Case law Updates

By Saber Ahmed Jazbhay

Opperman v CCMA and Others [2016] ZALCCT 29 (17 August 2016)
Where an error law leads to an unreasonable result, that award will be set aside

It is unfair, where the disciplinary code of the employer is silent on where the employer can, as part of a disciplinary process, to interfere with the sanction imposed in a disciplinary hearing and to replace it with a harsher sanction. Let’s say that an employee was given a final written after having been found guilty of coming under the influence of alcohol to work. The employee appeals and the sanction is replaced with that of dismissal.

This was the view of Steenkamp J at para [21] in Opperman v CCMA and Others [2016] ZALCCT 29 (17 August 2016)

The ratio underpinning this was enunciated in Rennies Distribution Services ( Pty) Ltd v Dieter Bierman NO and Others [2008] ZALCD 8 ( 5 MARCH 2008) and approved by Opperman J at para [19]. The ratio is that in such circumstances the Audi Alteram Partem rule is fundamental in where an appeal court or tribunal could consider a harsher sanction.( see para [22]).

The court held that an employee should be warned that the sanction against which he has appealed, the chairperson is considering imposing a harsher sanction and given an opportunity to either withdraw the appeal and accept the sanction or present argument to the appeal hearing why the sanction should not be increased.

In Opperman, a professional nurse nursing a hangover from the previous night binge was subjected to a breathalyser test, and was sanctioned to a final written warning against which she appealed. The chairperson of the Appeal replaced it with a dismissal. When the CCMA became seized of the matter, the commissioner found that the chairperson on appeal could do that as the employer’s disciplinary code was silent on this.

On review the LC held that clearly the commissioner had committed an error in law when he so held as he did. However, it’s trite that an error in law did not vitiate an award and something more was required (See DENOSA obo DU TOIT v WESTERN CAPE DEPARTMEBT OF HEALTH [2016] ZALAC 15 (12 May 2016) where only if the legislature intended the tribunal to have such powers.

On the basis of the foregoing, the arbitrator’s ruling was set aside and the erstwhile dismissed employee was reinstated retrospectively with back pay (limited to period from the date of dismissal to date of arbitration.

Click here to download the judgement

Bos v Eon Consulting (Pty) Ltd (JS948/14) [2016] ZALCJHB 305 (12 August 2016)

The case below is about a dismissal based on age – employee placed on retirement having attained age of 65 – whether employee properly placed on compulsory retirement – application of Section 187(2)(a) of the LRA.

The Court held that # based on the facts of this case it was tantamount to automatic unfair dismissal.

Pertinently the contract of employment had no agreed retirement age and therefore whether normal retirement age existed in such circumstances. The principles considered to establish normal retirement age and when it exists in an employer.

The employer introduced retirement age by policy and/or practice .The requirements considered as to when it would competent to do so

Automatic unfair dismissal – no normal retirement age established and section 187(2)(a) was thus not applicable – employee’s dismissal based on his age automatically unfair

Compensation – compensation for automatic unfair dismissal – principles considered – compensation awarded

Click here to download the judgement

Saber Ahmed Jazbhay is Labour Lawyer (Attorney since 1982); Human Resources Practitioner and a CCMA Commissioner, he may be contacted at 082 827 8666. You may also follow him on Twitter at https://twitter.com/jazlaw24 (@jazlaw24)