June 2006
Edition 3

Perrott, Van Niekerk and Woodhouse offer five training courses aimed at both SMME's and corporates. Andre van Niekerk, responsible for the overseeing of each course, is an accredited assessor in terms of the Skills Development legislation.

Applications for accreditation of these courses has been submitted and are awaiting the processing thereof. These courses include: Arbitration Training, Chairing Disciplinary Enquiries, Applying the Basic Conditions of Employment ("BCEA"), Labour Law for Managers, and Restructuring Business - Transfers of a business, Outsourcing & Retrenchment.

The Labour Appeal Court recently handed down a judgment that it marked "unreportable" but which has important implications, particularly for service industries. In Foschini Group v Fynn and others (DA 1/04) Ms Fynn was dismissed from her position as a sales assistant after being charged with "displaying abusive and threatening language as well as aggressive behaviour to a customer, thereby damaging the relationship between the customer and the company".

Fynn disputed the fairness of her dismissal, and referred the dispute to the CCMA. The Commissioner held that the sanction of dismissal was too harsh, considering Fynn's length of service and her almost unblemished record. She was therefore reinstated, and the Company was ordered to pay her 10 months arrears wages. The Company sought to review the award, but the application was dismissed. The case was then referred to the Labour Appeal Court. The Court found that Fynn had pushed a customer outside the store in which she worked, and had engaged in a "vigorous altercation with the customer". She had been lead back into the store and had been lectured on the "proper way to deal with customers". She had shown no remorse for her conduct. The court went on to hold that it was trite in the service industry that "the customer is king" and that Fynn's conduct was such that her employer was legitimately entitled to adopt the attitude that the risk of continuing to employ her was unacceptably great. The appeal succeeded, and Fynn's dismissal was upheld.

One might have expected the Court to deal with this matter on the basis on the general principles applicable to disciplinary sanctions. It is now well established that a Commissioner may not interfere with the sanction imposed by the employer, unless it is wholly unreasonable, or, in the words of the Labour Appeal Court, "makes you whistle". Here, the Court appears to have decided that the Commissioner's award of reinstatement was simply inappropriate, given her conduct and her failure to acknowledge any fault. The message is clear though - the customer is king, and is entitled to expect royal treatment. An employee's failure to afford that, especially when no subsequent remorse is shown, may well justify dismissal.

United National Breweries b v Khanyeza & others deals with consultation obligations when an employer wishes to retrench. The employee in this matter was a sales representative. He was also a member of the union, FAWU, that his employer had formally recognised, but on account of his senior position, he fell outside of the agreed bargaining unit. The employer, when it engaged in retrenchment consultation, consulted directly with the employee. When this was challenged in Labour Court proceedings, the employer responded by arguing that it had no obligation to consult with FAWU in respect of its members who were engaged outside of the bargaining unit. Not so, said the Labour Appeal Court. Section 189 made no reference to bargaining units, and did not limit the right to be consulted in the way that the employer suggested. Merely because an employee cannot claim the right to be represented for the purposes of collective bargaining in terms of a recognition agreement, it did not follow that the Union had no right to be consulted in respect of the same employee for the purposes of Section 189. Section 189(1)© made reference to a registered trade union whose members might be affected by any retrenchment. That meant that FAWU should have been consulted about the proposed retrenchment of its members, irrespective of his position.

Finally, a decision from the High Court on jurisdiction to grant interdicts in workplace disciplinary proceedings. In Olivier v MTN Management Services and another, an employee charged with disciplinary offences launched proceedings in the High Court to interdict his employer from proceeding with the disciplinary enquiry. He did so on the basis of his common law and constitutional rights. The company took a number of points, including the jurisdictional point to the effect that the High Court had no jurisdiction to hear the application. The issue, as the Court put it, was whether or not the Court should exercise its common law jurisdiction in adjudicating an alleged unfair labour practice dispute. The Court noted that the LRA introduced protection against unfair dismissal, a remedy that was not available at common law. The scheme of the legislation was such that if an employee was found to be unfairly dismissed, the employee could be reinstated or compensated. Interference by the High Court should therefore "not easily be entertained" and should only be done "in exceptional circumstances". This matter, where the employee had brought "procedural requests" before the Court, did not amount to an exceptional circumstance. The Court was careful to say however that it did not want to be understood to say that it had divested itself of jurisdiction to entertain disputes in regard to unfair proceedings in a disciplinary hearing between an employer and an employee.

So when will the High Court interfere? Watch this space. The irony is that the Labour Court, in applying the test for interim interdicts, almost always refuses to intervene in disciplinary proceedings, because the employee has an alternative remedy- the right to refer a dispute to the CCMA and the remedies that an arbitration can afford. From a reading of this case and a number of other recent decisions by the High Court, this hurdle may be easier to clear in the High Court than in the Labour Court.

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