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Law Reports: March 2011

Advocate Nicolene Erasmus

Non-disclosure during interview at new employer of pending disciplinary action

MEC for Education, Gauteng v Mgijima & others [2011] 3 BLLR 253 (LC)

During an interview at the Gauteng Department of Education (GDE), Mgijima (the employee) failed to disclose that she had been suspended by the Department of Arts and Culture (DAC) where she was working at the time. Mgijima was appointed as Deputy Director at the GDE, and it was only after she had commenced working there that the employer learned of the circumstances of the termination of her employment. She had signed a settlement agreement in terms of which the DAC withdrew the charges on condition that she resigned.

The GDE considered her lack of disclosure of her suspension and pending disciplinary charges to be of a serious nature, and claimed that had it been aware of the true facts at the time, it would in all likelihood not have appointed her.

Also, her failure to disclose constituted a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees, particularly at the level of deputy director general.

In a pre-dismissal arbitration the arbitrator found the employee not guilty of the charges brought against her.

On review, the contention that the arbitrator failed to apply his mind to the issue before him, rested primarily on the following passage in his award: “With the greatest of respect I do not agree that there was any duty on the employee to disclose that she was on suspension pending a disciplinary hearing into allegations of misconduct which were later on proffered against her.

Firstly, there is a well developed principle in the South African law stating that a person remains innocent until proven guilty. Whilst I accept the employer’s submission that the employee was charged with allegations of misconduct, which is common cause; the fact remains that these were mere allegations of misconduct and were not proven and the employee was not granted and (sic) opportunity to defend herself and offer a rebuttal of the charges.

Thirdly, the charges were withdrawn by the Department of Arts and Culture in writing and in exchange for the employee tendering her resignation, which she duly did. The question posed toward the end of the interviews regarding skeletons in the cupboard /closet that allegedly placed a duty on the employee to disclose her past disciplinary record does not hold water.

Firstly: apart from being vague to elicit the correct answer it is subject to different interpretations by different people. Secondly it is my view that skeletons in the cupboard could refer to two things; ie unproven allegations of misconduct against an employee or proven allegations of misconduct against an employee. It is my respectful view that it refers to the latter. In this particular case, apart from the fact that these were unproven allegations of misconduct against the employee, they were also subsequently withdrawn thereby effectively leaving the employee with a clean record, and consequently no duty to disclose anything to the interview panel”

The court held that the issue before the arbitrator was not whether Mgijima was guilty, but merely her non-disclosure at the time of her interview of the fact that she was on suspension and facing serious disciplinary charges.

The post for which Mgijima applied was one that required unimpeachable honesty and integrity on the part of its incumbent. Mgijima’s failure to disclose material information in response to an express invitation to do so deprived the GDE of the opportunity to make an informed decision as to the effect, if any, of the suspension and pending charges on the contemplated employment relationship.

It was held that the arbitrator failed to apply his mind properly to the issue before him, and that in doing so, he acted other than as a reasonable decision maker would.

The arbitration award was reviewed and set aside.

Unilateral change to terms and conditions: shift work

Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU & others [2011] 3 BLLR 231 (LC)

Is a revised shift schedule a unilateral change to the bus drivers’ terms and conditions of service? If so, the trade unions (SAMWU and IMATU) are entitled to call their members out on a protected strike. If not, their intended strike is unprotected and stands to be interdicted.

The facts pertaining to the matter are as follows: on 5 April 2003, Metrobus concluded a collective agreement with SAMWU and IMATU after a protracted strike of five weeks. The parties agreed, inter alia, that:

  • shifts will not exceed 13 ½ hours; and
  • workers shall be allowed to pick shifts on seniority.

The current shift system comprises three shifts, namely the day shift, a spread-over and the night shift. These shifts are subject to:

  • agreed maximum working hours;
  • implementation of shifts by Metrobus in accordance with a schedule relating to routes at the times that shifts are worked; and
  • the right of drivers to pick shifts according to their seniority.

The picking of shifts was explained in court at the hand of scheduled shifts at the Milpark depot. Metrobus decides on the shift schedule overall. Within the schedule, it assigns certain routes and times.

For example, on shift number 215, a driver on the old schedule would start his duties at 5.30am and stop at 9.50am. He would be on duty again from 10.20am until 12.10pm; and again from 12.10pm until 2pm, thus comprising 8 working hours. But a senior bus driver has the prerogative to pick a shift, ie a route and hours that suits him best. For example, he may pick shift number 202 in order to have the afternoon free. He would then sign on at 4.15am; sign off at 8.05am; and assume duty again from 9.35am until 13:35, after which he is free for the rest of the day (comprising 7.50am working hours).

It is clear from this example that the bus drivers (or the unions) do not have a say in the actual compilation of a shift system or the schedules within that system. The drivers only have the prerogative, according to seniority, to pick specific routes and hours within the existing shift schedule.

The change implemented on 6 December 2010 comprises a change in the scheduling of current shifts to change the routes and the times when shifts are worked. None of the following is changed:

  • the three shift system;
  • the agreed maximum hours;
  • shift allowances;
  • night work allowance;
  • standby allowance;
  • the right of drivers to pick shifts according to their seniority.

Although the maximum working hours will not change, the new routes and hours may lead to some drivers leaving the depot later. For example, on shift 215 a driver will only finally sign off at 6.25pm instead of 2pm; but he would still work for only eight hours. On the other hand, a driver on shift number 211 will finally sign off at 2.30pm instead of 3.20pm, having started work at 5.20am or 5.10am, respectively. It is within this system where the senior drivers at the prerogative to pick the more favourable shifts.

The question remains whether this is a unilateral change to terms and conditions of employment? The new shift schedules will not affect the agreement reached in 2003. Shifts will not exceed 13 ½ hours and drivers will still be allowed to pick shifts on seniority. Similarly, the new schedules will not affect the agreement of the parties in 2007 that drivers could pick shifts according to seniority.

The changes implemented by Metrobus comprise no more than a change in work practice. It does not amount to a unilateral change in the bus drivers’ terms and conditions of employment. Therefore, the trade unions representing the drivers do not have the right to strike over a unilateral change to terms and conditions of employment in terms of section 64(4) of the LRA.

Legal representation during disciplinary proceedings

Volschenk & another v Morero NO & others [2011] 3 BLLR 313 (LC)

The two employees were seeking an interdict staying disciplinary proceedings pending a review of a ruling of a chairperson of the disciplinary enquiry denying them legal representation. In terms of the disciplinary code and procedures the employees were entitled to be represented by trade union representatives but they declared they had no confidence in union representation without attempting to justify this subjective belief with reference to objective factors. The employer was represented by an attorney.

The employees argued that the circumstances were such that the chairperson ought to have exercised his discretion to permit legal representation in their favour. They cited the following reasons:

  1. The employer is making use of a legal professional and there would not be “parity of arms” if they could not engage such expertise in their own defence.
  2. They believe the matter is complex. In this regard, they cite the fact that they are facing a charge of fraudulently misrepresenting City Power by writing off several accounts without the required supporting documentation and/or authority causing City Power a financial loss in the region of R6 million. Alternatively, they were accused of causing such loss by being negligent or dilatory in their duties in writing off the accounts without the necessary authorisations. Apart from the value of the alleged loss they point out that transactions in question involve 93 separate transactions.
  3. They were initially charged criminally and though these charges were later withdrawn without explanation, they could be reinstituted.
  4. There was a suggestion that the case might entail evidence by accounting experts and they would be disadvantaged in dealing with such expert evidence. 

The court noted as follows: 

  1. The factual basis of the allegations is one that they ought to be able to deal with on the basis of their working knowledge of the billing procedures. If the employer deluges them with significant amounts of documentary evidence in the course of the enquiry, which they need to peruse and consider, that is something that can be dealt with by way of requests for postponement and, or alternatively timeous discovery of the documents in question, if justified.
  2. Judging by the employees’ own account of their interaction with the employer’s internal investigator, Mr Mkhonza, they were able to deal with the allegations against them, even to the extent that they explained to him how the billing system worked.
  3. The fact that the cumulative effect of the charges involves a large amount is not in itself a factor which demonstrates that legal counsel is required. The most serious prejudice the employees face in consequence of the outcome of enquiry is dismissal, not a civil judgment debt. This is the same prejudice facing employees implicated in dishonest conduct involving even small amounts of money.
  4. On the question of whether legal expertise is required to deal with questions of fraud and the like, such charges against employees are commonplace and in my view is also not an issue necessitating legal expertise to address it. Insofar as the charges might involve evaluating the intent of the employees, those are matters within the knowledge of the employees and on which they should be able to give evidence without difficulty and be able to defend themselves.
  5. Criminal and disciplinary proceedings are distinct and the result of one may not be relied on in the other proceedings.
  6. On the question of “parity of arms” raised by the employees, it must first be noted that in having the right to representation by a full-time union official, the employees’ rights to representation are more extensive than those provided for in the LRA, which do not go beyond the right to representation by a union shop steward. There is no restriction on the expertise that such a union official may possess. The main authorities on the question of legal representation in internal enquiries do not dictate that there must be parity between the ability and expertise of representatives, but only that the procedure should be fair.  Whether that might necessitate legal representation will depend on the particular factual circumstances which demonstrate that an exception to the rule is justified. In the circumstances of this matter, I do not believe the employees would be deprived of a fair hearing if they were only able to use a union official as their representative. 

The court also noted that the balance of convenience favoured the employer because it will have to continue paying the employees’ salaries while the enquiry is stalled, whereas the ramifications for the employees if the ruling is set aside might be far reaching.

The application for interim relief suspending the enquiry pending the outcome of a review of the chairperson’s ruling refusing legal representation was refused.

Sick leave during notice period

Oasis Group Holdings (Pty) Ltd v Bardien [2011] 3 BLLR 284 (LC)

The employee, a chartered accountant, had advised a client of the employer to raise a bond on her house and place the money in risky investments. When the stock market crashed, the client lost hundreds of thousands of rand and the employee resigned. The contract of employment could be terminated on three calendar months’ notice. But the employee asked that his notice period be waived “. . . as my health has deteriorated substantially over the last few weeks”. On the same day, he submitted a medical certificate and since then he has not returned to work, submitting a series of medical certificates declaring him unfit to do so.

In order for the employer to hold a disciplinary hearing, the employee had to return to work, which he failed to do as a result of his depression and anxiety. Thus the employer’s application for an order that his period of absence should be excluded from the computation of the three-month notice period;

The question to be decided in essence boils down to the following: is the notice period suspended for as long as an employee is unable to tender his services due to illness where he has given notice of termination of the contract of employment?

Section 37(5) of the BCEA reads as follows:

“Notice of termination of a contract of employment given by an employer must

  1. not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and
  2. not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave.”

The court held that an employer may not give notice of termination to an employee who is on sick leave; but that notice may run during a period of sick leave. Therefore the employee was entitled to take sick leave during his notice period. Once he had exhausted his entitlement to paid sick leave, there is no obligation on the employer to pay him his salary. The contract of employment is not suspended and shall not be extended beyond the termination date. 

AWOL, cultures and other things that go bump in the night...

Kievits Kroon Country Estate (Pty) Ltd v CCMA & others [2011] 3 BLLR 241 (LC)

In this application to review and set aside an arbitration award issued by a commissioner after he had found that employee’s dismissal was substantively unfair and ordered her reinstatement, the Labour Court noted that “this case sadly shows what happens when cultures clash in the workplace. On the one hand we have an applicant that was concerned about making money at all costs and on the other hand an employee who had visions and had believed that her ancestors were calling her to become a sangoma...”

The facts are as follows: when the employee started getting visions to become a sangoma, she consulted a sangoma who told her that she had to appease her ancestors by becoming a sangoma.

She approached her employer who allowed her to work morning shifts to attend the training course to become a sangoma in the afternoons. She then requested to be given a month’s unpaid leave to complete her sangoma training course, but the applicant was prepared to give her a week’s unpaid leave.[1]

This was not enough for her and she decided to attend the training course despite the employer’s refusal to grant her unpaid leave. Before she went on unpaid leave, she handed a traditional healer’s certificate stating that she had “premonitions”. The applicant refused to accept the said certificate and contended that she was not sick.

According to the Court, the ultimate question that needs to be decided is whether the employee’s absence from work was justifiable. The commissioner found that the employee had breached the employer’s rule but found that she was justified to do so. The employer knew that the employee was attending a course to become a sangoma.

This is not one of those cases where an employer did not know about the whereabouts of the employee. It was prepared to give her a week off as unpaid leave. The commissioner found that the explanation that she tendered was reasonable – she was faced with a difficult choice. It was either that she heeded the calling of her ancestors or obeyed the rules of the applicant and thereafter faces the wrath of her ancestors. She had decided to obey the calling of her ancestors and to face the wrath of her employer.

The court was satisfied that the award made by the commissioner is one that a reasonable decision maker would have made and that the employer’s application for review stands to be dismissed.

[1] This behaviour is not consistent with that of an employer “that was concerned at making money at all costs” [NErasmus]


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