Sexual harassment

Adams / Adcock Ingram Health Care (Pty) Ltd [2011] 5 BALR 459 (NBCCI)

Adams, an invoice clerk was dismissed after having been found guilty of “Unbecoming behaviour (Failure to show respect and obedient) in that on 15 June 2010 he sexually harassed a colleague.”

The aggrieved employee, a married mother complained that Adams “...has on numerous occasions made comments with regards to sleeping / being together as well as sending mails proclaiming his love and suggesting adultery. I have approached him requesting him to stop however he has continued with his actions. I feel intimidated as he made my work environment difficult when I said I was not interested in him. My colleagues have even approached me enquiring if we are having an affair due to his actions. I am a happily married woman and I do not want this to jeopardise my marriage as I have also mentioned this to my husband.”

Adams committed this misconduct while he was attending a counselling program after being found peeping into the ladies’ toilets.

The Commissioner held that Adams’ conduct fitted into the definition of sexual harassment. In this regard she referred to Grogan, Workplace Law p 114:

“The Department of Labour has produced a ‘Code of Good Practice on the Handling of Sexual Harassment Cases’. Item 3(2) of that code provides that sexual harassment consists not of any ‘sexual attention’, but only that (a) which is persisted in, (b) the recipient has clearly indicated is offensive and (c) which the perpetrator should have known is unacceptable. According to the code, sexual harassment covers a wide range of conduct-from the obvious physical contact through to verbal forms such as innuendoes, suggestions and hints, comments with sexual overtones, sex-related jokes or ‘unwelcome graphic comments about people’s bodies made in their presence or directed at them’, ‘inappropriate’ inquiries about a person’s sex life, unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects. The code also recognises some forms of harassment peculiar to the workplace. ‘Quid pro quo harassment’ occurs when an employer or superior ‘undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant in exchange for sexual favours’. . . According to item 4 of the code, an employee can be harassed even if they are ignored; for example, when people in authority reward only those who accord them sexual favours with promotion or increases, and ignore those who deny them . . . Employers and management are expressly required to take ‘appropriate action’ when cases of sexual harassment come to their attention.”

The dismissal was found to be fair.

Collective agreement – interpretation

CEPPWAWU obo Xalo / Chemical Specialities (Pty) Ltd [2011] 5 BALR 488 (NBCCI)

The issue to be determined concerned the interpretation and application of the Industrial Chemicals Sector Substantive Agreement 2009/10 regarding the working hours and payment of the employee.

PF Xalo, a general worker was employed on a permanent basis for two days a week and was paid at an hourly rate of R23,71 in line with the 2009/2010 agreement for the 17 hours worked.

CEPPWAWU obo of the employee argued that in terms of the agreement, an employer is required to employ (and pay) the employee for a minimum of 40 hours per week. It was the union’s argument that as much as the collective agreement provides for the reduction of hours, it also provides for the increase of working hours to 40 hours per week.

The employer argued that the employee was paid at the rate as set out in the collective agreement and that she was not entitled to a 40 hour working week.

The Commissioner came to the conclusion that the parties reached an agreement on the maximum number of hours per week. The fact that the hours of work have been agreed upon as a maximum does not mean that this automatically increases employees’ working hours from a lesser amount to 40 hours per week. If this were so, the parties could have agreed that the minimum working hours per week would be 40 hours as they have done in respect of the minimum basic wage.

The employee’s claim was dismissed.

Deduction of damages from an employee’s remuneration

MIBCO obo Klaase & others / Perdeberg Motor Group t/a Perdeberg Motor Groep (Pty) Ltd [2011] 5 BALR 495 (MIBCO)

The employees, petrol pump attendants, had signed acknowledgments of debt for the repayment of shortfalls in moneys paid to them by customers. Deductions were then made in accordance with these acknowledgments of debt. When the employees were dismissed for gross negligence, the full outstanding amount was deducted from their salaries. The employees claimed repayment of the amounts deducted from their remuneration on the basis that the collective agreement placed a 30% limit on deductions from employees’ earnings.

Referring to Division A of the main agreement, the commissioner pointed out that clause 16(2)[1] places no limit on the deduction of damages from an employee’s remuneration if an employee was found guilty of gross negligence in a formal disciplinary hearing. Clause 16(2) however, is subject to clause 33[2] which places a 30% limit on deductions made in terms of clause 16.

It was argued on behalf of the employer that if the commissioner ordered the employer to pay the deductions, the employer would proceed to recover these payments from the employees by means of civil action – the effect which would be to leave the employees worse off as the legal costs involved could be in excess of their claims.

The commissioner held that the provisions of the collective agreement, while protecting the employees by placing a 30% limit on deductions, did not contemplate a situation where private contractual arrangements could place employees at risk of loss if they seek to enforce the protection.

The employer was ordered to repay the amounts deducted in excess of the 30% limit.

Fixed term contract – reasonable expectation

Ntubane / Enje Into (WLS Fasteners) [2011] 5 BALR 505 (MEIBC)

The employee worked at WLS Engineering as a machine operator. During 2008 the employee’s former employer, Touchstone (a labour broker) stopped trading and the employee was referred to Enje Into (another labour broker) by WLS Engineering. The employee was initially employed for a fixed term of 3 months by Enje Into and continued working afterwards on successive fixed term contracts of 3 months each until he was told that his fixed term contract expired and will not be renewed.

In order for the non-renewal of a fixed term contract to constitute a dismissal, there must be a reasonable expectation on the part of the employee that the employer would renew the fixed term contract on the same or similar terms.

Referring to the following factors, the commissioner held that the employee’s dismissal was substantively and procedurally unfair:

* A lengthy period of service – even on a fixed term basis;
* The continued availability of the particular job or position;
* The fact that the employer treated other employees in similar circumstances differently by retaining some and terminating the services of others without any apparent justification;
* The failure to give reasonable notice that the fixed term contract is not to be renewed.

Given the absence of the employer, the commissioner had only the employee’s version to base his decision on. The employer was ordered to pay compensation equal to 4 month’s salary to the employee.

Family responsibility leave – family in cultural context

PSA obo Jonase / Department of Justice & Constitutional Development [2011] 5 BALR 538 (PSCBC)

The issue in dispute relates to an application in terms of section 24 of the LRA: the interpretation of a collective agreement which deals with family responsibility leave.

The employee, a Deputy State Attorney and Xhosa male married the daughter of the Pendhuka family, after which he became a son of her family, and she a daughter of his family. His brother-in-law passed away, and the employee applied for family responsibility leave, which was granted by the HOD, but later reversed to vacation leave.

The employee argued that he is entitled to family responsibility leave in terms of Resolution 7 of 2000 and that the employer failed to execute its duty with due care considering “the employee’s cultural responsibilities”.

The employer’s arguments boiled down to the fact that a brother-in-law does not fall within the ambit of clause 2.2.4 and that the employee was not entitled to family responsibility leave in these circumstances.

The commissioner referred to clause 22, Resolution 7 of 2000 (the provisions of which are more favourable than those of the Basic Conditions of Employment Act), which reads as follows:

22.1 Employees shall be granted 3 days leave per annual leave cycle for utilisation if:

22.1.1 The employee’s spouse or life partner gives birth to a child; or

22.1.2 The employee’s child, spouse or life partner is sick.

22.2 Employees shall be granted 5 days leave per annual leave cycle for utilisation if:

22.2.1 The employee’s child, spouse or life partner dies; or

22.2.2 An employee’s immediate family member dies.

22.3 The number of family responsibility leave days taken according to 22.1 and 22.2 above shall not exceed five (5) days in an annual leave cycle, unless special circumstances warrant further leave at the discretion of the Head of Department.

22.4 Immediate family member for purposes of this provision means the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. The granting of family responsibility leave must be taken with due consideration of the employee’s cultural responsibilities. Where the latter discretion is exercised, Heads of Departments must limit the total period of family responsibility leave to a maximum of 5 days.

22.5 Employees who have used all their family responsibility leave may, subject to the approval of the Head of the Department, apply to:

22.5.1 use available annual leave; or

22.5.2 use up to 184 calendar days of unpaid leave.”

According to the commissioner, it is “clear that the drafters of the said resolution /policy-statement (or for that matter our legislator) only makes provision for direct/immediate family members by naming who will be regarded to benefit from these provisions. I believe that if the drafters intended to include other members by operation of law they would have expressly stated so. By collective agreement the maximum days per leave cycle is limited to a maximum of five (5) days in lieu of family responsibility leave (unless further leave is granted in terms of clause 22.5). Secondly, to adopt a broader interpretation does not make any real sense within the employment/economical environment. The question is where will we draw the line if family responsibility leave is to be extended by operation of law (marriage/and possible separation)”

The commissioner therefore held that the applicant is not entitled to family responsibility leave in terms of Resolution 7 of 2000 (clause 22) in circumstances of a non-direct/-immediate family member.

[1] “Subject to Clause 5 of the Administrative Agreement, in the event of damage and/or loss to company property or assets (excluding motor vehicles), or the property of the customer, no employer shall deduct any excess amount incorporated in any insurance policy or damages from any employee, nor shall any employer be permitted to deduct damages from any employee in the absence of Insurance cover;

Provided that such excess amounts or damages may be deductible if a formal disciplinary hearing was conducted and the employee was found guilty of wilful damage and/or gross negligence to company property or assets, or the property of a customer.”

[2] “(11) No deductions or set-off of any description shall be made from the earnings that an employee would normally be entitled to receive other than the following:

(a) holiday, insurance, provident and/or pension funds or medial aid schemes where these are not administered by a Regional Council or the Council, and where an employee through negotiations between himself and his employer agrees on the amount to be paid by the employee to accept board and/or lodging from his employer;

(b) tea, sports or similar clubs;

(c) purchases by employees from their employers;

(...)

(c) traffic fines in cases where the guilty person has been identified beyond doubt; Provided that in the event of an employee being required to drive an un-roadworthy or unlicensed vehicle, such fines shall be excluded;

(d) deductions in terms of damage to vehicles or property in terms of Clause 16 of Division A of this Agreement: Provided that the maximum deduction may not exceed 30% of an employee’s weekly/monthly earnings;

(e) deductions or set-off upon termination of employment from all moneys owing to an employee except pension and/or provident funds in respect of loans in terms of a signed acknowledgment of debt;

Provided further that it would not be necessary to obtain the Regional Council or the Council’s consent for deductions other than those enumerated above, if:
(i)deductions otherwise comply with this clause;
(ii)the employee signs a standard Council acknowledgment of debt;
(iii)the amount of the deduction is limited to 30% of the earnings, excluding statutory deductions; and
(iv)a copy of the acknowledgment of debt is given to the employee.”

By Advocate Nicolene Erasmus

This article was first published on the SA Labour Guide website