Employment law update – BCEA earnings threshold

August 1st, 2012
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By Talita Laubscher

Practitioners should note that, with effect from 1 July 2012, the earnings threshold published in terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA) increased to R 183 008 per annum. An important change in the most recent determination is that all overtime pay must be excluded for purposes of determining whether an employee earns in excess of or below the earnings threshold. In the past, only pay in respect of ‘intermittent’ overtime was excluded. This means that, where an employee regularly works overtime, such overtime pay may not be taken into consideration in determining whether the employee earns above or below the threshold. The increase in the threshold and the exclusion of all overtime pay are likely to result in more employees qualifying for protection under the working hour provisions of the BCEA.

Reviews and protected disclosures

The applicant in Potgieter v Tubatse Ferrochrome and Others [2012] 5 BLLR 509 (LC) was dismissed by the first respondent, Tubatse, for his alleged failure to obey a reasonable instruction to report for duty, absence without authorisation and insubordination. After his dismissal, Potgieter published an article in the Mining Weekly publication in which he alleged that Tubatse was responsible for environmental pollution in the Steelpoort Valley. He also referred a dispute to the Metal and Engineering Industries Bargaining Council (MEIBC), where the arbitrator held that his dismissal was procedurally and substantively unfair, and Tubatse was ordered to pay 12 months’ remuneration in compensation.

Potgieter sought a review of the award on the basis that he should have been reinstated.

During the arbitration proceedings, Tubatse argued that the article was published to ‘intentionally harm’ its reputation. Potgieter denied this and claimed that he had compiled the article long before his dismissal, with the purpose of protecting the public and the environment, and that he was protected by the Protected Disclosures Act 26 of 2000 (PDA) in doing so. The arbitrator disagreed. She held that a disclosure would only be protected under the PDA if it was made ‘in good faith’. In her view, it was highly improbable that Potgieter had made the disclosure in good faith as it was made only after his dismissal, yet he claimed that he had compiled the article long before his dismissal. The arbitrator therefore held that the more probable scenario was that the article was published by ‘a vindictive employee who wanted to humiliate and embarrass his employer to get even’. It was on this basis that the arbitrator refused reinstatement but rather ordered the payment of 12 months’ compensation.

The Labour Court, per Louw AJ, agreed and held that the arbitrator’s award was reasonable. The court confirmed that, for a general disclosure to be protected, there must be good cause for making the disclosure in public (rather than internally). Such good cause would exist where –

  • the concern was raised internally or with a prescribed regulator but was not adequately addressed;
  • the concern was not raised internally for fear of victimisation;
  • the concern was not raised internally for fear of cover up; and
  • the concern was exceptionally serious.

The court noted that there was no evidence that the concerns addressed in the article were raised internally or that these concerns were not raised because of fear of victimisation or cover up. Such evidence might have persuaded the arbitrator that the article was published in good faith. However, in the absence of such evidence, the arbitrator’s finding that the article was not published in good faith was reasonable.

Practitioners should note that the court also took issue with the record that was filed as part of the review application. The court noted that the applicant had filed 56 pages as part of the record, including his application for condonation in the MEIBC, the certificate of outcome, the condonation ruling, Tubatse’s application for a postponement of the arbitration hearing, Potgieter’s opposing papers in the postponement application and the postponement ruling. The court held that these documents were entirely irrelevant to the review application and stated: ‘Why it was necessary to file and serve these documents as part of the record only the applicant or his attorney of record will know.’

The court further noted that the entire transcript of the arbitration proceedings was filed, which consisted of 300 pages.

The court acknowledged that there were judgments in terms of which it had been held that a full transcript must be filed. For example, it was held by Francis J in Boale v National Prosecuting Authority of SA and Others [2003] 10 BLLR 988 (LC) that, where the applicant fails to provide the court with a full transcript, the review application must be dismissed, and the only exception to this rule would be where the tapes are missing and the parties are unable to reconstruct the record.

Louw AJ disagreed with this interpretation and held that r 7A(5) and (6) of the rules of the Labour Court allow for an applicant to file and serve only part of the record of the arbitration proceedings. What must be put before the court are those parts of the record that are relevant to the grounds for review. Applicants and their attorneys must not ‘overburden judges by obliging them to read pleadings, transcripts and documents which in the end serve no purpose for deciding any attack or challenges that are made on the awards issued by arbitrators’. As to the review application at hand, the court held that the arbitrator’s decision was reasonable and the review application was accordingly dismissed with costs.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2012 (Aug) DR 54.