By Kgomotso Ramotsho

Cliffe Dekker Hofmeyr (CDH) held its 2016 employment conference on 3 November 2016 under the theme ‘Preparing for 2017 what awaits us?’. Speaking on the topic of privacy, Director in Employment Practice at CDH, Fiona Leppan, said that there is a distinction between a person’s space privacy and information privacy. She explained that space privacy means the privacy of one’s home. She added that when a person interacts in a public domain they choose how much of themselves they want to reveal to the public.

Director in Employment Practice at Cliffe Dekker Hofmeyr (CDH), Fiona Leppan, discussed privacy and social media at the CDH employment conference in November 2016.

Ms Leppan said in South Africa privacy is recognised in two ways, one is by way of the Constitution and another in common law. She added that common law looks at privacy in relation to special principles, while the Constitution has gone broader than that. Ms Leppan said when determining when it is wrong to invade a person’s privacy and when it is not wrong to invade their privacy there is a subjective and objective element to it. She added that the subjective element looks at invasion of privacy as it occurred in a private space of that individual, and that subjective element relates to a person’s decision of how much of their private facts they are going to keep private.

Social media and employers

Director in Employment Practice at CDH, Samiksha Singh, spoke about social media. She noted that what a person writes about a colleague, boss or their workplace on social media goes into the public domain and is not confined to the group of people on the social media platform. She said comments posted on social media can impact on the reputation of the company the person works for. She said that the Internet does not have a policy or an institution to give people complained about an opportunity to clarify or give their side of the story.

Ms Singh noted that a person might be able to tell their side of the story at a later stage, but by then the damage would have already been done. She pointed out that one must know that it is their duty to understand what they are doing, the implications and how far reaching they are. She said the difficulty that employers face is that employees become brand ambassadors of the company and what an employee might post on social networks may reflect on the company as well.

Director in Employment Practice at CDH, Samiksha Singh, also discussed the topic of privacy and social media at the employment conference.

Ms Singh said that when employees are not equipped with the knowledge and training of the implications of their conduct on social media, they may not understand what they are doing and how it negatively affects them. Ms Singh referred to a case of Robertson and Value Logistics (2016) 37 ILJ 286 (BCA), whereby the applicant Lynn Robertson posted on social media that she was retrenched even before the retrenchment was finalised. When her employees, the respondent Value Logistic, became aware of her post she was called into a disciplinary hearing and later dismissed. However, Ms Robertson took the matter to the National Bargaining Council where she stated that she was not technologically savvy. Therefore, the commissioner reasoned that Ms Robertson’s post on Facebook appeared to be an expression of hurt that the applicant felt rather than a critical attack of the respondent’s integrity and that her dismissal was substantively unfair. The commissioner ordered that Ms Robertson be reinstated under the same terms she was working on before and on conditions of employment that governed her employment before her dismissal and also be paid her retrospective salary.

Ms Singh advised that if employers are going to discipline their employees for social media misconduct, employers must make sure that employees understand the company policy. She said companies who do not have policies must implement them. She added that it was important to have policies because the clauses in contracts that merely refer to the use of electronic equipment, which is used for communication of the company during office hours.

Ms Singh said that most employees own a cell phone and that they can post comments on Facebook after hours, the problem will be if the company does not have sufficient policies in place, the employee can justify their actions and rely on the issue of privacy.

Strike law update

Director in Employment Practice at CDH, Professor Hugo Pienaar, said that when dealing with a matter regarding traditional weapons, it is the duty of the employer, under the occupational safety legislation, to protect their employees and to have a safe environment where they work and are safe. He said that when employees picket while carrying traditional weapons, the question that must be asked is whether the gathering is a traditional gathering or a work related picket.

Director in Employment Practice at Cliffe Dekker Hofmeyr, Professor Hugo Pienaar, discussed the strike law update.

Executive Dean at the Nelson Mandela Metropolitan University, Avinash Govindjee, discussed the challenges relating to the collective bargaining system under the collective labour law. Mr Govindjee referred to the case of Free Market Foundation v Minister of Labour and Others 2016 (4) SA 496 (GP) (see 2016 (Oct) DR 45). The applicant argued that the system of sectoral bargaining and the extension of the product of its non-participants constituted an impediment to the growth of small business, resulting in less job creation and a higher rate of unemployment. The applicant initially challenged s 32 of the Labour Relations Act 66 of 1995 (LRA) as infringing constitutional rights to equality, freedom of association, administrative justice, dignity and fair labour practices. Subsequently, the challenge was narrowed to assess s 32 of the LRA against s 1(c) of the Constitution (the rule of law provision). In the Free Market matter the court held that s 32 was found not to be inconsistent with the Constitution.

Discrimination law update

Director in Employment Practice at CDH, Nicholas Preston, gave an update on discrimination law. Mr Preston discussed whether sexual harassment amounts to unfair discrimination and if the offending employee can still be dismissed, even if the victim and the offender do not work together. He referred to the case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others [2016] 1 BLLR 1 (LAC) (see 2016 (March) DR 38).

The employee was sent on a conference to Botswana, where he met Ms M who had been sent by her respective employer, at the conference the offending employee propositioned Ms M, who refused his advances of: ‘Do you need a lover tonight?’ Despite this, the employee reiterated that if Miss M changed her mind she should let him know.

Executive Dean for faculty of law at the Nelson Mandela Metropolitan University, Avinash Govindjee, discussed the collective labour law at the CDH employment conference.

A disciplinary hearing against the employee took place and the employee was dismissed, however, the dismissed employee referred an unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) where the matter was determined at arbitration. The commissioner found the dismissal substantively procedurally fair. On appeal in the Labour Appeal Court (LAC), the LAC confirmed that sexual harassment constitutes a form of unfair discrimination and, if proven, dismissal is an appropriate sanction even if the victim and the offender do not work together.

Retrenchment law

Regional Practice Head and Director in Employment Practice at CDH, Gillian Lumb, discussed different cases relating to retrenchment law. One of the cases discussed was Nord v Civicus World Alliance for Citizen Participation Inc (unreported case no JS 363/12, 21-4-2016) (Ah Shene AJ). An employee employed on a two year fixed term contract of employment was retrenched before the expiry of the contract. The employee alleged that his dismissal was automatically unfair. However, the employer’s evidence was that to secure its income it relied on funding and there was a lack of funding for 2012. In accordance with s 189 of the LRA, the employer’s witness testified that it offered an alternative to retrenchment to the employee. The Labour Court (LC) found that the retrenchment was due to a lack of funding and was substantively fair.

Director in Employment Practice at CDH, Nicholas Preston, gave an update on discrimination law at the employment conference.

Occupational health and safety

Director in Employment Practice at CDH, Michael Yeates, discussed the circumstances under which an employer can compel the transfer of an employee for safety reasons. He referred to City of Johannesburg v Swanepoel NO and Others (2016) 37 ILJ 1400 (CC). The employee was a Director of the Alexandra Renewal Project (ARP) aimed at developing Alexandra Township since 2001. Community members were dissatisfied with the lack of progress on the ARP, in a view that the employee, was standing in the way of progress. The community engaged in various demonstrations of their dissatisfaction including protest action. In an attempt to ensure the safety of the employee and his family and to stabilise the situation, the employer decided to transfer the employee to Region B on the same conditions of employment. But the employee refused the transfer stating he did not believe his family was in harms way. The employee was later charged with gross insubordination. He then approached LC to review his case. The LC held that the transfer was a reasonable alternative in the employer’s attempt to mitigate potential harm.

Labour law and the interplay with other areas of law

National Practice Head and Director in Employment Practice at CDH Aadil Patel discussed whether the mining right holder, who is not the employer, is required to be part of the retrenchment process – does the failure to involve the mining right holder render the retrenchment process unfair? He referred to the Association of Mineworkers and Construction Union and Others v Buffalo Coal Dundee (Pty) Ltd and Another (2016) 37 ILJ 2035 (LAC) case.

In this case, Zinoju Coal (Pty) Ltd (Zinoju) who was the mining right holder, entered into an agreement in terms of which, Buffalo Coal Dundee would operate the mine. In December 2014, Buffalo Coal issued a s 189(3) notice in terms of the LRA to the two unions, namely, Association of Mineworkers and Construction and the National Union of Mineworkers, recognised by the mine.

Zinoju informed the Department of Mineral Resources that Buffalo Coal had issued a s 189(3) notice to its employees. The LC found that Buffalo Coal was not required to comply with s 52 of the Mineral and Petroleum Resources Development Act 28 of 2002 as the obligation was on the mining right holder and not the employer. The matter was taken on appeal to the LAC. The LAC found the retrenchment process to be unfair.

Regional Practice Head and Director in the Employment Practice at CDH, Gillian Lumb, spoke about retrenchment law in South Africa.

Individual labour law update

Senior associate at CDH’s Employment Practice, Ndumiso Zwane, made a presentation on an individual labour law update. Mr Zwane discussed whether an employer can impose a different sanction to that of a chairperson of a disciplinary inquiry to whom final decision making authority has been assigned? He referred to the case of South African Revenue Service v Commission for Conciliation Mediation and  Arbitration and Others [2017] 1 BLLR 8 (CC) (see p 52).

The employee, JJ Kruger, was charged with and dismissed for gross misconduct after he had referred to his direct supervisor using the ‘K’-word in the presence of his colleagues. It was alleged that he had used the derogatory term on a previous occasion. Mr Kruger referred an unfair dismissal dispute to the CCMA, and the CCMA held that Mr Kruger’s dismissal was unfair. The LAC, therefore, found that the CCMA’s decision was reasonable and the court a quo’s judgment must stand.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2017 (Jan/Feb) DR 16.