As every employer knows, employing staff can be risky business. Human nature tends to be unpredictable, and you never know when an employee may turn on you. Sometimes misconduct by an employee is not immediately apparent. An employee may be surreptitiously damaging the company over the course of several months, sometimes even years, before the employer becomes aware that something is amiss.
There is a lot of confusion about what the metro police could potentially arrest you for when you get stopped at a roadblock. This confusion was worsened by a widely publicized report in December 2015 where the CEO of the Road Traffic Management Corporation announced that the metro police would be taking a zero tolerance stance against traffic offenders, further announcing a long list of crimes for which motorists could be arrested. The problem is that majority of the crimes that he listed merely attract fines. Ie. the police officer would be perfectly entitled to issue a fine for the offence, but would not be entitled to arrest the offending motorist.
Can an employer unilaterally implement changes to its terms and conditions of employment? If the employees haven’t been given the opportunity to negotiate these terms, don’t agree with the changes, and therefore decide not to comply with the changes, does the employer have the right to commence disciplinary action against them?
Here’s a case that the Labour Court was recently asked to adjudicate on. Suid-Kaap Stene CC encountered financial difficulties. In an attempt to cut costs it decided to implement short-time by reducing the five-day working week to a four-day working week, with the employees’ wages being cut proportionately. The employer initially consulted with the employees and the trade union but they were unable to reach any form of agreement. So the employer decided to introduce the new short-time measures nonetheless. The measures were introduced by way of a new roster, and the employer instructed the employees to report to work in terms of this roster. When the employees refused the employer commenced disciplinary action. In due course, nine employees were dismissed for various reasons, all related to their refusal to abide by the new four-days per week roster.
Picture the scenario: you’ve negotiated to buy a business as a going concern. You’ve taken over the staff in addition to all the stock, customers and equipment. Next thing you find yourself on the receiving end of a labour claim by the seller’s ex-employees.
This is what happened in Kunyuza v Ace Wholesalers. Ace Wholesalers entered into an agreement for the sale of business to Temba Big Save CC. The sale included the transfer of employees, which meant that Section 197 LRA applied to the transaction. Before the sale was concluded, Ace Wholesalers dismissed a number of their employees. These employees claimed that their dismissal was automatically unfair, in that they were only dismissed because of the impending S197 transfer to the purchasing entity. They initially commenced a claim against Ace Wholesalers, being their employer at the time of the dismissal. In due course, they decided to join the purchaser, Temba Big Save, as the new employer to the matter. In this case, the court was asked to determine whether Temba Big Save could indeed be joined to the matter.