In Bata SA (Pty) Ltd and Another v Southern African Clothing and Textile Workers’ Union obo Members and Others [2024] 8 BLLR 866 (LAC), Scribante Labour Consultants (Scribante) operated as a temporary employment service (TES) and Bata SA was its client. Several employees were procured by Scribante to provide services to Bata SA, including members of the Southern African Clothing and Textile Workers’ Union (SACTWU).
In 2019, SACTWU, on behalf of its members, referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of s 198D of the Labour Relations Act 66 of 1995 (LRA) regarding the interpretation and application of s 198A of the LRA. In this regard, SACTWU contended that its members were deemed employees of Bata SA and their terms and conditions of employment were less favourable than employees of Bata SA performing the same or similar work.
Sections 198A to 198C of the LRA were introduced in 2014 to provide greater protection for workers and to further regulate non-standard employment. Section 198A(3)(b) of the LRA provides that employees contracted through a TES to a client for more than three months, and who earn less than the annual earnings threshold, are deemed to be employed by the client. Section 198A(5) further provides that deemed employees must be treated on the whole not less favourably than employees of the client performing the same or similar work unless there is a justifiable reason for the different treatment. Section 198D of the LRA, in turn, provides that any dispute arising from the interpretation and application of, inter alia, s 198A may be referred to the CCMA for conciliation and, if not resolved, arbitration.
At the arbitration proceedings, SACTWU requested the CCMA to find that its members were being treated less favourably and, on this basis, to make a monetary award to its members. Scribante and Bata SA, however, argued that certain of SACTWU’s members were no longer employed and, moreover, that s 198D of the LRA only provided the CCMA with the power to grant declaratory relief. The Commissioner was thus required to determine two issues, namely –
Having regard to the Labour Court (LC) judgment in Nama Khoi Local Municipality v South African Local Government Bargaining Council and Others [2019] 8 BLLR 830 (LC), the Commissioner found that only employees who were still employed at the time of the arbitration could be regarded as parties to the dispute and that the CCMA was limited to granting relief that was declaratory in nature. Any further claims for a monetary amount would need to be pursued separately.
SACTWU sought to review and set aside the ruling made by the Commissioner. The LC found that the court in Nama Khoi was incorrect as it failed to provide a justification for limiting the application of s 198D of the LRA to that of declaratory relief. The LC held that s 198D was designed to be an ‘all-encompassing’ provision for any dispute arising from the provisions of ss 198A to 198C of the LRA. Accordingly, the LC held that the CCMA had jurisdiction in terms of s 198D to determine whether the deemed employees were treated on the whole less favourably and, if so, to determine such monetary amount due to the employees. The court set aside the Commissioner’s ruling and remitted the matter back to the CCMA.
Bata SA and Scribante took the LC’s judgment on appeal. The Labour Appeal Court (LAC) noted that there were now two conflicting LC judgments on whether s 198D empowers a commissioner to grant relief when a TES employee refers a dispute over whether they are being treated less favourably than an employee of the client and whether the relief is also available to a dismissed employee. In Nama Khoi, the court held that ‘deemed’ employees may only refer disputes under s 198D while the employment relationship with the client is on-going, with a view to obtain declaratory relief as to the status of the employment relationship. Disputes arising after that must be referred as unfair dismissal or unfair labour practice disputes, respectively. The LC in this matter held that Nama Khoi had failed to consider other provisions of the LRA, which indicated that s 198D was designed as an ‘all-encompassing’ provision for any dispute arising from ss 198A, B and C and did not suggest that relief granted under that section should only be of a declaratory nature.
Curiously, the LC did not deal with the question of whether the relief sought would apply to SACTWU members who, at the time of the referral, were no longer employed by Bata SA or Scribante. Notwithstanding this, the LAC found that while s 198D does not set out the specific relief to which litigants are entitled, it must be read within the context of the LRA as a whole. In this regard, the explanatory memorandum to the Labour Relations Amendment Bill, 2012 stated that the amendments were in response to the increased informalisation of labour to protect vulnerable workers and to give effect to their constitutional rights and international labour standards. But it did not address the purpose of s 198D.
The LAC was of the view that the LC, in stating that s 198D was an ‘all-encompassing’ provision, gave too wide meaning to the phrase ‘interpretation and application’ without consideration to the dispute resolution processes already available for unfair labour practices and unfair dismissal disputes. It is clear from the wording of s 198D that the section intends for disputes relating to the status of the employment relationship to be referred to the CCMA for determination. While the CCMA may determine whether temporary employees are in fact deemed employees of the client, the aggrieved employees may then refer unfair labour practice or unfair dismissal disputes or seek contractual remedies under the Basic Conditions of Employment Act 75 of 1997. The LAC held that this interpretation of s 198D does not lead to an insensible result. In fact, the determination of the status of the employment relationship will provide better clarity to determine which dispute resolution processes are available to the employees.
The court in Nama Khoi had correctly found that employees who refer disputes for unfair dismissals under s 198D would not have to prove that they had been dismissed and reinstatement could be ordered. This would undermine the dispute procedures in the LRA and deprive employers of their right to challenge the fairness of the dispute. This is what the LC’s interpretation in the present matter would lead to and it cannot be correct. Employees can use the determination made by the CCMA to refer an unfair labour practice dispute or dismissal dispute for determination.
In conclusion, the LAC held that there are sufficient provisions in the LRA to deal with the enforcement of rights under, inter alia, s 198A of the LRA. Section 198D does not serve as a bar to employees employed through a TES to refer a dispute without going through a declaratory process in terms of s 198D. This is provided that they plead that they have the status of a permanent employee by virtue of s 198A. These issues could then be dealt with in a single process, as it should be.
The appeal was upheld with no order as to costs.
In Mgaga v Minister of Justice and Correctional Services and Others [2024] 7 BLLR 699 (LAC), the employee had been employed by the Department of Correctional Services since 1985. While employed in the position of Head of Waterval Prison, an inmate was stabbed and later succumbed to his injuries. The employee was required to report assaults between inmates to the Area Commissioner within one hour of it taking place (at least telephonically). The employee failed to report the stabbing timeously, and only made a report four days later.
As a result, the employee was placed on suspension and an investigation was instituted. While on suspension, the employee was informed at 7am that he was required to attend a meeting with the Regional Commissioner at 1pm the same day, which meeting was 300km away from Waterval Prison. The employee stated that he would not attend the meeting, and, in any event, he could not do so as he was suspended. A few hours later, the Area Commissioner again informed the employee of the meeting and provided him with a letter that his suspension was lifted for the day. However, the employee stated that he would only attend the meeting if his suspension was lifted all together.
Thereafter, the employee was subjected to two separate disciplinary hearings, one in respect of his failure to timeously report the stabbing incident and the other for his refusal to attend the meeting with the Regional Commissioner. The employee was found guilty of the allegations of misconduct and a sanction of dismissal was imposed.
Aggrieved by the decision, the employee referred an unfair dismissal to the relevant Bargaining Council and sought reinstatement. In relation to the allegation of a failure to report the stabbing incident timeously, the arbitrator found that there was a rule that was known to the employee, and he failed to comply with it. Further, in relation to the allegation of insubordination, the arbitrator found that the employee’s conduct was a wilful disregard of a lawful instruction. Having found the employee guilty of these allegations, the arbitrator was of the view that the only appropriate sanction was that of dismissal.
The employee then applied to the Labour Court (LC) to review and set aside the award. The LC found that it was evident that the employee had committed two serious acts of misconduct. With reference to the test on review, it could not be said that it was a decision that no reasonable decision-maker could have arrived at, and that the dismissal of the employee, even on the two counts of misconduct, was a fair sanction.
The employee took the LC’s judgment on appeal and argued, among other things, that:
Regarding the employee’s insubordination, the LAC noted that the employee’s argument was not that the instruction was unlawful, but that it was not reasonable given the distance he was required to travel. In this regard, the employee was informed of the meeting at 7am and he had sufficient time to make the necessary arrangements to attend the meeting. He, however, had no intention of attending the meeting. Further, the employee demanded that his suspension be lifted altogether for him to attend the meeting. This again indicated that he had no intention of attending. The LAC found that the employee’s conduct in imposing conditions to carry out a lawful and reasonable instruction was ‘quite outrageous’.
As regard to the employee’s failure to report the assault, the LAC found that the employee’s attempt to justify his failure by claiming that he had reported the incident to the inspecting judge was puzzling. The employee knew the rule that he was required to report the incident to the Area Commissioner within the hour. It accordingly defied common sense that he would do everything else but what he should do in terms of the rule. It is common cause that he failed to report the incident to the Area Commissioner.
Lastly, in respect of the issue of sanction, the LAC noted that the employee was the head of a prison, a position of enormous responsibility. A prison is a volatile environment and those responsible for running it must know that rules must be followed to maintain discipline. The employee knew the rule but deliberately failed to comply with it. This misconduct was then compounded by a refusal to carry out a lawful and reasonable instruction. The employee’s actions displayed a disregard for authority which could not be tolerated in the prison environment. The fact that the employee had 29 years of unblemished service could accordingly not save him from the sanction of dismissal.
The appeal was dismissed with no order as to costs.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2024 (Oct) DR 45.
