Prove it!...Hy wat beweer moet bewys...

Unfair discrimination – What is the burden of proof?

Provided By Cowan-Harper

By Tanya Mulligan

Topics Dispute Resolution | Labour Law

16 Oct 2018

Introduction

In the recent reportable case of Sasol Chemical Operations (Pty) Ltd v CCMA and others (29 August 2018) ZALCJHB 2680/16 the Labour Court evaluated the evidentiary burden placed on employees who contend that they have been subjected to unfair discrimination during their employment. The employee referred a dispute to the CCMA wherein he alleged that his remuneration was disproportionate to the Grade in which he was employed by Sasol. The employee, in his referral form, made no mention of either an equal pay dispute or discrimination based on race and merely requested that his remuneration be corrected in line with his Grade.

The Arbitration

During the arbitration proceedings, it transpired that the employee earned substantially less than a white co-employee, who held the same position and performed the same duties. In view of the evidence led the Commissioner considered the dispute to be an equal pay dispute, culminating in a claim of unfair discrimination based on race. Sasol in justifying the pay differentiation argued that the “white” employee had more experience.

Although the Commissioner accepted that the “white” employee had 7 to 8 years’ experience as opposed to the other employee who only had 3 years’ experience, he held that there was no justification for the differentiation in salary. The Commissioner then found that Sasol had unfairly discriminated against the employee and ordered Sasol to adjust the employee’s salary to be the same as that of his white colleague.

The Appeal

Sasol appealed the award in accordance with section 10(8) of the Employment Equity Act 55 of 1998, as amended (“the EEA”) and contended that the employee did not discharge the evidentiary burden contained in section 11 of the EEA. Section 11(1) of the EEA states “if unfair discrimination is alleged on a ground listed in section 6(1), the employer against who the allegation is made must provide, on a balance of probabilities that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair or is otherwise justifiable”.

The question before the Labour Court was accordingly whether a bare contention of unfair discrimination by an employee triggered the employer’s onus to establish a defence or whether the employee had to present a prima facie case of discrimination.

The Labour Court, in interpreting the meaning of “alleged” as contained in section 11 of the EEA, referred to Labour Relations Law: A Comprehensive Guide (6ed 2015), wherein the authors opined as follows:- “The term “alleged” has not been consistently interpreted by the courts. It must be presumed to mean something less than making out a prima facie case, as would be required in the ordinary course with the burden of proof is not reversed. However, the weight of authority indicates that it means more than an unsupported contention or mere accusation”. The Labour Court accordingly found that a mere allegation of unfair discrimination is not enough to discharge the burden and it does therefore not shift the onus to the employer.

In this case, a claim for unfair discrimination based on race was not advanced and the employee failed to establish any link between the difference in pay and his race. To that end, the Labour Court referred to Rustenburg Platinum Mine v Bester (2018) 39 ILJ 1503 where the Constitutional Court held that the Labour Appeal Court misdirected itself by upholding a case not advanced by the employee. As the Commissioner, in this case, relied on an “unarticulated complaint”, the award by the CCMA was set aside and replaced with one that Sasol did not unfairly discriminate against the employee.

Conclusion

In order to discharge the burden of proof, employees are accordingly required to articulate and substantiate more than a bare allegation. It is also clear that Commissioners of the CCMA should be wary of unnecessarily embarking on an interventionist approach, with the aim of substantiating a bare allegation, as this may indicate a reasonable apprehension of bias.

Duck 'n Dive...that's how they roll...

Is an employee able to avoid a disciplinary hearing or disciplinary sanction by resigning?

Provided By Werksmans Attorneys

By Bradley Davies

Topics Commercial & Corporate Law | Dispute Resolution | Labour Law

10 Oct 2018

It is trite law that employees may resign from their employment, either with immediate effect or on notice, thereby unilaterally terminating the employment relationship. The employer may not reject such resignation. However, does an employee have a right to resign from his employment in order to avoid disciplinary action? If so, is the employee still entitled to refer a dispute of unfair dismissal to the CCMA after such resignation?

The employee does have the right to resign and terminate his employment relationship with his employer as long as such resignation does not constitute a breach of the contract of employment. On the other hand, the employer has the right to institute disciplinary action against any person in his employ, if circumstances justify it.

Resignation before disciplinary action

An employee who resigns in order to avoid the disciplinary hearing into his misconduct from taking place must remember that upon tendering a letter of resignation, the contract of employment is not immediately terminated upon handing the resignation letter to the employer, as the employee will have to provide his employer with notice of his intention to resign. The employee remains an employee of the employer until his notice period expires and therefore the employer can still go ahead with the disciplinary proceedings.

Therefore, in order to avoid the disciplinary enquiry the employee will need to resign with immediate effect so that the employment relationship terminates immediately, which has the effect that the employer may not hold a disciplinary hearing, because the employee is no longer an employee of the employer. The employer can then claim damages from the employee due to the employee’s failure to work out the notice period, if such damages can be proved and quantified.

This position was confirmed in the recent case of Mtati v KPMG Services (Pty) Ltd (2017) 38 ILJ 1362 (LC), where Ms Mtati resigned on notice once she was informed that a disciplinary enquiry would be held in relation to her misconduct. She was then handed a charge sheet and informed that a disciplinary hearing would start during her notice period. Ms Mtati then resigned for a second time, but with immediate effect. Ms Mtati attended the disciplinary hearing but only to argue that KPMG lacked jurisdiction to discipline her as the employment relationship terminated summarily with her resignation with immediate effect. This argument was dismissed by the chairperson of the disciplinary hearing and Ms Mtati thereafter withdrew from the hearing. As a result, she was found guilty and dismissed. Ms Mtati then brought an urgent application in the Labour Court seeking an order to declare the disciplinary process and her dismissal null and void. The judge accepted that employers may discipline and dismiss employees during the notice period in the event of a resignation as such persons remain employees of the employer. However, the court further stated that when an employee resigns with immediate effect and leaves immediately, the employee’s status is changed from that of an employee to that of a former employee, which deprives the employer its right to discipline the employee and the employer no longer has jurisdiction over the employee. It must also be noted that nothing in law prevents an employee who resigns on notice, which is then accepted by the employer, from thereafter resigning with immediate effect during the notice period.

The only right of the employer that remains in such circumstances is the right to institute civil, commercial or criminal action against the employee in his private capacity and not as an employee. The employee has no right to refer the dispute to the CCMA alleging that it was unfair.

Resignation after disciplinary action

In the case of Kynoch Fertilizers Limited v Webster [1998] 1 BLLR 27 (LAC), Webster had been found guilty of dishonesty at a disciplinary hearing and dismissed. Webster thereafter signed a document in which he tendered his resignation, which was accepted by his employer. In an appeal against a finding by the Industrial Court that Webster had been unfairly dismissed, the Court held the resignation and its acceptance amounted to a settlement. Whatever rights had accrued to Webster by virtue of his dismissal had been novated. Webster had made an informed choice between litigation and securing an unblemished reference, which has the effect that he was not entitled to seek relief, whether in the form of reinstatement of compensation.

Therefore, if an employee resigns after a disciplinary enquiry is held into his conduct and he is found guilty, he cannot then refer a dispute to the CCMA for unfair dismissal.

See also:

• What to expect when you are faced with a CCMA case
• Consultation during retrenchment – A tale of David and Goliath?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

Potential Companies Act amendments

Provided By Eversheds Sutherland

Eversheds Sutherland Represents The Coming Together Of Two Firms With A Shared Ethos And Commitment To Client Service Excellence. We Are Known For Our Business Savvy And Industry Intelligence And For Providing Innovative And ... More

By Lauren Kelso

Topics Commercial & Corporate Law

01 Oct 2018

On Friday, 21 September 2018 the Department of Trade and Industry published the draft Companies Amendment Bill 2018 for comment. Comments close on 20 November 2018.

Some highlights of the proposed amendments are:

• Amendment of Memorandum of Incorporation | An amendment would take effect ten days from filing, if the filing has not been endorsed or rejected by CIPC.

• Disclosure of Remuneration and Benefits | The requirement to disclose the remuneration and benefits received by a director would apply to prescribed officers, and it would be a requirement that each individual is named.

• Remuneration Report | In line with King IV, public companies would be required to prepare a remuneration report with details of the remuneration and benefits awarded to individual directors, for approval by the Board and presentation at the AGM.

• Annual Returns

(i) A company would have to submit a copy of its Annual Financial Statements (“AFS”) irrespective of whether it is required to have its AFS audited; and

(ii) A company would be required to file a copy of its securities register with the CIPC each year along with its Annual Return.

• Court Order | The power of a court to make an order validating an irregular creation, allotment or issue of shares would be restored.

• Financial Assistance | The restrictions on financial assistance would not apply to the giving by a company of financial assistance to or for the benefit of its subsidiary.

• Share Buy Backs | A Board decision for a company to acquire its own shares would require approval by a shareholder special resolution:

(i) where the shares are to be acquired by a director, prescribed officer or person related to either a director or a prescribed officer;

(ii) but not where the acquisition is by way of:

– a pro rata offer to all shareholders; or

– a transaction in the ordinary course on a recognised stock exchange.

• Social and Ethics Committee | In addition to the requirements in the current Regulations, all public and state-owned companies would be required to appoint a Social and Ethics Committee, which must meet specified composition criteria. The Social and Ethics Committee would be required to prepare a formal report which must be externally assured, for presentation to the shareholders at a shareholders meeting.

• Auditor Requirements

(i) A company which is required to have its Annual Financial Statements audited, would have to appoint an auditor annually, at a shareholders meeting (not necessarily the AGM); and

(ii) The disqualification period for auditors would be reduced from five years to two years.

• Takeover Regulations | The application of the takeover provisions (Parts B and C of Chapter 5 of the Act and the Takeover Regulations) would be limited by the removal of the requirement that more than 10% of the shares in the company must have been transferred in the preceding 24 months, which would be replaced with a new requirement that the private company must be one which is required to be audited at the time of the relevant affected transaction.