On Friday, 8 September 2023, we hosted a webinar on the latest cases impacting the employment law landscape in South Africa. Click here to access a recording. Citations of the cases discussed, together with key takeaways, are set out below.

Improperly obtained award

• Rand Refinery (Pty) Ltd v Sehunane N.O. and Others (CCT 204/22) [2023] ZACC 28 (21 August 2023)

Review application – witness in disciplinary proceedings claiming in subsequent High Court litigation that he had been forced to give false evidence against employee – employee applying to amend papers in review to refer to all papers filed in High Court matter – section 34 of the Bill of Rights – Labour Court deciding case without reference to answering affidavit opposing application to amend – fundamental right of access to courts infringed – review in terms of section 145(2)(b) – improper obtaining of award – to be proved on balance of probabilities.

Key takeaways: (1) When bringing a review application based on section 145(2)(b) of the Labour Relations Act, on the basis that the award has been improperly obtained because the arbitration proceedings were tainted by perjured evidence, the Court is required to make a factual finding on a balance of probabilities relating to the allegations of perjury. The award cannot be set aside merely on the basis that there is a possibility that a witness perjured himself. (2) Affidavits deposed to in earlier litigation proceedings are hearsay evidence and if sought to be relied upon in a subsequent matter, the deponent should depose to a new affidavit for purposes of that matter.     

The judgment is available here.

Constructive dismissal

• Browns The Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1091/22) [2023] ZALCJHB 189 (19 June 2023)

Review application – constructive dismissal – review test is correctness – de novo determination of the CCMA jurisdiction – intransigent conduct on the part of the employee and concession that the resignation was informed by the impending disciplinary enquiry is fatal to constructive dismissal claim.

Key Takeaway: There is a high bar for an employee to meet when proving a constructive dismissal claim – an employee must provide a substantial explanation that is supported by cogent evidence to prove the intolerability that led to resignation. Where there is evidence to show that an employee’s resignation was in response to pending disciplinary proceedings, as opposed to the working environment, the employee’s constructive dismissal claim is likely to fail.

The judgment is available here.

• Mkhutshulwa v Department of Health, Eastern Cape and Others (PR134/17) [2023] 8 BLLR 809 (LC) (4 April 2023)

Review application – constructive dismissal – employee marginalised by manager and not given any work or proper workstation – First Respondent conceded in argument that the award did not pass muster – decision not based on evidence properly before the arbitrator – cumulative effect of the First Respondent’s conduct through its employees made applicant’s continued employment intolerable – award set aside and applicant awarded 10 months’ compensation.

Key Takeaway: In the employment relationship, it is not enough for an employer to simply pay an employee’s salary. The employer is under an obligation to ensure that its employees are given work in order to develop their expertise. Failure to do so (without a good reason) may contribute to an intolerable working environment and put an employer at risk of a constructive dismissal claim.

The judgment is available here.

• Sanlam Life Insurance Limited v Mogomatsi and Others (CA12/2022) [2023] ZALAC 15 (17 August 2023)

Constructive dismissal – mental ill health – employee must prove that employer knew or ought to have known about employee’s condition – evidence led for the first time in review proceedings – court a quo misdirected itself by taking into consideration evidence that was not before the arbitrator – finding of constructive dismissal incorrect – appeal succeeds.

Key takeaways: (1) If an employee resigns and alleges that they have been constructively dismissed while suffering from mental ill health, the employee must prove that the employer knew or ought to have known of the employee’s mental ill health. Where the employer is aware of the employee’s ill health and is indifferent or insensitive to it, thereby making continued employment intolerable, a case for constructive dismissal may be established. (2) When an employer becomes aware of an employee’s mental ill health, it must be vigilant and deal with such employee sensitively. This includes taking into account an employee’s known mental ill health in deciding how to deal with issues of performance or misconduct. Where appropriate, an employer may need to consider an incapacity process.

The judgment is available here.

Dishonesty

• Taguzu v Commission for Conciliation, Mediation and Arbitration and Others (JR1785/18) [2023] ZALCJHB 197 (27 June 2023)

Review application – dismissal for dishonesty relating to failure to declare gratuities received from customers found by CCMA to be fair – policy requiring workers to declare tips so that they can be shared – employer properly consulted on the policy – policy did not change employee’s terms and conditions of employment – employee breached the policy – Commissioner’s findings unassailable – review dismissed.

Key takeaways: (1) Our courts take acts of dishonesty by employees seriously and will more readily find that a dismissal is substantively fair in circumstances of dishonesty. (2) The fact that an employee has not signed in acceptance of a policy does not mean that they are not bound by it. An employee may demonstrate acceptance of the policy by acting in accordance with it or by failing to challenge it.

The judgment is available here.

• South African Revenue Services v Commission for Conciliation, Mediation and Arbitration and Others (JR 2243/21) [2023] ZALCJHB 222 (21 July 2023)

Review application – dismissal for dishonesty after participating in protest action on days he claimed to be sick – employee’s participation in protest action revealed that he was not so indisposed that he could not attend to his work – arbitrator’s decision, which was based on speculation, unreasonable – award set aside.

Key Takeaways: (1) Honesty is at the heart of the employment relationship and any misrepresentation to an employer regarding one’s health when applying for sick leave may be sufficient to cause a breakdown in the trust relationship and warrant dismissal. (2) Medical certificates constitute hearsay evidence and, in order to be admissible, an employee may be required to produce an accompanying affidavit from the medical practitioner, or the medical practitioner may be required to testify to the truthfulness of the medical certificate. (3) An assumption made by a Commissioner in arbitration proceedings may result in a reviewable irregularity for purposes of section 145(2)(a) of the Labour Relations Act.

The judgment is available here.

• AMCU obo Tlhaganyane v Beesnaar N.O and Others (JR 2970/19) [2023] ZALCJHB 201 (6 July 2023)

Review of arbitration award finding dismissal fair – employee dismissed for dishonesty and misrepresentation allegedly contained in particulars of claim in civil litigation instituted by employee against employer – particulars of claim referring to dismissal whereas employee had been suspended – particulars of claim drafted, signed, filed and served by employee’s attorney who admitted under oath during arbitration that human error on his part was not attributable to employee – arbitrator ignored material evidence – award reviewed and set aside – employee reinstated.

Key takeaways: (1) It is ill-advised for employers to institute disciplinary proceedings where there is insufficient evidence of misconduct and without first conducting an investigation to properly establish the facts. (2) Where an employee makes a request to lead evidence of one or more witnesses during disciplinary proceedings, it is in the employer’s interest to seriously consider such request. The evidence of such witness/es may reveal facts of which the employer was not aware, and which may be crucial to the question whether the employee did, in fact, commit misconduct. Where a witness is barred from presenting evidence during the disciplinary hearing, this does not mean that such witness will not lead evidence during subsequent arbitration proceedings if the employee challenges the dismissal. (3) Where evidence has not been challenged during cross-examination at arbitration, then that evidence should be accepted by the Commissioner as not in dispute.

The judgment is available here.

Breach of contract

• Letsholonyane v Minister of Human Settlements and Another (J616/23) [2023] ZALCJHB 147 (15 May 2023)

Dismissal – urgency – Minister stuck in elevator and dismissing applicant – applicant urgently approaching court – Minister not following procedure set out in Chapter 7 of the Senior Management Services Handbook and in breach of contract of employment – Minister acting as the complainant, witness and initiator leading the Department’s case – deciding that applicant was guilty of the allegations of misconduct – decision in breach of contract and unlawful – applicant reinstated – First Respondent prohibited from summarily dismissing applicant without complying with procedure set out in Handbook.

Key takeaways: (1) Whether or not the Labour Court has jurisdiction to hear a matter depends on how the matter is pleaded. The Labour Court does have jurisdiction to hear a breach of contract claim and, where the remedy sought is specific performance, such claim may be brought on an urgent basis, because the effluxion of time may dilute the claim. (2) Where an employment contract or policy that contains terms and conditions of employment regulates a pre-dismissal procedure, an employer will be required to comply with such procedure. Failure to do so may result in a breach of contract claim.

The judgment is available here.

Alcohol testing

• Samancor Chrome Limited (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023)

Review of arbitration award finding employee’s dismissal unfair – employee testing positive for alcohol on breathalyser tests in breach of zero tolerance policy – result of blood-alcohol test, together with expert evidence, did not definitively establish that there was alcohol in employee’s bloodstream – breathalysers less reliable and prone to giving false positives – evidence supported arbitrator’s assessment of probabilities and findings.

Key takeaways: (1) While breathalyser tests are a convenient way for employers to test compliance with their alcohol and drugs policies, they are not always reliable. If contested by employees, it is advisable for employers to corroborate the results by way of other evidence (such as observation of behaviour and appearance, or the results of more accurate tests), prior to taking adverse employment decisions, including disciplinary action.  (2) This case also highlights the difficulty employers may face when enforcing a zero-tolerance policy in circumstances where an employee has only a small amount of alcohol in the system.

The judgment is available here.

Cannabis in the workplace

• Marasi v Petroleum Oil and Gas Corporation of South Africa (C219/2020) [2023] ZALCCT 34 (27 June 2023)

Unfair discrimination based on cannabis culture – PetroSA’s substance abuse policy providing for cut-off levels relating to use of intoxicating substances – employee pursing calling as traditional healer, which involved the use of cannabis – test results indicated employee above permissible cut-off levels – employee deemed unfit for duty and barred from accessing refinery – testing below cut-off levels an inherent requirement of the job for all employees – barring employee from premises not a suspension in terms of Labour Relations Act – claim dismissed.

Key takeaway:  Despite the Constitutional Court decision in Minister of Justice and Constitutional Development and others v Prince and others 2018 (6) SA 393 (CC), employers may still enforce policies that prohibit or limit the consumption of cannabis by employees in an effort to ensure a safe working environment. Such policies will not amount to unfair discrimination where the employer can show that compliance with the policy is an inherent requirement of the job (which is a complete defence to a claim of unfair discrimination).

The judgment is available here.

Discrimination

• MEC for Education, KwaZulu-Natal v Singh (1188/2021) [2023] ZASCA 92 (9 June 2023)

Claim in delict for damages – lost income following early retirement for health reasons as result of alleged severe victimisation by manager – liability of employer for omissions – wrongfulness not established – appeal upheld and claim dismissed.

Key takeaway: In a claim in delict against one’s employer, the employee must show, as one of the elements, that the employer’s act or omission was wrongful (and not necessarily the act or omission by one of the employer’s employees). An employer’s conduct will be wrongful where there is a legal duty on the employer to prevent the damage claimed by the employee and the employer fails to comply with such duty.

The judgment is available here.

• Valla v South African Broadcasting Corporation SOC Limited and Another (JR 2644/18) [2023] ZALCJHB 232 (19 July 2023)

Dismissal – automatically unfair – employee remained on fixed-term contract until expiry – resolution of the Board had converted contract into permanency and amended the agreed retirement age from 60 to 63 – termination of her employment was a dismissal – dismissed was based solely on her age, which was not the agreed retirement age of 63, making her dismissal automatically unfair – her dismissal constituted unfair discrimination on the ground of age in terms of section 6(1) of the Employment Equity Act – decision on quantum of compensation and damages postponed sine die.

Key takeaways: (1) Where an employer seeks to rely on the ‘normal’ or ‘agreed’ retirement age to justify a dismissal based on age, the employer may only rely on one or the other (our courts look to see whether there is an agreed retirement age first, and if there is none, then it will consider whether there is a normal retirement age). Where there is an agreed retirement age, for employment purposes, this will trump the retirement age specified in the retirement fund rules or a policy that does not form part of the employment contract (if the age specified in such document is different). (2) A retirement age can be varied by way of a board resolution that, if accepted by the employee, will be the agreed retirement age. (3) Where employers set different retirement ages for different categories of employees, it is important to ensure that there is a fair and rational justification for the distinction in retirement ages.

The judgment is available here.

Restraint of trade

• Sadan and Another v Workforce Staffing (Pty) Ltd (JA38/23; JA88/23) [2023] ZALAC 14 (17 August 2023)

Restraint – geographical area – territorial reach of restraint throughout the Republic – duration – two years – whether enforcement of agreements was reasonable – precluding appellants from being gainfully employed anywhere in the country for an inordinately and disproportionately long period – one year restriction reasonable to ensure protection of Respondent’s proprietary interest – restraint applied nationally.

Key takeaways: (1) Our courts are generally slow to enforce a two-year restraint, particularly where the geographical scope of the restraint is broad. (2) Although the onus rests on the employee to show the unreasonableness of a restraint, where an employer seeks to enforce a long restraint, it will need to be able to provide a compelling justification as to why such a long restraint is necessary to protect its proprietary interests. The court is likely to consider whether the restraint goes further than is necessary to protect the proprietary interest. A careful consideration of the justification offered for the duration of the restraint is necessary in order for the court to make its value judgment and balance the competing interests involved.

The judgment is available here.