Ford Motor Company of SA (Pty) Ltd v NUMSA & others
Labour Court: Johannesburg 16 October 2007
The employer, with production deadlines to meet, scheduled overtime for their employees. There was an issue regarding the working of overtime on a particular Saturday and the union informed management to cease the scheduling of “excessive overtime” as it had a negative effect on the members. If the Employer didn’t comply the union would declare a dispute. The union contended that there was no contractual obligation to work overtime and could not be compelled to work overtime.
Summary of judgment: It was held that the Employer had made out a proper case for arguing that the union had unequivocally expressed a demand that the company should cease to schedule “excessive overtime”. The court held further that the union had therefore also expressed an unequivocal intention to embark on an overtime ban, which therefore constituted unprotected strike action. The court held that the Employer would suffer irreparable damage if the unprotected industrial action was not interdicted and that the Employer had no other suitable remedy available. The Rule Nisi was therefore confirmed with costs to follow the suit. The interdict was granted as applied for.
Tourism, Hospitality & Sports Education & Training Authority v TMS-Shezi Industrial Services
Labour Court Johannesburg: 26 July 2007
The Tourism, Hospitality & Sports Education & Training Authority, a SETA, concluded an agreement in terms of which the defendant would provide training for learners under the Skills Development Act 97 of 1998 (”Skills Development Act”). After two years, the SETA sued the defendant in the High Court for R9 859 005, being the amount it had allocated in the form of grants for training and learner allowances to the defendant in that period. The defendant’s response was to file an exception to the plea on the basis that it did not disclose a cause of action.
Summary of Judgement: The court held that the SETA’s case was premised on an allegation that the defendant had breached its obligations under the Act, as read with the applicable learnership agreements, which breach made it impossible for the SETA to provide the learners with certificates as evidence of successful completion of their courses. The Skills Development Act is silent on whether the SETA may claim damages in such circumstances. “Damages” may entail either delictual or contractual damages, but if the claim was neither delictual nor contractual, it could only be founded on the provisions of a statute. The question was accordingly whether a claim for damages could be inferred from the Act or SAQA (South African Qualifications Authority) and/or the PFMA (Public Finance Management Act). In this regard, the court held that the first principle of interpretation was that the words of a statute must be given their ordinary, literal meaning. Any implied provision have to be reasonable, or necessary to give effect to the obvious intention of the Legislature. The court held that the PFMA provides a framework within which the SETA as an accounting authority could put in place measure, policies and procedures to protect the interests of public entity. In this case, for instance, it could have put in place policies and procedures to deal with payment of grants the consequences of failure to comply with the provisions of such policies. The court further held that the SETA had incorrectly assumed that it was itself a party to learnership agreements. Such agreements created contractual relationships between employers and individual employees. The SETA’s role is limited to assisting employers and employees to conclude agreements and to registering them. The Court held that, if the Legislature had wished to confer on SETAs the right to reclaim grants by way of actions for damages, it would have said so in clear terms. However, the Act goes no further than to confer the right to withhold funds if an employer or training provider fails to comply with stipulated conditions. Finally, the SETA did not quantify its damages as required by the rules of the court, as a result of which the defendant was unable to assess what was being claimed from it in each case and to that extent, the pleading was vague and embarrassing. As a result the court upheld the exception that the plea did not disclose a cause of action.
As a result we may accept that the courts will not allow Setas to reclaim grants to service providers which have allegedly failed to comply with conditions of grants.
MEC for Health (Gauteng) v Mathamini & others
Labour Court Johannesburg: 19 September 2007
The Employee had been appointed Director of Finance & Procurement and had to relocate from Johannesburg to Ga-Rankuwa. He applied for and received a settlement allowance as there had been no accommodation available at the hospital. He was later informed that there was accommodation available, cancelled his accommodation and then had to stay in the Holiday Inn for a period as the accommodation was no longer available. He refused to pay for his accommodation at the Holiday Inn and was charged with misconduct after he claimed for dinner and parking as well. He was also found guilty of submitting fraudulent petrol claims after a hearing. The arbitrator was satisfied that he was guilty of dishonesty, but ordered his reinstatement as this was the employee’s first offence and no progressive discipline had been applied and because the CEO would have approved these expenses had it been submitted to her for approval.
Summary of Judgement: The court held that the arbitrator had misdirected herself in setting aside the sanction imposed by the Employer. The discretion to determine a sanction in a disciplinary hearing lies with the employer and not the arbitrator. The discretion of the arbitrator is limited to determining the fairness of the sanction. The criterion is not whether an arbitrator would have imposed a different sanction or he/she did not like the sanction. The question is not whether the sanction is correct, or the commissioner agrees with it. The question is whether the sanction is fair or not. With regard to the issue of mitigating circumstances, an employment relationship broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation and an employer cannot be expected to keep dishonest employees in his/her employ. The court further held that there would be no purpose in conducting an inquiry into mitigating circumstances where a worker is guilty of misconduct relating to dishonesty. The award was reviewed and the court held that the dismissal had been fair.
This judgement follows on and applies Constitutional court decision in Siduma when it holds that the discretion to determine a sanction in a disciplinary hearing lies primarily with the employer and not the arbitrator and the only question that the arbitrator has to ask is whether the sanction was fair.