the employer’s instructions.

The gravity of insubordination depends on a number of factors, including the action of the employer prior to the alleged insubordination, the willfulness of the employee’s defiance and the reasonableness or otherwise of the order that was defied. So refusal to obey an instruction to the employee to do work which was illegal or which the employer legitimately felt he was not qualified to perform was held no to amount to insubordination.

Sexual harassment

Sexual harassment may be described as persistent, unsolicited and unwanted sexual advances or suggestions by one person to another. Sexual conduct covers a wide range of actions from the obvious physical contact through to verbal forms such ad innuendoes, suggestions and hints, comments with sexual overtones, sex-related jokes or unwelcome graphic comments about people’s bodies made in their presence or directed at them, inappropriate inquiries about a person’s sex life, unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects. Quid pro quo harassment. This occurs when an employer or superior ‘undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant in exchange for sexual favour. All employers should adopt policies on sexual harassment. All employees, job applicants and other persons who have dealings with the business have a right to be treated with dignity, that sexual harassment is prohibited, that victims have a right to raise a grievance with the assurance that the appropriate action will be taken, and that disciplinary action will be taken against employees who not comply with the policy.

The problem of sexual harassment should also be dealt with tin staff orientation, education and training programmes. Complainants must be given the choice between informal attempts to resolve the problem and formal proceedings against the alleged perpetrator. The informal procedure entails explaining to the perpetrator that the behaviour in question is unwelcome and offensive, makes the victim uncomfortable and interferes with this or her work. If this has no effect, or if the first instance of harassment is serious, formal action should be taken. This should entail an investigation and, if necessary, disciplinary action against the offender. If the outcome does not satisfy the complainant, the dispute can be referred to the CCMA for conciliation in terms of
section 135 of the LRA, and thence, in the event of settlement not being reached, to the Labour Court which, in terms of the Employment Equity Act, will have the power to ensure that the situation is rectified.

Abusive and racist language

The use of abusive language by one employee to another employee may amount to harassment, but not necessarily so. However, where it is sufficiently serious, an isolated incident of verbal abuse may in itself merit dismissal, particularly if it is accompanied by malice, when it is directed at a female, when it is used in the presence of other employees or customers, where there was no justification for the utterance, or where the user showed no remorse. On the other hand, racist abuse may serve as a mitigating factor if the victim reacts violently against the perpetrator.

Intoxication on duty

Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation. An employee is ‘under the influence of alcohol’ if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. If employees are charged with being ‘under the influence’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyzer tests, but if such equipment is not available, evidence of physical observations of the employer may be sufficient. Being under the influence of alcohol while on duty does not, however, inevitably justify dismissal.

Unauthorised use of company property

Property made available to employees by their employers must be used for work-related purposes, unless the employees obtain permission to put it to other uses. So, employees who use company vehicles for private purposes may be dismissed if there is a clear rule prohibiting such use. Computer equipment lends itself to abuse of this kind.

Time-related offences

In assessing the fairness of a dismissal for absenteeism or unpunctuality the following factors are normally considered relevant: the reason for the employee’s absence, the employee’s work record, and the employer’s treatment of this offence in the past. Employees charged with absenteeism must generally be given an opportunity to explain their absences, or to plead in mitigation

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: mailto:bernard@capelabour.co.za
Website: www.capelabour.co.za

For nay help on CCMA cases please contact Bernard Reisner on details above – CCMA Form can be downloaded here

SANCTIONS

Understanding Sanctions and Warnings in the Workplace

Disciplinary penalties in the workplace must be applied progressively, i.e. lighter sanctions should be applied in the case of a first offence, and graver sanctions reserved for repetitions.

Understanding General Warnings

General warnings are frequently used to signal to all employees that the employer intends to take action against forms of misconduct (e.g. absenteeism) that might have been condoned in the past.

Understanding Informal Warnings

Informal oral warnings are those given to individual employees for particular acts of misconduct. They are reminders that if the employee continues with the prohibited conduct, more serious action will follow. Although informal, such warnings represent the first stage of disciplinary action. The way in which employers issue and record warnings differ from employer to employer. Some record them formally on the employee’s personnel file, others do not. It is, however, advisable to keep a proper record of all warnings. The purpose of warnings is corrective. Since oral warnings are informal, no specific procedure must be followed before issuing the warning, unless otherwise specified in a collective agreement.

Understanding Written Warnings

A written warning is a more formal act than an oral warning. Reducing a warning to writing enables the employer to prove that the warning was given if subsequent disciplinary action proves necessary against the employee. An employee is usually required to sign a written warning, and some employers also require a signature by a witness. By so doing, the employee does not admit guilt, but merely acknowledges receipt of the warning. An employee’s refusal to sign a written warning does not affect its validity.

The issuing of a written warning should be preceded by a proper inquiry, during which the employees concerned should be allowed to state their cases and produce witnesses, if necessary. It is also desirable that an employee faced with warnings be allowed to be represented by a fellow worker or union representative if requested, while the penalty is being considered.

Understanding Final Written Warnings

A final written warning is the last warning an employee can expect before dismissal. Its purpose is to give employees a final chance to correct their behaviour. If an employee is given a number of ‘final’ warnings, other employees may begin to suspect that, no matter what how badly they behave, they will never be dismissed. By creating this impression, the employer creates a two-edged sword. First, its warnings become ineffectual. Secondly, an arbitrator may hold that the employer was not entitled to dismiss the employee because no meaningful final warning was given. Many disciplinary codes provide that written and final warnings remain in force for a specific, usually six months.

An arbitrator has held that expired warnings may not be taken into account for purpose of imposing progressive discipline, but may indeed serve as evidence that the employee was aware of the rule. In appropriate circumstances, employers are entitled to dismiss employees even if they are not on a final warning.

Understanding Suspension

Suspension may be of two kinds: it may be imposed either as a ‘holding operation’ pending disciplinary action or as a form of disciplinary penalty. The first type of suspension is not punitive in itself; the preventive suspension is acceptable, provided the employer bona fide believes that such as action is necessary for good administration and the employer continues to pay the employee. An employer may suspend employees without pay only if they have contracted to that effect, either when the contract was first entered into or if a collective agreement provides for such penalty, or when the employee is faced with dismissal and agrees to unpaid suspension as an alternative penalty.

The labour courts accept suspension without pay as an appropriate penalty in ‘certain circumstances; in fact, employers are required to consider whether suspension might in the circumstances be a more appropriate sanction than dismissal. While lawfully suspended, an employee remains an employee and as such is subject to the authority of the employee to report to the workplace at specific times.

Understanding Demotion

It constitutes a unilateral variation of the employee’s contract of service. However, demotion is also considered an acceptable alternative to dismissal by the labour courts, especially where it is provided for in a disciplinary code. Like the unfair suspension, unfair demotion also constitutes an arbitrable unfair labour practice.

CONTACT CAPE LABOUR.

For more information on sanctions, 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 Consulting (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

Notice of Termination of Employment

All employees who work for more than 24 hours a month for an employer are entitled to the notice of termination provided for in their contracts or, if no notice period is provided, to at least one week’s notice if the employee has been employed for six months or less; two weeks’ notice if the employee has been employed for more than six months but not more than a year; and four weeks notice thereafter. Farm and domestic workers are entitled to four weeks’ notice after six months’ employment. The notice must be given in writing, and may not run concurrently with any period of annual, maternity, or family responsibility leave. Employees given notice of termination of employment in accordance with the provisions of the BCEA are not precluded from disputing the lawfulness or fairness of the termination under LRA. Employees are obliged to work through a notice period unless the employer exempts them from this obligation in which case they must be paid in lieu of notice. Notice of termination must be in writing.

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

SUNDAYS AND PUBLIC HOLIDAYS

Sunday work must be remunerated at double the normal rate for each hour worked by the employee, or at time and a half if the employee ordinarily works on a Sunday. If the greater part of a shift falls on a Sunday, the whole of that shift is deemed Sunday work.

Except when employees agree to the contrary, employers may not require employees to work on proclaimed public holidays. Employees not required to work on public holidays falling on ordinary working days must be paid their normal wage for those days, they must be paid at double their ordinary rate. The Labour Court has held that employees who work on Sundays that coincide with the date of public holidays as well as the following Monday are not entitled to double pay for both days.

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

WORKPLACE LAW

More on the workplace law:

Maximum hours

In terms of the BCEA, and subject to certain exceptions mentioned below, no employer may require or permit an employee to work longer than 45 hours a week, or nine hours a day if the employee works five days or fewer per week, and eight hours per day if the employee works more than five days a week. All work beyond that is overtime, which can be worked only with the employee’s consent. Overtime may not exceed 10 hours in any week, and total working hours (including overtime), may not exceed 12 hours per day.

Overtime

The rate for overtime is one and a half times the normal wage, unless the employee is subsequently granted 30 minutes off on all pay for each hour of overtime worked at normal rates, or 90 minutes off if the overtime was not paid at all. Time off in lieu of pay for overtime must b e taken within a month of the time worked, unless the employee agrees in writing to a longer period of up to 12 months. Although overtime is voluntary, BCEA does not affect the employer’s right to require employees to work overtime in terms of the contract of employment or collective agreement. Refusal by an employee to perform contractual overtime may constitute a disciplinary offence.

The parties are given some flexibility by the devices of ‘compression’ and ‘averaging’ of working hours. ‘Compression’ takes place when the employer and its employees agree on longer daily hours on ordinary wages, provided that daily working hours do not exceed 12, and provided that this does not result in the employee working longer than 45 ordinary hours or 10 hours overtime in any week, or more than five days a week. So, for example, if the maximum daily hours were chosen for particular days, the employee could work 12 hours on Mondays, Tuesdays and Wednesdays without overtime but would have to revert to an ordinary nine-hour day on Thursdays and Fridays. ‘Average’ may be effected only by collective agreement (i.e. a written agreement between the employer and a registered trade union). Such agreements may permit employers to agree with their employees that they will work an average of five hours per week overtime for an agreed period.

Night Work

Special provision is made for night workers i.e. those who work after 18h00 and before 06h00 the next day. Work may be performed during these hours only with the employees’ consent. Employees are not permitted to perform night work unless transport is available between their residence and the work place at the commencement and conclusion of the shift.

Meal breaks

Employees are entitled to a meal interval of one continuous hour after five hours’ work, for which they must be paid if they are required to work or be available for work; otherwise, meal intervals of an hour or more are not treated as paid working time. Meal intervals may be reduced by agreement between employers and employees to now less than 30 minutes, or they may be dispensed altogether if the employee works less than six hours in a day. If meal breaks are reduced to less than hour, the breaks are still unpaid if the employees are paid hourly.

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

ARBITRATION

STATUTORY ARBITRATION

Con-arb

An amendment to the LRA now permits councils and the CCMA to arbitrate disputes immediately if conciliation fails. The process of ‘con-arb’ has potential dangers. For one, the same commissioner must necessarily act as both conciliator and arbitrator, meaning that, when acting in the latter capacity, he or she may have been privy to compromising information received when acting in the former capacity. This may render the process subject to review. If the dispute related to probation, the parties must apparently comply with that process. However, in all other matters, the parties must be afforded a right to object to ‘con-arb’. If a party objects, the commission or council is obliged to deal with the matter by following the normal procedure.

Set down

If the commission is satisfied with the referral, it will set the matter down for arbitration. The parties are entitled to at least 21 days’ notice, unless they have agreed to a shorter period.

Postponements

The CCMA rules provide for postponements of scheduled arbitration proceedings either by agreement between the parties or on application by one. If a matter is postponed by agreement all parties, the CCMA must be informed in writing more than seven days before the scheduled. Failing that, the party seeking agreement may apply for a postponement at any stage up to the scheduled date by filing a formal application, supported by affidavit(s), setting out the reason why postponement is sought. The application must be bona fide, and not used as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant would not for the purpose of obtaining an advantage to which the applicant would not otherwise be legitimately entitled.

Withdrawals

A party may withdraw a matter at any time by informing the commission and the other party.

Powers of arbitrators

Arbitrators are equipped with extensive powers to subpoena witnesses or documents. An arbitrator’s general duty is to determine a dispute in the manner prescribed or permitted by the Act concerned. Although the power to grant relief is wide, arbitrators can only grant relief permitted by legislation. An arbitrator who, for example, grants compensation in excess of that permitted by the LRA will exceed his or her power and act unlawfully.

Presence of the parties

Parties are generally required to attend arbitration proceedings in person. The Act permits arbitrating commissioners to dismiss matters if the referring parties fail to appear or to send representatives. If the other party is absent, the commissioner may either postpone the matter or continue in its absence, ie proceed ‘by default’. If, however, parties give compelling excuses for their absence, matters should for the sake of prudence be postponed, even if no formal application has been filed. Otherwise, the default proceedings may have to be rescinded. An arbitrator is obliged to ensure that all parties who may be affected by the award are joined in the proceedings. The test for whether a person should be joined is whether the person has a ‘direct’ and ‘substantial’ interest in the matter, ie whether the award would affect the person’s legal rights. It is the arbitrator’s duty to ensure that all interested parties have been cited as such and have been informed of the proceedings. Parties may be joined in arbitration proceedings even if they were not parties to the preceding conciliation proceedings.

Representation

In any arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner or a director or employee of that party or, if a closed corporation, a member, or by any member, office-bearer or official of the referring party’s registered trade union or a registered employers’ organisation. In matters concerning dismissals relating to the conduct or capacity of the employee. Legal practitioners may appear only with the consent of the commissioner and all the other parties. This applies only to the hearing on the merits in such matters; points in limine and applications for postponements may be argued by legal practitioners. Consent by the parties to legal representation is not sufficient; commissioners must apply their minds independently to such applications, and exercise their discretion judicially.

Legal representation may be allowed if the commissioner finds that it would be ‘unreasonable to expect a party to deal with the dispute without legal representation’, given the nature of the questions of law raised by the dispute, its complexity, the public interest, and ‘the comparative ability of the opposing or their representatives to deal with the dispute’. Legal representatives seeking right of appearance in matters concerning dismissals for misconduct and incapacity should bring their applications before the matter is set down. Commissioners may require proof of the representative’s bona fides and qualification. If the commissioner allows proceedings to continue with representatives who do not have right of appearance, the entire proceedings may be set aside.

Who may attend?

The LRA does not expressly state whether members of the public, apart from the parties and their witnesses, may attend CCMA and council hearings. However, as a statutory body, the commission is bound to conduct arbitration proceedings ‘in open court’, members of the public should be allowed to attend arbitration proceedings, unless a party objects and the commissioner for sound reason rules otherwise. Both parties and their witnesses are entitled to attend the hearing. Before they have testified, witnesses to be called by either side should leave the room while the other witnesses of that party are giving evidence. The reason for this rule of practice is to avoid the testimony of one witness being coloured by the testimony of another.

In exceptional circumstances, witnesses may be permitted to give their testimony incognito or in the absence of certain parties. When considering applications for witnesses to give evidence in camera, the CCMA has applied the principles generally followed by the High Court in such matters, namely, to allow it if it is in the interests of justice, if it will not cause irreparable harm to the other party, and if there is real danger to the witness concerned.

The hearing

Commissioners are required to record the proceedings electronically, and to preserve and safeguard documentary and other evidence. When conducting hearings, arbitrating commissioners may choose the ‘adversarial’ approach normally applied by courts of law, or the ‘inquisitorial’ approach adopted in some European legal systems. The accusatorial mode requires the presiding officer to adopt a relatively passive stance, and to leave it to the parties to conduct their respective cases, confining interventions to clarification of points or to rulings on procedure. In the inquisitorial mode, the presiding officer ‘descends into the arena’ by questioning witnesses and even cross-examining them, to the extent possible.

The minimum requirement for statutory arbitrations is that the parties should all have a fair hearing. This implies that they must be afforded the opportunity to call witnesses, to cross-examine witnesses called by other parties, to make representations to the commissioner, and to have the evidence and representations impartially considered by the arbitrator. Arbitration proceedings conducted by the CCMA and bargaining councils are not merely ‘reviews’ of the disciplinary hearings conducted by the employer. They are, as the courts have frequently held, hearings de novo. This means, that, when considering the merits, commissioners must base their decisions on all the evidence led by the parties pertaining to the circumstances preceding the issue in dispute.

PROCEDURE

Formal introductions

The arbitrator normally commences proceedings by reading the case name and number into the record, announcing his or her own name, and requesting the parties and the representatives to place themselves on record. At this stage, arbitrators should disclose any previous relationship they may have had with a party, if any, and establish the credentials of the representatives.

Housekeeping

The parties should be asked whether any documents have been prepared for the hearing, and whether the respective parties are familiar with the other’s documents. If not, the parties should be afforded an opportunity to peruse the other’s documents. When this has been done, the representatives should be asked whether they are prepared to accept that the documents are what they purport to be, and that their contents are true. The replies should be recorded.

If no pre-arbitration conference has been held, the parties should also be asked their views on who should commence leading evidence. While the party on whom the onus rest (the employer in dismissal disputes, unless the existence of the dismissal is in dispute) normally begins, this is not an absolute rule; it may well be that the proceedings may be facilitated if the referring party commences, particularly if the other party is uncertain of the nature and scope of the referring party’s case. If there is no agreement, the commissioner must decide who should begin. The commissioner should also establish the language in which the proceedings are to be conducted, and whether an interpreter will be required.

Recording

Arbitration proceedings should be mechanically or electronically recorded. The responsibility of recording the proceedings rests with the commissioner, although nothing prevents the parties from recording proceedings themselves with the consent of the commissioner.

Reverting to conciliation

The Act specifically provides that the commissioner may at any time suspend the arbitration proceedings and attempt to resolve the dispute by conciliation. This is subject to the proviso that all the parties consent. Act provides that an attempt at conciliation merely suspends the arbitration, it is implicit that the arbitration may be revived it conciliation fails. However, the arbitrator would have to ensure that nothing happened during the conciliation attempt to compromise his or her impartiality.

In limine issues

Once housekeeping is completed, the commissioner should ask the parties whether they have any in limine points they wish to raise. So, for example, an employer party may wish to contend that the commission lacks jurisdiction because the other is not an employee, or was never dismissed, or because the referral was late and has not been condoned. Decisions on in limine points may be interlocutory or final. The distinction has a bearing on whether such decisions may be taken on review immediately, thus suspending the proceedings, or whether the objection party should wait until the arbitration has run its course and review it later.

Opening statements

The parties or their representatives should be asked if they wish to make opening statements. An opening statement should identify the basis for the relief sought or for the defence, and briefly set out the facts on which the party will rely. The purpose of an opening statement is merely to provide an arbitrator who may know absolutely nothing about the case with some idea of how it is likely to unfold. Opening statements may also assist the arbitrator to narrow the issues.

Narrow issues

After opening statements have been presented, it may become apparent to the commissioner that it is possible to narrow the issues, ie to identify those issues on which the parties are actually in agreement (ie common cause facts). All agreements in this regard should be recorded and mentioned in the award.

Presenting Evidence

The duty to begin

Evidence may be presented in vive voce or documentary form, first by one party, then by the other. The general rule is that the party who bears the onus should commence leading evidence, but this is not an inflexible rule.

Viva voce evidence

Vive voce is presented orally through witnesses, who are called one by one in the order decided by the party calling them. Oral evidence is given under oath, or after each witness has affirmed that he or she will tell ‘the truth, the whole truth, and nothing but the truth’. The witness is expected to give evidence from memory, and may not read from a prepared statement. Documents are contemporaneous notes, may be used to refresh witness’s memory, provided they are disclosed to the other party. Generally, the decision on which witnesses to call and which documents to present rests with the parties. With the exception of applicant or respondent parties themselves, the general practice is for witnesses of each side to remain outside the arbitration room until they have given evidence. This is to prevent their evidence from being influenced by what they might hear from other witnesses. A party intending to call an expert witness should give the other notice and provide in advance a summary of the expert testimony to be led. After being sworn in or affirmed, each witness’s testimony is normally presented in three stages: evidence -in-chief, cross-examination and re-examination.

Evidence-in –chief involves the representation of evidence in response to questions, if the party is represented. When witnesses have completed their evidence-in-chief, the other party is entitled to cross-examine. The purpose of cross-examination is to put to the witness as much of the other party’s case as is inconsistent with the witness’s version, to explore inconsistencies and, within limits, to shake the witness’s confidence in his or her version. If aspects of a witness’s evidence are not challenged in cross-examination, they will generally be accepted as true. Commissioners may be required to assist lay litigants with the principles of cross-examination. Re-examination serves only to clear up or complete matters raised in cross examination. After a witness has been re-examined, the commissioner may wish to ask further questions to clarify certain issues or to canvas additional issues. Once a party who has opened the proceedings has called all its witnesses, the other party does the same, each witness being subject to cross-examination and, if deemed necessary, re-examination. It goes without saying that all evidence presented in arbitration proceedings must be given in the presence of both parties.

Documentary and real evidence

If its authenticity is contested, documentary evidence (which includes photographs, diagrams and electronic or digital recordings and the like) must be introduced through a witness who is able to attest to its authenticity. Once admitted, documents form part of the evidence.

Closing statements

After all the evidence is before the arbitrator, the respective parties are generally invited to make closing submissions, the purpose of which is to persuade the arbitrator that the decision should be for, or against, a party on the facts and the law.

Conclusion of the proceedings

After closing submissions, the commissioner is in a position to make his or her decision. Commissioners normally ‘reserve judgment’, and inform the parties that their awards will be handed down within the period prescribed by the Act.

The award

Arbitration commissioners must ‘issue an arbitration award with brief reasons’, signed by that commissioner, within 14 days of the conclusion of the arbitration proceedings. When the award is issued the CCMA is required to serve a copy on each party to the dispute or their representatives, and a further copy must be filled with the registrar of the Labour Court. Once a commissioner issues the award, he becomes functus officio in respect to the matter. This means that a commissioner cannot subsequently change his or her mind and alter the award, unless there are grounds for variation of rescission.

Contempt of commission, or council

Parties appearing before the commission and bargaining councils are obliged to behave themselves with reasonable decorum. Although the CCMA and councils are not courts of law, the LRA empowers commissioners to ‘make a finding’ that a person is in contempt for a range of reasons set out in the Act. These include disregarding a subpoena, refusing to take the oath or to make an affirmation as a witness or (subject to the rules of privilege) refusing to answer any question fully and to the best of the person’s knowledge and belief, willfully hindering the commissioner in performing his or her statutory functions, insulting, disparaging or belittling the commissioner, or prejudicing or improperly influencing the proceedings or improperly anticipating an award, willfully interrupting the proceedings or misbehaving in any other manner during the proceedings, or ‘doing anything else in relation to the Commission which, if done in relation to a court of law, would have been contempt of court’. Unlike judges and magistrates, commissioners do not themselves have capacity to convict people of contempt. They may, however, make a finding that a person is guilty of contempt. In that event the commissioner must, in terms of the Act, refer their finding, together with the record of the proceedings, to the Labour Court for decision. The court must then subpoena the person found in contempt or any other person to appear before it and may make any order it deems appropriate.

Costs

Costs can be awarded in an arbitration hearing if a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner by proceeding with or defending the dispute in the arbitration proceedings. A matter may be deemed ‘frivolous’ if it is entirely without merit; and ‘vexatious’ if proceedings are pursued or defended solely to annoy or inconvenience the other party.

Rescission and variation

Once commissioners issue awards they generally become functus officia ie a commissioner may not withdraw or alter the award even if the commissioner subsequently becomes convinced that it was entirely wrong. However, provision is made for variation or rescission of awards in limited circumstances, set out in section 144 of the LRA. These are where the award was ‘erroneously sought or erroneously made in the absence of any party affected’, where the award contains ‘an ambiguity, or an obvious error or omission’, or where the award was granted ‘as a result of a mistake common to the parties to the proceedings’. In the case of a party applying for a rescission, good cause must be shown. Good cause that the applicant has a reasonable explanation for its absence, and a reasonable prospect of succeeding in the main action. Rescission is therefore not granted merely o he asking. Awards may be varied or rescinded by either the commissioner who issued the award or by any other commissioner ‘appointed by the director for that purpose’.

Enforcement

The LRA proclaims any arbitration award issued by a commissioner, and certified as such by the CCMA director, to be ‘final and binding’ and enforceable ‘as if it were an order of the Labour Court. The expression ‘final and binding’ does not exempt awards from review. Strictly speaking, the launching of a review application against an award does not suspend its operation. However, the Labour Court will invariably stay the execution of an award if a review application has been filed, provided the applicant proves reasonable prospects of success. The staying of an award may require a special application. Where enforcement of an award is stayed pending review, the application. If the review application fails, the award will be enforced then and there.

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

CONCILIATION

WHAT IS CONCILIATION

Conciliation is a process under the direction of a commissioner in which parties endeavour to reach an agreement with a view to settling a dispute. Conciliating commissioners cannot compel parties to settle; at most they can offer advice, which the parties are free to accept or reject. Conciliation need not actually take place before the conciliating commissioner issues a certificate.

Must a matter actually be conciliated?

The LRA provides that an employee may refer to a dispute for arbitration if the CCMA has certified the dispute remains unresolved, or if 30 days have elapsed since the matter was referred for conciliation, unless the parties have agreed to an extension of that period. If either of these requirements is satisfied, an arbitrator has no discretion to refuse to arbitrate the matter. A certificate issued by a commissioner or council stating that a dispute remains unresolved is ‘sufficient proof that an attempt has been made to resolve that dispute through conciliation.

The referral

The referral is affected by the completion of a simple form, 7.11 in which the referring party is required to provide certain details. Recognised representatives may sign on behalf of the parties. These include attorneys (but not candidate attorneys) and officials of the (registered) trade union or employers’ organisation of which the referring party is a member. Labour consultants may not refer disputes on behalf of the clients.

When the dispute must be referred?

The LRA stipulates that dismissal disputes must be referred for conciliation within 30 days of the date of the dismissal or within 30 days of the date on which the employer takes the final decision to dismiss or uphold the dismissal. Unfair labour practices disputes must referred within 90 days of the date on which the employee became aware of the act or occurrence which constitutes the alleged unfair labour practice. If the referral is out of time, the referring party must apply for condonation. Late referrals should be accompanied by a separate application for condonation, preferably on affidavit. Applications for condonation should set out the reason for the delay and deal with prospects of success of the main application, as well as the prejudice that will follow (or not follow) if condonation is or is not granted. The other party must be given the opportunity to appose condonation, should it wish to do so. Orders permitting or refusing condonation may be taken on review, and will be set aside if commissioners have failed properly to consider all the issues they are required to consider, or have misconstrued evidence, or have not complied with the rules of natural justice.

conciliation

Service of documents

In terms of the CCMA rules, ‘serve’ means to hand a copy of the completed referral document to the party concerned or an authorised representative; to telefax or telex it to the party’s number; or to send it by registered post.

Who may attend?

The CCMA rules, state that parties may appear in person, or be represented only by a director or employee of that party, or in the case of a closed corporation, a member, and by ‘any member, office-bearer or official of that party’s registered trade union or registered employers’ organisation. The barring of legal representatives from conciliation meetings applies only to their physical presence. Nothing prevents the parties from consulting lawyers before or during the conciliation process, provided they are not physically present.

Consequences of non-attendance

Where the defendant party fails to appear in person, or send a representative, the commissioner may either certify the matter unresolved. The CCMA and bargaining councils have no power to compel parties to attend conciliation meetings.

Notice and duration of conciliation

The commission must, in terms of its rules, give the parties at least 14 day’s notice of a conciliation meeting, unless the parties agree to a shorter period. The LRA limits the period in which the commission may conciliate matters to 30 days, unless the parties agree to extend the period. Commissioners are not empowered to extend this time period unilaterally. This means that, once the period lapses, the referring party is entitled as of right to a certificate stating that the dispute has not been resolved, or even to refer the dispute to arbitration or adjudication without a certificate.

what is conciliation

The conciliation process

CCMA rules permit the conciliating commissioners to resolve disputes without enrolling formal conciliation meetings, even by contacting the parties telephonically. When all parties are present, the process usually commences with the respective parties stating their case. Commissioners are entitled to offer advice to parties, usually in ‘caucus’. Conciliating commissioners must seek to steer parties to a mutually agreed outcome. While commissioners must be flexible in their approach, they must remain impartial. Once the parties inform the commissioner that they have reached settlement, and of the terms of the settlement, that is the end of the matter. All the commissioner is required to do is to record the settlement and certify that the dispute has been resolved.

Confidentiality

The CCMA rules expressively provide, with good reason, that conciliation proceedings are confidential. They are also conducted on a ‘without prejudice’ basis.

Agreement

Once agreement is reached, the commissioner must formally record its terms, and the memorandum should be signed by the parties. Nothing prevents parties from concluding settlement agreements privately. If this happens, the CCMA should be informed so that the case can be closed.

Certification

If conciliation fails, or 30 days after the referral or any further period agreed between the parties, the conciliating commissioner must issue a certificate stating whether or not the dispute has been resolved, serve it on the parties and file the original certificate with the commission. Form LRA 27 requires the commissioner to state that the dispute has not been resolved, and to specify the nature of the dispute. A certificate is deemed to have been issued when a signed copy is made available to the parties. Conciliating commissioners have no power to dictate to parties how they should pursue their disputes , and their ticking of the various boxes on the pro forma certificate does not constitute ‘rulings’ which bind other commissioners.

For further information on any SA labour law related matters, you can contact
Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

How to handle long absences from work?

Employees are sometimes absent from work for extended periods, at times without explanations but also for reasons of which the employer is aware.

The extended absence from work may provide the employer with a reason to terminate the contract of employment but that is not automatically the case.

The employer must ensure that prior to contemplating dismissing the employee, there is a good reason / reasons to go ahead with the dismissal. It would be preferable to convene either a disciplinary hearing or an incapacity hearing. Depending on the facts of each case, the sanction of dismissal may be justified.

Employers should not merely assume that the absence justifies dismissal and should not dismiss the employee before affording the employee (if possible) an opportunity to state his / her case.

If you feel like you have been dismissed unfairly labour lawyers are ready to help!

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

For all your labour related concerns

Contact Us