September 30, 09:00IOL

Aspen employee fired for picketing during lunch break reinstated with compensation after decade-long legal battle

An employee of Aspen Pharmacare, who was dismissed on charges of inciting staff to illegal picketing during lunch breaks, was reinstated almost ten years after his dismissal.

The Labour Court in Gqeberha ruled that the dismissal of RM was fundamentally unfair and ordered Aspen Pharmacare to reinstate him retroactively, including payment of compensation for specified periods starting from September 2016.

RM was dismissed in September 2016 following a disciplinary hearing that arose from employees' participation in a strike at the facility in May of the same year.

Dismissal followed May 2016 picketing

RM worked at Pharmacare, which traded as Aspen Pharmacare, as a technical production specialist and was a member of the South African Chemical Workers Union (SACWU). The conflict began due to picketing organized by employees on May 19 and 20, 2016.

The company alleged that RM participated in unauthorized industrial action, incited employees to join an illegal picket, and urged them to disregard their lunch break schedules, resulting in alleged losses of approximately R337,536.

RM admitted his involvement in the unprotected protest. However, the chairperson of the disciplinary committee found him guilty only of the second charge—inciting employees to participate in the illegal picket—issued a final warning for the first charge, and found him not guilty of the third.

Subsequently, Aspen agreed with the recommendation to terminate employment with RM.

Picketing occurred during lunch breaks

The court established that on May 19, 2016, employees of the small volume parenteral division and Division 1 left the company premises during their lunch break and gathered near the workplace to protest. The company issued an ultimatum demanding employees return to work and notified SACWU that it considered the protest unauthorized industrial action.

Later, RM sent an email to engineering staff stating that workers had decided to leave their workstations during breaks to hold a peaceful picket. The next day, the picket continued during the employees' lunch break.

He also sent additional letters to employees, including one questioning why the company did not stop them if their behavior was illegal, and another indicating that their actions 'worked' and that they would continue picketing if the company did not meet their demands.

Aspen subsequently sought urgent relief from the Labour Court. On May 23, 2016, the court issued an interim order declaring the picket illegal and prohibiting employees from continuing their participation.

Emails could not provoke picketing that had already occurred

RM challenged the arbitration award, which deemed his dismissal fundamentally fair. The Labour Court concluded that the commissioner's finding that RM incited employees to participate in the illegal picket was unsubstantiated by evidence. The court noted that the employees had already decided to start the picket before RM sent his email on May 19. Consequently, his email was sent after the picket began and could not have caused the commencement of these actions.

The court also found no evidence that the recipients of the email interpreted it as encouragement to participate in or continue the picket. The same applied to the emails RM sent on May 20, as they were sent after employees had already started the lunch picket that day. No picketing occurred after May 20.

The court stated: 'Incitement inherently involves conduct that encourages, prompts, or persuades another person to commit an act.' It found illogical to conclude that RM's emails incited actions that had already taken place or actions that would never happen subsequently. As a result, the court ruled that RM was not guilty of the alleged misconduct, and the commissioner's finding of guilt could not be upheld.

Court questioned dismissal as a punitive measure

The court also found that dismissal would have been inappropriate even if RM had been found guilty. It was noted that the picket was peaceful, took place during lunch breaks, and outside the company premises. RM also genuinely believed the picketing was legal, and SACWU advised him that it was legal. The court found no evidence that RM intended to encourage employees to take actions he knew to be illegal. It concluded that these circumstances significantly mitigated the seriousness of the alleged misconduct and rendered the dismissal disproportionate.

Court revealed inconsistent disciplinary treatment

The Labour Court also found that Aspen applied disciplinary measures inconsistently. The company's own evidence showed that four employees, including RM and colleague union representative PD, faced charges of incitement. However, PD received only a written warning and did not undergo a disciplinary hearing. The company failed to provide a satisfactory explanation for this disparity in treatment. Its HR representative described it as a 'possible error.' The court noted this was particularly relevant because Aspen's evidence relied on the premise that union representatives should be treated strictly as leaders and role models for other employees. Other union representatives, including SJ and MD, were also mentioned during the proceedings regarding the disciplinary treatment of employees involved in the picket. The court concluded that the principle of parity was violated, and RM's dismissal could not be consistent with the treatment of other employees involved in the same events.

Man achieved reinstatement with compensation

RM sought reinstatement both during the arbitration proceedings and before the Labour Court. The court found that none of the exceptions for reinstatement under the Labour Relations Act applied and ordered his reinstatement. Thus, the court ordered him to be reinstated with compensation for the period from September 8, 2016, to October 3, 2018, and from June 9, 2022, until the date Aspen complied with the decision. The court ordered Aspen to reinstate RM retroactively under the same terms and conditions of employment that existed before his dismissal, without any loss of benefits. Aspen was also required to pay compensation within 15 court days of the ruling. Munnick was required to resume work under his reinstated employment contract within three working days of receiving the decision. The court made no ruling on costs.

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iol.co.zaSeptember 30, 18:51

Labour Appeal Court overturns decision to pay former CCMA commissioner R176,000 in compensation

The Labour Appeal Court overturned a ruling that required the Commission for Conciliation, Mediation and Arbitration (CCMA) to pay a former commissioner over R176,000 in outstanding salary arrears. The court ruled that the Labour Court had mistakenly treated the collective agreement as the contractual basis for the remuneration claim.

The appeal concerned SN, who challenged his salary after transitioning from the status of a partial CCMA commissioner to that of a full commissioner. SN approached the Labour Court asserting his right to be paid at the P6 salary level.

He put forward two alternative arguments. The first was the existence of an implied or express term in his employment contract stipulating that his remuneration should not be lower than what he received as a partial commissioner. Secondly, he referred to the CCMA Wage Structure Agreement (WSA) concluded with the Commission Staff Association in January 2018.

The Labour Court dismissed the argument regarding the implied contractual term allowing him to maintain his previous income. However, it upheld the alternative claim, establishing that the WSA applied to him after he became a full commissioner, granting him the right to remuneration at the 80th percentile of the P6 level. Consequently, the court ordered the CCMA to pay him R176,174.32, which represented the difference between the remuneration received and the amount the court believed he should have received according to the WSA. Subsequently, the CCMA appealed this decision.

SN disputed his salary from the outset

SN was appointed as a Level B partial commissioner in July 2017 for a fixed term expiring in June 2023. In October 2020, he successfully applied to transition to the status of a full commissioner and was transferred from the CCMA regional office in Cape Town to Tshwane. Both changes took effect on December 1, 2020.

When he became a full commissioner, he was offered an annual package exceeding R615,000, equivalent to more than R51,000 per month at the P7 level. He disputed the remuneration amount from the beginning. According to his evidence, he earned approximately R61,500 per month while fully engaged as a partial commissioner, based on a daily rate of just over R2,900 for 21 days.

He also insisted that he should be placed at the P6 level. Initially, SN refused to sign an employment contract because he felt the salary did not correspond to the category attached to his appointment. After discussions with the CCMA HR manager, he eventually signed the contract on January 28, 2021, adding a handwritten clause regarding the remuneration dispute and stating that his signature should not be construed as acceptance of the offer. The CCMA rejected his request for modification, insisting that he was correctly placed within its salary progression system. He continued to work and received R51,281 per month until his dismissal for misconduct on February 22, 2022.

The appeal focused on the source of the right to salary

The Labour Appeal Court stated that the core issue in the Labour Court's decision was that it failed to determine the contractual source of SN's alleged right to P6 remuneration. The appellate court noted that remuneration is a material term of an employment contract, and that SN explicitly rejected the remuneration offered by the CCMA. Therefore, it reasoned, the Labour Court should have first established whether the parties had reached an agreement on the remuneration obligation before deciding what salary SN should receive.

The court held: 'In the absence of convincing evidence on this point, the basis for enforcing an alleged contractual transaction becomes questionable.'

The Labour Appeal Court pointed out that the Labour Court dismissed SN's claim based on the implied term and also found no explicit agreement to pay him remuneration at the P6 level. Thus, it effectively imposed a remuneration condition that was not demonstrated to arise from an agreement between the parties.

The dispute concerning the collective agreement followed a different legal path. The appellate court also found that the Labour Court had mixed two different jurisdictions. SN pursued his case as a contractual claim under Section 77(3) of the Basic Conditions of Employment Act (BCEA). But after dismissing his contractual claim, the Labour Court ruled that the WSA applied to him, interpreted its provisions, and used this interpretation to establish his right to P6 remuneration. The Labour Appeal Court emphasized that the dispute regarding the interpretation and application of the collective agreement falls under Section 24 of the Labour Relations Act (LRA).

The court stressed that jurisdiction depends on the true nature of the dispute, not the label assigned by the applicant. The court stated that the Labour Court should have determined whether SN established a contractual right to P6 remuneration. Instead, it found that the Labour Court moved directly from interpreting the WSA to concluding that SN had a contractual right to the corresponding remuneration.

'The Labour Court never answered this question,' said the appeal court, referring to the contractual source of the alleged right.

WSA was not automatically part of the employment contract

The Labour Appeal Court further determined that the WSA is a tool of collective bargaining and is not in itself a term of SN's individual employment contract. Consequently, the question was not merely whether the WSA supported its interpretation of salary structures. The critical question was whether he had established a contractually enforceable right under Section 77(3) of the BCEA to the remuneration he claimed.

The court found that the Labour Court failed to explain how the WSA was incorporated into SN's employment contract or how it created a specific contractual right that he sought. Instead, the Labour Court effectively created this right by interpreting and applying the WSA, and then enforced it as if it were a contractual right. The Appeal Court ruled that such an approach blurs the distinction between contractual disputes under Section 77(3) of the BCEA and collective agreement disputes under Section 24 of the LRA.

Labour Court's ruling is set aside

The Labour Appeal Court concluded that the Labour Court erred significantly by granting relief on a legal basis that was not supported by the cause of action asserted by SN. It noted that after dismissing the alleged implied contractual term, the Labour Court should have found another contractual basis for the P6 right. It failed to do so. Instead, it ventured into the territory of interpreting and applying the WSA, which is a collective agreement dispute governed by Section 24 of the LRA. Therefore, the Labour Appeal Court upheld the CCMA's appeal and set aside the Labour Court's ruling. The substituted order dismissed SN's claim and ordered him to pay the CCMA's costs. The Appeal Court also ordered SN to pay the CCMA's costs for the appeal.