In this edition we focus on areas of racial harmony in the workplace, temporary employment services and fixed term contracts as well as secondary strike action.
Racial Harmony in the Workplace: SA Chemical Union and another v NCP Chlorchem (Pty) Ltd and another (2007) 28 ILJ 1308 (LC)
The Labour Court has previously considered cases where employees have been dismissed for using racist language in the workplace, or for committing acts that are racist in nature. In general, the Labour Court doesn’t hesitate to condemn these acts and to uphold dismissals in these circumstances. This case concerned an employee who made allegations of racism against a fellow employee that were both unfounded and unjustified. The Company had dismissed the employee after he was found guilty of insulting, abusive and racial language, communication or behaviour.
The dismissed employee contested the fairness of his dismissal and referred the dispute to the Bargaining Council. The arbitrator concluded that it was common cause that the dismissed employee had said that the complainant was a racist and that he had demonstrated a racist attitude, and upheld the dismissal.
The dismissed employee referred the matter to the Labour Court and sought to review and set aside the arbitrator's decision. The Labour Court dismissed the application and held that the arbitrator had been perfectly justified in concluding that the employee's dismissal had been substantively and procedurally fair. In the course of it's judgment, the Court made a number of observations relating to racism in the workplace generally and in more particularly, the disharmony caused when employees made unfounded allegations of racism. The Court observed that racial harmony in the workplace is of paramount importance and just as racist behaviour needs to be rooted out, "allowing employees willy-nilly to accuse fellow employees of being a racist or displaying a racist attitude must be addressed with equal fervour, by employers, if such allegations are baseless and made without reasonable cause therefore". Further, the Court expressed the view that if an employee, without reasonable cause, accuses a fellow employee of being a racist or displaying a racist attitude, this will constitute "a very serious form of misconduct".
Temporary Employees and Fixed Term Contracts: National Union of Metalworkers of SA & Others v SA Five Engineering (Pty) Ltd & Others (2007) 28 ILJ 1290 (LC)
This case concerns a number of important issues that arise when employees are engaged thorough the agency of temporary employment services to work on projects where completion dates are uncertain.
The Labour Court reaffirmed two important principles. First, the temporary employment service providing labour to a project managed by a contractor is the employer of the employees that it supplies to the project, in spite of the fact that the contractor (the temporary employment service's client) has day-to-day control over the activity of the employees. Secondly, the Court affirmed that contracts entered into for the purposes of a project that had no definite completion date, terminates automatically when the work that was contracted for comes to an end.
The Applicants applied to the Labour Court for an order to the effect that their fixed term contacts of employment had been prematurely terminated. All of the Applicants had been employed by temporary employment services to work on a project to reconstruct and refit a ship. The duration of the contracts was limited to the period that it would take to complete the work. The First Respondent, the main contractor, argued that it was not the Applicants' employer, since Section 198 of the LRA provides that if a temporary employment service provides its own employees to a client to perform work for the client, those employees are employed by the temporary employment service, and not by the client.
The Labour Court found that even though the First Respondent (the client) had been responsible for the day-to-day control of the Applicants' work, and even though it determined when the individual portions of the work making up the entire project had come to an end, this did not make the contractor the Applicants' employer. The effect of Section 198 was that the temporary employment services that had engaged the Applicants were their respective employers. Secondly, the Court found that the evidence disclosed that the contracts clearly provided that they would come to an end automatically on the happening of an uncertain future event i.e. the completion of the individual portions of work for which the Applicants had been contracted. In such a case, no procedure had to be followed, since continued employment was dependent on the happening of the event concerned. Since the contracts expired automatically, communication of this fact by the employer to the affected employees would be a courtesy rather than formal compliance with a required procedure. In a project of the nature of that in which the Applicants were engaged, it was clear that work would taper off incrementally and that fewer employees would be needed as the bulk of the work was completed. It was not open to the Applicants to dictate when their particular tasks were no longer required - progress on the project would determine that. For these reasons, the application was dismissed.
Striking in Sympathy: SALGA v SAMWU (Unreported) J1320/07
During the recent public sector strike, a number of unions sought to engage in sympathy strike action with public sector workers.
The SALGA v SAMWU, the association representing local government authority sought to interdict members of the SA Municipal Workers Union from engaging in a one day sympathy strike in solidarity with public sector workers. The Labour Court dismissed the application, and held that the proposed secondary action was protected.
The Court applied section 66 of the LRA (which deals with secondary strikes) and held that all three requirements established by that section had been satisfied. First, the primary strike (the strike by public sector workers) was protected, secondly, proper notice of the secondary strike had been given, and thirdly, the Court was satisfied that the nature and extent of the secondary strike was reasonable in relation to its effect on the business of the primary employer. The Court took into account that the nature and extent of the proposed secondary strike was limited. It was a one day strike, and the Union had made it clear that its members engaged in essential services should not strike.
Second, local authorities were an integral part of government and given the relationship of integration, co-ordination and co-operation between local authorities and provincial and national government, the proposed strike was reasonable in relation to its effect on the business of the higher tiers government.
In coming to its conclusion, the Court disagreed with previous decisions by the Labour Court that had rejected as irrelevant any evaluation of the effect of the secondary strike on the business of the secondary employer, and any application of a proportionality requirement in assessing the reasonableness of the secondary strike.
The Court held that both factors were relevant to determining whether or not the reasonableness requirement established by section 66 had been met, and therefore whether the secondary strike should be protected.
Racial Harmony in the Workplace
Temporary Employees and Fixed Term Contracts
Striking in Sympathy
"In short, whether or not a secondary strike is protected is determined by weighing up two factors - the reasonableness of the nature and extent of the secondary strike (this is an enquiry into the effect of the strike on the secondary employer and will require consideration, inter alia, of the duration and form of the strike, the number of employees invo0lved, their conduct, the magnitude of the strike's impact on the secondary employer and the sector in which it occurs) and secondly, the effect of the secondary strike on the business of the primary employer, which is in essence an enquiry into the extent of the pressure that is placed on the primary employer" - SALGA v SAMWU
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