UNFAIR DISMISSAL DISPUTES 1 2 DEMOTION DISPUTE FAILURE

UNFAIR DISMISSAL DISPUTES 1

2 DEMOTION DISPUTE : FAILURE TO FOLLOW PROCESS Loate / Southern African Youth Movement (2019) 28 CCMA 10. 1 • The employee lodged a claim against his employer relating to unfair demotion. • Although his salary had not been affected, he no longer had anyone reporting to him in his new position. • After an unsuccessful internal grievance, the matter was referred to the CCMA. • The employer contended that the transfer was a lateral move. • This move had been necessary based on their client’s needs and the employee’s poor performance. • The Commissioner considered the definition of demotion as it is defined as a reduction or diminution of dignity, importance, responsibility, power or status even if salary, attendant benefits and rank are retained. • The employer’s reliance on the employee’s performance was irrelevant because he had never been charged. • The Commissioner therefore found that the employee had been demoted. • The employee was awarded compensation equal to three months' remuneration and the employer was also ordered to pay him an allowance of which he had been deprived and to rectify short payments of his salary during the last three months of his employment. 2 “ “ Demotion is a very wide concept. Maybe there is a better way to manage this. Let’s discuss. We keep getting poor performance mixed up in the equation.

3 UNFAIR DEMOTION AND THE IMPORTANCE OF PRE-ARB MINUTES Mosana v Public Protector South Africa [2019]9 BALR 977 (CCMA) • • • The case looks at two issues: the amendment of pre-arbitration minutes and whether or not a transfer, in certain circumstances, can be seen as a demotion. The employee was transferred from her position as spokesperson of the Public Protector ("PP") to the position of Senior Manager: Communications and Stakeholder Management. She referred a dispute to the CCMA, claiming that she had been unfairly demoted. Pre-arbitration agreement recorded that the employee sought compensation. The employee then sought leave to amend the minute to record that she sought retrospective reinstatement. The arbitrator concluded that a pre-arbitration minute is similar to a contract and should not be amended lightly. The application to amend the minute was refused. In her previous position, the employee was the "face" of the PP's office, with unlimited access to the PP and access to important persons as well as to the public. The new post offered none of these opportunities. Therefore, this amounted to a demotion, which was unfair. The PP was directed to pay the employee compensation equal to six months' remuneration. “ • The Public Protector in the public eye for all the wrong reasons. Pre-arbitration agreements are worth the effort. 3

UNFAIR LABOUR PRACTICE DUE TO UNFAIR APPLICATION OF APPOINTMENT REQUIREMENTS Ngidi v Cape Peninsula University of Technology (2019) 28 CCMA • The employee was employed on a fixed-term contract and applied for the post of Committee Officer. • The employee had performed committee work, albeit not as a core function • She was told that she had not been short-listed. • The shortlisting committee's decision to set committee work as a core function and an absolute requirement went outside the requirements specified in the advertisement • The employer contended that the employee did not satisfy the requirements of the job related to committee work. • The Commissioner found that arbitrators may interfere with decisions by employers about who to appoint or promote only if the employer exercises that discretion impulsively, for unsubstantiated reasons or in a biased manner. • The post required at least three years' experience in committee work “ • It made the employee’s exclusion from the shortlist unfair. • While there was no guarantee that the employee would have been appointed had she been shortlisted, she was entitled to an opportunity to be heard by the selection committee. • The employee was awarded compensation equal to two months' salary. It is time to have a relook at your policies and procedures on recruitment. Maybe outsourcing is an option worth considering? Happy to give you some guidance for free on this topic. “ • The employee referred a dispute to the CCMA. 4

WORKPLACE PRACTICE AND BONUS PAYMENTS National Education, Health and Allied Workers' Union obo UNISA-SBL Members / University of South Africa (UNISA) 2020 29 CCMA 6. 7. 2 • The employees received an annual performance bonus which had been paid for about 30 years in terms of an arrangement • In 2017, the employer reduced the bonus to 10% and discontinued paying any bonus from 2019. • The employees claimed that this amounted to an unfair labour practice relating to the provision of a benefit. • The employees claimed that UNISA School of Business Leadership (SBL) was bound by the university's general remuneration policy. • The policy made no provision for bonuses of the nature or scale of that paid to SBL staff in the past. • Although the bonuses previously paid to SBL staff were a matter of practice, the employees incorrectly assumed that past practice deprived the university of discretion to change the bonus arrangement. • The university council retained discretion to alter the bonus policy. • It had been altered fairly after extensive consultation. “ The payment of bonuses is a contentious one. Your bonus agreement needs to be very clear and consistently reviewed to ensure you are paying it for the correct outcome. What about annual increases in pay? Does Covid-19 change that? “ • The application was dismissed. 20

SPECIAL LEAVE / SUSPENSION PENDING HEARINGS Makhubela / Brand South Africa - (2019) 28 CCMA 6. 4. 3 “ “ • The employee, the Chief Executive Officer (CEO) was placed on "special leave" for a month while allegations of misconduct against him were being investigated. • The employee declined to agree to an extension of his leave. • The employer decided to suspend him pending the completion of disciplinary proceedings. • The employee claimed that his suspension was unlawful because only the Minister could suspend him. • The employer contended that since the employee had not claimed that he was suspended, the CCMA lacked jurisdiction to entertain the matter and further denied that it has acted unfairly. • The Commissioner held that the employee was de facto on suspension and that the CCMA had jurisdiction. • The Commissioner was satisfied that the Minister had approved the employee's special leave. • It was unnecessary for the Minister to grant approval again when the special leave morphed into a suspension. • Commissioner noted that the employee suffered no prejudice because the suspension was on full pay. • The application was dismissed. It appears that the interpretation of suspension on full pay is that as long as you are getting paid, you have no recourse of action. 6

7 PRECAUTIONARY SUSPENSION AND THE RIGHTS OF AN EMPLOYEE University of Johannesburg v CCMA and others Case no: JR 2749/16 (LC) • The employee received notice of a possible suspension. • The employer was investigating whether she had failed to follow reasonable instructions and displayed unacceptable conduct. • The employee was given 3 hours to respond and she took issue with this short period. • She further had demanded more information as she found the allegations in the letter too broad for her to respond. • When the employer refused, she refused to make representations. • The employee was suspended the following day. • The CCMA Commissioner found that the Disciplinary Code required that the employee be afforded an opportunity to be heard before she could be suspended. • The employer took the arbitration award on review, to the Labour Court. • The employer relied on the Constitutional Court case Long v South African Breweries (Pty) Limited & Others which held that the employee was not entitled to an opportunity to make representations as the suspension was precautionary and not disciplinary in nature. • The arbitration award was thus set aside. “ • The Labour Court found that she was thus not entitled to an opportunity to make representations. Its now time to review those Disciplinary Codes and Procedures and remove all the clutter. 22

8 EMPLOYEES WHO THREATEN TO WITHDRAW CONSENT TO WORK OVERTIME Tiger Brands Limited v African Meat Industry & Allied Trade Union (AMITU) and Others (D 1267/19) [2019] ZALCD 12 (25 October 2019) • The Employer’s Drug and Alcohol policy required alcohol breathalyzer tests at its entrance. • The union disapproved of the use of the breathalyzer as it was resulting in dismissals related to the abuse of alcohol. • Employees refused to work overtime until the breathalyzer test was removed. • The employer informed them that this would be an unlawful strike and thus approached the Labour Court for an interdict. • The Court found that even if the employees were working overtime on a voluntary basis, it would still constitute an unprotected strike if they collectively decide to stop working overtime without complying with Section 64 of the LRA. 8

9 EMPLOYEES WHO THREATEN TO WITHDRAW CONSENT TO WORK OVERTIME • The Court concluded that the conduct of the union and employees in deciding to stop working overtime meets all the essential requirements of a strike as defined in Section 213 of the LRA. • In the circumstances, the employer was entitled to a final relief interdicting the unprotected strike. “ “ A collective decision by members of a trade union to stop working voluntary overtime after they had made a demand which was not acceded to by the employer constitutes an unprotected strike if the procedural steps prescribed in s 64 of the LRA were not followed. Even if the actual notice to stop working overtime does not contain a demand, the surrounding circumstances and the context may determine whether the requirement for a demand or grievance has been met. In this case, on the facts, it was found that a demand was indeed made, and the strike (overtime ban) was interdicted. OHS directives under Covid-19. Lets discuss breathalysers. 9

10 COSTS AGAINST THE UNION Mampane NO and others v National Union of Public Service and Allied Workers and another (2020) 29 LAC 1. 11. 6 • The employee was chosen to be transferred from Pretoria to Durban. • The union ("NUPSAW") signed the memorandum of agreement approving the transfers. • The employee appealed against the decision to transfer but it was rejected. • The union instituted an application in terms of Section 158(1)(h) of the LRA to set aside the decision to transfer the employee. • The Labour Court held that the employee's transfer was neither procedurally unfair nor irrational but that the board’s had unlawfully delegated the power to decide the appeal, which rendered the transfer decision null and void. • The board was ordered to reconsider the decision to transfer the employee. • The LAC found that the outcome report of the final meeting of consultations over the transfer constituted a collective agreement by which they were bound. • This meant that there was no unilateral administrative decision or exercise of public power to review. • The appeal was therefore upheld and NUPSAW was ordered to pay the costs. “ “ • A collective agreement is not subject to review. A simple transfer becomes a legal nightmare. The problem is the elaborate policies that make it difficult to apply. 25