The inclusion of an “automatic termination” gave the employer the right to remove from site simply because the client did not want the employee any longer and to terminate the employee’s services.

The Court in considering the effect of the clause in question concluded that the employment of the employee was entirely dependent on the will or whim of the client. The Court held “The client could at any time, for any reason, simply state that the applicant’s (employee) services were no longer required and having done so, that resulted in the termination of the contract , automatically and by operation of law, leaving the applicant (employee) with no right of recourse.”

The Court noted that section 185 of the LRA provides that every employee has the right not to be unfairly dismissed. Section 5 (4) provides that any provision in a contract that directly or indirectly contradicts or limits an employees freedom of association or the protection afforded by section 5 (1),(2) and (3), is invalid.

The Court considered whether an “automatic termination” clause falls foul of section 5 (4) and whether such a clause is invalid in terms of section 5 (4). In concluding that an “automatic termination” clause is invalid the Court held that the effect of such a clause is to contract out of an employee’s right not to be unfairly dismissed.  Some may argue that there was no dismissal because the “automatic termination” clause provides for a consensual termination. The Court in overcoming this argument had regard to two English cases, Igbo V Johnson Mathey Chemical Ltd [1986] IRLR 215 (CA) and British Leyland (UK) Ltd v Ashraf [1978] IRLR 930 (EAT). In short the Court held that  in order to give effect to the injunction to interpret the LRA in terms of its primary objects and in compliance with the constitution the an “automatic termination” regard must be had to the compelling English judgements of Igbo. These judgements provided that a clause that had the effect of contracting out of the statutory right not to be unfairly dismissed was void. Applying the same reasoning the Court in the Mahlamu matter provided that the “automatic termination” void. Practically this meant that the employment relationship was not terminated in terms of the “automatic termination” clause and therefore the employment relationship came to an end as a result of the employer’s dismissal of the employee.

This is a good judgment for the following reasons.

The purpose of these types of contract is to give to the employer the power to terminate an employee’s services if the client no longer wants him on site or the contract between the employer and client comes to an end. Difficulties used to arise however where the client no longer wants the employee to render the service because they don’t like him or because of some minor infraction which in an ordinary employment relationship would have resulted in disciplinary action. The inclusion of an “automatic termination” gave the employer the right to remove from site simply because the client did not want the employee any longer and to terminate the employee’s services.  This type of contract was often relied to dismiss an employee for misconduct, incapacity and operational reasons. The reason why I like the Mahlawu judgment is that the capricious manner in which employees were dismissed without the opportunity of challenging the dismissal appears to be something of the past.  Well let’s hope so. Kevin Allardyce may be contacted on 011-694-4060 or Kevin@allardyce.co.za.

The LRA Code of Good Practice deals with the handling of sexual harassment cases and defines sexual harassment as follows;- “Sexual harassment is unwarranted conduct of a sexual nature. The unwarranted nature of sexual harassment distinguishes it from behaviour that is welcome.” Whist this may seem obvious it serves to highlight a defence that some employees use when charged with this offence, in other words the conduct was not unsolicited. However the code goes further and states;- “Sexual attention becomes sexual harassment if-(a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or ( b) the recipient has made it clear that the behaviour is considered offensive; and or ( c) the perpetrator should have known that the behaviour is regarded as unacceptable.”

So what does this actually mean?. The code again provides the answer. Forms of sexual harassment include physical conduct. So physical strip searches by or in the presence of the opposite sex is regarded as sexual harassment. Verbal sexual harassment includes unwelcome innuendoes, suggestions, hints, advances, comments with sexual overtones, sex-related jokes or insults. A graphic comment about a person’s body also falls into this category as does unwelcome enquiries into a person’s sex life.  This type of sexual harassment often affects women working in environments dominated by men from the shop floor right up to the board of directors.  So when the chairman of the board of directors cracks a sex related joke at a bar with fellow directors and in the presence of a female director, does that constitute sexual harassment ?. Probably not, but if the chairman only relates the joke to the female director in circumstances where he should have known that his behaviour is unacceptable then maybe it is sexual harassment. Persistent telling of sex related jokes would entitle a female employee to complain to management.

Sexual harassment may also take the form of accepting sexual favours in exchange for employment, promotion training, discipline or benefits that an employee may be entitled to.

Sexual favouritism arises where a person in a position of authority only rewards those who respond to their sexual advances.

The Code further provides that an employer is required to create and maintain a working environment in which the dignity of employees is respected. According employers should issue a policy statement stating amongst other things that sexual harassment in the workplace shall not be permitted or condoned and develop procedures to deal with complainants.

So this is the theory but what do you do when faced with this type of challenge. In practice the recipient faces a difficult challenge especially if the perpetrator is a manager or more senior than the recipient. However the law protects a grievant in a number of ways. Section 6 of the Employment Equity Act prohibits direct or indirect discrimination based on amongst other things gender.  Sexual harassment is regarded as a form of discrimination by the employer. In order to establish discrimination a grievant would have to prove the following. First that the conduct complained falls within the definition of sexual harassment, that the harassment started at work, the conduct complained of was immediately brought to the attention of management, and the employer failed to take reasonable steps to prevent the harassment.

However under the common law an employer is under a general duty to take reasonable steps to protect employees against sexual harassment and accordingly an employer would be vicariously liable if a manager to whom sexual harassment was reported failed to take steps against the perpetrator.

Furthermore a grievant may decide to lodge a criminal complainant against the perpetrator because it constitutes criminal conduct. Kevin Allardyce is a practising labour lawyer who may be contacted on 011-694-4060 or Kevin@allardyce.co.za

To begin with lets understand what a polygraph test is? Generally polygraph tests are used to determine the guilt of an employee during an investigation for misconduct.

The results of a polygraph test do not prove the offence for which an employee may have been dismissed. At best it may simply corroborate other evidence that an employer may have that an employee is guilty of misconduct and is used during an employer’s investigation process.

But the real issue that needs to be determined is just how reliable are polygraph tests and the results that they produce.

Before we deal with South African law, let’s have a look at what other jurisdictions provide.  In the United States polygraph testing of private employees by an employer is prohibited in terms of the Employee Polygraph Protection Act of 1994. In addition this act provides that it is unlawful for an employer to dismiss an employee, discipline or discriminate against an employee who refuses to submit to such a test. The reason why testing is prohibited, except in narrow circumstances, is because of the concerns over the scientific validity of polygraph tests and results.

Polygraph testing measures emotional or cognitive responses to certain questions. A polygraph does this by recording respiration, electrodermal activity, blood pressure and heart rate. So when an employee is required to answer a “difficult” question, the polygraph will note a change in a persons physiology.

However what many employers forget is that a polygraph cannot measure deception or lying. A polygraph examiner simply infers that where the polygraph records a physiological arousal to a particular question, then the employee must be demonstrating deception.  This is where the problems arise, because there may be a number of reasons why an innocent employee becomes stressed when asked a particular question and the polygraph results nonethelss indicate deception. The opposite may apply to an employee who is guilty of misconduct but who is not physiological aroused when asked a difficult question.

In South Africa a factor that may affect physiological responses in a polygraph test is racial stigmatization. For example if the tester or employee is a member of a stigmatized group, the employee may show heightened physiological responses in answering difficult questions. It has been accepted by experts that in South Africa with its history of racial discrimination, racial stigmatization is still widely prevalent and therefore such racial stigmatization may result in false results showing deception.

So what must an employee do at arbitration?

Employers often simply arrive at arbitration and present a copy of the examiners results indicating deception and argue that the employee is guilty of the offence.  First, object to the mere production of the report if the polygraph examiner is not present to give evidence to support his findings. If the polygraph examiner is present ask him to prove his qualifications. In one case the evidence of a polygraph examiner was rejected because although the examiner was an expert he was not a psychiatrist. Furthermore the results were simply an indication of deception and not proof of the offence itself. In addition because the employer had no corroborative evidence to support the polygraph results that the employee was guilty of dishonesty the commissioner found that the employer failed to discharge the onus of proving that it had a fair reason for the dismissal.

For more information contact Kevin Allardyce on 011-694-4060 or Kevin@allardyce.co.za

A probationary employee is an employee whose appointment as a permanent employee is subject to him successfully completing a probationary period. This period could be anything between one and six months. The Code of Good Practice; Dismissal provides that the purpose of the probationary period is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The Code of Good practice provides that the period of the probation should be determined in advance and be a reasonable duration. During the probationary period the employee’s performance should be assessed. The code also provides that the employer is required to give the employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.

So why do some employers try and avoid using probationary clauses in employment contracts and instead use fixed term contracts. A fixed term contract in this context is usually for three months. The contract stipulates when the contract commences and when it is terminated. If the employer does not wish to offer the employee permanent employment he simply advises the employee that the employment shall cease on the date stipulated in the agreement. The termination of a fixed term contract does not constitute a dismissal in terms of the Labour Relations Act unless the employee reasonably expected the employer to renew it on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it.

By employing an employee on a fixed term contract an employer may avoid having to act fairly in terms of assessing the employee’s performance. In practice it often happens that the employer does not properly evaluate the employee’s performance or sets unreasonable standards of performance which the employee is required to reach. In addition the employer may fail to give the employee proper training or instruction. During the probationary period an employer is required to advise an employee of any aspects of his performance that falls below the required performance standard. In addition if the employer believes that the employee is incompetent he is obliged to advise the employee the areas of his work  in which he is not competent.

So what happens if the employer does not want to offer an employee permanent employment. The Code of Good Practice provides that before an employer may decide to dismiss an employee it must invite the employee to make representations and then consider those representations. The Code also provides that an employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, training, guidance and counselling and after a reasonable period of time for improvement the employee continues to perform unsatisfactorily.

In terms of a fixed term contract, the employer does not have to do any of this; if the employer is not satisfied with the employee’s performance and does not wish to offer permanent employment, he simply advises the employee that the contract will terminate as stipulated in the fixed term contract.

This is precisely why some employers do not employ employees in terms of a probationary period because they do not want to have to comply with principles of fairness.

The Legislature has recognised unscrupulous practice with regard to probationary employees in that the Code of Good Practice provides that probation should not be used for purposes not contemplated by the Code to deprive employees of the status of permanent employment however this does not afford any protection to employees engaged on a term basis.

So when you are interviewed for a job and offered a position make sure that the contract that you will be required to sign is not a fixed term contract.

Kevin Allardyce may be contacted on 011-694-4040 and Kevin@allardyce.co.za

In FNB v Wellman the Labour Court held that the powers of commissioners of the CCMA to rule on the interpretation and application of agreements is limited to collective agreements in terms of section 24 of the Labour Relations Act.  The Labour Appeal Court up held this decision.

The commissioner in my matter therefore correctly held that the CCMA had no jurisdiction and that if the applicant wished to challenge the settlement agreement he was required to launch an application in the Labour Court.

The effect of these judgments is that employees’, such as my poor applicant who was duped into signing the settlement agreement, are now required to apply to the Labour Court and argue that the agreement ought to be set aside.
It does not matter whether the employee signed under duress or that he did not understand what he was signing, the CCMA will not entertain the subsequent referral of an unfair dismissal dispute. The only time that the CCMA will deal with a settlement agreement is if the employee disputes that he signed the agreement and the commissioner is required to determine whether there is a settlement agreement signed by the employee. If the employer cannot prove the agreement the CCMA has jurisdiction.

So in order to protect yourself I suggest the following.
If you have been dismissed and you are required to sign for your last salary and leave pay make sure that you read the document in full. The document should amount to nothing more than a receipt. If there are conditions contained in the document ask the employer to explain them. If no acceptable explanation is forthcoming, simply put a line through the offending clauses and sign the document.

Often an employer will insert the following clause. “Received in full and final settlement” or “Payment is made and received in full and final settlement of all claims that the employee may have against the employer”. If you come across these clauses simply put a line through them and initial the amendment. If your employer refuses to pay you take a copy of the letter and go to the Department Of Labour and lodge a complaint for non-payment of wages.

But what about my client who unknowingly “settled” for R100.00 ?.
In Roberts & other v WC Water Comfort Pty Ltd the employees had signed an agreement accepting payment of severance benefits in full and final settlement of any disputes arising out of their retrenchment. The employees argued that they had not waived their rights to refer a dispute because they had only signed because they were desperately in need of money. The Court was not satisfied that the agreement was an unequivocal waiver of the employees’ rights to refer an unfair dismissal case and dismissed the employer’s argument. This point however was decided on affidavit in which there were material disputes of fact that could not be resolved by cross-examination.
In short my client, had he the resources, could have challenged the agreement in the Labour Court.
For more information contact Kevin Allardyce on Kevin@allardyce.co.za or 011-694-4060.