S 186(1)(b) - Reasonable ground for expecting renewal

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Presented by HPT Consultants

IMPSA WORKSHOP 2013

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FIXED TERM CONTRACTS

Definition of a FT Contract

Define -

Time based

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Project based

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New Amendments LRA s200B  That an employee must be employed permanently, unless the employer can establish a justification for employment on a fixed term basis. Impact  The impact will depend on what the CCMA considers to be justification  The decisions may vary from Commissioner to Commissioner  The provisions may result in a large number of disputes

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  Promise by employer: Inplied or expressly  Drieks v UNISA

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agreements Undertakings by the employer Practice or custom by employer Availability of work Purpose for concluding the fixed term contract Inconsistent conduct Failure to give reasonable notice Nature of the business

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  McInnes v Technikon Natal (LC 2000)

– Expectation and whether that expectation was reasonable – Appointed permanent  Scholtz & others & Dynamic Labour Brokers (CCMA 2002) – Employer created a reasonable expectation – Compensation  University of Pretoria v CCMA & others – S186(1)(b) did not contemplate an expectation of indefinite employment, only renewal on same or similar terms

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  King Sabata Dalindyebo Municipality v CCMA & others (LC 2005)

– Expectation reasonable – Available work – Contracts renewed  Pretorius v Sasol Polymers (CCMA 2008) – Employer created a reasonable expectation for permanent employment – Retrospective reinstatement

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  SACTWU & another v Cadema Industries

– Expectation was reasonable – Status changed when worked beyond the termination date – permanent employee – 6 months compensation  Cvejic / Rham Equipment (Pty) Ltd - (2009) MEIBC – Status changed when worked beyond the termination date – permanent employee – 2months compensation

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  SA Rugby Player Association v SA Rugby (LAC)

– Expectation was not reasonable – Streuli was replaced by Jake White – Authority of the person representing the employer important  Black v John Snow Public Health Group (LC 2010) – Organisation dependant on Donor funding – Notice served that contract will not be renewed – Limited finance and termination thus important

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Case Law – to consider …. S 186(1)(b) - Reasonable ground for expecting renewal:  Sindane v Prestige Cleaning Services (LC 2009)

– Terminated before expiry date as client no longer needed him – Termination at the instance of a third party does not constitute a dismissal  Buthelezi v Municipal Demarcation Board ( LAC 2005) – Retrenchment prior to expiry date unfair – Did not have the right to terminate before the natural date

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Case Law – to consider …. Rolling over …  Feni v SA Five Engineering MEIBC 2007)

– Merely placed an endorsement on employees file indicating that contract was renewed – Results in an invalid contract – Becomes a permanent employee – Contract has to expire, new terms negotiated and signed

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s 56/57 APPOINTMENTS The issue……  SALGA - s57(7) of the Systems Act has been repealed, the section

provided for the contract of the MM could be extended to Managers directly accountable to the MM.  The repeal however does not take away the discretion of the Municipality to appoint such managers permanently or on a contract basis

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s 56/57 APPOINTMENTS The issue……  DCoG - r47 of the Draft Systems Ammendment Act states that

mangers who report to the MM must be appointed permanently  SALGA is of view that:

– Municipalities still have the discretion – S56 manager issue cannot be resolved a transitional arrangement in secondary legislation – Can only be regulated i.t.o. national legislation

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s 56/57 APPOINTMENTS The issue……  COGTA - r47 of the Draft Systems Ammendment Act states that

mangers who report to the MM must be appointed permanently  SALGA is of view that:

– Municipalities still have the discretion – S56 manager issue cannot be resolved a transitional arrangement in secondary legislation – Can only be regulated i.t.o. national legislation

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MEDICAL CERTIFICATES What constitutes a valid medical certificate?  Rule 15 of the Ethical and professional rules of the Medical and

Dental Professions Board states a certificate should have: – – – – – – – –

Name, address and qualification of practitioner Name of patient Date and time of examination As a result of personal observation or as result of being informed Severity of incapacity Exact period of sick leave given Date of issuing certificate Clear indication of identity of practitioner, originally signed , name printed or in block letters

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MEDICAL CERTIFICATES What constitutes a valid medical certificate?  Post dated sick notes?  Note signed by a nurse not qualified to carry out the examination?

 Illegible & a rubber stamp?

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MEDICAL CERTIFICATES The BCEA and sicknotes ( s23)  Two consecutive days or two days within 8 week period  Signed by practitioner who is certified to diagnose and treat patients

and registered with a professional council established by Act  Medical Practitioner (Dr with MBChB degree & registered with

Council)

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MEDICAL CERTIFICATES Traditional Healer Certificates?  Do not have to accept unless bound by a collective agreement  THPA (2004) was declared unconstitutional in 2006

 New THPA (2007) was Gazetted in 2008, not enacted and no council

established  Traditional Healers with practice numbers merely indicate that they

have registered with the Interim Council in 2005 which no longer exists.

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Kievits Kroon Country Estate v CCMA & others A clash of cultures  Background

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Chef undergoing training to become a Sangoma Requested a months unpaid leave Supported by certificate issued by her Traditional Healer Declined, was prepared to give her 1 week She simply stayed away Was dismissed

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Kievits Kroon Country Estate v CCMA & others A clash of cultures  CCMA

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Absence was due to circumstances beyond her control She was justified in disregarding the employer’s instructions Refusal to grant unpaid leave was unreasonable Not attending could place her life at risk Rather the wrath of her Ancestors, decided to disobey employer Substantively unfair - reinstated

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Kievits Kroon Country Estate v CCMA & others A clash of cultures  Labour Court

– Commissioner had a well reasoned award – Declined to interfere with the award – Related to a clash of cultures in the workplace, employer wanting to make money at all cost & the employee believing her ancestors were calling her to become a Sangoma – Employer knew where she was, assisted her in the past – Application dismissed

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Kievits Kroon Country Estate v CCMA & others A clash of cultures  Labour Appeal Court

– Focus whether the result falls within a range of reasonable results and not whether it is in fact the correct one – Our society is characterised by a diversity of cultures, traditions and beliefs – Strongly held by those who subscribe to them – Reasonable accommodation is required to ensure harmony – A paradigm shift is required – Appeal was dismissed

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The way forward? Pioneers  University of Pretoria and NEHAWU – Agreement to accept sick notes for one week at a time issued by THP’s registered with an association

 Chamber of Mine and NUM – Allowed a panel of THP’s at mines and granted employees 3 days leave to consult them

 Sun International & SACCAWU – Ado[ted a similar agreement

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Substance Abuse Important issues  Where do you draw the line? Astore Asfica v CCMA – truck driver was

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reinstated after being dismissed for being drunk on duty, as the employer failed to prove that he was incapable of driving. Zero Tolerance – Alcohol and drug abuse policy OHSA reg 2A – appears to be under the influence, not allowed on site Refuse test, may further the belief that he is under influence (Mpisi and Rainbow Frams) Dismissal found fair without testing in (Le Roy and SA Express Airways)

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Substance Abuse Important issues  Balance of probabilities  This test was defined by Lord Denning in Miller v Minister of Pensions (1947)

2 All ER 372 at 374 as follows:  “It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”  The above test was accepted by our Appeal Court in Ocean Accident and Guarantee Corporation Ltd. V Kock 1963 (4) SA 147 (A) at 157D. See also South African Law of Evidence by Hofmann and Zeffert, 3rd edition, p410.

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Its not in my Job Description

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