05 OCTOBER 2016
12 reasons for employers to be cautious
by Ivan Israelstam: Chief Executive Officer of Labour Law Management Consulting Limited. Chairman of South African Chamber of Business Labour Affiars Committee.
Labour law, born from South Africa’s Constitution, is there primarily to protect employees. Central to this purpose is the principle that the jobs of employees must be protected. Labour law very reluctantly allows employers to terminate the employment of workers but only after the employer has proved that the employee deserved to be dismissed and that the employee had a fair hearing prior to dismissal.
The Labour Relations Act (LRA) has twelve sections devoted, in effect, to protecting employee’s jobs and to the imposition of extremely stringent obligations on employers contemplating the dismissal of employees. These 12 sections are heavily reinforced by the Code of Good Practice: Dismissal attached to the LRA in the form of Schedule 8. This Schedule is itself divided into eleven items or sections all devoted to the protection of the jobs of employees. This Code stresses that dismissal must be the last resort taken by employers and details numerous factors and steps that employers must consider and carry out before contemplating dismissal. The code focuses on protecting employees from dismissal in circumstances of alleged misconduct, poor work performance, illness, injury and strikes. Further reinforcement comes from the Code of Good Practice on Dismissal Based on Operational Requirements that contains twelve items setting out the employer’s obligations when contemplating retrenchment. Here the main focus is the employer’s obligation to find ways of avoiding termination of the worker’s employment.
But perhaps the most powerful reinforcement of these provisions are the countless employee-friendly decisions at CCMA, bargaining councils, Labour Court and Labour Appeal Court. The arbitrators and judges presiding over these cases are obliged by the LRA to assume the employer to be guilty until it proves itself innocent of unfair dismissal. This principle is implemented despite that fact that it directly contravenes section 35(3)(h) of the Constitution of South Africa which provides that all accused persons (including juristic persons such as employers) are entitled to be assumed innocent until proven guilty.
This means that the requirement to protect the jobs of South African employees is considered by the authors of the LRA to be more important than the innocence presumption provision of the Constitution; a provision that has been upheld and respected in the constitutions of civilised and democratic states around the world for well over a century.
In practice the above means that there are no short cuts for employers. Employers either follow the law or lose the case. For example, in the case of Mthethwa vs Capitol Caterers (2007, 5 BALR 469) the employee, a catering manager was apparently told that he had ‘dismissed himself’ after he had failed to attend work for two weeks. In a default decision the CCMA arbitrator found that:
- Absence from work due to illness or injury will only merit possible dismissal if its duration is unreasonable
- There is a difference in law between absenteeism and abscondment
- Absenteeism rarely warrants dismissal for a first offence
- Disciplinable absenteeism normally contains the elements that the employee is not at work, no permission is given for the absence and the employee failed to inform the employer of the reason for his absence
- An employee on authorised absence cannot be guilty of absenteeism unless the sick leave is being abused
- There is no principle of law to support the view that the employer appeared to have had that employees “dismiss themselves” after a certain period of unauthorised absence.
- The dismissal was both procedurally and substantively unfair
- The employer was required to reinstate the employee with full back pay.
In Ngubane vs Shell Ridley Park Motors (2011, 4 BALR 353) Ngubane’s dismissal was found to be unfair because he had not been given an opportunity to state his case.
These cases are typical of thousands of cases where employers apply outdated principles and fail to understand the fact that, over the past 18 years, the labour law pendulum has swung very far to the side of employees and job preservation. All of this makes it clear that, in South African law, the jobs of employees are sacrosanct. Thus, employers must exercise extreme care before treading on the rights of employees.
While many employers have successfully dismissed errant employees it will come as no surprise that such success is normally based on the fact that the employer has carefully avoided all the legal protections of employees. This the employers have done via appreciating the legally disadvantaged situation they are in and taking strong steps towards the leveling of the playing fields. Accessing labour law expertise is the first step in this quest.