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IMPSA WORKSHOPIMPSA WORKSHOP20132013

Presented by HPT Consultants

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FIXED TERMFIXED TERMCONTRACTSCONTRACTS

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Definition of a FT Contract

Define

- Time based

- Project based

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New Amendments

LRA s200B That an employee must be employed permanently, unless the

employer can establish a justification for employment on a fixed term basis.

Impact The impact will depend on what the CCMA considers to be

justification The decisions may vary from Commissioner to Commissioner The provisions may result in a large number of disputes

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

Promise by employer: Inplied or expressly Drieks v UNISA

– agreements– Undertakings by the employer– Practice or custom by employer– Availability of work– Purpose for concluding the fixed term contract– Inconsistent conduct– Failure to give reasonable notice– Nature of the business

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

McInnes v Technikon Natal (LC 2000)– Expectation and whether that expectation was reasonable– Appointed permanent

Scholtz & others & Dynamic Labour Brokers (CCMA 2002)– Employer created a reasonable expectation– Compensation

University of Pretoria v CCMA & others– S186(1)(b) did not contemplate an expectation of indefinite

employment, only renewal on same or similar terms

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

King Sabata Dalindyebo Municipality v CCMA & others (LC 2005)– Expectation reasonable– Available work– Contracts renewed

Pretorius v Sasol Polymers (CCMA 2008)– Employer created a reasonable expectation for permanent

employment– Retrospective reinstatement

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

SACTWU & another v Cadema Industries – Expectation was reasonable– Status changed when worked beyond the termination date –

permanent employee– 6 months compensation

Cvejic / Rham Equipment (Pty) Ltd - (2009) MEIBC– Status changed when worked beyond the termination date –

permanent employee– 2months compensation

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

SA Rugby Player Association v SA Rugby (LAC)– Expectation was not reasonable– Streuli was replaced by Jake White– Authority of the person representing the employer important

Black v John Snow Public Health Group (LC 2010)– Organisation dependant on Donor funding– Notice served that contract will not be renewed– Limited finance and termination thus important

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Case Law – to consider ….

S 186(1)(b) - Reasonable ground for expecting renewal:

Sindane v Prestige Cleaning Services (LC 2009)– Terminated before expiry date as client no longer needed him– Termination at the instance of a third party does not constitute a

dismissal Buthelezi v Municipal Demarcation Board ( LAC 2005)

– Retrenchment prior to expiry date unfair– Did not have the right to terminate before the natural date

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Case Law – to consider ….

Rolling over …

Feni v SA Five Engineering MEIBC 2007)– Merely placed an endorsement on employees file indicating that

contract was renewed– Results in an invalid contract– Becomes a permanent employee– Contract has to expire, new terms negotiated and signed

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s 56/57 APPOINTMENTS

The issue……

SALGA - s57(7) of the Systems Act has been repealed, the section provided for the contract of the MM could be extended to Managers directly accountable to the MM.

The repeal however does not take away the discretion of the Municipality to appoint such managers permanently or on a contract basis

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s 56/57 APPOINTMENTS

The issue……

DCoG - r47 of the Draft Systems Ammendment Act states that mangers who report to the MM must be appointed permanently

SALGA is of view that:– Municipalities still have the discretion– S56 manager issue cannot be resolved a transitional arrangement

in secondary legislation– Can only be regulated i.t.o. national legislation

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s 56/57 APPOINTMENTS

The issue……

COGTA - r47 of the Draft Systems Ammendment Act states that mangers who report to the MM must be appointed permanently

SALGA is of view that:– Municipalities still have the discretion– S56 manager issue cannot be resolved a transitional arrangement

in secondary legislation– Can only be regulated i.t.o. national legislation

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MEDICAL CERTIFICATES

What constitutes a valid medical certificate?

Rule 15 of the Ethical and professional rules of the Medical and Dental Professions Board states a certificate should have:

– Name, address and qualification of practitioner– Name of patient– Date and time of examination– As a result of personal observation or as result of being informed– Severity of incapacity– Exact period of sick leave given– Date of issuing certificate– Clear indication of identity of practitioner, originally signed , name printed or in block

letters

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MEDICAL CERTIFICATES

What constitutes a valid medical certificate?

Post dated sick notes?

Note signed by a nurse not qualified to carry out the examination?

Illegible & a rubber stamp?

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MEDICAL CERTIFICATES

The BCEA and sicknotes ( s23)

Two consecutive days or two days within 8 week period Signed by practitioner who is certified to diagnose and treat patients

and registered with a professional council established by Act

Medical Practitioner (Dr with MBChB degree & registered with Council)

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MEDICAL CERTIFICATES

Traditional Healer Certificates?

Do not have to accept unless bound by a collective agreement

THPA (2004) was declared unconstitutional in 2006

New THPA (2007) was Gazetted in 2008, not enacted and no council established

Traditional Healers with practice numbers merely indicate that they have registered with the Interim Council in 2005 which no longer exists.

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Kievits Kroon Country Estate v CCMA & others

A clash of cultures

Background– Chef undergoing training to become a Sangoma– Requested a months unpaid leave– Supported by certificate issued by her Traditional Healer– Declined, was prepared to give her 1 week– She simply stayed away– Was dismissed

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Kievits Kroon Country Estate v CCMA & others

A clash of cultures

CCMA– Absence was due to circumstances beyond her control– She was justified in disregarding the employer’s instructions– Refusal to grant unpaid leave was unreasonable– Not attending could place her life at risk– Rather the wrath of her Ancestors, decided to disobey employer– Substantively unfair - reinstated

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Kievits Kroon Country Estate v CCMA & others

A clash of cultures

Labour Court– Commissioner had a well reasoned award– Declined to interfere with the award– Related to a clash of cultures in the workplace, employer wanting

to make money at all cost & the employee believing her ancestors were calling her to become a Sangoma

– Employer knew where she was, assisted her in the past– Application dismissed

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Kievits Kroon Country Estate v CCMA & others

A clash of cultures

Labour Appeal Court– Focus whether the result falls within a range of reasonable results

and not whether it is in fact the correct one– Our society is characterised by a diversity of cultures, traditions and

beliefs– Strongly held by those who subscribe to them– Reasonable accommodation is required to ensure harmony– A paradigm shift is required– Appeal was dismissed

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The way forward?

Pioneers

University of Pretoria and NEHAWU– Agreement to accept sick notes for one week at a time issued by THP’s registered

with an association

Chamber of Mine and NUM– Allowed a panel of THP’s at mines and granted employees 3 days leave to consult

them

Sun International & SACCAWU– Ado[ted a similar agreement

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Substance Abuse

Important issues

Where do you draw the line? Astore Asfica v CCMA – truck driver was reinstated after being dismissed for being drunk on duty, as the employer failed to prove that he was incapable of driving.

Zero Tolerance – Alcohol and drug abuse policy OHSA reg 2A – appears to be under the influence, not allowed on site Refuse test, may further the belief that he is under influence (Mpisi

and Rainbow Frams) Dismissal found fair without testing in (Le Roy and SA Express

Airways)

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Substance Abuse

Important issues Balance of probabilities This test was defined by Lord Denning in Miller v Minister of Pensions (1947) 2

All ER 372 at 374 as follows: “It must carry a reasonable degree of probability but not so high as is required

in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”

The above test was accepted by our Appeal Court in Ocean Accident and Guarantee Corporation Ltd. V Kock 1963 (4) SA 147 (A) at 157D. See also South African Law of Evidence by Hofmann and Zeffert, 3rd edition, p410.

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Its not in my Job Description