dawn norton director: mkhabela huntley adekeye inc interpreting the bcea: recent court decisions 20...
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DAWN NORTON
Director: Mkhabela Huntley Adekeye Inc
Interpreting the BCEA: Recent Court decisions
20 SEPTEMBER 2014
1
SEVERANCE PAY
Section 41 (4)
Case: Astrapak Manufacturing Holdings v CEPPWAWU (2014) LAC
2
Facts in Brief:
Retrenchment situation of 286 workers
Workers refused reasonable alternative and employer refused to pay severance pay
126 offered a higher wage; 86 the same wage and balance a reduced wage of approx. 2%
3
LAC Decision:
Only Employees offered a reduced wage were entitled to severance pay.
Balance of workers – unreasonable refusal to remain in employment under a new shift system – No severance pay.
4
SEVERANCE PAY (CONTINUED)
Section 41 (5)
Case: FAWU v Ngcobo (2013) (SCA)
5
Facts in Brief:
Retrenchment of 2 Nestle workers
FAWU represented them at CCMA
FAWU failed to refer dispute to LC
Employees issued summons in HC for damages
6
SCA Decision:
FAWU breached its contract with employees / members
Compensation of 12 months. Nor a patrimonial loss but a solatium
Compensation in addition to severance pay (i.e.: no discount for severance pay paid by Nestle)
7
DEDUCTIONS FROM WAGES
Section 34 (1) and 77 (1)
Case: Davidson v Emvest Asset Management(2014) (LC)
8
Facts in Brief:
Employee, a corporate director, employed by two employers – one SA, and one Mauritian
He resigned from SA company and demanded outstanding remuneration and accrued leave
SA Company denied he was entitled, arguing deductions for PAYE for income from Mauritian country
9
LC Decision:
SA employer not entitled to deduct for taxes for income earned from Mauritian company
Issue between employee and SARS
Cost awarded on unitive scale – defence frivolous, no ongoing relationship
10
DEDUCTIONS FROM WAGES (CONTINUED 2)
Section 34 and 77
Case: Naidoo v Careways Group (2014) (LC)
11
Facts in Brief:
CEO of company instructs HR not to deduct tax from salary
Fall out with employer – incompatibility
Employer seeks to terminate relationship and stops paying her salary
Employee approaches court on an urgent basis
Employer argues CEO owes SARS and therefore not paying her salary
12
LC Decision:
Failure to pay salary amounts to a breach of contract
Failure to pay SARS not a basis to stop paying CEO
Employer ordered to pay salary less deduction for SARS
13
DEDUCTIONS FROM WAGES (CONTINUED 3)
Section 34 and 77
Case: NUM v Martin & East (2013) (LC)
14
Facts in Brief:
Refusal of about 124 employees to work (to board trucks to travel to work)
Shop stewards charged with unprotected strike action and gross insubordination
Found guilty and sanction was suspension from work for 3 months without pay as an alternative to dismissal. Given an election
Union refers to ULP to CCMA
Employer dismisses shop stewards
15
LC Decision:
Automatically unfair dismissal (because of union activity)
Suspension without pay is permissible – doesn’t contravene the BCEA
16
DEDUCTIONS FROM WAGES(CONTINUED 4)
Section 34
Case: Padayachee v Interpak Books (2014) (LC)
17
Facts in Brief:
Employee resigned in September 2011 and didn’t work in her notice period
She was called to a Disciplinary Enquiry a few days later
She did not attend and the chair found her guilty of causing damage to the amount of R180 000
The “fine” was set off against her final salary and accrued leave
18
LC Decision:
“Set off” is part of the common law and satisfies section 34(1)(b)
Employer may make a deduction if there is a fair hearing and a written agreement signed by employee about the quantum of the deduction. Deduction cannot exceed ¼ of monthly wages
Employer ordered to repay the money deducted from the employee’s final remuneration
19
NATURE OF EMPLOYMENT CONTRACT
Section 29 (1) (m)
Case: Harrandawana v Dispute ResolutionCentre (2014) LC
20
Facts in Brief:
Parties attempt to enter into 3 short fixed term contracts
Employer explains terms, Employee refuses to sign contracts
Termination some 9 months later
Dispute about termination – dismissal or termination of F / T contract
21
LC Decision:
No statutory preference for indefinite contracts
Only offer of employment – Fixed term
No factual submissions made in review papers, only conclusions of law. LC not bound to consider the matter
Review dismissed
22
SICK LEAVE
Section 23
Case: Kievits Kroon Country Estate v Mmoledi(2014) (SCA)
23
Facts in Brief:
Pastry chef asks for unpaid leave to attend a traditional healing course
Employer declines request for unpaid leave. Employee disregards the refusal and submits a sick note from a traditional healer
Employer dismisses for unauthorised absence
Dismissal found to be unfair by CCMA, LC and LAC
24
SCA Decision:
Medical certificate not required – no illness
Belief that if she failed to attend the course she may die
Belief genuinely held. Failure to obey employer was reasonable
Appeal fails
25
PAYMENT FOR ACCRUED ANNUAL LEAVE UPON TERMINATION OF EMPLOYMENT
Section 20 and 40
Case: Ludick v Rural Maintenance (2014) (LC)
26
Facts in Brief:
Employee works from Jan 2004 – April 2006
Employee takes no annual leave
Company policy – leave must be taken within 30 days of end of financial year else lapses
Employer paid for 2006 leave cycle, not for 2005 and 2004
27
LC Decision:
No payment for 2004 – entitlement falls away 6 months after end of leave cycle
Policy considerations at stake (health and safety)
Payment for 2005 annual leave
BCEA trumps term in contract of employment (less favourable)
28
EMPLOYER’S CLAIM FOR DAMAGES FROM EMPLOYEES
Section 77 (3) and 77A (e)
Case: Rand Water v Stoop (2013) (LAC)
29
Facts in Brief:
Employer dismisses employees following a disciplinary enquiry for fraud (R8 million)
Employees claim they have been unfairly dismissed and refer an unfair dismissal claim to the CCMA. Ultimately referred to the LC
The employer instituted a counterclaim – damages claim based on breach of contract – the employees had breached their implied duty of good faith and care
Employees argued point in limine that the LC had no jurisdiction as the claims were not connected to their contracts of employment
30
LAC Decision:
LC has jurisdiction to hear a civil claim, concerning a contract of employment
Determination of unfair dismissal claim and damages claim relied upon on same set of facts
Remedies are special performance, damages or compensation. (S77Ae)
Did not matter that the claim was illiquid
BCEA is not partisan to employees
LC had jurisdiction to hear the matter
31
QUESTIONS
THANKS