Bill Siboze Legal Consultants

20/03/2023

In 2015, the Labour Relations Act of 1995 (LRA) introduced an amendment to the provisions dealing with pre-dismissal inquiries held by administrative bodies such as the Commission for Conciliation, Mediation and Arbitration (CCMA), accredited agencies and bargaining councils through section 188A (11).

Section 188A (11) reinforces the protection offered by the PDA to whistleblowers by providing that, if an employee alleges, in good faith, that holding a disciplinary inquiry contravenes the PDA, the employee or employer may require that such an inquiry be conducted by an arbitrator.

In Ramsammy v Wholesale & Retail Sector Education & Training Authority (2009) 30 ILJ 1927 at paragraph [53] the Labour Court explained the meaning of good faith in the context of disclosures to mean that the employee making the disclosure must reasonably believe that the information disclosed, and the allegations therein, are substantially true, and not made for the employee’s personal gain. The phrase ‘good faith’, when used as a noun, means honesty and sincerity of intention.

13/03/2023

Dismissal of a strict branch manager

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

12/03/2023

An employer’s obligation to comply with their own policies:
Is an employer obliged to comply with its own policies and procedures when these policies and procedures are incorporated into an employee’s contract of employment.

In the case of Penxa v Beaufort West Municipality and Others [2022] ZALCCT 16 (LC), a Municipal Manager (“the employee“) of the Beaufort West Local Municipality (“Municipality”) was placed on precautionary suspension (referred to as “special leave” by the Municipality) and invited to make written submissions in relation to alleged misconduct, arising from his alleged breach of a code of conduct.

Clause 16 of the employee’s contract of employment provided:
“16. PRECAUTIONARY SUSPENSION
The Municipality may in terms of and subject to the provisions of section 6 of the Disciplinary Regulations suspend the Executive”.
Regulation 6(2) of the Municipality’s Disciplinary Regulations (“Precautionary Suspension“) provided that “[b]efore a senior manager may be suspended, he or she must be given an opportunity to make a written representation to the municipal council why he or she should not be suspended, within seven days of being notified of the council’s decision to suspend him or her.”
The employee took issue with his suspension, arguing that he was not afforded an opportunity to make a written representation to the Municipality as to why he should not be suspended in accordance with Regulation 6(2) of the Disciplinary Regulations.
Conversely, the Municipality contended that the employee was afforded such an opportunity when he was invited to make written submissions in relation to his alleged misconduct and that he rejected this opportunity.

09/03/2023

We will.be intervening in Mpumalanga.. for all those in similar position must contact us!!!

We previously reported that the school in Mamelodi required pregnant learners to stay home until they gave birth

07/03/2023

Porn-sharing manager not getting job back

February 2023

A manager who was dismissed after asking his subordinate out on dates and sending her pornographic material, failed to have an arbitration order reviewed.

Ngunyule v MEIBC and Others (JR1595/19) [2023] ZALCJHB 17 (7 February 2023).


Case summary

Mr. Ngunyule was employed by Denel as a Senior Manager for Business Planning. At a point, Ms. Maboya was employed in a department headed by him. According to Maboya, a junior employee, Ngunyule on multiple occasions asked her on dates which she turned down. She also claimed that he gave her looks that made her uncomfortable and he commented about her physical appearance.

On occasion, after Ngunyule had sent pornographic material to Maboya, she informed Ngunyule that she did not appreciate such material being sent to her. He then apologized and alleged that the material was meant for a friend of his. After becoming aware of these rumours, management charged Ngunyule with allegations of sexual harassment. A disciplinary hearing was held and Ngunyule was found guilty and dismissed.

06/03/2023

Workplace Injury – Civil Lawsuit



In Lonwabo Hobongwana (the plaintiff) v Benteler South Africa (Pty) Ltd (the defendant), Eastern Cape High Court Gqeberha (494/2019), the plaintiff sustained a lower back injury on the morning of 16 March 2016 at the defendant’s automotive manufacturing plant.


The incident took place whilst the plaintiff was operating the rear axle assembly line, referred to as the SSB line, to which the plaintiff had been moved from the Fagor Press shortly before the incident occurred. That the plaintiff sustained an injury is not in dispute. It was the cause thereof on which the parties were not aligned.

This judgement must serve as a reminder for all employers to identify risks and hazards in the workplace, to properly train employees, and to have effective procedures in place for dealing with injuries sustained whilst on duty.

05/03/2023

In AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23 (13 February 2023), the applicant employees were charged and dismissed for gross insubordination in that they refused to obey the instruction from their Site Manager to work overtime on 29 May 2017. This was to meet production targets and it was contended that the refusal of the employees resulted in a loss of production.


Disgruntled with the dismissal of the applicant employees, AMCU referred a dispute to the CCMA which remained unresolved at conciliation and proceeded to arbitration. At the commencement of the arbitration proceedings, the commissioner summarised the issues in dispute as follows:


‘The applicant is disputing that there was a meeting. You must prove that there was a meeting. No agreement. You must prove that there was agreement. And what else? The Sanction.’ (Labour Court emphasis)

05/03/2023

In AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23 (13 February 2023), the applicant employees were charged and dismissed for gross insubordination in that they refused to obey the instruction from their Site Manager to work overtime on 29 May 2017. This was to meet production targets and it was contended that the refusal of the employees resulted in a loss of production.
Disgruntled with the dismissal of the applicant employees, AMCU referred a dispute to the CCMA which remained unresolved at conciliation and proceeded to arbitration. At the commencement of the arbitration proceedings, the commissioner summarised the issues in dispute as follows:
‘The applicant is disputing that there was a meeting. You must prove that there was a meeting. No agreement. You must prove that there was agreement. And what else? The Sanction.’ (Labour Court emphasis)

24/02/2023

Increase in National Minimum Wage for 2023

Employment and Labour Minister TW Nxesi announced that the National Minimum Wage (NMW) for each ordinary hour worked will increase from R23.19 to R25.42 with effect from 01 March 2023.

It is illegal and unfair labour practice for an employer to unilaterally change working hours or other employment conditions in order to implement the NMW. The NMW is the amount payable for ordinary hours of work and excludes payment of allowances (such as transportation, tools, food, or lodging), payments in kind (board or lodging), tips, bonuses, and gifts.

20/02/2023

An employee may not be compelled to undergo a polygraph examination, unless she or he agrees to it or a collective agreement or contract of employment provides for it. The agreement must be in writing.