Para-Aid Legal & Consulting Firm

13/04/2023

RESIGNING FROM PENSION FUND BEFORE DIVORCE
Two months after being served with the divorce summons, respondent resigned from his employment and exited his retirement fund. At the time the court granted the divorce order, respondent was not a member of a retirement fund and he did not have a pension interest from which the applicant could be allocated a portion. When applicant approached the fund to requesting payment of what she believed was due to her, the fund informed her that respondent’s benefit had accrued to him. She was told that she needed to provide to the fund with a divorce order directing the fund to pay a “pension benefit” as opposed to a “pension interest”. Applicant now approaches court seeking to amend the divorce order which incorporated the settlement agreement by amending the phrase “pension interest” and replacing it with “accrued pension benefit”.

MARUMOAGAE AJ discusses how neither the court nor the applicant was aware at the time the divorce order was granted that the respondent had already exited his fund; that the applicant only learnt that the respondent exited his fund when she sought to enforce payment in terms of the divorce order; whether the court can vary a settlement agreement by replacing a statutorily recognised and defined phrase “pension interest” with the phrase “accrued pension benefit” which is not defined in the Divorce Act 70 of 1979; and whether such an order can be enforced.

There is no adequate legal framework that allows non-member spouses to claim portions of the benefits directly from the funds when member spouses exit their funds before divorce. This has allowed member spouses to resign after being served with divorce summons to ensure that they keep these benefits out of the reach of their non-member spouses. This is a serious concern that the legislature is yet to address. Non-member spouses’ access to their member spouses benefits is dependent, first on divorce, and secondly, on whether member spouses are active in their funds, even though these benefits are still held by these funds. The application is dismissed.

C.N.N v N.N (2021/11607) [2023] ZAGPJHC 208 (23 February 2023)

17/03/2023

COLLECTIVE MISCONDUCT

LABOUR – Dismissal – Collective misconduct – Ongoing stock losses – Failure to control the stock losses – Factual basis or sufficient grounds required for inferring that all employees were indivisibly culpable as members of the team – Large store and absence of evidence on proximity of employees – Facts not supporting an inference of culpable participation of all employees – Dismissal substantively unfair.

SACCAWU v Makgopela [2023] JA38-2021 (LAC) at [25]-[33]



Facts: Cashbuild trades in hardware and building materials and after a stock-take at the Klerksdorp branch there were stock losses or “shrinkage” detected. Workshops were held with certain of the staff but the shrinkages continued and the employees were issued with final written warnings valid for 12 months for failing to control shrinkage collectively or individually. After further stock losses, the employees were charged with “Collective Misconduct/Team Misconduct” and were dismissed after a disciplinary hearing.

Appeal: At the CCMA their dismissals were found to be both procedurally and substantively fair. The Labour Court found that the arbitration award fell within the bounds of reasonableness required and dismissed the review application.

Discussion: Collective workplace misconduct in circumstances in which no individual employees were identified as having committed particular acts of misconduct and all employees in the branch were dismissed; the case law and the four approaches to collective misconduct: common purpose, team misconduct, derivative misconduct and where individual culpability of employees cannot be determined as a result of which there exists an operational rationale for their dismissal (see paras [16]-[21]); that Cashbuild relied on team misconduct, the essence of which related to the failure of the employees as members of a team to adhere to its rule to prevent and halt shrinkage at the Klerksdorp store.

Findings: There was no evidence which indicated that, given the size of the store, employees in one section of the store would have been aware of stock being lost in another section. There was an absence of evidence that the proximity of employees to each other in the store and the varied nature of their work warranted a primary inference being drawn of the culpable participation of all of the employees in the misconduct. The proved facts did not support an inference being drawn of the culpable participation of all employees employed at the store in the primary misconduct. Furthermore, they participated in shrinkage workshops and completed shrinkage questionnaires to identify system difficulties and made proposals to solve the problem of stock loss.

Order: The appeal succeeds and the order of the Labour Court is replaced with one setting aside the arbitration award and replacing it with one finding that the dismissal of the employees was substantively unfair. They are to be retrospectively reinstated into the same or similar positions within 10 days and to be paid back pay from the date of dismissal until date of their reinstatement.

SAVAGE AJA (PHATSHOANE ADJP and PHATUDI AJA concurring)

14/03/2023

Dismissal of a strict branch manager

Summary of judgement prepared by Jan du Toit

2023/03



Makuleni v Standard Bank of South Africa Ltd and Others (JA125/2021) [2023] ZALAC 4 (8 February 2023).



The test for reviewing and setting aside an award of the CCMA is whether the decision reached by the commissioner is one that no reasonable person could have reached. This case is an example of the test being misapplied, and the Labour Court being misled into treating the case for a review as if it were an appeal. It further emphasizes the importance of proper record-keeping pertaining to workplace grievances, the burden of proof that lies with the employer, and giving due consideration to mitigating factors in support of a sanction less severe than the termination of employment.



Background

Mrs Zimbani Makuleni, the appellant, was employed by Standard Bank, the respondent, as a branch manager. She was suspended on 28 August 2017 and dismissed on 12 January 2018 for misconduct. A commissioner of the CCMA issued an award on 12 October 2018 that she had been unfairly dismissed and ordered her reinstatement with full retrospectivity.



In a review of that decision, the Labour Court on 22 September 2021 set aside the award and declared that she had been fairly dismissed. This appeal lies against that order of the Labour Court.



The allegations of misconduct upon which a disciplinary enquiry found the appellant guilty, resulting in her dismissal, were as follows:



1. It is alleged that you have conducted yourself in a manner that is in breach of your contract of employment, your duty of good faith towards Standard Bank and your subordinates, and have created an environment that is hostile at Centurion Branch, in that:



1.1 You communicate with your subordinates in a manner that is disrespectful, offensive and childish.



1.2 You shout at your subordinates using inappropriate words (vulgar language) in front of their colleagues and the customers of the bank.



1.3 You fail to motivate your team and to value the ideas raised by certain of your subordinates. This has resulted with [sic] our subordinates feeling uncomfortable and worthless.

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Dismissal of a strict branch manager Summary of judgement prepared by Jan du Toit 2023/03 Makuleni v Standard Bank of South Africa Ltd and Others

02/03/2023

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