While a great many labour law decisions are based on whether the employer’s actions were ‘reasonable’ fathoming what this means is extremely difficult because the concept of reasonableness has a strong subjective element.
The term ‘reasonable’ is used in many ways in labour law and industrial relations. For example, this concept comes up when the following questions are asked:
- Can the employer prove that the employee, accused of insubordination, refused to obey a ‘reasonable’ instruction’? Why was it a reasonable instruction? What made it unreasonable to the employee?
- Was the trade union’s decision to embark on an unprocedural strike reasonable?
- Is it reasonable for an employer to hire armed security guards to evict strikers form the premises?
- The Labour Court, in considering the review application of a CCMA arbitration award, needs to decide whether the arbitrator reasonably applied his/her mind to the facts of the case.
- Was the employer’s decision to dismiss an alcoholic employee fair and reasonable under the circumstances or would a ‘reasonable’ employer have sent the employee for treatment?
- Was it reasonable for the employee involved in retrenchment consultations to refuse the employer’s offer of a transfer to another branch?
Another place in labour law where the elusive term, ‘reasonable’ appears is in section 186(1)(b) of the Labour Relations Act (LRA) which says that the meaning of dismissal includes the situation where, “an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.”
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696 LC). The employer made a habit of regularly renewing fixed term contracts. But then it allowed the last contracts to lapse even though there was still available work for the terminated employees. The Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.
It is therefore crucial for the employer, before taking any action relating to employees, to get from a reputable and experienced labour law specialist expert advice on:
- Whether the employer’s action will be deemed reasonable
- Anticipating the employee’s potential reaction
- Whether the Courts would see the employee’s reaction as reasonable.
Submitted by lvan lsraelstam,Chief Executive of Labour Law Management Consulting. To attend our 12 May 2017 seminar in Johannesburg on WINNING THE WORKPLACE WAR please contact Ronni at firstname.lastname@example.org or on 0845217492 or (011) 782-3066.