• By : Jonathan Goldberg | Global Business Solutions
In our recent Annual Labour Law Update seminars – which have become some of the biggest labour law seminars in the country – we looked at a number of interesting cases. The Labour Appeal Court (LAC) decision about how managers should act involved, Andre Watson, the chief of referees at SARU, is appropriate for the post-World Cup fever after our triumphant win. Watson was found to have acted inappropriately as he swore and behaved unacceptably with the staff who reported to him. The LAC upheld the dismissal. The case also highlights the interesting option for employers to use section 188(A) of the Labour Relations Act (LRA) in respect of combining a disciplinary enquiry with an arbitration all in specific circumstances. This, together with the LAC decision that we discussed about simplification of disciplinary procedures and codes, is something that employers should note for 2020. What was evident from this year’s seminars is that employers are spending more time on disciplinary enquiries than they are on the actual arbitration. For 2020, our wish would be for employers to spend more time in preparation for arbitrations and upskill their employees who attend these arbitrations.
There is also one of the first Labour Court (LC) cases about polygraph examinations. The development in polygraph technology is advancing at a rapid rate. The LC decision confirmed that employees must undergo polygraph examinations in circumstances which warrant it or if they are requested to do so. The employee refused and was dismissed. The LC upheld the decision based on the breach of contract.
Another case which is interesting and – in our opinion – correct, is one in which an employer in an arbitration did not follow their own recruitment procedure and appointed someone outside of the organisation. The employee then objected. He was unsuccessful and the arbitrator ruled that it is an unfair labour practice not to follow your own recruitment procedure. This brings up the question – for employers – to ensure that if they do have policies and procedures regulating issues like recruitment they need to follow them to the letter.
Parties to collective bargaining in the country have spent a lot of time in the past five years trying to resolve the issues around violence and intimidation in strikes. The LAC has ruled that carrying sjambok, a stick or a PVC pipe to a strike is a dismissible offence on its own and there is no necessity to link those dangerous weapons to any assault. The mere carrying of those weapons is regarded as a dismissible offence. We believe that is progress as violence and intimidation in the Sibanye Gold strike was unacceptable to all South Africans.
If one looks towards anticipated legislation next year, we can expect that the Employment Equity Act (EEA) will be amended and section 53 is enacted. Section 53 is the section where you can only do business with Government and State if you are compliant with the EEA. The proposed amendments before Parliament are also that the various sectors of the economy will have to adhere to sectoral targets put out by the Minister of Employment and Labour. That is the space that employers will have to watch very carefully.
Finally, worth mentioning is issue of evidence. We find there is too much hearsay at disciplinary enquiries and sometimes at arbitration. Hearsay evidence is evidence that cannot be tested and now includes documents, video evidence and photographs. Documents also include statements from individuals and there were a number of cases discussed – at our seminars – in this regard. If the employee objects to a document, photo or video a witness is going to be led to actually support that evidence in order for it to carry the necessary weight.
Our wish is for all readers to have a good break over Christmas and to gear themselves up to implementing simpler labour relations policies next year. We have got far too technical in regard to simple issues like dismissals internally and our wish would be for you to implement must easier policies and procedures in your company.