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2024-03-29T01:52:11Z
Johann Scheepers
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THE UNFAIR LABOUR PRACTICE: PROMOTION - PUZZLES AND CONCERNS
tag:www.adrhub.com,2020-11-07:4905899:BlogPost:112130
2020-11-07T11:48:21.000Z
Johann Scheepers
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<p><strong><em>“The progress of the law relating to unfair labour practices has been torturous and rendered a body of jurisprudence that is complex and confusing. Recent developments have rendered it unnecessary to rehearse that in this article”…</em></strong></p>
<p></p>
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<p><strong><em>“The progress of the law relating to unfair labour practices has been torturous and rendered a body of jurisprudence that is complex and confusing. Recent developments have rendered it unnecessary to rehearse that in this article”<a href="#_ftn1" name="_ftnref1">[1]</a></em></strong></p>
<p><strong><em> </em></strong></p>
<p>[Publication by Anton Myburgh SC & Craig Bosch <strong><em>“Reviews in the Labour Courts”</em></strong>]</p>
<p> </p>
<p><strong><u>PURPOSE OF THIS ARTICLE</u></strong></p>
<p>In order to share this article, some background facts will have to be disclosed. The artistic inspiration for the drafting hereof emerged after my colleague and trusted friend, attorney Nakedi Charles Machaka and I decided to take a well-deserved rest after a hectic day.</p>
<p>Seated under the protection of a <em>Lapa</em> [a small wooden hut shelter] situated at the back of our offices we relaxed, only for a few minutes. Suffice it to mention in passing that while sipping a very good red wine the intricacies of the <strong>Unfair Labour Practice</strong> as stipulated in the <strong>Labour Relations Act 66 of 1995 (as amended)</strong> (the LRA) <strong>s186 (2) (a)</strong>, to wit <em>unfair conduct by the employer relating to promotion,</em> became the subject matter of discussion.</p>
<p>During the intense debate, we agreed that it would appear that the Unfair Labour Practice (ULP) gained popularity as a cause of action in matters that have been referred for dispute resolution albeit to the CCMA, or bargaining councils.</p>
<p>The question that arose concerned the reasons for the rise in popularity of the ULP as a cause of action. We have elected to attempt to provide reasons for the surge in ULP disputes hereunder.</p>
<p>Before dealing with the statutory definition of a ULP as codified in South African labour legislation the quote cited above by <em>Myburgh SC et</em> al is relevant insofar as it makes reference to the complexities, technicalities and confusing nature of the ULP jurisprudence.</p>
<p>It has therefore been elected by the author to confine this article to one of the ULP’s listed in <strong>s186 (2) of the LRA</strong> namely <em>unfair conduct by the employer relating to the promotion.</em></p>
<p>The intention is to draft follow up articles as to questions pertaining to the other ULP’s that are listed in <strong>s186 (2).</strong> The writing of the intended follow up articles will depend on and subject to the health of the author as well as other considerations.</p>
<p>Allow me the opportunity to mention the observations about the article by the esteemed jurist and academic, <em>George J. Gliaudys Jr</em> -1st Chair of the Board of Trustees of Westcliff University, USA:</p>
<p><em>"As always, the article is well-researched and grounded in a writing style that is understandable to anyone interested in learning about the subject matter. As any marketing person knows, the value of a product largely depends on its scarcity while demand is high. So too, for promotions - there are only so many positions at the top of any ladder - be it shorter or taller - and so the scramble is on to reach that highest rung by crook or by hook providing the grist for law practitioners in the courts or in arbitration forums to sort out the complaints of those who did not get the top rung."</em></p>
<p><strong><u>LEGISLATIVE PROVISIONS</u></strong></p>
<p><strong>“Section 186(2) (a) of the Labour Relations Act, 66 of 1995 (LRA)</strong> provides that the unfair</p>
<p>conduct of an employer – <em>“… relating to <strong>the promotion,</strong></em> [emphasis added], <em>demotion,</em></p>
<p><em>probation (excluding disputes about dismissals for a reason relating to probation) or</em></p>
<p><em>training of an employee or relating to the provision of benefits to an employee …”</em></p>
<p>constitutes a ULP.”</p>
<p>The first question that comes to mind is <em>‘What is a promotion?</em>’ as envisaged by the legislature in <strong>s186 (2) (a)</strong> above.</p>
<p>In <strong><em>Mashegoane v University of the North<a href="#_ftn2" name="_ftnref2"><span>[2]</span></a></em></strong> the Court defined promotion as being elevated or appointed in a position that carries greater authority and status than the current position the employee is in.</p>
<p>Of clarification is that the Court held in <strong><em>Sukhdeo v Department of Welfare & Population Development, KZN<a href="#_ftn3" name="_ftnref3"><span>[3]</span></a></em></strong> that a dispute concerning a notch increase within the same post does not constitute a dispute about <em>‘promotion.’</em> Promotions are usually accompanied an increase in remuneration or benefits.</p>
<p>In <strong><em>SAMWU obo Damon v Cape Metropolitan Council<a href="#_ftn4" name="_ftnref4"><span>[4]</span></a></em></strong> it was held that [u]nless the appointing authority was shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint whom it considers the best candidate.</p>
<p>In <strong><em>Van Rensburg v Northern Cape Provincial Administration<a href="#_ftn5" name="_ftnref5"><span>[5]</span></a></em></strong> it was held that interference in the employer’s decision is justified only where its conduct <em>‘so grossly unreasonable as to warrant interference that they failed to apply their mind.’</em></p>
<p>A failure to promote can be challenged with reference to the procedure adopted in promoting the successful candidate and the reasons for failing an applicant. The relevant principles were set out by <em>Cheadle AJ</em> in <strong><em>SA Police Service.<a href="#_ftn6" name="_ftnref6"><span>[6]</span></a></em></strong></p>
<p>Firstly, there is no right or entitlement to promotion in the ordinary course.<a href="#_ftn7" name="_ftnref7"><span>[7]</span></a> The exception is where there is a contractual or statutory right to promotion.<a href="#_ftn8" name="_ftnref8"><span>[8]</span></a></p>
<p>According to <em>Cheadle AJ</em> it is not necessary for the applicant to show that she had the right to be promoted as opposed that the employer’s conduct in relation to promotion was unfair.<a href="#_ftn9" name="_ftnref9"><span>[9]</span></a> Any conduct that denies the employee a fair opportunity to compete for a post constitutes a ULP.<a href="#_ftn10" name="_ftnref10"><span>[10]</span></a></p>
<p> </p>
<p><strong><u>SUMMARY OF THE LAW AS DISCUSSED ABOVE</u></strong></p>
<ol>
<li>A promotion entails moving an existing employee to a position with greater status, responsibility, authority, and increase in remuneration and benefits.</li>
</ol>
<p> </p>
<ol start="2">
<li>Promotion does not constitute a raise in notch increase in a similar post.<a href="#_ftn11" name="_ftnref11"><span>[11]</span></a></li>
</ol>
<p> </p>
<p> </p>
<ol start="3">
<li>Similarly, a claim to have a post upgraded is a dispute of interest and not a dispute of right and therefore does not fall within the scope of a promotion which is a dispute of right.</li>
</ol>
<p> </p>
<ol start="4">
<li>There is no right to a promotion in the ordinary course. The exception is where the right arises <em>ex contractu</em> or <em>ex lege.</em></li>
</ol>
<p><strong><u>EXAMPLES OF REVIEW OF ARBITRATOR’S AWARDS</u></strong></p>
<ol>
<li>Arbitrator’s failure to provide grounds for accepting the better candidate without providing reasons for decision. <a href="#_ftn12" name="_ftnref12"><span>[12]</span></a></li>
</ol>
<p> </p>
<ol start="2">
<li>Arbitrator failed to determine whether the employer acted unfairly as opposed to whether the employer complied with its own procedure.<a href="#_ftn13" name="_ftnref13"><span>[13]</span></a></li>
</ol>
<p> </p>
<ol start="3">
<li>Arbitrator assumed that recommendation by the School Governing Body afforded the applicant a preferential right to promotion, without competing with other applicants in interviews in accordance with a collective agreement.<a href="#_ftn14" name="_ftnref14"><span>[14]</span></a></li>
</ol>
<p> </p>
<ol start="4">
<li>Arbitrator failed to note that the successful applicant failed to meet the requirements of the post and should not have been shortlisted.<a href="#_ftn15" name="_ftnref15"><span>[15]</span></a></li>
</ol>
<p> </p>
<ol start="5">
<li>The arbitrator awarded <em>“protected promotion”</em><a href="#_ftn16" name="_ftnref16"><span>[16]</span></a> where post no longer existed and as a consequence, nobody benefitted from the applicant’s alleged unfair treatment.</li>
</ol>
<p> </p>
<ol start="6">
<li>The arbitrator ordered <em>‘protected promotion’</em> where there was only evidence of procedural unfairness.<a href="#_ftn17" name="_ftnref17"><span>[17]</span></a></li>
</ol>
<p></p>
<p><strong><u>WHEN CAN AN ARBITRATOR INTEFERE WITH A PROMOTION?</u></strong></p>
<p>The Labour Court succinctly answered the above question in the often-cited judgement <strong><em>Arries v CCMA & Others<a href="#_ftn18" name="_ftnref18"><span>[18]</span></a></em></strong></p>
<ol>
<li>There are limited grounds on which an Arbitrator or the Courts may interfere with a discretion exercised by a party competent to exercise that discretion.</li>
</ol>
<p> </p>
<ol start="2">
<li>The reason: the ambit of the decision-making process inherent in the exercising of discretion of a party, including the exercise of the managerial prerogative of an employer ought not to be curtailed. It ought not to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.</li>
</ol>
<p> </p>
<ol start="3">
<li>In <strong><em>Arries</em></strong> the Court held further that an employee can only succeed in having an exercise of a discretion of an employer interfered with if it could be demonstrated that the discretion was capriciously, or for unsubstantiated reasons, or based upon any wrong principle in a biased manner.</li>
</ol>
<p> </p>
<p>In <strong><em>Case Law for CCMA Commissioners</em></strong> <em>at paragraph 1804</em> it was suggested that it was arguable that promotions should be assessed, not according to the <em>grossly unreasonable/male fide test</em> referred to in <strong><em>Arries,</em></strong> but against <em>a test of fairness</em> taking into account <em>inter alia</em> the following factors referred to in <strong><em>Arries:</em></strong></p>
<p> </p>
<ul>
<li>whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;</li>
</ul>
<p> </p>
<ul>
<li>whether the employer’s decision was arbitrary, or capricious, or unfair;</li>
<li>whether the employer failed to apply its mind to the promotion of the employee;</li>
</ul>
<p> </p>
<ul>
<li>whether the employer’s decision not to promote was motivated by bad faith;</li>
</ul>
<p> </p>
<ul>
<li>whether the employer’s decision not to promote it was discriminatory;</li>
</ul>
<p> </p>
<ul>
<li>whether there were insubstantial reasons for the employer’s decision not to promote;</li>
</ul>
<p> </p>
<ul>
<li>whether the employer’s decision not to promote was based upon a wrong principle; or</li>
</ul>
<p> </p>
<ul>
<li>whether the employer’s decision not to promote was taken in a biased manner.</li>
</ul>
<p> </p>
<p>That the overall test is <em>one of fairness</em> has now been confirmed in the case under discussion. The Constitutional Court followed <strong><em>Gcaba v Minister for Safety & Security & others<a href="#_ftn19" name="_ftnref19"><span>[19]</span></a></em></strong> and found that that a failure to promote which had no direct consequences for other citizens were not administrative action subject to the review test of unreasonableness:</p>
<p> </p>
<p><em>“[13] The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of <strong>s 186 (2) of the LRA</strong> supports such an approach…</em></p>
<p><em> </em></p>
<p><em>[14] In this matter, the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”</em></p>
<p> </p>
<p>Of edification is the observations by the acclaimed author <em>Grogan J</em><a href="#_ftn20" name="_ftnref20"><span>[20]</span></a>, who in reference to various case law, observes as follows:</p>
<p><em> </em></p>
<p><em>“It is not enough for an employee who complains of unfair conduct in relation to promotion simply to allege and prove that he or she was better qualified or more ‘suitable’ than the successful candidate<a href="#_ftn21" name="_ftnref21"><span><strong>[21]</strong></span></a>. The courts have warned that arbitrators are not permitted to impose their own decisions on employers with regard to whom to promote. They may interfere only if the employer acted procedurally unfair…..”</em></p>
<p><em> </em> </p>
<p><strong><u>STATUTORY REMEDIES – ULP</u></strong></p>
<p><strong> </strong></p>
<p><strong>Section 194 of the LRA</strong> stipulates:</p>
<p><em>“…the compensation awarded…must be just and equitable in all the circumstances, but not more than 12 months <strong>remuneration</strong>.”</em> Emphasis added].</p>
<p> </p>
<p><strong><em>“Remuneration”</em></strong> is defined in <strong>s213 of the LRA,</strong> “means any payment in money or in kind, or both in money and kind made or owing to any person, in return for that person working for any person, including the State…”</p>
<p> </p>
<p>It can be argued that <strong>s194 (4)</strong> of the LRA is empowering. It delineates a set of remedial powers that the Court and Arbitrators can order, however limited to 12 month’s remuneration.</p>
<p> </p>
<p>In the matter <strong><em>Tshishonga v Minister of Justice & Constitutional Development<a href="#_ftn22" name="_ftnref22"><span>[22]</span></a></em></strong> the LAC held that <strong>s194</strong> refers to<em>”remuneration”</em>purely as a means of capping the amount of compensation that may be awarded and not as a basis of quantifying the award.</p>
<p> </p>
<p>The decision to promote is an exercise of employer discretion and the Arbitrator should defer to the employer’s decision.</p>
<p> </p>
<p>It may be that the decision to promote someone may be set aside and the employer ordered to conduct a fresh exercise. This is particularly appropriate in public sector matters. See <strong><em>Dumisa v University of Westville<a href="#_ftn23" name="_ftnref23"><span>[23]</span></a></em></strong></p>
<p><strong><em> </em></strong></p>
<p>In instances where the decision not to promote was valid and fair, <strong><em>Beukes v SA Post Office</em></strong> the appointment in accordance with a fair procedure, the only remedy would be a process violation, as was the case in <strong><em>Beukes v SA Post Office<a href="#_ftn24" name="_ftnref24"><span>[24]</span></a></em></strong></p>
<p><strong><em> </em></strong></p>
<p>In an interesting case before the Labour Court <strong><em>Coetzer & others v The Minister of Security & Another<a href="#_ftn25" name="_ftnref25"><span>[25]</span></a></em></strong> the Labour Court ordered the applicants to be promoted. In another interesting matter before the LAC the successful applicant failed<a href="#_ftn26" name="_ftnref26"><span>[26]</span></a> to disclose that he had a previous disciplinary infraction which may lead to unfairness. The LAC held that there was no disclosure to a third party at all.</p>
<p> </p>
<p>Secondly, was that the National Commissioner condoned to disclose after the appointment was made. Thirdly, was that it downplays the value of the process and lends support to possible dishonest practices. Fourthly, it devaluates the role of the selection panel and more importantly it prejudiced the Appellant as he would possibly have been ranked first on the list of recommendations.</p>
<p> </p>
<p>The LAC held that the non-disclosure of the employee and the condonation thereof even after his appointment as manifestly unfair.</p>
<p> </p>
<p>The above constitute examples of the nature of promotion disputes that adjudicators have to determine.</p>
<p><strong><u> </u></strong></p>
<p><strong><u>CONCLUDING REMARKS</u></strong></p>
<p>The reader of this article will in all probability agree that the law as regards ULP’s in relation to promotion is technical and complex.</p>
<p> </p>
<ol>
<li>Over the last few months, my colleague and I attended to a considerable number of arbitrations as regards ULP disputes in relation to promotion. It is clear that the number of referrals of ULP disputes seems to be on the increase.</li>
</ol>
<p> </p>
<p>A further matter of concern as to the <em>legislative attractiveness</em> of the ULP could be summarised as follows:</p>
<p> </p>
<ol>
<li>ULP disputes in relation to <em>promotion</em> are referred for adjudication under the cloak of <em>“disputes of right”</em> however, these disputes are in substance matters of <em>“mutual interest”</em> which are not justiciable.</li>
</ol>
<p> </p>
<ol start="2">
<li>Of further concern is that some of the disputes do not qualify as a <em>“dispute”</em> in terms of the definition contained in <strong>s213 of the LRA;</strong> and are merely allegations of wrongdoing by the employer or grievances.</li>
</ol>
<p> </p>
<ol start="3">
<li>Upon perusal of the wording contained in the dispute referral form many have been defined and summarised by the referring party by using the same wording as if it has been <em>“copied and pasted.”</em></li>
</ol>
<p> </p>
<ol start="4">
<li>Rulings by Commissioners as to the necessity to hold pre-arbitration conferences are ignored which lead to further delays in finalising disputes.</li>
</ol>
<p>It is suggested that Commissioners make use of their powers to order punitive costs awards against a party that delay or frustrate the effective resolution of labour disputes.</p>
<p> </p>
<p><em>Johann Scheepers</em></p>
<p><em> </em></p>
<p><em>2020/03/24</em></p>
<p><em> </em></p>
<p><strong><em><u>Copyright:</u></em></strong></p>
<p><strong><em>Copyright reserved by the writer hereof. No part of this article/ guide may be reproduced, without prior written permission by the author.</em></strong></p>
<p><strong><em>The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</em></strong></p>
<p><strong><em>The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.</em></strong></p>
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<p><strong><u> </u></strong></p>
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<p><a href="#_ftnref1" name="_ftn1"><span>[1]</span></a> Anton Myburgh SC & Craig Bosch <strong><em>“Reviews in the Labour Courts”</em></strong> (2016) LexisNexis, 385].</p>
<p><a href="#_ftnref2" name="_ftn2"><span>[2]</span></a> [1998] 1 BLLR 73 (LC).</p>
<p><a href="#_ftnref3" name="_ftn3"><span>[3]</span></a> [2006] 5 BALR 525 (PHWSBC).</p>
<p><a href="#_ftnref4" name="_ftn4"><span>[4]</span></a> (1999) <em>ILJ</em> 142 CCMA at 718B.</p>
<p><a href="#_ftnref5" name="_ftn5"><span>[5]</span></a> (1997) 18 <em>ILJ</em> 1421 (CCMA) at 1426F.</p>
<p><a href="#_ftnref6" name="_ftn6"><span>[6]</span></a> SAPS v SSSBC & Others [2016] JOL 35883 (LC).</p>
<p><a href="#_ftnref7" name="_ftn7"><span>[7]</span></a> Ngcobo v Standard Bank of SA and others (D439/12) LAC.</p>
<p><a href="#_ftnref8" name="_ftn8"><span>[8]</span></a> SAPS v SSSBC & others [2016] JOL 35883 (LC) para 19.</p>
<p><a href="#_ftnref9" name="_ftn9"><span>[9]</span></a> Apollo Tyres SA (Pty) Ltd v CCMA & others (2010) 34 <em>ILJ</em> 1120 (LAC).</p>
<p><a href="#_ftnref10" name="_ftn10"><span>[10]</span></a> SAPS v SSSBC & others [2016] JOL 35883 (LC) para 41.3.</p>
<p><a href="#_ftnref11" name="_ftn11"><span>[11]</span></a> <span>Sukhdeo v Department of Welfare & Population Development, KZN 5 BALR 525 (PHWSBC).</span></p>
<p><a href="#_ftnref12" name="_ftn12"><span>[12]</span></a> SAPS v SSSBC & others [2016] JOL 35883 (LC) 1656A-B.</p>
<p><a href="#_ftnref13" name="_ftn13"><span>[13]</span></a> De Nyschen v GPSSBC & others (2007) 28 <em>ILJ</em> 375 (LC) 380.</p>
<p><a href="#_ftnref14" name="_ftn14"><span>[14]</span></a> Head of Department of Education v Mofokeng & others [2015] 1 BALLR (LAC) 61-62.</p>
<p><a href="#_ftnref15" name="_ftn15"><span>[15]</span></a> Swarts v National Commissioner of SAPS and others (0915/13) [2013] ZALCD.</p>
<p><a href="#_ftnref16" name="_ftn16"><span>[16]</span></a> What this means is that employees are appointed to the same grade as the post in question, and the employer must pay them at the applicable rate attached to that grade, whether or not they are actually promoted.</p>
<p><a href="#_ftnref17" name="_ftn17"><span>[17]</span></a> Kwa Dukiya Municipality v SALGB (2009) <em>ILJ</em> 356 (LC).</p>
<p><a href="#_ftnref18" name="_ftn18"><span>[18]</span></a> (2006) 27 ILJ 234 (LC).</p>
<p><a href="#_ftnref19" name="_ftn19"><span>[19]</span></a> <span>(2010) 31 ILJ 296 (CC).</span></p>
<p><a href="#_ftnref20" name="_ftn20"><span>[20]</span></a> <span>Workplace Law (2014) 10th edition Juta page 63.</span></p>
<p><a href="#_ftnref21" name="_ftn21"><span>[21]</span></a> <span>See Collen v Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC).</span></p>
<p><a href="#_ftnref22" name="_ftn22"><span>[22]</span></a> [2009 9 BLLR 862 (LAC).</p>
<p><a href="#_ftnref23" name="_ftn23"><span>[23]</span></a> (2001) 7 BLLR 753 (CCMA).</p>
<p><a href="#_ftnref24" name="_ftn24"><span>[24]</span></a> (2002) 11 CCMA 6.9.5.</p>
<p><a href="#_ftnref25" name="_ftn25"><span>[25]</span></a> <span>[2002] 11 LC 6.9.2. </span></p>
<p><a href="#_ftnref26" name="_ftn26"><span>[26]</span></a> <span>[2012] 33 <em>ILJ</em> 2597 (LAC).</span></p>
THE IMPORTANCE OF ‘FACE-SAVING’ DURING AND AFTER NEGOTIATION
tag:www.adrhub.com,2019-11-29:4905899:BlogPost:86706
2019-11-29T14:26:42.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><a href="https://storage.ning.com/topology/rest/1.0/file/get/3747029852?profile=original" rel="noopener" target="_blank"><img class="align-center" src="https://storage.ning.com/topology/rest/1.0/file/get/3747029852?profile=RESIZE_710x"></img></a></p>
<p></p>
<p><strong> </strong></p>
<p style="text-align: center;"><span><strong><em>‘To save face means simply to maintain one's dignity. ... Clearly, for these types of people, face-saving during a negotiation because of a larger issue. Angry or hostile behaviour can result when a negotiator's self-worth feels threatened. Some negotiators shut down or…</em></strong></span></p>
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<p></p>
<p><strong> </strong></p>
<p style="text-align: center;"><span><strong><em>‘To save face means simply to maintain one's dignity. ... Clearly, for these types of people, face-saving during a negotiation because of a larger issue. Angry or hostile behaviour can result when a negotiator's self-worth feels threatened. Some negotiators shut down or refuse to proceed because their ego is at stake.’</em></strong></span></p>
<p><span> </span></p>
<p><span>[<a href="https://www.karrass.com">https://www.karrass.com</a> › blog › how-important-is-it-to-save-face-</span><span>Nov 20, 2009]</span></p>
<p><span> </span></p>
<p><strong><u>INTRODUCTORY OBSERVATIONS</u></strong></p>
<p>The immediate question that comes to mind, especially to those of us not versed or educated <em>in the divine learnings of negotiation theory</em>, the intricacies and dynamics of the negotiation process would find it somewhat difficult to firstly, understand the need for <em>face-saving</em> during and after negotiation, let alone the meaning of the concept of <em>face-saving</em>. </p>
<p></p>
<p>Secondly, many readers of this article would without hesitation voice their dislike of negotiation as a means of dispute resolution based on numerous grounds, for example, that it is time consuming, costly, tainted by overt and destructive conflict by a party[s] designed as a stratagem to extort an agreement from the opponent. It may also be contended that the negotiation process is unnecessarily legalistic, technical and in general a waste of time.</p>
<p></p>
<p>Notwithstanding the adverse opinions raised above, negotiation as the preferred means of conflict resolution has an ancient history as highlighted in the excerpt from an interesting article recorded below:</p>
<p></p>
<p><em>“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside, overseen by a fine, shrewd fellow with a knack for negotiation.</em></p>
<p></p>
<p><em>This was the method favoured by Confucius, and others before him through 4,000 years of Chinese folklore. Buddha championed it in India; while Japanese chukka osha (mutual friends) have long helped businesses resolve their differences. Not to be outdone, the Roman Empire later picked up the tradition, with intercessors, internuncios, interpolators and interlocutors frequently shuttling to and from antagonistic parties in a diplomatic bid for peace.</em></p>
<p></p>
<p><em>Over the generations, however, the realm of dispute resolution gradually became more convoluted and complex. Flexibility and prudence gave way to formality and structure. While a fair, regulated court system is doubtless something to be celebrated, it has – some believe – served more to quash the world of common sense negotiation than to complement it.”</em></p>
<p></p>
<p>[Article by, <em>Rebecca Lowe <strong>“Back to basics”</strong></em> <em>In-House Perspective</em> (December 2013) <em>LinkedIn</em>].</p>
<p></p>
<p>Suffice it to say that we are living in an era of negotiation. Negotiation is a fact of life: just as we as humans cannot exist without communicating, so we can barely exist without negotiating. [See, W Pienaar & M Spoelstra <strong><em>‘Negotiation - Theories, Strategies & Skills’,</em></strong> (1991) <em>Juta</em> 2-3].</p>
<p></p>
<p><em>‘In every country. North and South’</em>, J Schregle <strong><em>‘Comparative Industrial Relations: Pitfalls and Potential’</em></strong>, <em>International Labour Review,</em> 1981, 27 points out<em>; ‘workers, employers, and governments have both common and divergent interests, short term and long term. The divergent interests must be accommodated and reconciled…. The way in which such interests are expressed and reconciled is the subject of industrial relations. It will be of necessity vary from country to country. The international comparison must bring out and explain the differences and similarities of national industrial relations systems’. </em> [See <em>R Blanpain</em> <strong>“<em>Comparative Labour Law and Industrial Relations”</em></strong> (1985) 2<sup>nd</sup> Ed. <em>Kluwer</em> <em>3</em>].</p>
<p></p>
<p>Employers and employees usually come together in a common workplace to make products or provide services for an unspecified time. Employers who are not satisfied with workers can, at least if the action can be objectively justified, discharge them. However, the normal intention of offering and accepting employment is a continuing relationship.</p>
<p></p>
<p>However, continuing relationships – be they marital, business partnerships, or employment – are vulnerable to changing, sometimes diverging, interests, perceived or real. In other words, employment is liable to conflict, both individual and collective. Such conflict may be clear-cut, as when a group of workers is convinced that they are underpaid, or it may be diffuse and not readily apparent, say, some dissatisfaction amongst workers with the style of management in an enterprise. If it is latent and not overt an untoward incident, unimportant in itself, may be enough to set off a major dispute. Thus, the apparent cause of an industrial dispute is not always the true cause.</p>
<p></p>
<p>Sources of conflict are not confined to the conditions of employment in the employing enterprise. Workers commonly identify their interests with those of workers elsewhere, to the point of being willing to strike in support of them. As members of trade unions who may have both political and broad industrial objectives, workers may use the leverage that withholding their labour gives them to exert pressures on governments or employers collectively. [See <em>Blanpain</em> (<em>supra</em>) 381]. <strong><em><u> </u></em></strong></p>
<p></p>
<p>To avoid costly industrial or workplace conflict governments, established institutions mandated to resolve conflict preferably expeditiously so as to mitigate the cost of protracted labour disputes.</p>
<p></p>
<p>In the workplace environment negotiation/collective bargaining between employer representatives and trade union representatives take place on a continuous basis. Therefore, it follows that maintaining a constructive relationship between the representatives of the negotiating parties is of paramount importance.</p>
<p> </p>
<p><strong><u>COLLECTIVE BARGAINING IN SOUTH AFRICA</u></strong></p>
<p>Unfortunately, in South Africa it is often the case that collective bargaining is characterized by the inability of the negotiating parties to move beyond <em>‘the annual adversarial head-bashing bargaining relationship’</em> to a cooperative needs-based process, one where the parties are alive to the ongoing nature of the negotiating relationship as well as the importance to value constructive engagement.</p>
<p></p>
<p>Ever so often in SA the behaviour of the negotiating parties descends into the realm of, or take the form of <em>‘crises bargaining.’</em> This form of bargaining is where one party elicits a confrontation and crises before the negotiation commences or during the process in order to negotiate on the basis of an existing crises situation. This form of bargaining is still directed at an agreement, but the basis of power from which the parties depart are indicative of win-lose and competitive actions.</p>
<p></p>
<p>During this phase or event, the goals of one party and the attainment of those goals are in fundamental and often in fundamental and direct conflict with the goals of the other party. [See <em>Pienaar at</em> 178 -179].</p>
<p></p>
<p>Resources are fixed and limited, and each party wants to maximize its share of the resources. As a result, the parties resort to a set of destructive strategies and tactics in order to maximize its share of the outcomes that are attained regardless of the long term consequences.</p>
<p></p>
<p>It is correct that a conflict of needs and objectives of the negotiating parties often lies at the basis of all negotiation. Conflict is a prerequisite for negotiations. It is the manner that the parties deal with conflict that causes them to fall into the win-lose <em>‘trap.’</em></p>
<p></p>
<p>According to <em>Pienaar at</em> 180, the confrontation or destructive interaction between the parties often harm the negotiation process, during the dispute settlement negotiations, which settlement process is often characterized by industrial action.</p>
<p></p>
<p>Notwithstanding an eventual settlement of the dispute, the collective bargaining relationship had been irreparably damaged due to all sorts of destructive events and dysfunctional interaction between the negotiating parties; as well as precipitated by often uninvited third-party intervention.</p>
<p></p>
<p>The collective bargaining relationship is tainted to such an extent that the bargaining relationship could be defined as one characterized by the ever-present existence of <strong><em>dysfunctional conflict.</em></strong></p>
<p></p>
<p>Under the aforementioned circumstances, third party intervention could be required to set in motion a <em>‘face-saving’</em> exercise as a first step in restoring a constructive collective bargaining relationship.</p>
<p></p>
<p>An example where relationship rebuilding or restoration may be appropriate and that comes to mind is the recent industrial action that took place at the South African Airways (SAA).</p>
<p>Pursuant to the resolution of the industrial action it has been deemed apposite to refer to statements made in some newspapers about the strike and its effects, as is done hereunder:</p>
<p><em> </em></p>
<p></p>
<p><strong><em><u>“Numsa humbled by South African Airways management — and it can’t lie about it.”</u></em></strong></p>
<p><em>By Sikonathi Mantshantsha• 25 November 2019</em></p>
<p></p>
<p><strong><em>“</em></strong><strong><em>Labour:</em></strong><strong><em> SAA strike ends with employees taking ‘a beating’</em></strong></p>
<p><em>“Employees at SAA have stepped back from the brink and ended their strike. </em><strong><em>Legalbrief</em></strong><em> writes that some reports described the employees’ wage agreement as ‘a beating’ after employees got nothing more than what they were offered on the eve of the strike and had to throw in the towel after losing a week’s wages.</em></p>
<p><em>According to a </em><strong><em>Daily Maverick</em></strong><em> report, the ‘victory’ that the National Union of Metalworkers of SA (Numsa) claims over SAA is anything but victory. It says <strong>the workers, Numsa’s own members, are all the poorer for it.”</strong></em></p>
<p><em> </em></p>
<p></p>
<p><strong><em><u>EDITORIAL: Wage ‘settlement’ no way forward for SAA – Full Business Day Editorial</u></em></strong></p>
<p></p>
<p><strong><em>With the airline, as with Eskom before it, we seem to be doing the opposite of what is required.</em></strong></p>
<p><em>26 November 2019 - 05:10</em></p>
<p><em>“But while the strike is over for now, only the brave would bet their house on the deal enduring, says an editorial in Business Day. It says for one thing, the airline, which survives on state bailouts, has signed an above-inflation agreement that it <strong>admits is unaffordable</strong>, at least without fresh injections from the taxpayer. <strong>The report says Finance Minister Tito Mboweni, who has suggested that closing down SAA would be the best option, has made it clear that the government has little appetite to keep throwing money at it.”</strong></em></p>
<p><em> </em></p>
<p></p>
<p><strong><em><u>3 SAA MINORITY UNIONS WIN RIGHT TO TAKE PART IN RETRENCHMENT TALKS</u></em></strong></p>
<p><strong><em>Satawu, Solidarity, and AUSA - which represent workers only in some divisions at SAA - were not consulted about the planned restructuring that could result in the loss of hundreds of jobs.</em></strong></p>
<p></p>
<p><strong><em><u>Full Eyewitness News report – 15 November 2019</u></em></strong></p>
<p>Trade unions not recognized at SAA clinched a major victory at <strong>the CCMA,</strong> which allows them to take part in retrenchment talks. The <em>Transport and Allied Workers Union (Satawu), Solidarity and the Aviation Union (AUSA)</em> – which represent workers only in some divisions at SAA – were not consulted about the planned restructuring that could result in the loss of hundreds of jobs, notes an Eyewitness News report. <em>Satawu, Solidarity and AUSA,</em> which are in a coalition at SAA Technical, lodged a dispute at <em>the CCMA two weeks</em> ago after the national carrier failed to issue them notice over the looming retrenchments. <em>Satawu</em> spokesperson Zanele Sabela said: <em>‘We complained bitterly when SAA came out in the media to say it was planning to retrench 944 workers because they hadn’t consulted us.’ <strong>The CCMA found that the scope of section 189 consultations should also include non-organized workers.</strong></em></p>
<p> </p>
<p>Upon perusal of the three excerpts from newspaper articles, the reader would in all probability agree that some comments can be described as unfavourable to the Trade Unions involved in the dispute.</p>
<p></p>
<p>Other readers may state the opposite, namely that SAA has been an <em>‘economic disaster for years,’</em> or words to that effect and that an immediate business rescue intervention or some other means of resolving the financial woes of the SAA should be implemented forthwith.</p>
<p></p>
<p>It is apparent from the newspaper commentary that some of the parties are severely criticized for various reasons, ostensibly due to their contribution or common purpose in the financial despair of SAA.</p>
<p> </p>
<p><strong><u>THE IMPORTANCE OF <em>FACE SAVING</em></u></strong></p>
<p></p>
<p><em>“To save face means simply to maintain one's dignity. ... Clearly, for these types of people, face-saving during a negotiation because of a larger issue. Angry or hostile behaviour can result when a negotiator's self-worth feels threatened. Some negotiators shut down or refuse to proceed because their ego is at stake.”</em></p>
<p></p>
<p>[<a href="https://www.karrass.com">https://www.karrass.com</a> › blog › how-important-is-it-to-save-face]</p>
<p><strong><em> </em></strong></p>
<p><strong><em>Face-Negotiation Theory</em></strong> is a theory conceived by <em>Stella Ting-Toomey in 1985,</em> to understand how people from different cultures manage rapport and disagreements. The theory posited <em>"face",</em> or self-image when communicating with others, as a universal phenomenon that pervades across cultures.</p>
<p> </p>
<p>It is submitted that SAA and all the trade union parties involved consider reaching consensus on a ‘face-saving’ exercise having regard to the predicament that they find themselves in. The commentary recorded above is very critical inter alia about the financial sustainability of SAA.</p>
<p></p>
<p>More importantly, a joint consensus-seeking process should be announced for example where all stakeholders declare their commitment to attempt to salvage SAA from financial ruin.</p>
<p></p>
<p>The consequences that may follow in the event that SAA is restructured, rationalized or whatever one wishes to term it, employees will in all probability be retrenched.</p>
<p></p>
<p>A factor that could mitigate further dysfunctional conflict as described above could be the establishment of a joint consultative forum, facilitated by experienced CCMA Facilitators to minimize job losses and rescue SAA from total collapse in a manner of speaking.</p>
<p></p>
<p><strong><u>Face-saving tactics as an aid to construction negotiation in Hong Kong</u></strong></p>
<p></p>
<p><em>Tak Wing Yiu , Yuet Nog Chung -</em> Engineering, Construction and Architectural Management</p>
<p>ISSN: 0969-9988 - Publication date: 17 November 2014</p>
<p></p>
<p><strong>Purpose</strong></p>
<p>In construction, the involvement of complex human interactions and incompatible interests among negotiating parties would pose as an obstacle in any negotiation process. The purpose of this paper is to examine the role of the face in governing the behaviour of negotiating parties.</p>
<p><strong> </strong></p>
<p><strong>Design/methodology/approach</strong></p>
<p>This paper identified the generic types of face-saving tactics used by construction negotiators, investigated the tactic-outcome relationships and examined the effects of face-inducement factors on these relationships with the use of moderated multiple regression (MMR).</p>
<p><strong> </strong></p>
<p><strong>Findings</strong></p>
<p>A taxonomy of face-saving tactics has been developed by employing the technique of principal component of factor analysis. The results suggest that the use of face-saving tactics in construction negotiation would statistically result in the achievement of mutual agreement, maintenance of harmony and avoidance of offending situations. The MMR models finally affirm that some tactic-outcome relationships would significantly depend on the face-inducement factors.</p>
<p> </p>
<p><strong>Research limitations/implications</strong></p>
<p>This research highlights the usefulness of face-saving tactics in construction negotiation.</p>
<p> </p>
<p><strong>Practical implications</strong></p>
<p>The findings revealed that these tactics can help facilitate the achievement of mutual agreement, maintain harmony and avoid offending situations.</p>
<p>In this connection, an awareness of the proper use of face-saving tactics is worth-noticing in order to have successful dealings in negotiating project disputes.</p>
<p><strong> </strong></p>
<p><strong>Originality/value</strong></p>
<p>In construction, there are some distinct features which may influence the use of face-saving tactics and the behaviour of project dispute negotiators. The findings of this research would provide an insight into promoting proactive and collaborative project dispute resolution.</p>
<p> </p>
<p>Yiu, T. and Chung, Y. (2014), "Face-saving tactics as an aid to construction negotiation in Hong Kong", Engineering, Construction and Architectural Management, Vol. 21 No. 6, pp. 609-630. <a href="https://doi.org/10.1108/ECAM-05-2013-0049">https://doi.org/10.1108/ECAM-05-2013-0049</a></p>
<p></p>
<p><strong><u>CONCLUDING REMARKS</u></strong></p>
<p></p>
<p>A factor that could mitigate further <strong><em>dysfunctional conflict</em></strong> as described above could be the establishment of a joint consultative forum, facilitated by experienced <strong>CCMA Facilitators</strong> to minimize job losses and rescue SAA from total collapse, so to speak.</p>
<p> </p>
<p><em>Johann Scheepers</em></p>
<p><em>28 November 2019</em></p>
<p><em> </em></p>
<p><strong><u>Copyright:</u></strong></p>
<p><strong> </strong></p>
<p><strong>Copyright reserved by the writer. No part of this article/guide may be reproduced, without prior written permission of the author.</strong></p>
<p><strong> </strong></p>
<p><strong>The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</strong></p>
<p><strong> </strong></p>
<p><strong>The commentary expressed herein is that of the writer and not that of any professional organization or entity with which the writer may be associated with.</strong></p>
<p><strong> </strong></p>
<p> </p>
<p> </p>
LABOR DISPUTE RESOLUTION: EEOC [USA] & COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION [SA] - A COMPARATIVE ANALYSIS
tag:www.adrhub.com,2019-11-12:4905899:BlogPost:86208
2019-11-12T07:30:00.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p> </p>
<p><em><a href="https://storage.ning.com/topology/rest/1.0/file/get/3709186103?profile=original" rel="noopener" target="_blank"><img class="align-full" src="https://storage.ning.com/topology/rest/1.0/file/get/3709186103?profile=RESIZE_710x"></img></a></em></p>
<p></p>
<p style="text-align: center;"><em>“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside,…</em></p>
<p> </p>
<p><em><a href="https://storage.ning.com/topology/rest/1.0/file/get/3709186103?profile=original" target="_blank" rel="noopener"><img src="https://storage.ning.com/topology/rest/1.0/file/get/3709186103?profile=RESIZE_710x" class="align-full"/></a></em></p>
<p></p>
<p style="text-align: center;"><em>“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside, overseen by a fine, shrewd fellow with a knack for negotiation.</em></p>
<p style="text-align: center;"></p>
<p style="text-align: center;"><em>This was</em> <em>the method favoured by Confucius, and others before him through 4,000 years of Chinese folklore. Buddha championed it in India; while Japanese chukka isha (mutual friends) have long helped businesses resolve their differences. Not to be outdone, the Roman Empire later picked up the tradition, with intercessors, internuncios, interpolators and interlocutors frequently shuttling to and from antagonistic parties in a diplomatic bid for peace.</em></p>
<p style="text-align: center;"></p>
<p style="text-align: center;"><em>Over the generations, however, the realm of dispute resolution gradually became more convoluted and complex. Flexibility and prudence gave way to formality and structure. While a fair, regulated court system is doubtless something to be celebrated, it has – some believe – served more to quash the world of common sense negotiation than to complement it.”</em></p>
<p> </p>
<p>[Article by, <em>Rebecca Lowe <strong>“Back to basics”</strong></em> <em>In-House Perspective</em> (December 2013) <em>LinkedIn</em>]</p>
<p></p>
<p><strong><u>INTRODUCTORY REMARKS</u></strong></p>
<p></p>
<p><em>‘In every country. North and South’</em>, J Schregle <strong><em>‘Comparative Industrial Relations: Pitfalls and Potential’</em></strong>, <em>International Labour Review,</em> 1981, p. 27 points out<em>; ‘workers, employers, and governments have both common and divergent interests, short term and long term. The divergent interests must be accommodated and reconciled…. The way in which such interests are expressed and reconciled is the subject of industrial relations. It will be of necessity vary from country to country. The international comparison must bring out and explain the differences and similarities of national industrial relations systems’. </em> [See <em>R Blanpain</em> <strong>“<em>Comparative Labour Law and Industrial Relations”</em></strong> (1985) 2<sup>nd</sup> Ed. <em>Kluwer</em> <em>at 3</em>]</p>
<p></p>
<p>Employers and employees usually come together in a common workplace to make products or provide services for an unspecified time. Employers who are not satisfied with workers can, at least if the action can be objectively justified, discharge them. However, the normal intention of offering and accepting employment is a continuing relationship.</p>
<p></p>
<p>However, continuing relationships – be they marital, business partnerships, or employment – are vulnerable to changing, sometimes diverging, interests, perceived or real. In other words, employment is liable to conflict, both individual and collective. Such conflict may be clear-cut, as when a group of workers is convinced that they are underpaid, or it may be diffuse and not readily apparent, say, some dissatisfaction amongst workers with the style of management in an enterprise. If it is latent and not overt an untoward incident, unimportant in itself, maybe enough to set off a major dispute. Thus, the apparent cause of an industrial dispute is not always the true cause.</p>
<p></p>
<p>Sources of conflict are not confined to the conditions of employment in the employing enterprise. Workers commonly identify their interests with those of workers elsewhere, to the point of being willing to strike in support of them. As members of trade unions who may have both political and broad industrial objectives, workers may use the leverage that withholding their labour gives them to exert pressures on governments or employers collectively. [See <em>Blanpain</em> (<em>supra</em>) 381].</p>
<p></p>
<p>To avoid costly industrial or workplace conflict governments, established institutions mandated to resolve conflict preferably expeditiously so as to mitigate the cost of protracted labour disputes.</p>
<p></p>
<p><strong><u>THE COMMISSION FOR CONCILIATION MEDIATION & ARBITRATION (CCMA) – SOUTH AFRICA</u></strong></p>
<p>In South Africa the Commission for Conciliation, Mediation & Arbitration (the CCMA) was established using an enabling statute, to wit <em>the Labour Relations Act, Act 66 of 1995</em> (as amended) (the LRA).</p>
<p><strong><em> </em></strong></p>
<p><strong><em>What are the obligatory functions of the CCMA?</em></strong></p>
<p>The CCMA <u>must</u>, <em>inter alia –</em></p>
<p>- attempt to conciliate any dispute referred to it in terms of the LRA or any other law;</p>
<p>- arbitrate a dispute that remains unresolved after conciliation including a dispute in</p>
<p> respect of which the Labour Court has jurisdiction where the parties consent to</p>
<p> Arbitration.</p>
<p>- perform any other duties imposed on it by or in terms of the applicable employment</p>
<p> law;</p>
<p>- compile and publish information and statistics about its activities; and</p>
<p>- review the Rules at least every two years.</p>
<p><strong><em> </em></strong></p>
<p><strong><em>What are the discretionary functions of the CCMA?</em></strong></p>
<p>In terms of section 115 (2), (2A) and (3) of the LRA, the CCMA <u>may</u>, <em>inter alia -</em></p>
<p>- if asked, advise a party to a dispute about the procedure to follow in terms of the LRA;</p>
<p>- if asked, assist a party to obtain legal advice, assistance or representation;</p>
<p>- if requested, provide administrative support to an employee earning below the BCEA</p>
<p> threshold;</p>
<p>- offer to resolve a dispute that has not been referred to it through conciliation;</p>
<p>- make rules regulating the matters referred to in section 115 (2A) of the LRA;</p>
<p>- conduct, oversee or scrutinise any election or ballot of a registered union or employers.'</p>
<p> Organisation if asked to do so by that trade union or employers’ organisation;</p>
<p>- publish guidelines about any matter dealt with regarding the applicable </p>
<p> Employment law;</p>
<p>- conduct and publish research into matters relevant to its function; and</p>
<p>- if asked, provide employees, employers, registered trade unions, registered employers’</p>
<p> organisations, federations of trade unions, federations of employers’ organisations or</p>
<p> councils, with advice or training relating to the primary objects of the LRA, or any other</p>
<p> Employment law. </p>
<p> </p>
<p>The volume of labour disputes deal with by the CCMA is reflected in its 2014/15 “Annual Report.” [See <strong><em>“2014/15 ANNUAL REPORT”</em></strong> <em>at 5.</em></p>
<p></p>
<p><strong><em>REFERRALS</em></strong></p>
<p>A total of <u>171 854</u> were received during the current period [2014/15] compared with <u>170 673</u> for the previous period [2013/14].</p>
<p>This translates to an average of 687 new cases referred every working day, up 680 from the previous year.</p>
<p><strong><em>SETTLEMENT RATE</em></strong></p>
<p>The percentage of disputes settled by the CCMA stands at <strong><em><u>76 percent,</u></em></strong> a <em>one percent improvement on the previous year.</em></p>
<p></p>
<p><strong><u>The </u></strong><span><a href="http://www.eeoc.gov/"><strong>U.S. Equal Employment Opportunity Commission</strong></a></span><strong><u> (“EEOC”)</u></strong></p>
<p></p>
<p>The U.S. EEOC enforces federal laws prohibiting workplace discrimination. The EEOC was created by the <span><a href="http://usinfo.state.gov/usa/infousa/laws/majorlaw/civilr19.htm">Civil Rights Act of 1964</a></span>. The employment section of the Civil Rights Act of 1964, known as <span><a href="http://www.eeoc.gov/policy/vii.html">Title VII</a></span>, prohibits discrimination based on race, colour, national origin, sex, and religion, and also prohibits employers from retaliating against any employee who exercises his or her rights under Title VII.</p>
<p></p>
<p>Today, the EEOC enforces federal anti-discrimination statutes and provides oversight and coordination of all federal equal opportunity regulations, policies, and practices. The Civil Rights movement of the early 1960s peaked in the spring and summer of 1963. On June 19, 1963, President John F. Kennedy sent comprehensive civil rights legislation to <span><a href="http://www.house.gov/">Congress</a></span>, asking it to <em>“make a commitment it has not fully made in this century to the proposition that race has no place in American life or law.”</em></p>
<p></p>
<p>However, there was stiff political and social opposition to the legislation. Following President Kennedy's assassination in November 1963, President Johnson continued to support the legislation, saying that <em>“no eulogy could more eloquently honour Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long.”</em> Finally, and after much compromise, President Johnson signed into law the <em>Civil Rights Act of 1964</em> on July 2, 1964.</p>
<p></p>
<p>From 1965 through 1971, the EEOC lacked any real enforcement authority. Instead, Congress authorized the Agency to investigate claims of discrimination. If the EEOC found reasonable cause to believe that discrimination occurred, the Agency referred the case to the Department of Justice to litigate. Regardless, during this period the agency significantly impacted the scope of future civil rights enforcement. The EEOC documented the nature and extent of discriminatory practices in employment, the first study of this kind done. Additionally, the agency assisted individual plaintiffs through its amicus curiae program by filing “friend of the court” briefs interpreting the law.</p>
<p></p>
<p>In 1972, Congress passed the <span><a href="http://www.eeoc.gov/abouteeoc/35th/thelaw/eeo_1972.html"><em>Equal Employment Opportunity Act of 1972</em></a></span>, which amended Title VII to give the EEOC authority to conduct its own enforcement litigation. The EEOC strongly influenced the judicial interpretation of civil rights legislation. The agency's advocacy defined “discrimination,” a term excluded from the 1964 Act.</p>
<p></p>
<p>In 1973, EEOC advocates pursued litigation leading to the country's most often cited anti-discrimination <span><a href="http://www.supremecourtus.gov/">U.S. Supreme Court</a></span> opinion, <strong><em>McDonnell Douglas Corp. v. Green</em><em>,</em></strong> <span><a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792">411 U.S. 792 (1973)</a></span>. In that case, the Court held that a plaintiff could prove an individual case of intentional discrimination, or disparate treatment, under <em>Title VII</em>, by showing four factors. <span><a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a></span><strong><em>.</em></strong><strong> At 802.</strong> </p>
<p></p>
<p>There, the plaintiff proved that he was indirectly discriminated against in a hiring case by showing that (1) he was a member of a <em>Title VII protected group</em>; (2) he applied and was qualified for the position sought; (3) the employer rejected the plaintiff for the job; and (4) the employer continued to seek applicants with similar qualifications after the rejection. <span><a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a></span><strong><em>. </em></strong></p>
<p></p>
<p>The Court determined that once a plaintiff succeeded in making this bare showing of <em>a </em><span><a href="http://www.law.cornell.edu/wex/index.php/Prima_facie"><em>prima facie</em></a></span> case, the employer must articulate a legitimate, non-discriminatory reason for refusing to hire the plaintiff. <span><a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a></span><strong><em>. </em></strong>Absent this showing, the employer is guilty of workplace discrimination. <span><a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a></span><strong><em>. </em></strong>Courts and the EEOC apply this analytical framework to cases brought under all federal anti-discrimination statutes.</p>
<p></p>
<p>Today, the EEOC conducts enforcement litigation under several federal statutes that prohibit job discrimination. The federal statutes prohibiting discrimination in employment are:</p>
<ul>
<li><span><a href="http://www.eeoc.gov/policy/vii.html"><em>Title VII of the Civil Rights Act of 1964</em></a></span><em> (Title VII),</em> which prohibits employment discrimination based on race, colour, religion, sex, or national origin;</li>
<li><em>the </em><span><a href="http://www.eeoc.gov/policy/epa.html"><em>Equal Pay Act of 1963</em></a></span><em> (EPA),</em> which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;</li>
<li><em>the </em><span><a href="http://www.eeoc.gov/policy/adea.html"><em>Age Discrimination in Employment Act of 1967</em></a></span><em> (ADEA),</em> which protects individuals who are 40 years of age or older;</li>
<li><span><a href="http://www.eeoc.gov/policy/ada.html"><em>Title I and Title V of the Americans with Disabilities Act of 1990</em></a></span><em> (ADA),</em> which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;</li>
<li><span><a href="http://www.eeoc.gov/policy/rehab.html"><em>Sections 501 and 505 of the Rehabilitation Act of 1973</em></a></span><em>,</em> which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and</li>
<li><em>The </em><span><a href="http://www.eeoc.gov/policy/cra91.html"><em>Civil Rights Act of 1991</em></a></span><em>,</em> which, among other things, provides monetary damages in cases of intentional employment discrimination.</li>
</ul>
<p>The Agency investigates charges of discrimination and, in some cases, brings civil suits based on charges of discrimination. Charges of discrimination are most often filed by private individuals (<em>“complainants”</em>) who believe that their employers have discriminated against them. The EEOC investigates those charges and issue findings based on its investigations.</p>
<p></p>
<p>In some cases, if the EEOC finds that there is probable cause to believe discrimination has occurred, it may choose to bring an enforcement action against the employer. However, in the majority of the cases, the complainant will independently initiate and pursue any litigation based on Title VII.</p>
<p></p>
<p>Any individual who wishes to file suit under <em>Title VII</em> or the ADA is required to exhaust his or her administrative remedies before suing the employer in court. In other words, the complainant must first file a charge of discrimination with the EEOC before it may seek a judicial remedy. [Acknowledgement: See <span><a href="http://www.lawschool.cornell.edu/">Cornell University Law School</a></span> <span><a href="http://www.lawschool.cornell.edu/">Cornell Law School</a></span> in Ithaca, NY]. </p>
<p></p>
<p>In its website of the EEOC, its statutory role is explained in less <em>legalistic terminology,</em> and it has been deemed appropriate to refer to the explanatory information contained therein hereunder.</p>
<p></p>
<p>The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, colour, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.</p>
<p></p>
<p>Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labour unions and employment agencies are also covered.</p>
<p></p>
<p>The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.</p>
<p></p>
<p><strong><em>Authority & Role</em></strong></p>
<p>The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. The EEOC’s role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If found that discrimination has occurred, the EEOC will try to settle the charge. If unsuccessful, the EEOC has the authority to file a lawsuit to protect the rights of individuals and the interests of the public. The Commission does not, however, file lawsuits in all cases where discrimination is found to be perpetrated.</p>
<p></p>
<p>One of the objectives is to prevent discrimination before it occurs through outreach, education, and technical assistance programs.</p>
<p></p>
<p>The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program.</p>
<p></p>
<p>EEOC assures federal agency and department compliance with EEOC regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to our Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints.</p>
<p></p>
<p><strong><em>Administrative Enforcement and Litigation</em></strong></p>
<p>The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for enforcing federal laws prohibiting employment discrimination by race, colour, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The agency began its work in 1965. More than 40 years later, the public continues to rely on the Commission to carry out its responsibility to bring justice and equal opportunity to the workplace.</p>
<ul>
<li>Through its <span><a href="http://www.eeoc.gov/eeoc/enforcement/index.cfm">administrative enforcement process</a></span>, the Commission receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labour unions, and state and local governments, including charges of <span><a href="http://www.eeoc.gov/eeoc/systemic/index.cfm">systemic discrimination</a></span>. </li>
<li>Where the Commission does not resolve these charges through conciliation or other informal methods, the Commission may pursue <span><a href="http://www.eeoc.gov/eeoc/litigation/index.cfm">litigation</a></span> against private sector employers, employment agencies and labour unions (and against state and local governments in cases alleging age discrimination or equal pay violations). The Commission may also participate in on-going litigation as <span><a href="http://www.eeoc.gov/eeoc/litigation/amicus.cfm"><em>amicus curiae</em></a></span>.</li>
</ul>
<p>The EEOC also leads and coordinates <span><a href="http://www.eeoc.gov/federal/index.cfm">equal employment opportunity efforts across the Federal government</a></span> and conducts administrative hearings and issues appellate decisions on complaints of discrimination filed by federal employees and applicants for federal employment.</p>
<p></p>
<p><strong><em>Enforcement</em></strong></p>
<p></p>
<p><strong>Private Sector Enforcement Program:</strong> Providing quality services that are fair and prompt for both employees and employers in our administrative processing system is vital to our mission. In FY 2015, we received 89,385 private sector charges of discrimination. The EEOC achieved 92,641 resolutions, with a merit factor resolution rate of 18.1%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.)</p>
<p></p>
<p>Through administrative enforcement activities, the EEOC secured more than $356.6 million in monetary benefits. Overall, the EEOC secured both monetary and non-monetary benefits for more than 16,760 people through our charge processing. We had a pending inventory of 76,408 charges at the end of the fiscal year. [See <span><a href="http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm">Enforcement and Litigation Statistics</a></span>]</p>
<p></p>
<p><strong>Federal Sector Enforcement Program:</strong> In its federal sector enforcement role, the EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each federal agency. Unlike our responsibilities in the private sector, we do not process complaints of discrimination for federal employees.</p>
<p></p>
<p>In the federal sector, individuals file complaints with their own federal agencies and those agencies conduct a full and appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge. In FY 2015, the EEOC received a total of 7,752 requests for hearings. Additionally, resolved a total of 6,360 complaints and secured more than $94.9 million in relief for parties in these complaints.</p>
<p></p>
<p>The EEOC also adjudicates appeals of federal agency actions on discrimination complaints and ensures agency compliance with decisions issued on those appeals. During FY 2015, the EEOC received 3,649 requests for appeals of final agency actions in the federal sector and resolved 3,850 such appeals. [See <span><a href="http://www.eeoc.gov/federal/reports/index.cfm">Annual Report on the Federal Work Force</a></span>]</p>
<p></p>
<p><strong><em>Mediation</em></strong></p>
<p><strong>Private Sector Mediation Program:</strong> The EEOC's <span><a href="http://www.eeoc.gov/eeoc/mediation/index.cfm"><em>mediation program</em></a></span> has been very successful and has contributed to our ability, over the past few years, to manage better its growing inventory and resolve charges in 180 days or fewer. In FY 2015, the EEOC's National Mediation Program secured 8,243 resolutions, and we obtained more than $157.4 million in monetary benefits for complainants from mediation resolutions.</p>
<p></p>
<p>Participant confidence in the program is high, with our FY 2015 figures reflecting that 97% of all participants would return to EEOC's Mediation Program in the future. The EEOC believes the high confidence level helps with its continuing efforts to convince parties to charges, particularly employer representatives, of the value of the mediation approach.</p>
<p></p>
<p>Although participants almost uniformly view the mediation program favourably, the percentage of employers agreeing to mediate is considerably lower than the percentage of charging parties agreeing to mediate. As part of the EEOC’s efforts to increase the participation of employers in the mediation program, the organisation encouraged employers to enter into Universal Agreements to Mediate (UAMs). These agreements reflect the employer's commitment to utilizing the mediation process to resolve charges.</p>
<p>Many employers entered into these agreements in FY 2015, resulting in a cumulative multi-year total of 12,456 UAMs.</p>
<p></p>
<p><strong>Federal Sector Mediation Program:</strong> Using <span><a href="http://www.eeoc.gov/federal/adr/index.cfm"><em>Alternative Dispute Resolution</em></a></span><em> </em>(ADR) techniques to resolve workplace disputes throughout the federal government can have a powerful impact on agencies' EEO complaint inventories and, in turn, the Commission's hearings and appeals inventories.</p>
<p></p>
<p>Resolving disputes as early as possible in the federal sector EEO process improves the work environment and reduces the number of formal complaints, allowing all agencies, including the EEOC; to redeploy resources that otherwise would be devoted to these activities. In addition, a growing number of agencies have incorporated dispute prevention techniques into their ADR programs, further increasing productivity and reducing the overall number of employment disputes.</p>
<p></p>
<p>The Commission's efforts in promoting and expanding mediation/ADR at all stages of the federal EEO complaint process also appear to be having a positive effect on federal agencies' EEO complaint inventories. As more agencies expand their efforts to offer ADR during the informal process, we expect to see continued decreases in the number of formal complaints filed, which will reduce costs for complainants and all federal agencies, and enable agencies to focus resources on their primary missions.</p>
<p> </p>
<p>The EEOC continues to actively pursue a variety of ways to assist federal agencies in improving alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to federal employees and managers on the benefits of ADR, and maintaining a web page that serves as a clearinghouse for information related to federal sector ADR.</p>
<p></p>
<p>The Commission will continue to expand technical assistance efforts with agencies to encourage the development of effective ADR programs and promote ADR training among government managers and staff.</p>
<p></p>
<p>The aforementioned therefore constitute <u>brief background information</u> as to the similarities and differences between the dispute resolution functions of the SA - CCMA and the USA - EEOC.</p>
<p></p>
<p><strong><u>PURPOSE OF THE <em>‘ARTICLE’</em></u></strong></p>
<p></p>
<p>The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.</p>
<p></p>
<p>The purpose of the article is first to focus on the shared responsibility of the CCMA and the EEOC insofar as the statutory duty to conciliate/mediate disputes in an ‘ethical’ manner. The focus, therefore, will be on ethical issues in conciliation/mediation of disputes between employer and employee.</p>
<p></p>
<p>For the sake of convenience referral in this article to <em>conciliation</em> will include <em>mediation.</em> The author will deal with a comparative analysis of the statutory duties of Commissioners as stipulated in the relevant statutes of both countries. Similarities and differences would be identified and briefly discussed.</p>
<p></p>
<p>Reference will be made to case law and other authoritative publications wherein the issue of ethics and <em>‘moral correctness’</em> of a presiding CCMA Commissioner/EEOC Representative were pronounced and commented upon by the Courts and other authorities.</p>
<p></p>
<p>The criticism by participants to dispute resolution will be briefly recorded and comment submitted if deemed necessary. Please note that on the author reserves the right to occasionally make humorous remarks and comments and for that, no apology is offered.</p>
<p></p>
<p>At the outset, it should be mentioned that the CCMA and the EEOC have been the subject matter of fierce criticism by all and sundry. At times deservedly so and then on other occasions, the critique was found to be without substance or any factual basis.</p>
<p></p>
<p>Suffice it to pre-warn any student of the Law, Human Resources or Conflict Resolution that the profession is not for the ‘<em>faint-hearted’</em> or those who are unable to deal with disagreeable persons, borderline sociopaths, pathological liars and persons with aggressive personality disorders.</p>
<p></p>
<p>It should, however, be said that confrontational or extreme adversarial processes involving the personalities above will not be a daily occurrence and is rather an exception than the rule, so to speak. </p>
<p></p>
<p>In any event, any reputable institution will during the period study and especially during the <em>practical</em> part of the course or degree provide the student with the necessary coping skills in the hypothetical module <em>“Adversarial Conflict Management – 301; ‘Sub-Module Survival Skills”.</em> </p>
<p></p>
<p><strong><u>THE STATUTORY REGIMES - A BRIEF ANALYSIS</u></strong></p>
<p></p>
<p><strong><em>Dispute resolution in the USA - EEOC: </em></strong></p>
<p></p>
<p>The various empowering statutes that form the legislative framework from within which the EEOC functions have been referred to <em>supra. </em>[See <span><a href="http://www.lawschool.cornell.edu/">Cornell Law School</a></span> article as well as the information contained and legislative interpretation by the EEOC as published on the website: <span><a href="http://www.eeoc.gov/eeoc/index.cfm">http://www.eeoc.gov/eeoc/index.cfm</a></span> ].</p>
<p></p>
<p>Suffice it to mention that the EEOC's interpretation of its rights and obligations vis-a-vis that of employers including lawyers acting on behalf of the parties have to date led to extensive litigation that <em>'climaxed', </em>or rather reached the US Supreme Court in the matter <strong><em>Mach Mining v. EEOC. </em></strong> </p>
<p></p>
<p>In an article published in the publication, <span><a href="http://theemplawyerologist.com/author/theemplawyerologist/">theemplawyerologist</a></span> (April 30, 2015) the learned author provided a summary, an explanation of the cause of action and the Ruling by the US Supreme Court as well as observations. The article has been included below especially for the edification of SA readers who may not be well-versed in US legislation and the issues in contention.</p>
<p></p>
<p><strong><u>"<em>MACH MINING v EEOC</em> – US SUPREME COURT</u></strong></p>
<p></p>
<p>We interrupt our regularly scheduled program with some breaking news. Yesterday, the US Supreme Court issued a ruling in <strong><em>Mach Mining v. EEOC. </em></strong>I previously wrote about that case <span><a href="http://theemplawyerologist.com/2014/11/06/does-the-eeoc-need-to-strike-a-more-conciliatory-tone/">here</a></span>. That case started with a discrimination charge on behalf of a woman whom <em>Mach Mining</em> declined to hire.</p>
<p></p>
<p>The issue before the US Supreme Court, however, was about whether the EEOC’s duty to resolve charges through informal means was subject to Court [<em>judicial</em>] review. Technically, the US Supreme Court’s answer is <em>“yes”</em>. Join the<em>EmpLAWyerologist</em> after the jump to see what this decision means for employers and the EEOC.</p>
<p></p>
<p>To understand this ruling we first have to look –briefly–at one particular part of <strong><em>Title VII of the Civil Rights Act of 1964.</em></strong> As you know, an employee can file a discrimination charge with the EEOC, and the EEOC then investigates.</p>
<p></p>
<p>If it feels there is reasonable cause to believe that the employer violated one or more of the laws that it is charged with enforcing it <u>may</u> then invite the employer to participate in an <em><u>informal</u> conciliation process.</em> <u>If conciliation fails, the EEOC may sue the employer–but it <em>must</em> first make an attempt at conciliation.</u> </p>
<p></p>
<p>So what happened here? The EEOC investigated the employee’s charge and then sent <em>Mach Mining</em> a letter inviting it to participate in <em><u>informal conciliation</u></em> proceedings and notifying it that an EEOC representative would be in touch with them to begin the process. So far, so good, right? There’s only one problem.</p>
<p>[This may be termed by a cynic as <em>'The RSVP - Issue' - the author hereof's insertion</em>].</p>
<p></p>
<p>The EEOC never followed up with <em>Mach Mining,</em> until one year later, at which time it sent <em>Mach Mining</em> a letter <u>stating that conciliation had failed– and sued shortly after that.</u></p>
<p></p>
<p><em>Mach Mining</em> alleged in its answer that <em><u>the EEOC failed to conciliate in good faith,</u></em> and essentially argued that <em>the case should be dismissed.</em></p>
<p></p>
<p>The EEOC argued that its conciliation efforts were not subject to judicial review and that in any case, its two letters (<em>the initial invitation and the letter that followed a year later</em>) were sufficient to fulfil its statutory obligation. While the federal district court agreed with <em>Mach Mining</em> that it could review the EEOC’s conciliation efforts, the 7th Circuit reversed.</p>
<p></p>
<p><strong>The US Supreme Court ultimately agreed with the District Court that the EEOC’s conciliation efforts are subject to judicial review.</strong> While the ruling is technically a victory for employers the Supreme Court made it clear that <em>the scope of that review is quite narrow.</em></p>
<p></p>
<p>Specifically, the Court said that the scope of judicial review is to enforce the EEOC’s <em>statutory obligation to give the employer notice and an opportunity to achieve voluntary settlement and compliance.</em> The court’s rationale for such a narrow holding is that <strong><em>Title VII</em></strong><em> </em>by its wording gives the EEOC <em>“expansive discretion”</em> in this area.</p>
<p></p>
<p>The Court also noted that the EEOC’s argument that courts were limited to checking the <em>“facial validity”</em> of its two letters <em>“falls short of Title VII’s demands</em> “in that courts would essentially have to take the EEOC’s word that it followed the law, <u>rather than verify that the EEOC actually attempted conciliation.</u></p>
<p></p>
<p>So what, then, does the EEOC have to do to show that it tried to conciliate before suing? It <strong><em>must:</em></strong></p>
<ol>
<li><em>inform the employer about the specific allegation(s);</em></li>
<li><em>describe in a notice what the employer(s) has/have done and which employee or class of employees have suffered; </em>and</li>
<li><em>give the employer a chance to remedy the allegedly discriminatory practice(s).</em></li>
</ol>
<p></p>
<p>While an affidavit from the EEOC will usually be enough to show that it met this requirement, if an employer presents concrete evidence that the EEOC did not take the above three steps, a court <strong><em>must</em></strong> <strong><em>“conduct the fact-finding necessary to resolve that limited dispute”.</em></strong></p>
<p></p>
<p>If a court finds that the EEOC did not do what it was supposed to do, then the court must order the EEOC to do so. In other words, the case does not get dismissed. <em><u>The parties get sent back out to attempt conciliation. If the EEOC can show that those efforts failed, it may go ahead and sue.</u></em></p>
<p></p>
<p>The Court explicitly noted that <strong><em>Title VII</em></strong> contained no language even suggesting that the EEOC was <strong><em>obligated to negotiate in good faith</em></strong>–and therefore, the Court declined to go that far.</p>
<p></p>
<p>Some may say this ruling is merely a slap on the wrist for the EEOC. If, for example, what if the EEOC fulfils the above conditions but uses one or more <em>coercive tactics</em> during the<em> conciliation process?</em> <strong><em>Title VII</em></strong> as written does not appear to address this issue.</p>
<p></p>
<p>Unless at some point Congress decides to amend the conciliation requirement of <strong><em>Title VII,</em></strong> an employer’s sole recourse seems to be to <em>hold the EEOC to the above three conditions. </em>[See (a), (b), (c) <em>supra</em>]</p>
<p></p>
<p>Then again, the objective is not to punish the EEOC. The idea is that <em><u>settlement without the need for litigation is preferable</u>, and the Court appears to be sending a message reinforcing that principle."</em></p>
<p> </p>
<p>[<em>Some editing, as well as emphasis and underlining, did by the author hereof</em>].</p>
<p></p>
<p><strong><em>Legal representation:</em></strong> </p>
<p></p>
<p>Legal representation before the EEOC is<em> 'automatically'</em> a right albeit during conciliation or litigation that may follow after that. In conciliation proceedings before the CCMA, legal representation is not allowed at all regarding the provisions of Rule 25 of the Commission's Rules.</p>
<p></p>
<p>Furthermore, and also regarding Rule 25 of the CCMA Rules legal representation in arbitration proceedings <strong><u>may</u></strong> be allowed upon application and where the reason for the dismissal was on the grounds of <em>'misconduct'</em> or <em>'incapacity.'</em> </p>
<p></p>
<p>Labour consultants have no right of appearance in any manner whatsoever before the CCMA. The prohibition includes an appearance in any dispute resolution processes that fall under the auspices or rather jurisdiction of the CCMA. The only exception will be a witness in dispute proceedings.</p>
<p></p>
<p>Rule 25 is a matter of controversy in SA and has led to litigation as well as a heated debate amongst interested parties. For the purpose of this article, the writer deemed it unnecessary to focus extensively on the issue of legal representation before the CCMA. </p>
<p></p>
<p>Of interest is that a defendant may attend to EEOC proceedings <em>in persona </em>without legal representation.</p>
<p></p>
<p>Appearing before a Court or Tribunal without legal representation may be considered by some as <em>'Risky business' </em>or termed as done by some as <em>'Flying solo.'</em></p>
<p></p>
<p>In an article by US attorney Richard E Cohen Esq., [<em>an esteemed colleague and friend</em>] entitled <em>"</em><span><a href="http://employmentdiscrimination.foxrothschild.com/articles/us-eeoc/"><strong>U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)</strong></a></span><strong> </strong><em>May 27, 2014, LinkedIn</em><strong>,</strong> the learned author dealt with the risks involved in attending to EEOC mediations or proceedings that may follow after that.</p>
<p></p>
<p>Comments and opinions by various people followed including lawyers as well as individuals who for various reasons decided to attend to the EEOC proceedings without legal representation as well as labour consultants.</p>
<p></p>
<p>One comment, for example, was <em>"the EEOC mediators do all they can to push a settlement, including various threats of litigation and EEOC enforcement. In fact, she said that with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and a threat of EEOC enforcement actions."</em></p>
<p></p>
<p>Another interesting comment was made in the form of advice by the Director of what appeared to be a labour consultancy practising under the name and style of "<em>First Aid in Employment/Labour Problems at HR Bandaid</em> in the Indianapolis area.</p>
<p></p>
<p>The advice provided was (<strong>s<em>tay calm,</em></strong><em> <strong>breathe a bit,</strong> and only respond to charges as posed. </em>(<u>To which advice the author replied </u>"<em>we do not necessarily agree with, but he claims to have had success, so who are we to argue</em>)": </p>
<p></p>
<p><em>“Best defense in EEOC charges … don’t use an attorney unless necessary. Keep the responses to the charges on the same level as the charging party. <u>Deny, deny, deny… and keep answers simple when responding.</u></em></p>
<p><em>Don’t involve too much “manucha” [</em>minutia?<em>] and names of “other employees” in the response. Attorneys’ names on responses signals “deep pockets” of the respondent.</em></p>
<p><strong><em>Stay calm</em></strong><em>, <strong>breathe a bit</strong>, and only respond to charges as posed.</em></p>
<p><em>Trust me … I have had over 156 of charges found with “No Probable Cause” to continue.” </em></p>
<p>Writer hereof cannot question the importance if not wisdom intrinsic in the advice to <em>'stay calm applicable almost in any situation.' </em></p>
<p><em> </em></p>
<p><strong><em>Dispute resolution in SA - CCMA:</em></strong> </p>
<p>[See CCMA Website:<strong> </strong><span><a href="http://www.ccma.org.za/">http://www.ccma.org.za</a></span> ]</p>
<p></p>
<p>Since its inception, the CCMA has enjoyed a national settlement rate of 70% and greater - a clear signal that the CCMA is committed to restoring sound labour and industrial relations within the South African economy.</p>
<p></p>
<p><strong><em>Dispute Resolution Processes - CCMA</em></strong></p>
<p><strong><em>Conciliation:</em></strong></p>
<p>Conciliation is a process where a commissioner meets with the parties in dispute and explores ways to settle the dispute by agreement. At conciliation, a party may appear in person or only be represented by a director or employee of that party or any member, office-bearer or official of that party's registered trade union or registered employer's organisation. The meeting is conducted in an informal way.</p>
<p></p>
<p>The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the Commissioner and each party may also be held. Individuals are encouraged to exchange information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.</p>
<p></p>
<p>A Commissioner is given wide functions in conciliation. The Commissioner may determine a process which may include mediation, facilitation or making recommendations in the form of an advisory arbitration award.</p>
<p></p>
<p>A Commissioner may cause persons and documents to be subpoenaed, and has the power to enter and inspect premises and seize any book, document or object that is relevant to the dispute.</p>
<p></p>
<p>The Commissioner's role is to try to resolve the dispute within 30 days of it being referred to the CCMA. If the dispute is settled, an agreement will normally be drawn up, and that ends the matter.</p>
<p></p>
<p>The Commissioner will issue a certificate recording that the dispute has been settled.</p>
<p></p>
<p><strong><em>Con-Arb:</em></strong></p>
<p>Section 191(5A) makes provision for the Con-arb process, which is a speedier one-stop process of conciliation and arbitration for individual unfair labour practices and unfair dismissals.</p>
<p>In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day.</p>
<p> </p>
<p>The process is <strong>compulsory</strong> in matters relating to-</p>
<ul>
<li>dismissals for any reason relating to probation; and</li>
<li>any unfair labour practice relating to probation.</li>
</ul>
<p></p>
<p>If no objection is received, this process may be used for any other dispute (conduct, capacity, continued employment intolerable, less favourable terms after an s197 or s197A transfer, a reason for dismissal unknown, or an unfair labour practice).</p>
<p></p>
<p>This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.</p>
<p></p>
<p>The CCMA must give both parties at least<span> </span><em>14 days' notice</em><span> </span>of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date. If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides.</p>
<p> </p>
<p>If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides.<strong> </strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Objections to the con-arb process: </em></strong></p>
<p>No objection will be allowed for disputes relating to probation. An employee may object by indicating such on the LRA form 7.11. An employer may object to this process by giving written notice to the CCMA, at least,</p>
<p>An employer may object to this process by giving written notice to the CCMA, at least,<span> </span><strong>seven days</strong> before the hearing.</p>
<p><strong> </strong></p>
<p><strong>NOTE:</strong> Regardless of the employer objecting to this process, the employer must attend the conciliation.</p>
<p><strong><em> </em></strong></p>
<p><strong><em>Arbitration:</em></strong></p>
<p><em>When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to state their cases fully. The Commissioner then makes </em>a decision on the issue in dispute.</p>
<p> </p>
<p>The decision, called the arbitration award, is legally binding on both parties. Attempts must be made to resolve the dispute through conciliation. If conciliation can not resolve it, the parties can go to arbitration or the Labour Court, and the Act specifies which dispute goes to which process.</p>
<p></p>
<p>In an arbitration hearing the party in a dispute may appear in person or be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party's registered trade union or registered employers' organisation.</p>
<p></p>
<p>Lawyers are not usually allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it be unreasonable to expect a party to deal with the dispute without legal representation.</p>
<p></p>
<p>Lawyers are not usually allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it be unreasonable to expect a party to deal with the dispute without legal representation.</p>
<p></p>
<p>Having heard the parties and their arguments, the Commissioner will decide the outcome of the case, by issuing an award. The decision is legally binding on the parties, and it ends the dispute. Arbitration awards are sent to the parties within 14 days of the arbitration.</p>
<p></p>
<p>In a recent Labour Court judgment of <strong><em>Cindi v Commission for Conciliation Mediation and Arbitration and Others</em></strong><span> </span>(JR 2610/13); [2015] ZALCJHB 236; [2015] 12 BLLR 1207 (LC) the Court<strong><em> </em></strong>was required to assess the role a Commissioner plays in facilitating a settlement agreement at the CCMA. </p>
<p></p>
<p>In this case, an employee referred to an alleged unfair dismissal to the CCMA. During conciliation, the commissioner informed the employee that she had no prospects of success and that she should rather settle the matter. </p>
<p></p>
<p>As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.</p>
<p></p>
<p>It was some time after the employee signed the settlement agreement that she had second thoughts and was no longer happy with the outcome of the process. </p>
<p></p>
<p>The employee then approached the Labour Court with an application to review and set aside the settlement agreement in that she was of the opinion that the commissioner:</p>
<ol>
<li><em>was not impartial;</em></li>
<li><em>inappropriately persuaded her to sign the settlement agreement;</em></li>
<li><em>unduly influenced her to sign the agreement; </em>and</li>
<li><em>exceeded his powers by giving her advice on the fairness of her dismissal.</em></li>
</ol>
<p> </p>
<p>The Labour Court, for the following reasons, refused to review and set aside the settlement agreement:</p>
<p></p>
<p><em>That</em><span> </span>the settlement agreement was not made an arbitration award and as such, could not be reviewed.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>a Commissioner merely facilitates a settlement agreement and has no decision-making powers.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>a settlement agreement does not constitute a ruling or decision made by a commissioner.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>the role of a Commissioner, through conciliation, is to procure an offer from the company that will ultimately be acceptable to the employee.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>the final decision to conclude a settlement agreement lies solely in the respective party's hands and is not the commissioner's decision.</p>
<p></p>
<p><em><strong>Conclusion:</strong></em></p>
<p></p>
<p>It is of importance to mention that CCMA Commissioners are bound by the <strong><em>CCMA Code of Conduct for Commissioners </em></strong>recently published under <em>GN 918 in GG 38230 of 21 November 2014 </em>[with effect from 01 December 2014].</p>
<p> </p>
<p>The said Code constitutes a comprehensive document that prescribes ethical and <em>‘moral behaviour' </em>by Commissioners in any and all process in which he/she presides.</p>
<p> </p>
<p>Therefore, the South African public can be assured of the professional and ethical conduct by CCMA Commissioners.</p>
<p>In the event of a breach of the said Code, the relevant Commissioner will be disciplined under the procedures in the Code read with the relevant provisions of the LRA the regulates misconduct by Commissioners. </p>
<p></p>
<p><em><strong>Johann Scheepers</strong></em></p>
<p><em><strong>March 14, 2016</strong></em></p>
<p></p>
THE ART OF NEGOTIATION AND MILITARY DOCTRINE – ‘STRANGE BEDFELLOWS?’
tag:www.adrhub.com,2019-11-07:4905899:BlogPost:86505
2019-11-07T16:50:46.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
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<p style="text-align: center;"><em>‘’</em><em>On the surface, warfare and negotiation may seem to be polar opposites. The objective in war is to defeat the enemy. In negotiation, the goal is to find a solution that satisfies all the parties. Not surprisingly, little cross-learning and exchange have occurred across the two domains. In spite of important…</em></p>
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<p style="text-align: center;"><em>‘’</em><em>On the surface, warfare and negotiation may seem to be polar opposites. The objective in war is to defeat the enemy. In negotiation, the goal is to find a solution that satisfies all the parties. Not surprisingly, little cross-learning and exchange have occurred across the two domains. In spite of important differences, however, the dynamics of war and negotiation have much in common. Specifically, both involve the interaction of motivated agents with distinct interests, perceptions, and values (especially in high-stakes contexts). As a result, robust strategy, creativity, and nimble tactics are essential both on the battlefield and at the bargaining table. Just as negotiation theory could be enriched by principles of manoeuvre warfare, military doctrine offers officers and soldiers a potentially useful foundation to better understand and manage the negotiation process, especially in complex, cross-cultural contexts.”</em></p>
<p></p>
<p><strong>*</strong>[Michael Wheeler <em><strong>’The Fog of Negotiation: What Negotiators Can Learn from Military Doctrine’ Negotiation Journal</strong></em> January 2013]</p>
<p></p>
<p><strong><em>“Machines don’t fight wars. Terrain doesn’t fight wars. Humans fight wars. You must get into the minds of humans. That’s where battles are won.”</em></strong></p>
<p> </p>
<p>––United States Air Force <strong>Colonel John Boyd</strong> (Curts and Campbell 2001: 2)</p>
<p> </p>
<p>* <strong>Michael Wheeler</strong> is the Class of 1952, Professor of Management Practice at the Harvard Business School and the editor of <em>Negotiation Journal</em>. His e-mail address is <a href="mailto:mwheeler@hbs.edu">mwheeler@hbs.edu</a>. 10.1111/nejo.12003 © 2013 President and Fellows of Harvard College.</p>
<p></p>
<p><strong><u>INTRODUCTORY COMMENTS</u></strong></p>
<p>At the time when I noticed the title of the article, it sparked interest insofar as <em>‘Negotiation</em><em>’</em> v <em>‘Military Doctrine’</em> seemed irreconcilable concepts. The perception held by most is that <strong><em>Negotiation</em></strong> = <em>Peace</em> and <strong><em>Military Doctrine</em></strong> = <em>Warfare.</em></p>
<p></p>
<p>The immediate deduction may be made that negotiation has no place in battle or of little if any relevance within the realm of strategic warfare. </p>
<p></p>
<p>I then recalled the words of a South African Army General [who will not be named], <strong><em>“All wars eventually come to an end when a peace deal has been negotiated.”</em></strong></p>
<p></p>
<p>In the article <em>supra</em> the learned author, <strong>Wheeler</strong> <em>at 23</em> opens by a <em>‘provisional acknowledgement’</em> that warfare and negotiation seem worlds apart, at least at first glance.</p>
<p></p>
<p>In <em>combat</em>, one side seeks to dominate the other. Parties in <em>negotiation</em> — even those with <em>adverse</em> <em>interests</em> — jointly seek a solution that is at least satisfactory for all involved.</p>
<p></p>
<p>A comparison is made in clarification of the two ostensible irreconcilable concepts by reference to the undermentioned quotations:</p>
<p></p>
<p>The United States Marine Corps (USMC) manual, <em>Warfighting</em>, has declared that war is <strong><em>“a state of mind bent on shattering the enemy morally and physically by paralyzing and confounding him, by avoiding his strength, by quickly and aggressively exploiting his vulnerabilities, and by striking him in a way that will hurt him most”</em></strong>.</p>
<p> </p>
<p>[<strong><em>Warfighting.</em></strong> 1989. <strong><em>Fleet Marine Force Manual. United States Marine Corps.</em></strong> Available from <u>http:// <a href="http://www.clausewitz.com/readings/mcdp1.pdf">www.clausewitz.com/readings/mcdp1.pdf</a>.</u> — ——. (Second edition). 1997. <strong><em>Fleet Marine Force Manual. United States Marine Corps.</em></strong> Available from <a href="https://www.doctrine.usmc.mil/mcdp/html/mcdp1.htm">https://www.doctrine.usmc.mil/mcdp/html/mcdp1.htm</a>. The manual, in its entirety, can be found at <a href="http://www.clausewitz.com/readings/">http://www.clausewitz.com/readings/</a> medp1.pdf, among other sites on the Internet. The fact that it is publicly available suggests that success ultimately rides on how well any strategy is actually executed.] </p>
<p> </p>
<p> The author, then, by contrast, refers to a popular text in a publication authored by <em>Kennedy supra</em> wherein it is stated that <strong><em>“Negotiating is about trading. This distinguishes it from other forms of decision making.</em></strong></p>
<p><strong><em>In negotiation, there is an explicit trade: I get some of what I want, and you get some of what you want”</em></strong></p>
<p> </p>
<p>[Kennedy, G. ‘<strong><em>Field guide to negotiation: A glossary of essential tools and concepts for today’s manager’</em></strong> Boston: 1994, Harvard Business School Press.]</p>
<p> </p>
<p>After perusal of the paragraphs quoted above and without a perusal of the article by <strong>Wheeler</strong> the reader would in all probability reply, <strong><em>‘So what…? Warfare and negotiation remain irreconcilable concepts, with distinct and opposite interests as well as objectives.’</em></strong></p>
<p> </p>
<p><strong>Wheeler</strong> states <strong><em>at 24</em></strong> that notwithstanding the obvious differences between the two domains, however, there also are important parallels that have been largely overlooked. The potential for cross-learning is considerable. Popular negotiation books, for example, have paid little attention to crafting and implementing a strategy in fluid, uncertain environments. Instead, they typically have posited static situations with clearly defined parties whose interests and no agreement options are implicitly unchanging.</p>
<p></p>
<p>According to <strong>Wheeler</strong> <em>‘</em><em>neat negotiating’</em> models often fail to capture real-world conditions. Surprises <em>‘pop up’</em> even in everyday negotiations:</p>
<ol>
<li>i) new issues may arise;</li>
<li>ii) competitors or as they are termed <em>‘stakeholders’</em> or <em>‘concerned citizens’</em> arrive on the scene; and</li>
</ol>
<p> 3. iii) walk-away options may improve or deteriorate.</p>
<p></p>
<p>Modern theories of manoeuvre warfare could help fill this conceptual void, particularly in devising ways to effectively move forward and adapt in the face of uncertainty and risk; especially in crisis situations.</p>
<p></p>
<p>Learning can happen in the other direction as well. Military personnel who need to master key negotiation concepts to win local support and cooperation in war-torn regions could ramp up their learning curve by adapting what they already know about strategy and tactics. A well-known phrase or rather intelligence strategy comes to mind, namely <strong><em>“Winning the hearts and the minds of the inhabitants of a war-torn region.’</em></strong></p>
<p></p>
<p>In the article, the author specifically focusses on <strong><em>Warfighting</em>,</strong> written by <strong><em>USMC Captain John Schmitt</em></strong> in 1989 and revised by him in 1997. That work, in turn, is based on sources as varied as <strong><em>Carl von Clausewitz,</em></strong> <em><strong>Winston Churchill,</strong></em> and Chinese military legend <strong><em>Sun Tzu.</em></strong> As <strong><em>General A. M. Gray,</em></strong> then Commandant of the Marine Corps, stated in his foreword to the first edition of <strong><em>Warfighting,</em></strong> its <strong><em>“philosophy for action represents not just guidance for actions in combat, but a way of thinking in general”</em></strong> (<em>Warfighting</em> 1989: foreword).</p>
<p></p>
<p>The author refers to strategic warfare and uses examples as comparators in order to emphasize the importance of concepts such as agility and situational awareness as critical in negotiation, as well as the ability to thrive in chaotic and shifting environments.</p>
<p></p>
<p>At the bargaining table, of course, the goal is not to vanquish, disable, or demoralize one’s counterpart. Instead, it is to <em>‘jointly attack’</em> the problem, the barriers to a possible solution, especially when tensions are high and time is tight, as is often crucial in crisis negotiation.</p>
<p></p>
<p>According to Wheeler, having the right mindset is essential in combat and in negotiation. According to the <strong><em>Warfighting</em></strong> manual, <strong><em>“the mind is an officer’s principal weapon”</em></strong> (1997: 64). The same surely applies to master negotiators.</p>
<p></p>
<p><em>Six aspects</em> of military theory and practice are identified, assimilated or incorporated in negotiation dynamics. A brief discussion of the <em>six aspects</em> follows hereunder.</p>
<p> </p>
<p><strong><u>MANAGING A CLASH OF WILLS</u></strong> [<strong><em>‘COMPETING INTERESTS’</em></strong>]</p>
<p></p>
<p><strong><em>“In war and in negotiation, no one is in full control of his or her own destiny.”</em></strong></p>
<p> </p>
<p>A keen awareness of the other side is equally as important in negotiation, where different parties have their own priorities, perceptions, expectations, and values. Sometimes, negotiators may act unilaterally, of course, without regard for anyone else’s interests, rights, or resources — or for the longer-term ramifications of unilateral actions.</p>
<p> </p>
<p>But often, meeting objectives requires winning other people’s agreement, cooperation, or support. While the negotiator strives to influence the other party, the negotiator should be acutely aware that the opposing party will push to advance their goals, notwithstanding how it may be construed, rightly or wrongly. [At 27].</p>
<p> </p>
<p>Matters can become more complicated if the representatives or <em>‘key people’</em> have not fully thought through their interests or if they harbour unrealistic hopes about what may be gained from a negotiated agreement. Time pressure and possible miscommunication can trigger mutual frustration. In the end, it takes just one party performing poorly under such conditions to <em>‘hobble the whole interaction.’</em></p>
<p> </p>
<p>Managing the negotiation process requires the integration of different cognitive, emotional, and social skills. As the late <em>Richard Holbrooke</em>, a former <em>U.S. Ambassador to the</em> <em>United Nations</em>, said, <strong><em>“Negotiation is like playing chess while climbing a mountain.”</em></strong> Like chess players, effective problem solvers coolly weigh possible moves and try to anticipate likely consequences.</p>
<p> </p>
<p><em>“They are artists, as well, sculpting agreements to satisfy the parties’ interests. Negotiators should be skilful interpersonally, adept at reading what their counterparts are thinking and feeling. They should also be emotionally nimble — passionately involved in the moment-to-moment interaction while simultaneously maintaining a detached awareness of their long-term interests.”</em> [At 26].</p>
<p> </p>
<p>The author then cautions negotiators that decision making, communication, persuasion, and problem-solving are familiar skills for civilians and soldiers alike. However, negotiation is more than the mechanical sum of those constituent parts. Integrating its various elements, <em>‘often on the fly’</em>, requires comfort with ambiguity and risk. It also entails accepting the reality that not everything is within the negotiator's control in negotiation. (<em>“If an outcome could be imposed then no need would exist to be at the bargaining table in the first place”.</em>)</p>
<p> </p>
<p>The negotiator may have good intentions however; said virtue does not guarantee that the opposing party will necessarily accept the negotiator’s <em>bona fides.</em> By temperament or history, other parties may be distrustful. Overcoming a party’s reluctance to negotiate openly may test the negotiator’s skills and patience.</p>
<p> </p>
<p><strong><u>Coping with Uncertainty, Ambiguity, and Friction</u></strong></p>
<p></p>
<p><strong><em>“</em></strong><strong><em>Uncertainty is a fact of life in war and in negotiation.”</em></strong></p>
<p><strong><em> </em></strong></p>
<p>The author makes reference to the publication <em>supra</em> <strong><em>Warfighting,</em></strong> and observes that perfect clarity and complete information are never possible in combat; therefore, decisions must be based on reasonable probabilities and calculated risks.</p>
<p> </p>
<p>All actions in war take place in an atmosphere of uncertainty, <em>“the fog of war. “Uncertainty pervades battle in the form of unknowns about the enemy, about the environment, and even about the friendly situation. While we try to reduce these unknowns by gathering information, we must realize we cannot eliminate them — or even come close. The very nature of war makes certainty impossible; all actions in war will be based on incomplete, inaccurate, or even contradictory information.</em>” (1997: 7)</p>
<p></p>
<p>The same uncertainty applies to negotiators, as well. The negotiator is seldom fully aware of the true interests of the opposing party, their no-deal alternatives, or their willingness to compromise. The persuasive negotiator could, for example, precipitate agreement on certain points that the opposing party would have rejected at first. As a consequence, it may be a challenge at the outset to know how much room there is for agreement, or what approach would maximize the chance of reaching it. [At 27].</p>
<p> </p>
<p>It is often said in the military that <strong><em>“battle plans go out the window at first contact with the enemy.”</em></strong> Indeed, <strong>General Dwight D. Eisenhower</strong>, the architect of the invasion of Allied forces into Normandy in World War Two, famously said, <strong><em>“Plans are worthless. Planning is everything”</em></strong> (Eisenhower 1957).</p>
<p> </p>
<p>The above quotation is not a contradiction. A well-conceived process for planning can underscore goals, expose potential obstacles, and illuminate possible paths around them, even though the exact route may not be determined until the interaction is well underway. [At 27].</p>
<p> </p>
<p>According to <strong>Wheeler</strong>, negotiation strategies, like battle plans, should articulate an overarching, clearly identified intent, tested by analyzing the situation from the point of view of the enemy (<em>or one’s counterpart</em>).</p>
<p></p>
<p>The authors of the Marine Corps manual noted the importance of preparing for different scenarios that might unfold but expresses caution about forecasts in the face of unavoidable uncertainty.</p>
<p></p>
<p>Reliable intelligence of the opponent is important in warfare and the same applies in negotiation, where different parties have their own priorities, objectives, perceptions, expectations, and values. Without reliable information planning and strategizing would be impossible.</p>
<p> </p>
<p>The quotations by <strong>Sun Tzu</strong> are noteworthy:</p>
<p> </p>
<p><em>“</em><em>If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”</em> <br/> ― <strong>Sun Tzu, </strong><a href="https://www.goodreads.com/work/quotes/3200649"><strong>The Art of War</strong></a></p>
<p> </p>
<p>“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.” <br/> ― <strong>Sun Tzu, </strong><a href="https://www.goodreads.com/work/quotes/3200649"><strong>The Art of War</strong></a></p>
<p> </p>
<p> </p>
<p><strong>Wheeler</strong> makes the observation that it would be foolish to think that negotiators could ever script a negotiation. It is simply impossible to anticipate the negotiating tactics by the opponent. Just as the US Marines usually have a <em>“bump plan,”</em> negotiators need to have a plan B at the ready in case events do not play out as hoped or expected.</p>
<p> </p>
<p>For example, an item on the agenda may at first appear during the planning phase to be listed as if of little importance.</p>
<p>However, during negotiations, the said agenda item may prove to be of significance to the opponent. A plan B may serve to secure whatever agreement is essential to ensure the continuation of the process while leaving other issues open for later resolution. Reframing the current priority as pilot venture may both make it easier to get short-term agreement and pave the way for a broader settlement down the road.</p>
<p> </p>
<p>Indeed, without using the word <em>“negotiation,”</em> the authors of the counterinsurgency manual virtually echoed that same principle.</p>
<p><em>“Do not try to crack the hardest nut first. Do not go straight for the main insurgent stronghold or try to take on villages that support insurgents. Instead, start from secure areas and work gradually outwards. Extend influence through the local people’s networks. Go with, not against, the grain of the local populace. First, win the confidence of a few villages, and then work with those with whom they trade, intermarry, or do business. This tactic develops local allies, a mobilized populace, and trusted networks.</em></p>
<p> </p>
<p><em>Seek a victory early in the operation to demonstrate the dominance of the AO [area of operations]. This may not be a combat victory. Early combat without an accurate situational understanding may create unnecessary collateral damage and ill will. Instead, victories may involve resolving a long-standing issue or co-opting a key local leader. Achieving even a small early victory can set the tone for the tour and help commanders seize the initiative”</em> (Department of the Army 2006: A-5).</p>
<p></p>
<p>Wheeler contends that uncertainty and adversity are analytic problems and also tax the negotiators’ stamina, creativity, and resolve. The following passage from <em>Warfighting</em> could just as well have been written for negotiators.</p>
<p><em>“Friction may be mental, as in indecision over a course of action. It may be physical, as in effective enemy fire or a terrain obstacle that must be overcome. Friction may be external, imposed by enemy action, the terrain, weather, or mere chance. Friction may be self-induced, caused by such factors as lack of a clearly defined goal, lack of coordination, unclear or complicated plans, complex task organizations or command relationships, or complicated technologies. Whatever form it takes, because war is a human enterprise, friction will always have a psychological as well as a physical impact.”</em> (Schmitt 1997: 5–6).</p>
<p></p>
<p>Friction in negotiation cannot be wished away. As noted in <em>Warfighting</em>, friction may be mental (indecision) or physical (time constraints). It may be imposed by others’ surprising actions or be self-induced. Whatever the source of friction negotiation strategy and organizational processes must take it into account. [At 29].</p>
<p></p>
<p><strong><u>Identifying Surfaces and Gaps</u></strong></p>
<p></p>
<p><strong><em>“</em></strong><strong><em>In a nutshell, reaching agreement in negotiation depends on finding terms that each side regards as superior to its respective go-it-alone alternatives.”</em></strong></p>
<p><strong><em> </em></strong></p>
<p>The author is of the opinion that the negotiating process thus can be described as a <em>‘joint search’</em>, although complicated by the fact that parties typically have differing viewpoints, interests, and styles. Moreover, both sides may be reluctant to reveal what they really are looking for, lest their needs are exploited.</p>
<p> </p>
<p><u>Identifying the boundaries of possible agreement is thus akin to reckoning battlefield conditions.</u> In military terms, <em>“surfaces”</em> and <em>“gaps”</em> refer to <em>‘the enemy’s strengths and weaknesses.’</em> <em>Surfaces</em> are hard and solid — <em>the strengths</em> — while <em>gaps</em> are the weak points or openings that can be taken advantage of.</p>
<p> </p>
<p>Attacks against <em>surfaces</em> waste energy and resources. <em>‘Finding and, if need be, creating gaps allows more opportunities for success</em><em>.’</em></p>
<p> </p>
<p>Hostile opponents will do their best to disguise both their <em>surfaces</em> and their <em>gaps.</em> The passage of time also transforms battlefield features. <strong><em>Colonel Boyd</em></strong> learned from the writings of <strong><em>Emperor Napoleon Bonaparte</em></strong> that <strong><em>“Early tactics, without apparent design, operate in a fluid adaptable manner to uncover, expand and exploit adversary vulnerabilities and weaknesses. . ..”</em></strong></p>
<p><em> </em></p>
<p><strong><em>Warfighting</em></strong> observed that:</p>
<p><em>“Due to the fluid nature of war, gaps will rarely be permanent and will usually be fleeting. To exploit them demands flexibility and speed. We must actively seek out gaps by continuous and aggressive reconnaissance. Once we locate them, we must exploit them by funnelling our forces rapidly. For example, if the main effort has struck a surface but another unit has located a gap, we designate the second unit as the main effort and redirect our combat power in support of it”</em> (1997: 93).</p>
<p> </p>
<p>Parties searching for agreement likewise encounter surfaces and gaps. In the context of negotiation, surfaces may be thought of as points of resistance, demands that the other party will surrender only at great cost.</p>
<p></p>
<p>Gaps, in turn, are those areas (<em>positions, interests, and demands</em>) in which there is room for movement and exchange. Just as in battle, the <em>surfaces</em> and <em>gaps</em> of potential agreement can be hard to detect and subject to change, as the parties’ options and preferences evolve in the course of negotiation.</p>
<p></p>
<p>The process of <em>joint exploration</em> may be one of trial and error, with each party <em>‘trying to distinguish real resistance from mere bluffing or miscommunication.’</em></p>
<p> </p>
<p><strong><u>Simultaneous Learning, Adapting, and Influencing</u></strong></p>
<p></p>
<p><strong><em>“Counterinsurgency is ‘a game of wits and will. You’ve got to be learning and adapting constantly in order to survive” Here again, a military insight applies to negotiation with equal force.’”</em></strong> [<em>Army General Peter J. Schoomaker</em>].</p>
<p></p>
<p>Some negotiation texts offer advice on keeping one’s wits and managing the process. The best of them do not simply deal with isolated tactics but additionally encourage a broader view of how the ongoing exchange shapes the bargaining relationship.</p>
<p> </p>
<p>In <strong><em>Getting Past No</em>,</strong> for example, <em>Ury, W</em>. ‘<strong><em>Getting past no: Negotiating in Difficult situations’</em></strong> New York: Bantam, 1991, <strong>William Ury</strong> urged <strong><em>“going to the balcony”</em></strong> (adopting a detached perspective), to constantly monitor whether the dialogue is moving in a constructive direction. In <strong><em>The Shadow Negotiation</em>,</strong> <strong><em>Deborah Kolb</em></strong> and <strong><em>Judith Williams</em></strong> (2000) described specific <strong><em>“moves and turns”</em></strong> that can redress power imbalances and reposition the parties in future interactions.</p>
<p> </p>
<p>Interpreting what the other side is doing is imperative in both manoeuvre warfare and negotiation. <strong><em>Warfighting</em></strong> stated that “We should try to <em>‘get inside’</em> the enemy’s thought processes and <em>‘’see the enemy as he sees himself. . .. We should not assume that every enemy thinks as we do, fights as we do, or has the same values or objectives”</em> (1997: 77). [At 31].</p>
<p> </p>
<p>Soldiers and negotiators thus need to build on their respective experience and past successes but be vigilant in their search for unfamiliar perils and opportunities.</p>
<p></p>
<p>The author expresses the opinion that if negotiators are thoroughly prepared then they will be better positioned to lead the process in order to achieve the best result or rater predetermined objective by agreement. By contrast, if the negotiator’s strategic assessment of the opponents’ desired objectives is inaccurate then the opposing party in all probability will be in control of the process and shaping the negotiation environment.</p>
<p></p>
<p>Inflexibility as to a predetermined mandate, expectations and objectives may result in a lack of assessment of the dynamics of the negotiating process which is characterized by changing conditions. The result of inflexibility or a display of rigidity will prove to stifle the negotiation process, if not lead to the negotiations being unsuccessful.</p>
<p><strong><u>Balancing Initiative and Organizational Alignment</u></strong></p>
<p></p>
<p><strong><em>“In a military organization, much is made of the sanctity of command, but the real world challenge lies in respecting hierarchy while simultaneously encouraging individual action and responsibility.”</em></strong></p>
<p><strong><em> </em></strong></p>
<p> The author of <em><strong>Warfighting</strong></em> stated that:</p>
<p><em>“As part of our philosophy of command, we must recognize that war is inherently disorderly, uncertain, dynamic, and dominated by friction. . ..</em> <em>For commanders to try to gain certainty as a basis for actions, maintain positive control of events at all times, or shape events to fit their plans is to deny the very nature of war. We must, therefore, be prepared to cope — even better, to thrive — in an environment of chaos, uncertainty, constant change, and friction.”</em> [At 32].</p>
<p> </p>
<p>As a result, the Marines (as well as other branches) put a premium on decentralized command and local initiative. The same conditions play out in negotiations whenever the person at the bargaining table represents other parties or organizations. For example, business managers, like commanders, must balance direction and delegation. On the one hand, trying to give their sales and procurement people precise instructions on what and how to negotiate would stifle initiative and creativity.</p>
<p></p>
<p>Rigid directions would handcuff negotiators in the field when they encounter unexpected opportunities or pitfalls. On the other hand, merely giving subordinates wide discretion and wishing them good luck when they negotiate would invite bad decision making and poor internal coordination. Maintaining a balance between these two poles is essential for the success of the negotiators, as well as the organizations they represent. [At 32].</p>
<p></p>
<p>The author makes an important observation <em>“In this regard, negotiators could learn an important lesson from modern military practice. Specifically, officers are trained to state the underlying intent of their specific orders. This allows “subordinates to exercise judgment and initiative — to depart from the original plan when the unforeseen occurs in a way that is consistent with higher commanders’ aims. . .. While a situation may change, making the task obsolete, the intent is more lasting and continues to guide our actions”</em> (<strong><em>Warfighting</em></strong> 1997: 88–89).</p>
<p></p>
<p>According to <em>Warfighting</em>, <em>“a commander’s statement of intent should be brief and compelling — the more concise, the better”</em> (1997: 90).</p>
<p> </p>
<p>The same principle applies when a manager gives instructions to his or her negotiators. If the stated purpose is clear and concise, personnel in the field — with hands-on knowledge about the people with whom they are dealing — can better forge workable agreements.</p>
<p> </p>
<p><strong><u>Designing Effective Training</u></strong></p>
<p></p>
<p>It is one thing to understand the principles of negotiation (<em>or warfare, for that matter</em>) on an abstract level. Actually, putting those concepts and techniques into action in high risk, uncertain, and rapidly changing environments is something else entirely, given the inevitable friction that the Prussian military theorist <strong><em>Carl von Clausewitz</em></strong> described as <em>“the force that makes the apparently easy so difficult</em><em>”</em> (<strong><em>Warfighting</em></strong> 1997: 5).</p>
<p> </p>
<p>Five key principles are listed that underscore the design of negotiation training. They also suggest what is required to learn to be a more effective negotiator. The principles are briefly discussed below.</p>
<p> </p>
<p><strong><em><u>Train Like You Fight</u></em></strong></p>
<p> </p>
<p>The <em>Warfighting</em> manual has asserted that military training exercises <em>“should approximate the conditions of war as much as possible; that is, they should introduce friction in the form of uncertainty, stress, and opposing wills.”</em></p>
<p> </p>
<p>Young soldiers are trained and must make hard choices when they are uncomfortable and exhausted. Only then can they develop confidence and determination. Recruits have a saying, <strong><em>“If it isn’t raining’, then we aren’t training’.”</em></strong></p>
<p> </p>
<p>When diligent students perform simulations, they are not negotiating issues and items that matter to them personally. On the other hand, egos are at stake. High-achieving students are unlikely to be satisfied with negotiating an outcome that is inferior to what most of their classmates have achieved.</p>
<p>When participants on both sides of the exercise are motivated, they test and strengthen one another’s skills. [At 33].</p>
<p> </p>
<p><strong><em><u>Cultivate a Culture of Bold Decision Making</u></em></strong></p>
<p></p>
<p>Wheeler is of the opinion that <strong><em>‘it is hard to learn from excessive caution.’</em></strong> A negotiator who never pushes the envelope by floating a novel idea has no way of knowing just how big that envelope might be. Likewise, a negotiator who seldom draws a line about what is not negotiable will learn little about being firm and persuasive. Would-be negotiators who push themselves (and others) will learn the most.</p>
<p></p>
<p><strong><em><u>Teach Students to Fail and then Fight Back</u></em></strong></p>
<p></p>
<p>In leadership training, Marine officers are routinely given high-stakes problems with too little information, time, and resources to solve them. The point is to teach young officers how to fail, take responsibility for their actions, and learn from mistakes.</p>
<p> </p>
<p>Likewise, in class, the toughest negotiations are the most instructive (<em>more so, e.g., than an exercise that pairs a desperate seller with a buyer who has trunk loads of money</em>).</p>
<p></p>
<p><em>“In failure, we must ask what we might have done differently. By contrast, when we succeed, it is hard to know whether we were smart or just lucky to be matched with a counterpart who was not demanding or motivated.”</em></p>
<p></p>
<p><strong><em><u>Provide Honest Criticism</u></em></strong></p>
<p></p>
<p>Marines have a strong ethic of acknowledging mistakes and trying to learn from them. By contrast, many organizations seem to aspire to be 100 per cent error-free.</p>
<p> </p>
<p>The result is that mistakes are covered up, thus never corrected or learned from.</p>
<p> </p>
<p>As noted in <strong><em>Warfighting</em>,</strong> <em>“a subordinate’s willingness to admit mistakes depends on the commander’s willingness to tolerate them.”</em> The same kind of openness is essential in a negotiation classroom. [At 35].</p>
<p> </p>
<p></p>
<p><strong><u>CONCLUSION</u></strong></p>
<p></p>
<p>Just as soldiers and military strategists must cope with <em>“friction “</em>and the <em>“fog of war, “</em>negotiators have to deal with uncertainty and stress, although the stakes for them are manifestly lower, of course.</p>
<p> </p>
<p>Soldiers and negotiators likewise must function in fluid environments. While they must be well prepared, they also must be poised to adapt their tactics and revise their strategy.</p>
<p> </p>
<p>Fog, friction, and fluidity are apparent in both deal-making and dispute resolution. The techniques of manoeuvre warfare offer negotiators ways of understanding and managing these dynamics. But many other aspects of manoeuvre warfare may not line up as cleanly, so the analogy should not be forced beyond its usefulness.</p>
<p> </p>
<p>The author concludes with the remark that there is no shame, however, in zealously pursuing agreement in the face of uncertainty and constant change. Mentally, this requires a high tolerance for ambiguity coupled with initiative and a willingness to take considered risks. Strategically, it suggests a constantly adaptive approach, one that tests, probes, learns, and, when need be, adjusts.</p>
<p> </p>
<p>Readers of this article without a military background may find the analogy between <em>warfare</em> and <em>negotiation</em> somewhat academic.</p>
<p> </p>
<p>However, those with experience in crises negotiation may in all probability identify with the comparative analysis between the concepts of <em>warfare</em> and <em>negotiation</em> as well as the similarities identified and discussed by the author.</p>
<p> </p>
<p>Those tasked with the drafting of negotiation training programs may find it useful.</p>
<p> </p>
<p><strong><em> </em></strong></p>
<p><em>Johann Scheepers</em></p>
<p><em>January 26, 2019</em></p>
<p><em> </em></p>
<p><em> </em></p>
<p><strong><em><u>Copyright:</u></em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Copyright reserved by the writer. No part of this article/guide may be reproduced, without prior written permission of the author</em></strong><strong><em>.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The content of this article/summary is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The commentary expressed herein is that of the writer and not that of any professional organization or entity with which the writer may be associated with.</em></strong></p>
<p><strong><em> </em></strong></p>
<p> </p>
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THE ART OF NEGOTIATION AND MILITARY DOCTRINE – ‘STRANGE BEDFELLOWS?’
tag:www.adrhub.com,2019-01-29:4905899:BlogPost:84602
2019-01-29T19:47:38.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
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<p style="text-align: center;"><em>‘’</em><em>On the surface, warfare and negotiation may seem to be polar opposites. The objective in war is to defeat the enemy. In negotiation, the goal is to find a solution that satisfies all the parties. Not surprisingly, little cross-learning and exchange have occurred across the two domains. In spite of important…</em></p>
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<p style="text-align: center;"><em>‘’</em><em>On the surface, warfare and negotiation may seem to be polar opposites. The objective in war is to defeat the enemy. In negotiation, the goal is to find a solution that satisfies all the parties. Not surprisingly, little cross-learning and exchange have occurred across the two domains. In spite of important differences, however, the dynamics of war and negotiation have much in common. Specifically, both involve the interaction of motivated agents with distinct interests, perceptions, and values (especially in high-stakes contexts). As a result, robust strategy, creativity, and nimble tactics are essential both on the battlefield and at the bargaining table. Just as negotiation theory could be enriched by principles of manoeuvre warfare, military doctrine offers officers and soldiers a potentially useful foundation to better understand and manage the negotiation process, especially in complex, cross-cultural contexts.”</em></p>
<p></p>
<p><strong>*</strong>[Michael Wheeler <em><strong>’The Fog of Negotiation: What Negotiators Can Learn from Military Doctrine’ Negotiation Journal</strong></em> January 2013]</p>
<p></p>
<p><strong><em>“Machines don’t fight wars. Terrain doesn’t fight wars. Humans fight wars. You must get into the minds of humans. That’s where battles are won.”</em></strong></p>
<p> </p>
<p>––United States Air Force <strong>Colonel John Boyd</strong> (Curts and Campbell 2001: 2)</p>
<p> </p>
<p>* <strong>Michael Wheeler</strong> is the Class of 1952, Professor of Management Practice at the Harvard Business School and the editor of <em>Negotiation Journal</em>. His e-mail address is <a href="mailto:mwheeler@hbs.edu">mwheeler@hbs.edu</a>. 10.1111/nejo.12003 © 2013 President and Fellows of Harvard College.</p>
<p></p>
<p><strong><u>INTRODUCTORY COMMENTS</u></strong></p>
<p>At the time when I noticed the title of the article, it sparked interest insofar as <em>‘Negotiation</em><em>’</em> v <em>‘Military Doctrine’</em> seemed irreconcilable concepts. The perception held by most is that <strong><em>Negotiation</em></strong> = <em>Peace</em> and <strong><em>Military Doctrine</em></strong> = <em>Warfare.</em></p>
<p>The immediate deduction may be made that negotiation has no place in battle or of little if any relevance within the realm of strategic warfare. </p>
<p>I then recalled the words of a South African Army General [who will not be named], <strong><em>“All wars eventually come to an end when a peace deal has been negotiated.”</em></strong></p>
<p>In the article <em>supra</em> the learned author, <strong>Wheeler</strong> <em>at 23</em> opens by a <em>‘provisional acknowledgement’</em> that warfare and negotiation seem worlds apart, at least at first glance.</p>
<p>In <em>combat</em>, one side seeks to dominate the other. Parties in <em>negotiation</em> — even those with <em>adverse</em> <em>interests</em> — jointly seek a solution that is at least satisfactory for all involved.</p>
<p>A comparison is made in clarification of the two ostensible irreconcilable concepts by reference to the undermentioned quotations:</p>
<p>The United States Marine Corps (USMC) manual, <em>Warfighting</em>, has declared that war is <strong><em>“a state of mind bent on shattering the enemy morally and physically by paralyzing and confounding him, by avoiding his strength, by quickly and aggressively exploiting his vulnerabilities, and by striking him in a way that will hurt him most”</em></strong>.</p>
<p> </p>
<p>[<strong><em>Warfighting.</em></strong> 1989. <strong><em>Fleet Marine Force Manual. United States Marine Corps.</em></strong> Available from <u>HTTP:// <a href="http://www.clausewitz.com/readings/mcdp1.pdf">www.clausewitz.com/readings/mcdp1.pdf</a>.</u> — ——. (Second edition). 1997. <strong><em>Fleet Marine Force Manual. United States Marine Corps.</em></strong> Available from <a href="https://www.doctrine.usmc.mil/mcdp/html/mcdp1.htm">https://www.doctrine.usmc.mil/mcdp/html/mcdp1.htm</a>. The manual, in its entirety, can be found at <a href="http://www.clausewitz.com/readings/">http://www.clausewitz.com/readings/</a> medp1.pdf, among other sites on the Internet. The fact that it is publicly available suggests that success ultimately rides on how well any strategy is actually executed.] </p>
<p> </p>
<p>The author, then, by contrast, refers to a popular text in a publication authored by <em>Kennedy supra</em> wherein it is stated that <strong><em>“Negotiating is about trading. This distinguishes it from other forms of decision making.</em></strong></p>
<p></p>
<p><strong><em>In negotiation, there is an explicit trade: I get some of what I want, and you get some of what you want”</em></strong></p>
<p> </p>
<p>[Kennedy, G. ‘<strong><em>Field guide to negotiation: A glossary of essential tools and concepts for today’s manager’</em></strong> Boston: 1994, <em><strong>Harvard Business School Press</strong></em>.]</p>
<p> </p>
<p>After perusal of the paragraphs quoted above and without perusal of the article by <strong>Wheeler</strong> the reader would in all probability reply, <strong><em>‘So what…? Warfare and negotiation remain irreconcilable concepts, with distinct and opposite interests as well as objectives.’</em></strong></p>
<p> </p>
<p><strong>Wheeler</strong> states <strong><em>at 24</em></strong> that notwithstanding the obvious differences between the two domains, however, there also are important parallels that have been largely overlooked. The potential for cross-learning is considerable. Popular negotiation books, for example, have paid little attention to crafting and implementing strategy in fluid, uncertain environments. Instead, they typically have posited static situations with clearly defined parties whose interests and no agreement options are implicitly unchanging.</p>
<p></p>
<p>According to <strong>Wheeler <em>‘</em><em>neat negotiating’</em></strong> models often fail to capture real-world conditions. Surprises <em>‘pop up’</em> even in everyday negotiations:</p>
<ol>
<li>ii) competitors or as they are termed <em>‘stakeholders’</em> or <em>‘concerned citizens’</em> arrive on the scene; and</li>
<li>i) new issues may arise;</li>
<li>iii) walk-away options may improve or deteriorate.</li>
</ol>
<p>Modern theories of manoeuvre warfare could help fill this conceptual void, particularly in devising ways to effectively move forward and adapt in the face of uncertainty and risk; especially in crisis situations.</p>
<p>Learning can happen in the other direction as well. Military personnel who need to master key negotiation concepts to win local support and cooperation in war-torn regions could ramp up their learning curve by adapting what they already know about strategy and tactics. A well-known phrase or rather intelligence strategy comes to mind, namely <strong><em>“Winning the hearts and the minds of the inhabitants of a war-torn region.’</em></strong></p>
<p>In the article, the author specifically focusses on <strong><em>Warfighting</em>,</strong> written by <strong><em>USMC Captain John Schmitt</em></strong> in 1989 and revised by him in 1997. That work, in turn, is based on sources as varied as <strong><em>Carl von Clausewitz,</em></strong> <em><strong>Winston Churchill,</strong></em> and Chinese military legend <strong><em>Sun Tzu.</em></strong> As <strong><em>General A. M. Gray,</em></strong> then Commandant of the Marine Corps, stated in his foreword to the first edition of <strong><em>Warfighting,</em></strong> its <strong><em>“philosophy for action represents not just guidance for actions in combat, but a way of thinking in general”</em></strong> (<em>Warfighting</em> 1989: foreword).</p>
<p>The author refers to strategic warfare and uses examples as comparators in order to emphasize the importance of concepts such as agility and situational awareness as critical in negotiation, as well as the ability to thrive in chaotic and shifting environments.</p>
<p>At the bargaining table, of course, the goal is not to vanquish, disable, or demoralize one’s counterpart. Instead, it is to <em>‘jointly attack’</em> the problem, the barriers to a possible solution, especially when tensions are high and time is tight, as is often crucial in crisis negotiation.</p>
<p>According to Wheeler, having the right mindset is essential in combat and in negotiation. According to the <strong><em>Warfighting</em></strong> manual, <strong><em>“the mind is an officer’s principal weapon”</em></strong> (1997: 64). The same surely applies for master negotiators.</p>
<p><em>Six aspects</em> of military theory and practice are identified, assimilated or incorporated in negotiation dynamics. A brief discussion of the <em>six aspects</em> follows hereunder.</p>
<p> </p>
<p><strong><u>MANAGING A CLASH OF WILLS</u></strong> [<strong><em>‘COMPETING INTERESTS’</em></strong>]</p>
<p></p>
<p><strong><em>“In war and in negotiation, no one is in full control of his or her own destiny.”</em></strong></p>
<p> </p>
<p>A keen awareness of the other side is equally as important in negotiation, where different parties have their own priorities, perceptions, expectations, and values. Sometimes, negotiators may act unilaterally, of course, without regard for anyone else’s interests, rights, or resources — or for the longer-term ramifications of unilateral actions.</p>
<p> </p>
<p>But often, meeting objectives requires winning other people’s agreement, cooperation, or support. While the negotiator strives to influence the other party, the negotiator should be acutely aware that the opposing party will push to advance their goals, notwithstanding how it may be construed, rightly or wrongly. [At 27].</p>
<p> </p>
<p>Matters can become more complicated if the representatives or <em>‘key people’</em> have not fully thought through their interests or if they harbour unrealistic hopes about what may be gained from a negotiated agreement. Time pressure and possible miscommunication can trigger mutual frustration. In the end, it takes just one party performing poorly under such conditions to <em>‘hobble the whole interaction.’</em></p>
<p> </p>
<p>Managing the negotiation process requires the integration of different cognitive, emotional, and social skills. As the late <em>Richard Holbrooke</em>, a former <em>U.S. Ambassador to the</em> <em>United Nations</em>, said, <strong><em>“Negotiation is like playing chess while climbing a mountain.”</em></strong> Like chess players, effective problem solvers coolly weigh possible moves and try to anticipate likely consequences.</p>
<p> </p>
<p><em>“They are artists, as well, sculpting agreements to satisfy the parties’ interests. Negotiators should be skilful interpersonally, adept at reading what their counterparts are thinking and feeling. They should also be emotionally nimble — passionately involved in the moment-to-moment interaction while simultaneously maintaining a detached awareness of their long-term interests.”</em> [At 26].</p>
<p> </p>
<p>The author then cautions negotiators that decision making, communication, persuasion, and problem-solving are familiar skills for civilians and soldiers alike. However, negotiation is more than the mechanical sum of those constituent parts. Integrating its various elements, <em>‘often on the fly’</em>, requires comfort with ambiguity and risk. It also entails accepting the reality that not everything is within the negotiators' control in negotiation. (<em>“If an outcome could be imposed then no need would exist to be at the bargaining table in the first place”.</em>)</p>
<p> </p>
<p>The negotiator may have good intentions however; said virtue does not guarantee that the opposing party will necessarily accept the negotiator’s <em>bona fides.</em> By temperament or history, other parties may be distrustful. Overcoming a party’s reluctance to negotiate openly may test the negotiator’s skills and patience.</p>
<p> </p>
<p><strong><u>Coping with Uncertainty, Ambiguity, and Friction</u></strong></p>
<p></p>
<p><strong><em>“</em></strong><strong><em>Uncertainty is a fact of life in war and in negotiation.”</em></strong></p>
<p><strong><em> </em></strong></p>
<p>The author makes reference to the publication <em>supra</em> <strong><em>Warfighting,</em></strong> and observes that perfect clarity and complete information are never possible in combat; therefore, decisions must be based on reasonable probabilities and calculated risks.</p>
<p> </p>
<p>All actions in war take place in an atmosphere of uncertainty, <em>“the fog of war. “Uncertainty pervades battle in the form of unknowns about the enemy, about the environment, and even about the friendly situation. While we try to reduce these unknowns by gathering information, we must realize we cannot eliminate them — or even come close. The very nature of war makes certainty impossible; all actions in war will be based on incomplete, inaccurate, or even contradictory information.</em>” (1997: 7)</p>
<p>The same uncertainty applies to negotiators, as well. The negotiator is seldom fully aware of the true interests of the opposing party, their no-deal alternatives, or their willingness to compromise. The persuasive negotiator could, for example, precipitate agreement on certain points that the opposing party would have rejected at first. As a consequence, it may be a challenge at the outset to know how much room there is for agreement, or what approach would maximize the chance of reaching it. [At 27].</p>
<p> </p>
<p>It is often said in the military that <strong><em>“battle plans go out the window at first contact with the enemy.”</em></strong> Indeed, <strong>General Dwight D. Eisenhower</strong>, the architect of the invasion of Allied forces into Normandy in World War Two, famously said, <strong><em>“Plans are worthless. Planning is everything”</em></strong> (Eisenhower 1957).</p>
<p> </p>
<p>The above quotation is not a contradiction. A well-conceived process for planning can underscore goals, expose potential obstacles, and illuminate possible paths around them, even though the exact route may not be determined until the interaction is well underway. [At 27].</p>
<p> </p>
<p>According to <strong>Wheeler</strong>, negotiation strategies, like battle plans, should articulate an overarching, clearly identified intent, tested by analyzing the situation from the point of view of the enemy (<em>or one’s counterpart</em>).</p>
<p>The authors of the Marine Corps manual noted the importance of preparing for different scenarios that might unfold but expresses caution about forecasts in the face of unavoidable uncertainty.</p>
<p>Reliable intelligence of the opponent is important in warfare and the same applies in negotiation, where different parties have their own priorities, objectives, perceptions, expectations, and values. Without reliable information planning and strategizing would be impossible.</p>
<p> </p>
<p>The quotations by <strong>Sun Tzu</strong> are noteworthy:</p>
<p> </p>
<p><em>“</em><em>If you know the enemy and know yourself, you need not to fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”</em> <br/>― <strong>Sun Tzu, </strong><a href="https://www.goodreads.com/work/quotes/3200649"><strong>The Art of War</strong></a></p>
<p> </p>
<p>“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.” <br/>― <strong>Sun Tzu, </strong><a href="https://www.goodreads.com/work/quotes/3200649"><strong>The Art of War</strong></a></p>
<p> </p>
<p> </p>
<p><strong>Wheeler</strong> makes the observation that it would be foolish to think that negotiators could ever script a negotiation. It is simply impossible to anticipate the negotiating tactics by the opponent. Just as the US Marines usually have a <em>“bump plan,”</em> negotiators need to have a plan B at the ready in case events do not play out as hoped or expected.</p>
<p> </p>
<p>For example, an item on the agenda may at first appear during the planning phase to be listed as if of little importance.</p>
<p>However, during negotiations, the said agenda item may prove to be of significance to the opponent. A plan B may serve to secure whatever agreement is essential to ensure a continuation of the process while leaving other issues open for later resolution. Reframing the current priority as pilot venture may both make it easier to get short-term agreement and pave the way for a broader settlement down the road.</p>
<p> </p>
<p>Indeed, without using the word <em>“negotiation,”</em> the authors of the counterinsurgency manual virtually echoed that same principle.</p>
<p></p>
<p><em>“Do not try to crack the hardest nut first. Do not go straight for the main insurgent stronghold or try to take on villages that support insurgents. Instead, start from secure areas and work gradually outwards. Extend influence through the local people’s networks. Go with, not against, the grain of the local populace. First, win the confidence of a few villages, and then work with those with whom they trade, intermarry, or do business. This tactic develops local allies, a mobilized populace, and trusted networks.</em></p>
<p> </p>
<p><em>Seek a victory early in the operation to demonstrate the dominance of the AO [area of operations]. This may not be a combat victory. Early combat without an accurate situational understanding may create unnecessary collateral damage and ill will. Instead, victories may involve resolving a long-standing issue or co-opting a key local leader. Achieving even a small early victory can set the tone for the tour and help commanders seize the initiative”</em> (Department of the Army 2006: A-5).</p>
<p>Wheeler contends that uncertainty and adversity are analytic problems and also tax the negotiators’ stamina, creativity, and resolve. The following passage from <em>Warfighting</em> could just as well have been written for negotiators.</p>
<p><em>“Friction may be mental, as in indecision over a course of action. It may be physical, as in an effective enemy fire or a terrain obstacle that must be overcome. Friction may be external, imposed by enemy action, the terrain, weather, or mere chance. Friction may be self-induced, caused by such factors as lack of a clearly defined goal, lack of coordination, unclear or complicated plans, complex task organizations or command relationships, or complicated technologies. Whatever form it takes, because war is a human enterprise, friction will always have a psychological as well as a physical impact.”</em> (Schmitt 1997: 5–6).</p>
<p>Friction in negotiation cannot be wished away. As noted in <em>Warfighting</em>, friction may be mental (indecision) or physical (time constraints). It may be imposed by others’ surprising actions or be self-induced. Whatever the source of friction negotiation strategy and organizational processes must take it into account. [At 29].</p>
<p></p>
<p><strong><u>Identifying Surfaces and Gaps</u></strong></p>
<p></p>
<p><strong><em>“</em></strong><strong><em>In a nutshell, reaching agreement in negotiation depends on finding terms that each side regards as superior to its respective go-it-alone alternatives.”</em></strong></p>
<p><strong><em> </em></strong></p>
<p>The author is of the opinion that the negotiating process thus can be described as a <em>‘joint search’</em>, although complicated by the fact that parties typically have differing viewpoints, interests, and styles. Moreover, both sides may be reluctant to reveal what they really are looking for, lest their needs are exploited.</p>
<p> </p>
<p><u>Identifying the boundaries of possible agreement is thus akin to reckoning battlefield conditions.</u> In military terms, <em>“surfaces”</em> and <em>“gaps”</em> refer to <em>‘the enemy’s strengths and weaknesses.’</em> <em>Surfaces</em> are hard and solid — <em>the strengths</em> — while <em>gaps</em> are the weak points or openings that can be taken advantage of.</p>
<p> </p>
<p>Attacks against <em>surfaces</em> waste energy and resources. <em>‘Finding and, if need be, creating gaps allows more opportunities for success</em><em>.’</em></p>
<p> </p>
<p>Hostile opponents will do their best to disguise both their <em>surfaces</em> and their <em>gaps.</em> The passage of time also transforms battlefield features. <strong><em>Colonel Boyd</em></strong> learned from the writings of <strong><em>Emperor Napoleon Bonaparte</em></strong> that <strong><em>“Early tactics, without apparent design, operate in a fluid adaptable manner to uncover, expand and exploit adversary vulnerabilities and weaknesses. . ..”</em></strong></p>
<p><em> </em></p>
<p><strong><em>Warfighting</em></strong> observed that:</p>
<p><em>“Due to the fluid nature of war, gaps will rarely be permanent and will usually be fleeting. To exploit them demands flexibility and speed. We must actively seek out gaps by continuous and aggressive reconnaissance. Once we locate them, we must exploit them by funnelling our forces through rapidly. For example, if the main effort has struck a surface but another unit has located a gap, we designate the second unit as the main effort and redirect our combat power in support of it”</em> (1997: 93).</p>
<p> Parties searching for agreement likewise encounter surfaces and gaps. In the context of negotiation, surfaces may be thought of as points of resistance, demands that the other party will surrender only at great cost.</p>
<p>Gaps, in turn, are those areas (<em>positions, interests, and demands</em>) in which there is room for movement and exchange. Just as in battle, the <em>surfaces</em> and <em>gaps</em> of potential agreement can be hard to detect and subject to change, as the parties’ options and preferences evolve in the course of negotiation.</p>
<p>The process of <em>joint exploration</em> may be one of trial and error, with each party <em>‘trying to distinguish real resistance from mere bluffing or miscommunication.’</em></p>
<p> </p>
<p><strong><u>Simultaneous Learning, Adapting, and Influencing</u></strong></p>
<p></p>
<p><strong><em>“Counterinsurgency is ‘a game of wits and will. You’ve got to be learning and adapting constantly in order to survive” Here again, a military insight applies to negotiation with equal force.’”</em></strong> [<em>Army General Peter J. Schoomaker</em>].</p>
<p>Some negotiation texts offer advice on keeping one’s wits and managing the process. The best of them do not simply deal with isolated tactics but additionally encourage a broader view of how the ongoing exchange shapes the bargaining relationship.</p>
<p> </p>
<p>In <strong><em>Getting Past No</em>,</strong> for example, <em>Ury, W</em>. ‘<strong><em>Getting past no: Negotiating in difficult situations’</em></strong> New York: Bantam, 1991, <strong>William Ury</strong> urged <strong><em>“going to the balcony”</em></strong> (adopting a detached perspective), to constantly monitor whether the dialogue is moving in a constructive direction. In <strong><em>The Shadow Negotiation</em>,</strong> <strong><em>Deborah Kolb</em></strong> and <strong><em>Judith Williams</em></strong> (2000) described specific <strong><em>“moves and turns”</em></strong> that can redress power imbalances and reposition the parties in future interactions.</p>
<p> </p>
<p>Interpreting what the other side is doing is imperative in both manoeuvre warfare and negotiation. <strong><em>Warfighting</em></strong> stated that “We should try to <em>‘get inside’</em> the enemy’s thought processes and <em>‘’see the enemy as he sees himself. . .. We should not assume that every enemy thinks as we do, fights as we do, or has the same values or objectives”</em> (1997: 77). [At 31].</p>
<p>Soldiers and negotiators thus need to build on their respective experience and past successes but be vigilant in their search for unfamiliar perils and opportunities.</p>
<p>The author expresses the opinion that if negotiators are thoroughly prepared then they will be better positioned to lead the process in order to achieve the best result or rater predetermined objective by agreement. By contrast, if the negotiator’s strategic assessment of the opponents’ desired objectives is inaccurate then the opposing party in all probability will be in control of the process and shaping the negotiation environment.</p>
<p>Inflexibility as to a predetermined mandate, expectations and objectives may result in a lack of assessment of the dynamics of the negotiating process which is characterized by changing conditions. The result of inflexibility or a display of rigidity will prove to stifle the negotiation process, if not lead to the negotiations being unsuccessful.</p>
<p></p>
<p><strong><u>Balancing Initiative and Organizational Alignment</u></strong></p>
<p></p>
<p><strong><em>“In a military organization, much is made of the sanctity of command, but the real world challenge lies in respecting hierarchy while simultaneously encouraging individual action and responsibility.”</em></strong></p>
<p>The author of <em><strong>Warfighting</strong></em> stated that:</p>
<p><em>“As part of our philosophy of command we, must recognize that war is inherently disorderly, uncertain, dynamic, and dominated by friction. . ..</em> <em>For commanders to try to gain certainty as a basis for actions, maintain positive control of events at all times, or shape events to fit their plans is to deny the very nature of war. We must therefore be prepared to cope — even better, to thrive — in an environment of chaos, uncertainty, constant change, and friction.”</em> [At 32].</p>
<p> </p>
<p>As a result, the Marines (as well as other branches) put a premium on decentralized command and local initiative. The same conditions play out in negotiations whenever the person at the bargaining table represents other parties or organizations. For example, business managers, like commanders, must balance direction and delegation. On the one hand, trying to give their sales and procurement people precise instructions on what and how to negotiate would stifle initiative and creativity.</p>
<p>Rigid directions would handcuff negotiators in the field when they encounter unexpected opportunities or pitfalls. On the other hand, merely giving subordinates wide discretion and wishing them good luck when they negotiate would invite bad decision making and poor internal coordination. Maintaining balance between these two poles is essential for the success of the negotiators, as well as the organizations they represent. [At 32].</p>
<p>The author makes an important observation <em>“In this regard, negotiators could learn an important lesson from modern military practice. Specifically, officers are trained to state the underlying intent of their specific orders. This allows “subordinates to exercise judgment and initiative — to depart from the original plan when the unforeseen occurs in a way that is consistent with higher commanders’ aims. . .. While a situation may change, making the task obsolete, the intent is more lasting and continues to guide our actions”</em> (<strong><em>Warfighting</em></strong> 1997: 88–89).</p>
<p>According to <em>Warfighting</em>, <em>“a commander’s statement of intent should be brief and compelling — the more concise, the better”</em> (1997: 90).</p>
<p></p>
<p>The same principle applies when a manager gives instructions to his or her negotiators. If the stated purpose is clear and concise, personnel in the field — with hands-on knowledge about the people with whom they are dealing — can better forge workable agreements.</p>
<p> </p>
<p><strong><u>Designing Effective Training</u></strong></p>
<p></p>
<p>It is one thing to understand the principles of negotiation (<em>or warfare, for that matter</em>) on an abstract level. Actually, putting those concepts and techniques into action in high risk, uncertain, and rapidly changing environments is something else entirely, given the inevitable friction that the Prussian military theorist <strong><em>Carl von Clausewitz</em></strong> described as <em>“the force that makes the apparently easy so difficult</em><em>”</em> (<strong><em>Warfighting</em></strong> 1997: 5).</p>
<p> </p>
<p>Five key principles are listed that underscore the design of negotiation training. They also suggest what is required to learn to be a more effective negotiator. The principles are briefly discussed to below.</p>
<p> </p>
<p><strong><em><u>Train Like You Fight</u></em></strong></p>
<p> </p>
<p>The <em>Warfighting</em> manual has asserted that military training exercises <em>“should approximate the conditions of war as much as possible; that is, they should introduce friction in the form of uncertainty, stress, and opposing wills.”</em></p>
<p> </p>
<p>Young soldiers are trained and must make hard choices when they are uncomfortable and exhausted. Only then can they develop confidence and determination. Recruits have a saying, <strong><em>“If it isn’t raining’, then we aren’t training’.”</em></strong></p>
<p> </p>
<p>When diligent students perform simulations, they are not negotiating issues and items that matter to them personally. On the other hand, egos are at stake. High-achieving students are unlikely to be satisfied with negotiating an outcome that is inferior to what most of their classmates have achieved.</p>
<p>When participants on both sides of the exercise are motivated, they test and strengthen one another’s skills. [At 33].</p>
<p> </p>
<p><strong><em><u>Cultivate a Culture of Bold Decision Making</u></em></strong></p>
<p></p>
<p>Wheeler is of the opinion that <strong><em>‘it is hard to learn from excessive caution.’</em></strong> A negotiator who never pushes the envelope by floating a novel idea has no way of knowing just how big that envelope might be. Likewise, a negotiator who seldom draws a line about what is not negotiable will learn little about being firm and persuasive. Would-be negotiators who push themselves (and others) will learn the most.</p>
<p></p>
<p><strong><em><u>Teach Students to Fail and then Fight Back</u></em></strong></p>
<p></p>
<p>In leadership training, Marine officers are routinely given high-stakes problems with too little information, time, and resources to solve them. The point is to teach young officers how to fail, take responsibility for their actions, and learn from mistakes.</p>
<p> </p>
<p>Likewise, in class, the toughest negotiations are the most instructive (<em>more so, e.g., than an exercise that pairs a desperate seller with a buyer who has trunk loads of money</em>).</p>
<p></p>
<p><em>"In failure, we must ask what we might have done differently. By contrast, when we succeed, it is hard to know whether we were smart or just lucky to be matched with a counterpart who was not demanding or motivated.”</em></p>
<p></p>
<p><strong><em><u>Provide Honest Criticism</u></em></strong></p>
<p></p>
<p></p>
<p>Marines have a strong ethic of acknowledging mistakes and trying to learn from them. By contrast, many organizations seem to aspire to be 100 percent error free.</p>
<p> </p>
<p>The result is that mistakes are covered up, thus never corrected or learned from.</p>
<p> </p>
<p>As noted in <strong><em>Warfighting</em>,</strong> <em>“a subordinate’s willingness to admit mistakes depends on the commander’s willingness to tolerate them.”</em> The same kind of openness is essential in a negotiation classroom. [At 35].</p>
<p> </p>
<p></p>
<p><strong><u>CONCLUSION</u></strong></p>
<p></p>
<p>Just as soldiers and military strategists must cope with <em>“friction “</em>and the <em>“fog of war, “</em>negotiators have to deal with uncertainty and stress, although the stakes for them are manifestly lower, of course.</p>
<p> </p>
<p>Soldiers and negotiators likewise must function in fluid environments. While they must be well prepared, they also must be poised to adapt their tactics and revise their strategy.</p>
<p> </p>
<p>Fog, friction, and fluidity are apparent in both deal making and dispute resolution. The techniques of maneuver warfare offer negotiators ways of understanding and managing these dynamics. But many other aspects of maneuver warfare may not line up as cleanly, so the analogy should not be forced beyond its usefulness.</p>
<p> </p>
<p>The author concludes with the remark that there is no shame, however, in zealously pursuing an agreement in the face of uncertainty and constant change. Mentally, this requires a high tolerance for ambiguity coupled with initiative and a willingness to take considered risks. Strategically, it suggests a constantly adaptive approach, one that tests, probes, learns, and, when need be, adjusts.</p>
<p> </p>
<p>Readers of this article without a military background may find the analogy between <em>warfare</em> and <em>negotiation</em> somewhat academic.</p>
<p> </p>
<p>However, those with experience in crises negotiation may in all probability identify with the comparative analysis between the concepts of <em>warfare</em> and <em>negotiation</em> as well as the similarities identified and discussed by the author.</p>
<p> </p>
<p>Those tasked with the drafting of negotiation training programs may find it useful.</p>
<p> </p>
<p><strong><em> </em></strong></p>
<p><em>Johann Scheepers</em></p>
<p><em>January 26, 2019</em></p>
<p><em> </em></p>
<p><em> </em></p>
<p><strong><em><u>Copyright:</u></em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Copyright reserved by the writer. No part of this article/guide may be reproduced, without prior written permission of the author</em></strong><strong><em>.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The content of this article/summary is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The commentary expressed herein is that of the writer and not that of any professional organization or entity with which the writer may be associated with.</em></strong></p>
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<p><a href="https://storage.ning.com/topology/rest/1.0/file/get/916994004?profile=original" target="_blank" rel="noopener"></a></p>
CORRECT CATEGORIZATION OF A DISMISSAL ‘THREE STRIKES YOU’RE OUT!’
tag:www.adrhub.com,2018-08-30:4905899:BlogPost:83121
2018-08-30T01:00:43.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p style="text-align: center;"><strong><em><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544785830?profile=original" target="_self"><img class="align-center" src="http://storage.ning.com/topology/rest/1.0/file/get/2544785830?profile=original" width="640"></img></a> “Dismissal is divided into three categories: dismissals for misconduct, for incapacity and based on operational requirements. This division, which conforms with the ILO Termination of Employment Convention 158 of 1982 and Recommendation 166 0f 1982, is a happy one. It covers the field, encompassing all culpable and non-culpable conduct…</em></strong></p>
<p style="text-align: center;"><strong><em><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544785830?profile=original" target="_self"><img src="http://storage.ning.com/topology/rest/1.0/file/get/2544785830?profile=original" width="640" class="align-center"/></a>“Dismissal is divided into three categories: dismissals for misconduct, for incapacity and based on operational requirements. This division, which conforms with the ILO Termination of Employment Convention 158 of 1982 and Recommendation 166 0f 1982, is a happy one. It covers the field, encompassing all culpable and non-culpable conduct on the employee’s part and every legitimate ground on which the employer might wish to rely…The categorisation is of more than just conceptual interest. It creates the frame work for the balance of each Chapter, for each category is made the subject of separate and specific regulation. On the categorisation, moreover, hang important issues of jurisdictional competence: dismissal for misconduct and incapacity, for instance, end up in arbitration cases</em></strong> <strong>[or the Labour Court of South Africa] <em>as well as dismissals for operational requirements. Characterising the dispute properly is important, therefore…but it is by no means easy, for the categories overlap.”</em></strong></p>
<p style="text-align: center;"> </p>
<p>[Martin Brassey SC <strong><em>“Commentary on the Labour Relations Act”</em></strong> 1999, <em>Juta,</em> <em>at A8-67</em>]</p>
<p> </p>
<p><strong><u>INTRODUCTION</u></strong></p>
<p></p>
<p>Acknowledgement for the drafting of this article should go to a trusted friend and respected colleague, <strong><em>Mr Gary Watkins</em></strong>, CEO of the Company <strong>Workinfo.com,</strong> an organisation which business focus is widespread, from training, publishing, consulting…and almost all topics and activities imaginable within the scope of Labour Law, Employment Relations etcetera. [See <a href="http://www.workinfo.org">www.workinfo.org</a> ].</p>
<p> </p>
<p>After a lengthy period of no contact, I <em>‘bumped into’</em> Gary at a well known South African statutory dispute resolution body. The normal greetings and pleasantries followed where after he admonished <em>“you have not written any articles for a long time.”</em></p>
<p> </p>
<p>Momentarily taken aback and suffice it to concede that I <em>‘mumbled some lame excuse’</em> for the [6 months] inactivity in a manner that a man of his intellect could not regard as justifiable or of any credibility. The <em>flyer</em> <em>‘writer’s block’</em> only surfaced later…too late.</p>
<p> </p>
<p>Therefore and after due reflection the decision to <em>‘put pen to paper.’</em></p>
<p><em> </em></p>
<p>Also to be specifically acknowledged for the realisation of this attempt is an article published in the authoritative publication by the renowned author, Dr John Grogan <strong><em>‘Employment Law Journal -</em></strong> <strong>What's in a name? Dismissal for incapacity or operational requirements</strong><strong><em>’</em></strong> <em>LexisNexis,</em> 2018, <em>vol. 24 (part 2). </em></p>
<p> </p>
<p>The article with the above subject matter follows hereunder.</p>
<p> </p>
<p><strong><u>OPENING OBSERVATIONS</u></strong></p>
<p> </p>
<p>The excerpt or rather a direct quotation from the authoritative publication by <em>Brassey SC</em> referred to above is of importance especially as regards the importance of the correct categorisation of a matter by the employer prior to it embarking on the decision to terminate service of an employee.</p>
<p> </p>
<p>Everyone has a <em>right to fair labour practices.</em> This principle is enshrined in <strong>section 23</strong> of <strong>the Constitution of the Republic of South Africa, 1996</strong> and entrenched in <strong>the Labour Relations Act 66 of 1995</strong> (hereinafter referred to as “the LRA”).</p>
<p> </p>
<p><strong>Section 185</strong> of the LRA provides that every employee has the right not to be unfairly dismissed and <strong>section 188(1)</strong> provides that <em>a dismissal</em> that is not <em>automatically unfair</em>, <em>is unfair if the employer fails to prove</em> –</p>
<p> </p>
<p>(a) i) that the reason for dismissal is a <em>fair reason</em> –</p>
<p> </p>
<ol>
<li>ii) related to the employee’s <em>conduct</em> or <em>capacity</em>; or</li>
</ol>
<p> </p>
<p> iii) based on the employer’s <em>operational requirements</em>; and</p>
<p> </p>
<p>(b) that the dismissal was effected in accordance with a <em>fair procedure</em>.”</p>
<p> </p>
<p>[The employer consequently carries the <em>onus</em> to prove that a dismissal is <em>fair</em> from a <em>substantive</em> as well as a <em>procedural</em> point of view].</p>
<p> </p>
<p>A <em>‘fair procedure’</em> is a prerequisite prior to a decision to dismiss or terminate service albeit for <em>conduct</em> [<em>misconduct</em>], <em>capacit</em>y [incapacity due to <em>‘poor work performance’</em> or <em>‘ill health or injury’</em>] or <em>operational requirements</em> [commonly referred to as <em>‘retrenchment’</em>].</p>
<p> </p>
<p>The procedure or process to be followed prior to dismissal depends on the correct categorisation of the reason for the said dismissal.</p>
<p> </p>
<p>As regards <em>substantive fairness</em> <em>‘misconduct’</em> the employer has to prove that the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace, its validity, the employee’s awareness of the rule or standard, consistency in application of rule or standard and whether dismissal was an appropriate sanction for contravention of the rule or standard.</p>
<p> </p>
<p>As regards substantive fairness <em>‘incapacity – poor work performance’</em> a different process is prescribed, namely awareness of required performance standard, a fair opportunity to meet the required performance standard and that dismissal for not meeting the required was the appropriate sanction.</p>
<p> </p>
<p>As regards procedural and <em>substantive fairness</em> <em>‘operational requirements’</em> <strong>s189</strong> of the LRA is prescriptive in that it requires a complex process, to wit an obligation on the employer and the employee to engage in a consultation process termed as <em>‘a meaningful joint consensus-seeking process’</em> and <em>‘attempt to reach consensus’</em> on various listed issues to avoid termination or ameliorate the effects of termination on the grounds of operational requirements <em>‘retrenchments.’</em></p>
<p><em> </em></p>
<p><strong><u>THE CORRECT CATEGORIZATION OF THE CONTEMPLATED TERMINATION</u></strong></p>
<p></p>
<p>According to <strong><em>Brassey</em></strong> the above mentioned categories overlap and the correct process chosen to be followed is by no means easy due to overlapping.</p>
<p> </p>
<p>For example, if an employee causes his employers loss, his conduct is culpable and is thus a species of misconduct. If his negligence is the result of incompetence, however, the dismissal might better be categorised as one for incapacity.</p>
<p> </p>
<p>Ultimately, too, it is for <em>operational reasons</em> since negligent staff undermines the efficiency and productive functioning of the enterprise.</p>
<p> </p>
<p>According to <strong><em>Grogan</em></strong> and by reference to a recent judgment <strong><em>First National Bank, a Division of First Rand Bank Ltd v Commission for Conciliation, Mediation and Arbitration and others</em></strong> [2017] 11 BLLR (LC), pursuant to review proceedings of the award, the Commissioner, by focusing exclusively on the <em>“categorisation”</em> of the dismissal missed the essential point, namely whether the dismissal was for a <em>fair reason</em> and in accordance with a <em>fair procedure</em>, as required by <strong>s188 (1)</strong> of the LRA.</p>
<p> </p>
<p>In <strong><em>FNB</em></strong> the court noted that the Commissioner had relied primarily for his finding that the employee’s dismissal was for incapacity on two textbooks, in each of which it was suggested that <em>"incapacity"</em> should be distinguished from a lack of qualifications to perform a job, the functions of a job the employee was capable of performing and, more generally, that circumstances other than those connected with an employee's physical or mental health should be treated as <em>"other forms of dismissal"</em> i.e. other than as <em>incapacity.</em></p>
<p> </p>
<p>As the <strong><em>FNB</em></strong> court pointed out, these views had been overtaken by the judgments of the Labour Appeal Court and the Supreme Court of Appeal in the dispute between <strong><em>Samancor Chrome Ltd and NUM</em></strong> over how to classify the protracted incarceration of an employee in police custody (<strong><em>Samancor Tubatse Ferrochrome v MEIBC & others</em></strong> [2010] 8 BLLR 824 (LAC) and <strong><em>NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others</em></strong> [2011] 11 BLLR 1041 (SCA)).</p>
<p> </p>
<p>The LAC found in <strong><em>Samancor</em></strong> that the employee should have been treated as one of incapacity because that state extends beyond cases of ill health or injury, and includes any condition that prevents an employee him from performing his work.</p>
<p> </p>
<p>However, the court held that the employee's incapacity was such as to justify dismissal, but ruled the dismissal procedurally unfair because the post-dismissal hearing was no more than an <em>ex-post facto</em> rubber stamp of the earlier dismissal.</p>
<p> </p>
<p>The LAC's judgment in <strong><em>Samancor</em></strong> was overturned by the SCA on the ground that the LAC had not applied the reasonableness test, but the higher court observed in passing that the view that incapacity is a term broad enough to include imprisonment <em>"seems correct".</em></p>
<p><em> </em></p>
<p>A further question that impinges on categorisation of a matter has been addressed by a prolific writer and a person that needs no introduction, Mr <strong>Andrew Levy</strong>, CEO <strong><em>Andrew Levy & Associates</em></strong> and widely considered to be a doyenne of South African labour Relations.</p>
<p> </p>
<p>In a handout submitted to delegates who attended a training programme [coined a <em>Technisem</em>] presented by <strong><em>Andrew Levy & Associates “Handling Employee Dismissal for Misconduct or Poor Work Performance”.</em></strong></p>
<p><strong><em> </em></strong></p>
<p>A question posed was <strong><em>“Must I handle poor work performance through my disciplinary code?”</em></strong> [At the time of presentation of the training I served as a <em>Senior Consultant</em> at the firm and was one of the presenters].<strong><em> </em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Levy</em></strong> amplifies the quotation by <strong><em>Brassey</em></strong> cited <em>supra,</em> however, elaborates on the question as well as proffering an answer thereto. It has been deemed appropriate to quote verbatim the said answer by <strong><em>Levy</em></strong> below;</p>
<p><em> </em></p>
<p><em>“As far as we see it, poor performance <strong><u>does not</u></strong> relate to culpability and <strong><u>not</u></strong> behaviour which is misconduct.”</em></p>
<p><em> </em></p>
<p>However, the question is a vexed one and regularly calls for consideration as to the correct categorisation of the matter.</p>
<p> </p>
<p>The writer can recall perusing an article on the same subject matter by <strong><em>Mr Justice Edwin Cameron,</em></strong> Judge of the <strong>South African Constitutional Court,</strong> published in ‘<strong><em>Employment Law Journal’</em></strong> referred to <em>supra</em> where the Honourable Judge posed the question <strong><em>“Is it a ‘will not or cannot situation?’”</em></strong> </p>
<p> </p>
<p>Suffice it to place on record that I have been diligently searched, for years in order to obtain a copy of the article by <strong><em>Judge Cameron,</em></strong> without success.</p>
<p> </p>
<p>As far as memory allows <strong><em>Judge Cameron</em></strong> dissected the hypothetical questions, to wit ‘<strong><em>cannot?’</em></strong> or <strong><em>‘will not?’</em></strong> and made observations as to the positive law relevant at the time<strong><em>.</em></strong></p>
<p><strong><em> </em></strong></p>
<p>It was concluded that in order to make the correct selection as to categorisation, a preliminary investigation should be done.</p>
<p> </p>
<p>The purpose of the investigation would inter alia be to establish the substance and nature of the matter in order to make a sound and justifiable election as to the two questions:</p>
<p> </p>
<ol>
<li>i) <strong><em>Will not; or</em></strong></li>
</ol>
<p><strong><em> </em></strong></p>
<ol>
<li>ii) <strong><em>Cannot?</em></strong></li>
</ol>
<p><strong><em> </em></strong></p>
<p>Following an investigation and in the event of the existence of <em>prima facie</em> ground for a conclusion of <strong><em>‘Will not’,</em></strong> then it follows that due to possible <em>culpability</em> or <em>blameworthiness</em> a <u>disciplinary route</u> should be followed with the purpose to correct the unacceptable behaviour.</p>
<p> </p>
<p>However, if it is concluded by the Employer that the matter shows to a <strong><em>‘Cannot’</em></strong> scenario, the appropriate process to be followed would be <em><u>‘performance counselling.’</u></em></p>
<p><em><u> </u></em></p>
<p>Following years of presiding over labour arbitrations I have noticed that some employers include poor work performance in the disciplinary code as an offence.</p>
<p> </p>
<p>This employer’s should as a matter of priority visit the <strong>Code of Good Practice: Dismissal,</strong> as scheduled to the LRA. The Code specifically distinguishes between: <strong><em>‘</em>Guidelines in cases of dismissal for misconduct’</strong> [see item 7] and ‘<strong>Guidelines in cases of dismissal for poor work performance.’</strong> [See item 9.]</p>
<p> </p>
<p>Upon perusal of the cited items <em>supra,</em> it is clear that different considerations [<em>process and substance</em>] apply for <strong>‘Guidelines in cases of dismissal for misconduct’</strong> and <strong>‘Guidelines in cases of dismissal for poor work performance.’</strong></p>
<p> </p>
<p><strong><u>IMPOSSIBILITY OF PERFORMANCE?</u></strong></p>
<p> </p>
<p>According to <em>Grogan</em> common to all cases is that the employees could not perform their work, even if they wanted to. This is what is known in the common law as <em>"impossibility of performance",</em> which is in turn divided into <em>"subjective"</em> and <em>"objective"</em> impossibility.</p>
<p> </p>
<p><strong><em>Subjective impossibility</em></strong> occurs where only the contracting party cannot perform, but others could.</p>
<p> </p>
<p><strong><em>Objective impossibility</em></strong> applies where nobody could perform, either because performance is <u>physically impossible</u> or because it is <u>legally impossible.</u></p>
<p> </p>
<p><strong><em>Samancor</em></strong> is an example of <em>subjective impossibility</em> because the employee could be replaced. <strong><em>Armscor</em></strong> is an example of <em>objective impossibility</em> because a clearance certificate is a prerequisite for rendering service to that company.</p>
<p> </p>
<p>In <strong><em>FNB</em>,</strong> the court referred to another problematic case that of <em>incompatibility.</em> The court accepted, as further gist for the argument that incapacity is not limited to inability to perform through illness or injury that cases of incompatibility should also be dealt with as forms of incapacity.</p>
<p> </p>
<p><strong><em>Grogan</em></strong> poses the question if incompatibility should be dealt with as incapacity? Surely much depends on the facts of each case.</p>
<p> </p>
<p>An employee may be thoroughly to blame for bizarre behaviour to which management or colleagues take offence. Or an employee may be deemed <em>"unsuitable"</em> because of personality traits or physical attributes he or she can't do anything about.</p>
<p> </p>
<p><strong><u>OPERATIONAL REQUIREMENTS?</u></strong></p>
<p> </p>
<p><strong><em>Samancor</em></strong> can be squeezed into the category of misconduct. <strong><em>Armscor</em></strong> could possibly be characterised as incapacity, however elastic that term be. If incompatibility becomes as extreme as to render work impossible, and the employee concerned cannot do anything about it, a perfect example of the subjective impossibility of performance exists.</p>
<p> </p>
<p>In <em><strong>FNB</strong></em> court disagreed that the notion of <em>"operational requirements"</em> could be extended to encompass incapacity. The Judge pointed out, correctly, that if that were allowed, all dismissals, including those for <em>misconduct</em>, <em>poor work performance</em> and <em>incapacity,</em> could be seen as <em>"operational"</em> because no employer can afford to retain employees who can't be trusted or who are unable to work.</p>
<p> </p>
<p>On that view, a line must be drawn somewhere between the reasons for dismissal accepted by the LRA. The LRA draws a distinction between the three <em>"permissible"</em> reasons for dismissal <strong>in section</strong> <strong>188(1)(a).</strong></p>
<p> </p>
<p>As was recorded above the LRA provides that a dismissal that is unfair, if the employer fails to prove that <em>"the reason for the dismissal is a fair reason related to the employee's conduct or capacity or is based on the employer's operational requirements"</em> and that the dismissal <em>"was effected in accordance with a fair procedure".</em></p>
<p><em> </em></p>
<p>Only the term <em>"operational requirements"</em> is defined broadly as <em>"requirements based on the economic, technical, structural or similar needs of an employer"</em> <strong>(section 213).</strong></p>
<p> </p>
<p>The <strong>Code of Good Practice: Dismissal</strong>, which is incorporated into the Act (see <strong>section 188(2)</strong>), differentiates between dismissals for three reasons, <em>misconduct</em>, <em>and poor performance,</em> and <em>"incapacity: ill health or injury".</em> But the code doesn't define these terms either.</p>
<p> </p>
<p></p>
<p><strong><u>THE ANSWER TO CATEGORISATION?</u></strong></p>
<p> </p>
<p>According to <strong><em>Grogan</em></strong> and by reference to <strong><em>FNB</em></strong> court referred in this regard to <strong><em>SABC v CCMA & others</em></strong> [2006] 6 BLLR 587 (LC), in which an arbitrator incorrectly held that an employee was dismissed for incapacity rather than misconduct. The court observed in that case:</p>
<p> </p>
<p><em>"The notional line between the various circumstances that could give rise to a fair dismissal (misconduct, performance, incapacity and operational requirements) is not always easy to draw. The same conduct may give rise to more than one appropriate categorisation. Employers may often, not unreasonably, err in their attempts to categorise the circumstances giving rise to a potential dismissal.</em></p>
<p><em> </em></p>
<p><em>The failure to correctly categorise should not, however, detract from the appropriate inquiry in each case, namely, to assess, first</em> <em>whether there was a substantively fair reason for the dismissal and second, whether an appropriate and fair procedure was followed by the employer."</em></p>
<p><em> </em></p>
<p>In the above-quoted <em>dictum</em> by <em>Grogan</em>, the Court correctly identified the true relevance of the categorisation of the reasons for dismissal in the LRA. This relates to the second leg of the inquiry in most unfair dismissal cases whether the employer followed a fair procedure.</p>
<p> </p>
<p>Save for some elements in the requirements of dismissals for operational requirements set in <strong>section 189</strong> of the LRA and the <strong>Code of Good Practice: Dismissal</strong> that may have a bearing on <em>"substantive"</em> fairness, the legislation leaves that call largely to the discretion of arbitrators and judges. They must decide, in the end, whether the dismissal was <em>"appropriate".</em></p>
<p><em> </em></p>
<p><em>Johann Scheepers.</em></p>
<p><em> </em></p>
<p><em>July 14, 2018.</em></p>
<p><strong> </strong></p>
<p><strong>[Updated: July 16, 2018]</strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>* </em></strong><em>The views and opinions expressed by the writer hereof are not necessarily that of the Commission for Conciliation, Mediation, and Arbitration or any other professional body or entity that the writer may be associated with. It constitutes that of the writer in his personal capacity</em></p>
<p></p>
<p><strong><em><u>Copyright:</u></em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Copyright reserved by the writer hereof. No part of this article/ guide may be reproduced, without prior written permission of the author.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</em></strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.</em></strong></p>
<p><strong><u> </u></strong></p>
<p> </p>
<p> </p>
<p> </p>
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<p> </p>
<p> </p>
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<p> </p>
<p> </p>
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<p> </p>
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<p> </p>
<p> </p>
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<p> <strong> </strong></p>
LABOR DISPUTE RESOLUTION: EEOC [USA] & CCMA [SA] - A COMPARATIVE ANALYSIS
tag:www.adrhub.com,2018-01-22:4905899:BlogPost:82415
2018-01-22T11:30:00.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p style="text-align: center;"></p>
<p style="text-align: center;"><em><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544783354?profile=original" target="_self"><img class="align-full" src="http://storage.ning.com/topology/rest/1.0/file/get/2544783354?profile=RESIZE_1024x1024" width="750"></img></a> “Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside, overseen by a…</em></p>
<p style="text-align: center;"></p>
<p style="text-align: center;"><em><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544783354?profile=original" target="_self"><img width="750" src="http://storage.ning.com/topology/rest/1.0/file/get/2544783354?profile=RESIZE_1024x1024" width="750" class="align-full"/></a>“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside, overseen by a fine, shrewd fellow with a knack for negotiation.</em></p>
<p style="text-align: center;"><em>This was</em> <em>the method favoured by Confucius, and others before him through 4,000 years of Chinese folklore. Buddha championed it in India; while Japanese chukka isha (mutual friends) have long helped businesses resolve their differences. Not to be outdone, the Roman Empire later picked up the tradition, with intercessors, internuncios, interpolators and interlocutors frequently shuttling to and from antagonistic parties in a diplomatic bid for peace.</em></p>
<p style="text-align: center;"><em>Over the generations, however, the realm of dispute resolution gradually became more convoluted and complex. Flexibility and prudence gave way to formality and structure. While a fair, regulated court system is doubtless something to be celebrated, it has – some belief – served more to quash the world of common sense negotiation than to complement it.”</em></p>
<p style="text-align: center;"> </p>
<p>[Article by, <em>Rebecca Lowe <strong>“Back to basics”</strong></em> <em>In-House Perspective</em> (December 2013) <em>LinkedIn</em>]</p>
<p></p>
<p><strong><u>INTRODUCTORY REMARKS</u></strong></p>
<p><em>‘In every country. North and South’</em>, J Schregle <strong><em>‘Comparative Industrial Relations: Pitfalls and Potential’</em></strong>, <em>International Labour Review,</em> 1981, p. 27 points out<em>; ‘workers, employers, and governments have both common and divergent interests, short term and long term. The divergent interests must be accommodated and reconciled…. The way in which such interests are expressed and reconciled is the subject of industrial relations. It will be of necessity vary from country to country. An international comparison must bring out and explain the differences and similarities of national industrial relations systems’. </em> [See <em>R Blanpain</em> <strong>“<em>Comparative Labour Law and Industrial Relations”</em></strong> (1985) 2<sup>nd</sup> Ed. <em>Kluwer</em> <em>at 3</em>]</p>
<p>Employers and employees usually come together in a common workplace to make products or provide services for an unspecified time. Employers who are not satisfied with workers can, at least if the action can be objectively justified, discharge them. However, the normal intention of offering and accepting employment is a continuing relationship.</p>
<p>However, continuing relationships – be they marital, business partnerships, or employment – are vulnerable to change, sometimes diverging, interests, perceived or real. In other words, employment is liable to conflict, both individual and collective. Such conflict may be clear-cut, as when a group of workers is convinced that they are underpaid, or it may be diffuse and not readily apparent, say, some dissatisfaction amongst workers with the style of management in an enterprise. If it is latent and not overt an untoward incident, unimportant in itself, may be enough to set off a major dispute. Thus, the apparent cause of an industrial dispute is not always the true cause.</p>
<p>Sources of conflict are not confined to the conditions of employment in the employing enterprise. Workers commonly identify their interests with those of workers elsewhere, to the point of being willing to strike in support of them. As members of trade unions who may have both political and broad industrial objectives, workers may use the leverage that withholding their labour gives them to exert pressures on governments or employers collectively. [See <em>Blanpain</em> (<em>supra</em>) 381]. <strong><em><u> </u></em></strong></p>
<p>To avoid costly industrial or workplace conflict governments, established institutions mandated to resolve conflict preferably expeditiously so as to mitigate the cost of protracted labour disputes.</p>
<p></p>
<p><strong><u>THE COMMISSION FOR CONCILIATION MEDIATION & ARBITRATION (CCMA) – SOUTH AFRICA</u></strong></p>
<p>In South Africa, the Commission for Conciliation, Mediation & Arbitration (the CCMA) was established using an enabling statute, to wit <em>the Labour Relations Act, Act 66 of 1995</em> (as amended) (the LRA).</p>
<p></p>
<p><strong><em>What are the obligatory functions of the CCMA?</em></strong></p>
<p>The CCMA <u>must</u>, <em>inter alia –</em></p>
<p>- attempt to conciliate any dispute referred to it in terms of the LRA or any other law;</p>
<p>- arbitrate a dispute that remains unresolved after conciliation including a dispute in respect of which the Labour Court has jurisdiction where the parties consent to Arbitration.</p>
<p>- perform any other duties imposed on it by or in terms of the applicable employment law;</p>
<p>- compile and publish information and statistics about its activities; and</p>
<p>- review the Rules at least every two years.</p>
<p><strong><em> </em></strong></p>
<p><strong><em>What are the discretionary functions of the CCMA?</em></strong></p>
<p>In terms of section 115 (2), (2A) and (3) of the LRA, the CCMA <u>may</u>, <em>inter alia -</em></p>
<p>- if asked, advise a party to a dispute about the procedure to follow in terms of the LRA;</p>
<p>- if asked, assist a party to obtain legal advice, assistance or representation;</p>
<p>- if requested, provide administrative support to an employee earning below the BCEA threshold;</p>
<p>- offer to resolve a dispute that has not been referred to it through conciliation;</p>
<p>- make rules regulating the matters referred to in section 115 (2A) of the LRA;</p>
<p>- conduct, oversee or scrutinise any election or ballot of a registered union or employers' organisation if asked to do so by that trade union or employers’ organisation;</p>
<p>- publish guidelines about any matter dealt with regarding the applicable Employment law;</p>
<p>- conduct and publish research into matters relevant to its function; and</p>
<p> if asked, provide employees, employers, registered trade unions, registered employers’ organisations, federations of trade unions, federations of employers’ organisations or councils, with advice or training relating to the primary objects of the LRA, or any other Employment law. </p>
<p>The volume of labour disputes deal with by the CCMA is reflected in its 2014/15 “Annual Report.” [See <strong><em>“2014/15 ANNUAL REPORT”</em></strong> <em>at 5.</em>]</p>
<p></p>
<p><strong><em>REFERRALS</em></strong></p>
<p>A total of <u>171 854</u> were received during the current period [2014/15] compared with <u>170 673</u> for the previous period [2013/14].</p>
<p>This translates to an average of 687 new cases referred every working day, up 680 from the previous year.</p>
<p></p>
<p><strong><em>SETTLEMENT RATE</em></strong></p>
<p>The percentage of disputes settled by the CCMA stands at <strong><em><u>76 percent,</u></em></strong> a <em>one percent improvement on the previous year.</em></p>
<p></p>
<p><strong><u>The </u></strong><a href="http://www.eeoc.gov/"><strong>U.S. Equal Employment Opportunity Commission</strong></a><strong><u> (“EEOC”)</u></strong></p>
<p>The U.S. EEOC enforces federal laws prohibiting workplace discrimination. The EEOC was created by the <a href="http://usinfo.state.gov/usa/infousa/laws/majorlaw/civilr19.htm">Civil Rights Act of 1964</a>. The employment section of the Civil Rights Act of 1964, known as <a href="http://www.eeoc.gov/policy/vii.html">Title VII</a>, prohibits discrimination based on race, colour, national origin, sex, and religion, and also prohibits employers from retaliating against any employee who exercises his or her rights under Title VII.</p>
<p>Today, the EEOC enforces federal anti-discrimination statutes and provides oversight and coordination of all federal equal opportunity regulations, policies, and practices. The Civil Rights movement of the early 1960s peaked in the spring and summer of 1963. On June 19, 1963, President John F. Kennedy sent comprehensive civil rights legislation to <a href="http://www.house.gov/">Congress</a>, asking it to <em>“make a commitment it has not fully made in this century to the proposition that race has no place in American life or law.”</em></p>
<p>However, there was stiff political and social opposition to the legislation. Following President Kennedy's assassination in November 1963, President Johnson continued to support the legislation, saying that <em>“no eulogy could more eloquently honour Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long.”</em> Finally, and after much compromise, President Johnson signed into law the <em>Civil Rights Act of 1964</em> on July 2, 1964.</p>
<p>From 1965 through 1971, the EEOC lacked any real enforcement authority. Instead, Congress authorized the Agency to investigate claims of discrimination. If the EEOC found reasonable cause to believe that discrimination occurred, the Agency referred the case to the Department of Justice to litigate. Regardless, during this period the agency significantly impacted the scope of future civil rights enforcement. The EEOC documented the nature and extent of discriminatory practices in employment, the first study of this kind done. Additionally, the agency assisted individual plaintiffs through its amicus curiae program by filing “friend of the court” briefs interpreting the law.</p>
<p>In 1972, Congress passed the <a href="http://www.eeoc.gov/abouteeoc/35th/thelaw/eeo_1972.html"><em>Equal Employment Opportunity Act of 1972</em></a>, which amended Title VII to give the EEOC authority to conduct its own enforcement litigation. The EEOC strongly influenced the judicial interpretation of civil rights legislation. The agency's advocacy defined “discrimination,” a term excluded from the 1964 Act.</p>
<p>In 1973, EEOC advocates pursued litigation leading to the country's most often cited anti-discrimination <a href="http://www.supremecourtus.gov/">U.S. Supreme Court</a> opinion, <strong><em>McDonnell Douglas Corp. v. Green</em><em>,</em></strong> <a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792">411 U.S. 792 (1973)</a>. In that case, the Court held that a plaintiff could prove an individual case of intentional discrimination, or disparate treatment, under <em>Title VII</em>, by showing four factors. <a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a><strong><em>.</em></strong><strong> At 802.</strong> </p>
<p>There, the plaintiff proved that he was indirectly discriminated against in a hiring case by showing that (1) he was a member of a <em>Title VII protected group</em>; (2) he applied and was qualified for the position sought; (3) the employer rejected the plaintiff for the job; and (4) the employer continued to seek applicants with similar qualifications after the rejection. <a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a><strong><em>. </em></strong></p>
<p>The Court determined that once a plaintiff succeeded in making this bare showing of <em>a </em><a href="http://www.law.cornell.edu/wex/index.php/Prima_facie"><em>prima facie</em></a> case, the employer must articulate a legitimate, non-discriminatory reason for refusing to hire the plaintiff. <a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a><strong><em>. </em></strong>Absent this showing, the employer is guilty of workplace discrimination. <a href="http://www.law.cornell.edu/supct-cgi/get-us-cite?411+792"><strong><em>Id</em></strong></a><strong><em>. </em></strong>Courts and the EEOC apply this analytical framework to cases brought under all federal anti-discrimination statutes.</p>
<p>Today, the EEOC conducts enforcement litigation under several federal statutes that prohibit job discrimination. The federal statutes prohibiting discrimination in employment are:</p>
<ul>
<li><a href="http://www.eeoc.gov/policy/vii.html"><em>Title VII of the Civil Rights Act of 1964</em></a><em> (Title VII),</em> which prohibits employment discrimination based on race, colour, religion, sex, or national origin;</li>
<li><em>the </em><a href="http://www.eeoc.gov/policy/epa.html"><em>Equal Pay Act of 1963</em></a><em> (EPA),</em> which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;</li>
<li><em>the </em><a href="http://www.eeoc.gov/policy/adea.html"><em>Age Discrimination in Employment Act of 1967</em></a><em> (ADEA),</em> which protects individuals who are 40 years of age or older;</li>
<li><a href="http://www.eeoc.gov/policy/ada.html"><em>Title I and Title V of the Americans with Disabilities Act of 1990</em></a><em> ( ADA),</em> which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;</li>
<li><a href="http://www.eeoc.gov/policy/rehab.html"><em>Sections 501 and 505 of the Rehabilitation Act of 1973</em></a><em>,</em> which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and</li>
<li><em>The </em><a href="http://www.eeoc.gov/policy/cra91.html"><em>Civil Rights Act of 1991</em></a><em>,</em> which, among other things, provides monetary damages in cases of intentional employment discrimination.</li>
</ul>
<p>The Agency investigates charges of discrimination and, in some cases, brings civil suits based on charges of discrimination. Charges of discrimination are most often filed by private individuals (<em>“complainants”</em>) who believe that their employers have discriminated against them. The EEOC investigates those charges and issue findings based on its investigations.</p>
<p>In some cases, if the EEOC finds that there is probable cause to believe discrimination has occurred, it may choose to bring an enforcement action against the employer. However, in the majority of the cases, the complainant will independently initiate and pursue any litigation based on Title VII.</p>
<p>Any individual who wishes to file suit under <em>Title VII</em> or the ADA is required to exhaust his or her administrative remedies before suing the employer in court. In other words, the complainant must first file a charge of discrimination with the EEOC before it may seek a judicial remedy. [Acknowledgement: See <a href="http://www.lawschool.cornell.edu/">Cornell University Law School</a> <a href="http://www.lawschool.cornell.edu/">Cornell Law School</a> in Ithaca, NY]. </p>
<p>In its website of the EEOC, its statutory role is explained in less <em>legalistic terminology,</em> and it has been deemed appropriate to refer to the explanatory information contained therein hereunder.</p>
<p>The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, colour, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.</p>
<p>Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labour unions and employment agencies are also covered.</p>
<p>The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.</p>
<p><strong><em>Authority & Role</em></strong></p>
<p>The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. The EEOC’s role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If found that discrimination has occurred, the EEOC will try to settle the charge. If unsuccessful, the EEOC has the authority to file a lawsuit to protect the rights of individuals and the interests of the public. The Commission does not, however, file lawsuits in all cases where discrimination is found to be perpetrated.</p>
<p>One of the objectives is to prevent discrimination before it occurs through outreach, education, and technical assistance programs.</p>
<p>The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program.</p>
<p>EEOC assures federal agency and department compliance with EEOC regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to our Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints.</p>
<p><strong><em>Administrative Enforcement and Litigation</em></strong></p>
<p>The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for enforcing federal laws prohibiting employment discrimination by race, colour, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The agency began its work in 1965. More than 40 years later, the public continues to rely on the Commission to carry out its responsibility to bring justice and equal opportunity to the workplace.</p>
<ul>
<li>Through its <a href="http://www.eeoc.gov/eeoc/enforcement/index.cfm">administrative enforcement process</a>, the Commission receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labour unions, and state and local governments, including charges of <a href="http://www.eeoc.gov/eeoc/systemic/index.cfm">systemic discrimination</a>. </li>
<li>Where the Commission does not resolve these charges through conciliation or other informal methods, the Commission may pursue <a href="http://www.eeoc.gov/eeoc/litigation/index.cfm">litigation</a> against private sector employers, employment agencies and labour unions (and against state and local governments in cases alleging age discrimination or equal pay violations). The Commission may also participate in on-going litigation as <a href="http://www.eeoc.gov/eeoc/litigation/amicus.cfm"><em>amicus curiae</em></a>.</li>
</ul>
<p>The EEOC also leads and coordinates <a href="http://www.eeoc.gov/federal/index.cfm">equal employment opportunity efforts across the Federal government</a> and conducts administrative hearings and issues appellate decisions on complaints of discrimination filed by federal employees and applicants for federal employment.</p>
<p><strong><em>Enforcement</em></strong></p>
<p><strong>Private Sector Enforcement Program:</strong> Providing quality services that are fair and prompt for both employees and employers in our administrative processing system is vital to our mission. In FY 2015, we received 89,385 private sector charges of discrimination. The EEOC achieved 92,641 resolutions, with a merit factor resolution rate of 18.1%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.)</p>
<p>Through administrative enforcement activities, the EEOC secured more than $356.6 million in monetary benefits. Overall, the EEOC secured both monetary and non-monetary benefits for more than 16,760 people through our charge processing. We had a pending inventory of 76,408 charges at the end of the fiscal year. [See <a href="http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm">Enforcement and Litigation Statistics</a>]</p>
<p><strong>Federal Sector Enforcement Program:</strong> In its federal sector enforcement role, the EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each federal agency. Unlike our responsibilities in the private sector, we do not process complaints of discrimination for federal employees.</p>
<p>In the federal sector, individuals file complaints with their own federal agencies and those agencies conduct a full and appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge. In FY 2015, the EEOC received a total of 7,752 requests for hearings. Additionally, resolved a total of 6,360 complaints and secured more than $94.9 million in relief for parties in these complaints.</p>
<p>The EEOC also adjudicates appeals of federal agency actions on discrimination complaints and ensures agency compliance with decisions issued on those appeals. During FY 2015, the EEOC received 3,649 requests for appeals of final agency actions in the federal sector and resolved 3,850 such appeals. [See <a href="http://www.eeoc.gov/federal/reports/index.cfm">Annual Report on the Federal Work Force</a>]</p>
<p></p>
<p><strong><em>Mediation</em></strong></p>
<p><strong>Private Sector Mediation Program:</strong> The EEOC's <a href="http://www.eeoc.gov/eeoc/mediation/index.cfm"><em>mediation program</em></a> has been very successful and has contributed to our ability, over the past few years, to manage better its growing inventory and resolve charges in 180 days or fewer. In FY 2015, the EEOC's National Mediation Program secured 8,243 resolutions, and we obtained more than $157.4 million in monetary benefits for complainants from mediation resolutions.</p>
<p>Participant confidence in the program is high, with our FY 2015 figures reflecting that 97% of all participants would return to EEOC's Mediation Program in the future. The EEOC believes the high confidence level helps with its continuing efforts to convince parties to charges, particularly employer representatives, of the value of the mediation approach.</p>
<p>Although participants almost uniformly view the mediation program favourably, the percentage of employers agreeing to mediate is considerably lower than the percentage of charging parties agreeing to mediate. As part of the EEOC’s efforts to increase the participation of employers in the mediation program, the organisation encouraged employers to enter into Universal Agreements to Mediate (UAMs). These agreements reflect the employer's commitment to utilizing the mediation process to resolve charges.</p>
<p>Many employers entered into these agreements in FY 2015, resulting in a cumulative multi-year total of 12,456 UAMs.</p>
<p><strong>Federal Sector Mediation Program:</strong> Using <a href="http://www.eeoc.gov/federal/adr/index.cfm"><em>Alternative Dispute Resolution</em></a><em> </em>(ADR) techniques to resolve workplace disputes throughout the federal government can have a powerful impact on agencies' EEO complaint inventories and, in turn, the Commission's hearings and appeals inventories.</p>
<p>Resolving disputes as early as possible in the federal sector EEO process improves the work environment and reduces the number of formal complaints, allowing all agencies, including the EEOC; to redeploy resources that otherwise would be devoted to these activities. In addition, a growing number of agencies have incorporated dispute prevention techniques into their ADR programs, further increasing productivity and reducing the overall number of employment disputes.</p>
<p>The Commission's efforts in promoting and expanding mediation/ADR at all stages of the federal EEO complaint process also appear to be having a positive effect on federal agencies' EEO complaint inventories. As more agencies expand their efforts to offer ADR during the informal process, we expect to see continued decreases in the number of formal complaints filed, which will reduce costs for complainants and all federal agencies, and enable agencies to focus resources on their primary missions.</p>
<p>The EEOC continues to actively pursue a variety of ways to assist federal agencies in improving alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to federal employees and managers on the benefits of ADR, and maintaining a web page that serves as a clearinghouse for information related to federal sector ADR.</p>
<p>The Commission will continue to expand technical assistance efforts with agencies to encourage the development of effective ADR programs and promote ADR training among government managers and staff.</p>
<p>The aforementioned therefore constitutes <u>brief background information</u> as to the similarities and differences between the dispute resolution functions of the SA - CCMA and the USA - EEOC.</p>
<p></p>
<p><strong><u>PURPOSE OF THE <em>‘ARTICLE’ CUM</em> POSTING</u></strong></p>
<p>At the outset it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.</p>
<p>The purpose of the article is first to focus on the shared responsibility of the CCMA and the EEOC insofar as the statutory duty to conciliate/mediate disputes in an ‘ethical’ manner. The focus, therefore, will be on ethical issues in conciliation/mediation of disputes between employer and employee.</p>
<p>For the sake of convenience referral in this article to <em>conciliation</em> will include <em>mediation.</em> The author will deal with a comparative analysis of the statutory duties of Commissioners as stipulated in the relevant statutes of both countries. Similarities and differences would be identified and briefly discussed.</p>
<p>Reference will be made to case law and other authoritative publications wherein the issue of ethics and <em>‘moral correctness’</em> of a presiding CCMA Commissioner/EEOC Representative were pronounced and commented upon by the Courts and other authorities.</p>
<p>The criticism by participants to dispute resolution will be briefly recorded and comment submitted if deemed necessary. Please note that on the author reserves the right to occasionally make humorous remarks and comments and for that, no apology is offered.</p>
<p>At the outset, it should be mentioned that the CCMA and the EEOC have been the subject matter of fierce criticism by all and sundry. At times deservedly so and then on other occasions, the critique was found to be without substance or any factual basis.</p>
<p>Suffice it to pre-warn any student of the Law, Human Resources or Conflict Resolution that the profession is not for the ‘<em>faint hearted’</em> or those who are unable to deal with disagreeable persons, borderline sociopaths, pathological liars and persons with aggressive personality disorders.</p>
<p>It should, however, be said that confrontational or extreme adversarial processes involving the personalities above will not be a daily occurrence and is a rather an exception than the rule, so to speak. </p>
<p>In any event, any reputable institution will during the period study and especially during the <em>practical</em> part of the course or degree provide the student with the necessary coping skills in the hypothetical module <em>“Adversarial Conflict Management – 301; ‘Sub-Module Survival Skills”.</em> </p>
<p></p>
<p><strong><u>THE STATUTORY REGIMES - A BRIEF ANALYSIS</u></strong></p>
<p></p>
<p><strong><em>Dispute resolution in the USA - EEOC: </em></strong></p>
<p>The various empowering statutes that form the legislative framework from within which the EEOC functions have been referred to <em>supra. </em>[See <a href="http://www.lawschool.cornell.edu/">Cornell Law School</a> article as well as the information contained and legislative interpretation by the EEOC as published on the website: <a href="http://www.eeoc.gov/eeoc/index.cfm">http://www.eeoc.gov/eeoc/index.cfm</a> ].</p>
<p>Suffice it to mention that the EEOC's interpretation of its rights and obligations vis-a-vis that of employers including lawyers acting on behalf of the parties have to date led to extensive litigation that <em>'climaxed', </em>or rather reached the US Supreme Court in the matter <strong><em>Mach Mining v. EEOC. </em></strong> </p>
<p>In an article published in the publication, <a href="http://theemplawyerologist.com/author/theemplawyerologist/">theemplawyerologist</a> (April 30, 2015) the learned author provided a summary, an explanation of the cause of action and the Ruling by the US Supreme Court as well as observations. The article has been included below especially for the edification of SA readers who may not be well-versed in US legislation and the issues in contention.</p>
<p><strong><u>"<em>MACH MINING v EEOC</em> – US SUPREME COURT</u></strong></p>
<p>We interrupt our regularly scheduled program with some breaking news. Yesterday, the US Supreme Court issued a ruling in <strong><em>Mach Mining v. EEOC. </em></strong>I previously wrote about that case <a href="http://theemplawyerologist.com/2014/11/06/does-the-eeoc-need-to-strike-a-more-conciliatory-tone/">here</a>. That case started with a discrimination charge on behalf of a woman whom <em>Mach Mining</em> declined to hire.</p>
<p>The issue before the US Supreme Court, however, was about whether the EEOC’s duty to resolve charges through informal means was subject to Court [<em>judicial</em>] review. Technically, the US Supreme Court’s answer is <em>“yes”</em>. Join the<em>EmpLAWyerologist</em> after the jump to see what this decision means for employers and the EEOC.</p>
<p>To understand this ruling we first have to look –briefly–at one particular part of <strong><em>Title VII of the Civil Rights Act of 1964.</em></strong> As you know, an employee can file a discrimination charge with the EEOC, and the EEOC then investigates.</p>
<p>If it feels there is reasonable cause to believe that the employer violated one or more of the laws that it is charged with enforcing it <u>may</u> then invite the employer to participate in an <em><u>informal</u> conciliation process.</em> <u>If conciliation fails the EEOC may sue the employer–but it <em>must</em> first make an attempt at conciliation.</u> </p>
<p>So what happened here? The EEOC investigated the employee’s charge and then sent <em>Mach Mining</em> a letter inviting it to participate in <em><u>informal conciliation</u></em> proceedings and notifying it that an EEOC representative would be in touch with them to begin the process. So far, so good, right? There’s only one problem.</p>
<p>[This may be termed by a cynic as <em>'The RSVP - Issue' - the author hereof's insertion</em>].</p>
<p>The EEOC never followed up with <em>Mach Mining,</em> until one year later, at which time it sent <em>Mach Mining</em> a letter <u>stating that conciliation had failed– and sued shortly after that.</u></p>
<p><em>Mach Mining</em> alleged in its answer that <em><u>the EEOC failed to conciliate in good faith,</u></em> and essentially argued that <em>the case should be dismissed.</em></p>
<p>The EEOC argued that its conciliation efforts were not subject to judicial review and that in any case, its two letters (<em>the initial invitation and the letter that followed a year later</em>) were sufficient to fulfil its statutory obligation. While the federal district court agreed with <em>Mach Mining</em> that it could review the EEOC’s conciliation efforts, the 7th Circuit reversed.</p>
<p><strong>The US Supreme Court ultimately agreed with the District Court that the EEOC’s conciliation efforts are subject to judicial review.</strong> While the ruling is technically a victory for employers the Supreme Court made it clear that <em>the scope of that review is quite narrow.</em></p>
<p>Specifically, the Court said that the scope of judicial review is to enforce the EEOC’s <em>statutory obligation to give the employer notice and an opportunity to achieve the voluntary settlement and compliance.</em> The court’s rationale for such a narrow holding is that <strong><em>Title VII</em></strong><em> </em>by its wording gives the EEOC <em>“expansive discretion”</em> in this area.</p>
<p>The Court also noted that the EEOC’s argument that courts were limited to checking the <em>“facial validity”</em> of its two letters <em>“falls short of Title VII’s demands</em> “in that courts would essentially have to take the EEOC’s word that it followed the law, <u>rather than verify that the EEOC actually attempted conciliation.</u></p>
<p>So what, then, does the EEOC have to do to show that it tried to conciliate before suing? It <strong><em>must:</em></strong></p>
<ol>
<li><em>inform the employer about the specific allegation(s);</em></li>
<li><em>describe in a notice what the employer(s) has/have done and which employee or class of employees have suffered;</em> and</li>
<li><em>give the employer a chance to remedy the allegedly discriminatory practice(s).</em></li>
</ol>
<p>While an affidavit from the EEOC will usually be enough to show that it met this requirement, if an employer presents concrete evidence that the EEOC did not take the above three steps, a court <strong><em>must</em></strong> <strong><em>“conduct the fact-finding necessary to resolve that limited dispute”.</em></strong></p>
<p>If a court finds that the EEOC did not do what it was supposed to do, then the court must order the EEOC to do so. In other words, the case does not get dismissed. <em><u>The parties get sent back out to attempt conciliation. If the EEOC can show that those efforts failed, it may go ahead and sue.</u></em></p>
<p>The Court explicitly noted that <strong><em>Title VII</em></strong> contained no language even suggesting that the EEOC was <strong><em>obligated to negotiate in good faith</em></strong>–and therefore, the Court declined to go that far.</p>
<p>Some may say this ruling is merely a slap on the wrist for the EEOC. If, for example, what if the EEOC fulfils the above conditions but uses one or more <em>coercive tactics</em> during the<em> conciliation process?</em> <strong><em>Title VII</em></strong> as written does not appear to address this issue.</p>
<p>Unless at some point Congress decides to amend the conciliation requirement of <strong><em>Title VII,</em></strong> an employer’s sole recourse seems to be to <em>hold the EEOC to the above three conditions. </em>[See (a), (b), (c) <em>supra</em>]</p>
<p>Then again, the objective is not to punish the EEOC. The idea is that <em><u>settlement without the need for litigation is preferable</u>, and the Court appears to be sending a message reinforcing that principle."</em></p>
<p> [<em>Some editing, as well as emphasis and underlining, did by the author hereof</em>].</p>
<p><strong><em>Legal representation:</em></strong> </p>
<p>Legal representation before the EEOC is<em> 'automatically'</em> a right albeit during conciliation or litigation that may follow after that. In conciliation proceedings before the CCMA, legal representation is not allowed at all regarding the provisions of Rule 25 of the Commission's Rules.</p>
<p>Furthermore and also regarding Rule 25 of the CCMA Rules legal representation in arbitration proceedings <strong><u>may</u></strong> be allowed upon application and where the reason for the dismissal was on the grounds of <em>'misconduct'</em> or <em>'incapacity.'</em> </p>
<p>Labour consultants have no right of appearance in any manner whatsoever before the CCMA. The prohibition includes an appearance in any dispute resolution processes that fall under the auspices or rather jurisdiction of the CCMA. The only exception will be a witness in dispute proceedings.</p>
<p>Rule 25 is a matter of controversy in SA and has led to litigation as well as a heated debate amongst interested parties. For the purpose of this article, writer deemed it unnecessary to focus extensively on the issue of legal representation before the CCMA. </p>
<p>Of interest is that a defendant may attend to EEOC proceedings <em>in persona </em>without legal representation.</p>
<p>Appearing before a Court or Tribunal without legal representation may be considered by some as <em>'Risky business' </em>or termed as done by some as <em>'Flying solo.'</em></p>
<p>In an article by US attorney Richard E Cohen Esq., [<em>an esteemed colleague and friend</em>] entitled <em>"</em><a href="http://employmentdiscrimination.foxrothschild.com/articles/us-eeoc/"><strong>U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)</strong></a><strong> </strong><em>May 27, 2014, LinkedIn</em><strong>,</strong> the learned author dealt with the risks involved in attending to EEOC mediations or proceedings that may follow after that.</p>
<p>Comments and opinions by various people followed including lawyers as well as individuals who for various reasons decided to attend to the EEOC proceedings without legal representation as well as labour consultants.</p>
<p>One comment, for example, was <em>"the EEOC mediators do all they can to push a settlement, including various threats of litigation and EEOC enforcement. In fact, she said that with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and a threat of EEOC enforcement actions."</em></p>
<p>Another interesting comment was made in the form of advice by the Director of what appeared to be a labour consultancy practising under the name and style of "<em>First Aid in Employment/Labour Problems at HR Bandaid</em> in the Indianapolis area.</p>
<p>The advice provided was (<strong>s<em>tay calm,</em></strong><em> <strong>breathe a bit,</strong> and only respond to charges as posed. </em>(<u>To which advice the author replied </u>"<em>we do not necessarily agree with, but he claims to have had success, so who are we to argue</em>)": </p>
<p><em>“Best defense in EEOC charges … don’t use an attorney unless necessary. Keep the responses to the charges on the same level as the charging party. <u>Deny, deny, deny… and keep answers simple when responding.</u></em></p>
<p><em>Don’t involve too much “manucha” [</em>minutia?<em>] and names of “other employees” in the response. Attorneys’ names on responses signals “deep pockets” of the respondent.</em></p>
<p><strong><em>Stay calm</em></strong><em>, <strong>breathe a bit</strong>, and only respond to charges as posed.</em></p>
<p><em>Trust me … I have had over 156 of charges found with “No Probable Cause” to continue.” </em></p>
<p>Writer hereof cannot question the importance if not wisdom intrinsic in the advice to <em>'stay calm applicable almost in any situation.' </em></p>
<p><em> </em></p>
<p><strong><em>Dispute resolution in SA - CCMA:</em></strong> </p>
<p>[See CCMA Website:<strong> </strong><a href="http://www.ccma.org.za/">http://www.ccma.org.za</a> ]</p>
<p>Since its inception, the CCMA has enjoyed a national settlement rate of 70% and greater - a clear signal that the CCMA is committed to restoring sound labour and industrial relations within the South African economy.</p>
<p><strong><em>Dispute Resolution Processes - CCMA</em></strong></p>
<p><strong><em>Conciliation:</em></strong></p>
<p>Conciliation is a process where a commissioner meets with the parties in dispute and explores ways to settle the dispute by agreement. At conciliation, a party may appear in person or only be represented by a director or employee of that party or any member, office-bearer or official of that party's registered trade union or registered employer's organisation. The meeting is conducted in an informal way.</p>
<p>The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the Commissioner and each party may also be held. Individuals are encouraged to exchange information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.</p>
<p>A Commissioner is given wide functions in conciliation. The Commissioner may determine a process which may include mediation, facilitation or making recommendations in the form of an advisory arbitration award.</p>
<p>A Commissioner may cause persons and documents to be subpoenaed, and has the power to enter and inspect premises and seize any book, document or object that is relevant to the dispute.</p>
<p>The Commissioner's role is to try to resolve the dispute within 30 days of it being referred to the CCMA. If the dispute is settled, an agreement will normally be drawn up, and that ends the matter.</p>
<p>The Commissioner will issue a certificate recording that the dispute has been settled.</p>
<p><strong><em>Con-Arb:</em></strong></p>
<p>Section 191(5A) makes provision for the Con-arb process, which is a speedier one-stop process of conciliation and arbitration for individual unfair labour practices and unfair dismissals.</p>
<p>In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day.</p>
<p> </p>
<p>The process is <strong>compulsory</strong> in matters relating to-</p>
<ul>
<li>dismissals for any reason relating to probation; and</li>
<li>any unfair labour practice relating to probation.</li>
</ul>
<p>If no objection is received, this process may be used for any other dispute (conduct, capacity, continued employment intolerable, less favourable terms after an s197 or s197A transfer, a reason for dismissal unknown, or an unfair labour practice).</p>
<p>This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.</p>
<p>The CCMA must give both parties at least<span> </span><em>14 days' notice</em><span> </span>of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date. If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides.</p>
<p> </p>
<p>If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides.<strong> </strong></p>
<p><strong><em> </em></strong></p>
<p><strong><em>Objections to the con-arb process: </em></strong></p>
<p>No objection will be allowed for disputes relating to probation. An employee may object by indicating such on the LRA form 7.11.An employer may object to this process by giving written notice to the CCMA, at least,</p>
<p>An employer may object to this process by giving written notice to the CCMA, at least,<span> </span><strong>seven days</strong> before the hearing.</p>
<p><strong> </strong></p>
<p><strong>NOTE:</strong> Regardless of the employer objecting to this process, the employer must attend the conciliation.</p>
<p><strong><em> </em></strong></p>
<p><strong><em> Arbitration:</em></strong></p>
<p><em>When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to state their cases fully. The Commissioner then makes </em>a decision on the issue in dispute.</p>
<p> </p>
<p>The decision, called the arbitration award, is legally binding on both parties. Attempts must be made to resolve the dispute through conciliation. If conciliation cannot resolve it, the parties can go to arbitration or the Labour Court, and the Act specifies which dispute goes to which process.</p>
<p>In an arbitration hearing the party in a dispute may appear in person or be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party's registered trade union or registered employers' organisation.</p>
<p>Lawyers are not usually allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it be unreasonable to expect a party to deal with the dispute without legal representation.</p>
<p>Lawyers are not usually allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it be unreasonable to expect a party to deal with the dispute without legal representation.</p>
<p>Having heard the parties and their arguments, the Commissioner will decide the outcome of the case, by issuing an award. The decision is legally binding on the parties, and it ends the dispute. Arbitration awards are sent to the parties within 14 days of the arbitration.</p>
<p>In a recent Labour Court judgment of <strong><em>Cindi v Commission for Conciliation Mediation and Arbitration and Others</em></strong><span> </span>(JR 2610/13); [2015] ZALCJHB 236; [2015] 12 BLLR 1207 (LC) the Court<strong><em> </em></strong>was required to assess the role a Commissioner plays in facilitating a settlement agreement at the CCMA. </p>
<p> </p>
<p>In this case, an employee referred an alleged unfair dismissal to the CCMA. During conciliation, the commissioner informed the employee that she had no prospects of success and that she should rather settle the matter. </p>
<p>As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.</p>
<p>As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.</p>
<p>It was some time after the employee signed the settlement agreement that she had second thoughts and was no longer happy with the outcome of the process. </p>
<p>The employee then approached the Labour Court with an application to review and set aside the settlement agreement in that she was of the opinion that the commissioner:</p>
<ol>
<li><em>was not impartial;</em></li>
<li><em>inappropriately persuaded her to sign the settlement agreement;</em></li>
<li><em>unduly influenced her to sign the agreement;</em> and</li>
<li><em>exceeded his powers by giving her advice on the fairness of her dismissal.</em></li>
</ol>
<p> </p>
<p>The Labour Court, for the following reasons, refused to review and set aside the settlement agreement:</p>
<p><em>That</em><span> </span>the settlement agreement was not made an arbitration award and as such, could not be reviewed.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>a Commissioner merely facilitates a settlement agreement and has no decision-making powers.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>a settlement agreement does not constitute a ruling or decision made by a commissioner.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>the role of a Commissioner, through conciliation, is to procure an offer from the company that will ultimately be acceptable to the employee.</p>
<p><em> </em></p>
<p><em>That</em><span> </span>the final decision to conclude a settlement agreement lies solely in the respective party's hands and is not the commissioner's decision.</p>
<p><em><strong>Conclusion:</strong></em></p>
<p>It is of importance to mention that CCMA Commissioners are bound by the <strong><em>CCMA Code of Conduct for Commissioners </em></strong>recently published under <em>GN 918 in GG 38230 of 21 November 2014 </em>[with effect from 01 December 2014].</p>
<p> </p>
<p>The said Code constitutes a comprehensive document that prescribes ethical and <em>‘moral behaviour' </em>by Commissioners in any and all process in which he/she presides.</p>
<p> </p>
<p>Therefore, the South African public can be assured of the professional and ethical conduct by CCMA Commissioners.</p>
<p>In the event of a breach of the said Code, the relevant Commissioner will be disciplined under the procedures in the Code read with the relevant provisions of the LRA the regulates misconduct by Commissioners. </p>
<p></p>
<p><em><strong>Johann Scheepers</strong></em></p>
<p><em><strong>March 14, 2016</strong></em></p>
DISCRIMINATION: DISABILITY – PSYCHIATRIC ILLNESS OR PSYCHOLOGICAL DISABILITY OR IMPAIRMENT – EMPLOYMENT EQUITY ACT, ACT 55 OF 1998 (AS AMENDED)
tag:www.adrhub.com,2017-12-08:4905899:BlogPost:81801
2017-12-08T01:04:35.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
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<p><strong><em>“The appellant, however, sought to justify its decision to require the respondent to submit to psychiatric testing on the basis that she had consented to it in her contract of employment; that it had concerns about her behaviour; and that the work performed by her was inherently stressful and demanded that she be “of sound body and mind to adequately…</em></strong></p>
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<p><strong><em>“The appellant, however, sought to justify its decision to require the respondent to submit to psychiatric testing on the basis that she had consented to it in her contract of employment; that it had concerns about her behaviour; and that the work performed by her was inherently stressful and demanded that she be “of sound body and mind to adequately perform her duties”. “Consent” is not a justification as contemplated in s7(1) of the EEA. It was therefore correctly rejected by the Labour Court. The appellant’s latter justification that the job was “inherently stressful” and that the respondent was required to be of “sound body and mind to adequately perform her duties” was not borne out by the evidence.</em></strong></p>
<p> </p>
<p><em> <strong>PHARMACO DISTRIBUTION (PTY) LTD</strong></em> [Appellant] <strong>and <em>LIZE ELIZABETH WEIDEMAN</em></strong> [Respondent] (Case no: JA104/2015) [2017] ZALAC (04 July 2017)</p>
<p><strong> </strong></p>
<p>Observations about the article: <a href="https://www.linkedin.com/in/george-j-gliaudys-jr-41a38a20/">George J. Gliaudys Jr</a> - <a href="https://www.linkedin.com/in/george-j-gliaudys-jr-41a38a20/?lipi=urn%3Ali%3Apage%3Ad_flagship3_pulse_read%3BycilmlN6Sce%2B16ewXF4BMA%3D%3D">Dean, Irvine University College of Law</a><strong>,</strong> USA.</p>
<p>Excellent exposition of a serious matter. A few additional comments are in order:</p>
<p>Granted that under most modern statutes and regulations these days, employers have a non delegable responsibility to their employees for maintaining a work environment free from potentially disruptive or harmful events that might cause distress to others who have no choice but to work with their mates around them during the course of the day's employment.</p>
<p>However, employers are not allowed to carte blanche simply dismiss on the basis of observed idiosyncratic behaviour that does not rise to the level of disruption or detriment of others in the workplace. There must be an initial attempt to reasonably accommodate the suspected psychologically impaired employees.</p>
<p>Dismissal is appropriate only when that is impossible to achieve due to various demonstrable objective factors including costs of accommodation or impairment of the core work processes involved. The key is that the employer must document as to what steps were taken before terminating the employee.</p>
<p>Internal mechanisms for employee counselling, referrals to medical/psychological resources, and less demanding work assignments need to be utilized. Just the word of the immediate supervisor that the employee was acting <em>"crazy"</em> is insufficient and acting upon such anecdotal basis will as pointed out in the article will lead to a costly result when the employee seeks remedy in the appropriate forum.</p>
<p><strong><u>BACKGROUND</u></strong></p>
<p>In the publication <strong><em>Legalbrief Workplace Labour & Employment Watch -</em></strong> <strong><em>Health: Mental health concerns addressed’</em></strong> Wednesday, 02 August 2017, the observation has been made that people with mental health issues are being denied work because of employers’ concerns.</p>
<p>This is according to mental health charity <strong><em>Rethink Mental Illness</em></strong> whose survey of <em>500 hiring decision makers</em> or influencers found that <strong>83% ‘<em>would worry’</em></strong> that someone with a severe mental illness would not be able to cope with the demands of their job.</p>
<p><strong>Two-thirds (68%)</strong> were concerned that someone with a severe mental illness ‘<em>would not fit in’</em> with the rest of their team, and <strong>three-quarters (74%)</strong> ‘<em>suspected’</em> someone with a severe mental illness would need to take too much time off. <strong><em>HR Magazine</em></strong> reports that the charity said that this adds to the barrier keeping people with mental illnesses out of the workplace.</p>
<p>However, the research found that with improved support, employers ‘<em>might’</em> decide to hire someone with a mental illness. <strong>More than</strong> <strong>half (56%)</strong> said that they would be more likely to employ someone if they felt better equipped to support them.</p>
<p>The reader may agree that the above report does not instil a sense of commitment by employers to employ a person that may be predisposed to mental illness. A compounding factor is that the case law as discussed herein shows that persons in employment who suffers from mental illness are often subjected to the worst kind of humiliating treatment by employers as well as fellow employees to such an extent that it becomes intolerable to remain in employment.</p>
<p>In an article by <a href="https://www.raconteur.net/contributors/martin-barrow">Martin B</a>arrow <strong><em>‘Taking mental health seriously is good for workers and business’</em></strong> <em>Raconteur</em> June 29, 2017, the author alerts that every organisation in the UK is affected by mental ill health in the workforce. At any one time, <strong><em>one worker in six</em></strong> will be experiencing depression, anxiety or problems relating to stress. Some <strong><em>91 million days</em></strong> are lost each year due to mental health problems.</p>
<p><a href="https://www.centreformentalhealth.org.uk/mental-health-at-work">The total cost to UK employers is estimated at <strong><em>nearly £26 billion each year</em></strong></a>, according to the <strong><em>Centre for Mental Health.</em></strong> That is equivalent to <strong><em>£1,035 for every employee in the UK workforce.</em></strong></p>
<p><em>“There is broad acceptance of the scale of the problem and many employers are willing to make a commitment to provide better support at work. Yet despite this high level of engagement, there is a concern that workplace mental health and wellbeing are getting worse, not better.”</em></p>
<p>In 2016 a <a href="https://www.raconteur.net/business/AIB.docx">survey</a> of almost 20,000 people by <strong><em>Business in the Community</em></strong> (BITC) revealed that <strong><em>62 percent</em></strong> of employees with mental health problems said work was a contributing factor, while <strong><em>only 11 percent</em></strong> felt able to discuss a recent mental health problem with their line manager.</p>
<p>Therefore, it is submitted that from a business perspective compliance with <em>good practice</em> is an indispensable commercial necessity. Compliance with the law should be regarded as a given, however, the judgments that are discussed below indicate that employers are not alive to the statutory requirements of <em>fair labour practice</em> and seemingly oblivious to the financial prejudice of mental illness in the workplace, albeit precipitated due to stress-related illness or otherwise. </p>
<p>The <strong><em>Pharmaco</em></strong> judgment by the LAC <em>supra</em> has recently been handed down and is of significant importance insofar as the LAC pronounced on many questions of law pertaining to the applicable statutory prohibition against <em>unfair discriminatory conduct</em> perpetrated against employees with mental illness as well as the substantial relief ordered by the LAC to the employee in the event of a successful referral.</p>
<p>As far back as 2009, at the <strong><em>‘20<sup>th</sup> LexisNexis,</em></strong> <strong><em>Current Labour Law Annual Review – 2009’,</em></strong> the renowned labour lawyer and author <em>Professor Halton Cheadle</em>, delivered a paper on the subject matter <strong><em>‘Employment Discrimination - Mental illness’</em></strong> and <em>inter alia</em> discussed the judgment <strong><em>Marsland v New Way Motor & Diesel Engineering</em></strong> (2009) 30 <em>ILJ</em> 169 (LC).</p>
<p>In <strong><em>Marsland,</em></strong> the employee was employed as the marketing manager. He suffered a nervous breakdown after his wife left him and was hospitalised.</p>
<p>He continued to receive treatment after his return to work. After return to work, the employee was subjected to such humiliating treatment that it became intolerable to remain in employment. He instituted a claim of <em>constructive dismissal</em> for an <em>automatically unfair reason</em>, namely <em>discrimination on the grounds of mental illness</em>.</p>
<p>The Court held that in order to determine the claim <em>three separate enquiries</em> are required namely:</p>
<ul>
<li>whether mental illness constituted a discriminatory ground in terms of <strong>section 187(1)(<em>f</em>)</strong> of <strong>the LRA;</strong></li>
<li>whether there was a ‘<em>constructive dismissal’</em>; and</li>
<li>whether the principal reason for the dismissal was <em>discrimination on grounds of mental illness</em>.</li>
</ul>
<p>For the sake of completeness, <strong>section 186, <em>‘constructive dismissal’</em></strong> and <strong>section 187 <em>‘automatically unfair dismissal’</em></strong> as stipulated in <strong>the LRA</strong> has been quoted below:</p>
<p><strong>“186. Meaning of dismissal and unfair labour practice.</strong>(1) <strong><em>"Dismissal"</em></strong> means that-</p>
<p>(a)…</p>
<p>(b)…</p>
<p>(c)…</p>
<p>(d)…</p>
<p>(e) an <em>employee</em> terminated employment with or without notice because <em>the employer made continued employment intolerable</em> for the <em>employee</em> [‘constructive dismissal’]; or</p>
<p>[Para. (<em>e</em>) substituted by <strong>s. 30 (<em>b</em>) of Act No. 6 of 2014</strong>.]</p>
<p>(f)…”</p>
<p><strong>“187. Automatically unfair dismissals.</strong>(1) A <em>dismissal</em> is <em>automatically unfair</em> if the employer, in dismissing the <em>employee</em>, acts contrary to section 5 or, if the reason for the <em>dismissal</em> is-</p>
<p>(a)…</p>
<p>...</p>
<p>(f) that the employer <em>unfairly discriminated</em> against an <em>employee</em>, <em>directly</em> or <em>indirectly</em>, on <em><u>any</u></em> <u><em>arbitrary ground</em>,</u> including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;</p>
<p>...</p>
<p>(2) Despite subsection (1) ( <em>f</em> )</p>
<p>(<em>a</em>) a <em>dismissal</em> may be fair if the reason for <em>dismissal</em> is based on an <em>inherent requirement</em> of the particular job;</p>
<p>(<em>b</em>) a <em>dismissal</em> based on age is fair if the <em>employee</em> has reached the normal or agreed <em>retirement age</em> for persons employed in that capacity.”</p>
<p>As to the <em><u>first</u></em> <em><u>issue,</u></em> the Court relied on the often cited Constitutional Court decision in <strong><em>Harksen v Lane NO</em></strong> 1998 (1) SA 300 (CC).</p>
<p>There the Court held that the constitutional grounds of discrimination were not a closed list and could include <u>any</u> <strong><em>“discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or affect them in a comparably serious manner.”</em></strong>(at 322).</p>
<p>The Court had no difficulty in holding that <em>discrimination on grounds of mental illness</em> <em>impairs the fundamental dignity</em> of a person as a human being and that, accordingly, mental illness is a <u>prohibited ground of discrimination</u> in <strong>section 187(1)(f) of the LRA.</strong></p>
<p>It was necessary to go further and argue that that <em>discrimination was</em> <em>unfair</em> taking into account the factors identified in another judgment by the SA Constitutional Court and often cited by the Courts namely, <strong><em>Hoffman v South African Airways</em></strong> 2000 (11) BCLR 1211 (CC) <em>at paragraph 27.</em></p>
<p>As to the <em><u>second issue</u></em>, the treatment was so humiliating that the Labour Court had little hesitation in finding that the employee had been <em>constructively dismissed.</em></p>
<p>In order to determine the <em><u>third</u></em> <em><u>issue</u></em>, namely whether the reason for the dismissal was the principal cause of the dismissal, the Court found, in the absence of any evidence tendered by the employer, that the change in attitude was as a result of his nervous breakdown. This was the principal cause underlying the humiliating treatment that led to his constructive dismissal.</p>
<p>The ER lodged an appeal to the LAC. In <strong><em>New Way Motor & Diesel Engineering (Pty) Ltd v Marsland</em></strong> [2009] 12 BLLR 1181 (LAC), the Court rejected the company's argument that <em>Marsland</em> had been maltreated because he had become <em>"useless in his employment after his illness",</em> which in any event, amounted to much the same.</p>
<p>The only issue was whether <em>Marsland's</em> disturbed mental state could be termed a <em>"disability"</em> because <em>discrimination on the basis of disability</em> is expressly prohibited by <strong>section 187(1)(f) of the LRA.</strong></p>
<p>But the Court found it unnecessary to decide that point because <em>discrimination on the basis of mental health</em> was so akin to the <em>impermissible ground</em> that it made little difference whether a nervous breakdown and its aftermath formally fell within the statutory definition of <strong><em>"disability".</em></strong></p>
<p>What really mattered was that the treatment meted out to <em>Marsland</em> was so appalling that it <em>violated his dignity.</em></p>
<p>The employer's conduct accordingly fell within the scope of <strong>section 187(1)(f).</strong> Having made that finding the court could find no reason to interfere with the compensation granted. The employer's only success was to obtain an order halving <em>Marsland's</em> overtime pay.</p>
<p>However, the employer was still required to pay the costs of the appeal.</p>
<p>[See Dr John Grogan, <strong><em>‘Nervous reaction - Employment Law Journal’</em></strong> <em>LexisNexis</em> (December 2009) <em>Volume 33 Part 4</em>].</p>
<p>The reader should take notice that SA labour legislation has been amended, especially <strong>the LRA, Act 6 of 2014</strong> and <strong>the EEA, Act 47 of 2013.</strong> </p>
<p>Against the above background, the <strong><em>Pharmaco</em></strong> judgment by the LAC <em>supra</em> has been handed down and the judgment is of significant importance insofar as the Court <em>inter alia</em> pronounced on:</p>
<ol>
<li>i) <em>unfair discrimination on account of disability</em> in terms of <strong>section 187(1)(f) of the LRA;</strong></li>
<li>ii) employer subjecting an employee to psychiatric assessment and relying on a clause in the employee’s contract as a ground to <em>justify</em> the assessment;</li>
</ol>
<p>iii) the employee suffered from bipolar and whether it affected her work performance;</p>
<ol>
<li>iv) that <strong>section 7(1) of the EEA</strong> prohibits medical testing of an employee unless the legislation permits or requires the testing; or</li>
<li>v) if it is <em>justifiable</em> in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the <em>inherent requirements of the job;</em></li>
<li>vi) that <em>consent</em> <em>is</em> <em>not a justification</em> as contemplated in <strong>s7(1) of the EEA;</strong></li>
</ol>
<p>vii) that there was, as a result, a <em>direct causal connection</em> between the employee’s bipolar disorder and her dismissal;</p>
<p>viii) damages for <em>injuria</em> – claim for damages for <em>non-patrimonial damages</em> for impairment of her dignity as a result of being <em>unfairly discriminated</em> against;</p>
<ol>
<li>ix) held there is in principle no difference between a claim for compensation under <strong>s194(3) of the LRA</strong> and damages claim under <strong>s50(2)(b) of the EEA</strong> for <em>non-patrimonial loss.</em></li>
</ol>
<p>SUMMARY: <strong><em>PHARMACO DISTRIBUTION (PTY) LTD</em></strong> [Appellant] <strong>and <em>LIZE ELIZABETH WEIDEMAN</em></strong> [Respondent] (Case no: JA104/2015) [2017] ZALAC (04 July 2017)</p>
<p><strong><u>Background</u></strong></p>
<p>At the outset, it should be mentioned that the background events as set out in the <strong><em>Pharmaco</em></strong> LAC judgment constitute a textbook example of ‘<em>how not’</em> to treat an employee that suffers from a psychiatric illness – <em>bipolar disorder</em> or any employee on account of a disability, albeit a psychiatric illness or other impairment.</p>
<p>Some of the incidents as recorded in the LAC judgment especially the manner in which the Appellant/Employer (ER) treated the Respondent/Employee (EL) could be described as a display of the <em>people skills</em> of a <em>Marie Antoinette</em>. The events as they unfolded has been recorded in brief, however, with sufficient detail to place the discrimination and humiliation that the EL suffered in context.</p>
<p><em>In short:</em> on 1 July 2008, the EL was employed in terms of a fixed term contract (FTC) in the capacity of a pharmaceutical sales representative in its pharmacy division.</p>
<p>During December 2008, the ER had assessed the EL in a performance appraisal as “<em>exceptional and consistently demonstrates excellent standards in all job requirements</em>”. </p>
<p>Subsequently, on 16 July 2009, the parties concluded an indefinite-term contract, in terms of which the EL earned a monthly basic salary of R9 650, 00 a travel allowance of R8 350,00 and a telephone allowance of R500,00. She also earned a commission on sales generated. </p>
<p>During January to October 2009, the EL raised various queries in relation to the calculation and late payment of her commission.</p>
<p>On 25 September 2009, the EL received a sales printout identifying the sales she had made for the quarter to date and reflecting her commission due. Approximately two weeks later she received another printout.</p>
<p>This print out reflected sales figures substantially lower than the first one.</p>
<p>On 15 October 2009, the EL took the issue up with the ER’S National Sales Manager (NSM), whom she spoke to telephonically. The NSM informed her that her query “<em>would not be entertained at all, even if I put it in writing</em>” and that she should query the issue with ER’S CEO.</p>
<p> On 16 October 2009, the EL made an appointment with the CEO’S PA, to meet with him, but was not afforded a meeting. Later, on 20 October 2009, she prepared a report setting out how she arrived at her sales’ figures together with supporting documents (“the report”), which she delivered to the CEO’S son.</p>
<p>On 23 October 2009, the EL met with the NSM at the head office, where she handed him the report. The NSM refused to accept the report and threatened to throw it in the bin.</p>
<p>On 28 October 2009, the EL raised a grievance. The grievance was only considered after the EL had sent numerous reminders to management to attend to it. On the same day, the ER <em>‘charged’</em> the EL <em>inter alia</em> with the following charges namely, insolence, insulting behaviour, willful refusal to carry out a lawful instruction or to perform her duties, intimidation of fellow employees and damaging the reputation of the ER by insisting that it had produced incorrect figures to deprive her of commission.</p>
<p>Pursuant to a disciplinary enquiry, on 30 October 2009, the EL was found guilty as charged and was issued a final written warning. She appealed against the findings and the sanction, but it was never considered. Instead, on 20 November 2009, the ER summoned the EL to its head office. She was placed on immediate suspension and issued with a letter, dated 18 November 2009, signed by the CEO.</p>
<p>In the letter, the CEO stated, that the EL’S recent behaviour had given rise to “<em>serious concern</em>” and that she had made a statement “<em>to Mr H and the NSM to the effect that you were suffering from bipolar depression</em>”.</p>
<p>The CEO indicated in the letter that the ER was concerned about her health and its “<em>legitimate and lawful interests</em>” as her employer.</p>
<p>He then instructed her, in the letter, to attend a medical examination with a psychiatrist, Dr L, who would be required to advise the ER on “<em>whether or not you are fit to deal with your tasks for the Company and whether you can resume and attend to such tasks without there being any risk for yourself or the lawful and legitimate interests of your employer</em>”.</p>
<p>The CEO concluded the letter by warning the EL that a failure to attend or attendance coupled with “<em>sabotage</em>” of the examination would “<em>constitute a serious offence</em>” and would be dealt with as a <em>disciplinary infraction.</em> </p>
<p>In response to the instruction to attend the medical examination, the EL’S attorneys addressed a letter, dated 20 November 2009, to the ER recording that its instruction amounted to an act of victimisation which was precipitated by her grievance in relation to the payment of commission. The letter also called upon the ER to withdraw the instruction, failing which the EL would launch an application to the LC.</p>
<p>The ER did not withdraw the instruction. Instead, the CEO addressed a further letter to the EL’S attorney in which he repeated his view that “<em>there have been incidents in our company which force us as <u>a caring and responsible employer</u> to insist that</em> [<em>the EL</em>] <em>attend the doctor’s appointment</em>” and that her failure to attend “<em>would constitute a very serious offence and be dealt with accordingly”</em>. [Emphasis added].</p>
<p>The EL also submitted a letter, from her counselling psychologist, Mr F, to the ER explaining that she suffered from bipolar disorder that was well managed as she was in therapy with him and was medication compliant. Mr F concluded the letter by stating “<em>I can, therefore, see no reason why this condition should in any significant way have affected her ability to function effectively in the work environment.”</em></p>
<p>The ER did not respond to the letter where after the EL launched an urgent application in the LC in which she sought an order setting aside her suspension and interdicting the ER from instructing her to attend a medical examination. The application was dismissed. The EL failed to attend the medical examination.</p>
<p>The ER charged her with misconduct. On 27 November 2009, the ER considered the EL’S grievance and rejected it.</p>
<p>The disciplinary enquiry proceeded on 2 December 2009. The EL was found guilty and was dismissed.</p>
<p></p>
<p><strong><u>Judgment of the Labour Court</u></strong></p>
<p>The EL referred a dispute to the CCMA, however, the arbitrator ruled that the CCMA lacked jurisdiction and the EL may refer the dispute to the LC for adjudication.</p>
<p>The LC considered the validity of a clause in the contract of employment in light of the provisions of <strong>s7(1) of the EEA.</strong> The LC observed that the ER’S case was essential “<em>that the testing was justified given that [the EL] had consented to undergo a medical test when reasonably required by it, and her behaviour coupled with the disclosure of her psychiatric condition”</em>.</p>
<p>The LC observed that <strong>s7(1) of the EEA</strong> prohibits medical testing “<em>unless</em>” either of the circumstances contemplated in paragraphs (a) or (b) applies. It found that under <strong>subsection 1(b)</strong> medical testing would not be prohibited if “<em>justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job”.</em></p>
<p>However, and so it was found <u>consent</u> was not one of <em>the exceptions</em> contained in the subsection. On considering the <em>“medical facts”</em> in <strong>s7(1)(b),</strong> the LC stated that <em>“the known medical facts”</em> were that the EL suffered from bipolar disorder, was undergoing regular therapy and was taking medication for her condition. It observed that there was also the opinion of her psychologist that her condition should not affect her ability to function effectively in her work environment.</p>
<p>With regard to the “<em>employment conditions</em>” in <strong>s7(1)(b) of the EEA</strong>, the LC stated:</p>
<p>‘[41] <em>Insofar as the respondent [ER] might find support in the section [i.e. <strong>section 7(1)(b)</strong>] that ‘employment conditions’ justified the psychiatric examination, the ER made some attempt to try and suggest that the working environment of EL was very pressurized and stressful.</em></p>
<p><em>By implication, as I understand the argument, it could not risk employing someone in the position if there was a question mark about their ability to remain mentally stable to cope with the demands of the job. However, the balance of evidence did not support the view that conditions of work in the job were inherently stressful, still less that any expressions of anger or frustration would render the person unable to perform their duties.</em></p>
<p>[42] <em>It should also be mentioned that what triggered EL’S outburst, had nothing to do with the performance of her duties but arose out of a dispute over an important aspect of her remuneration.</em></p>
<p><em>On the evidence presented, it seems clear that the EL lost her temper on 23 October 2009 as a result of her frustrations over what she perceived was an attempt by the ER to avoid addressing her complaints about her commission flowing from what she believed were erroneous sales figures attributed to her ….In any event, insofar as it may be relevant, the EL had a genuine belief that she had been severely prejudiced by an unwarranted revision of the sales figures.’</em></p>
<p>The LC considered the possible argument based on <em>the inherent requirements of the job</em> and noted that the appellant had “<em>failed to demonstrate such a threshold health qualification was required to perform the duties that the job entailed.”</em></p>
<p>The Court held that the “<em>ostensible”</em> purpose of the examination was not to establish whether the EL suffered from an unknown disease that was affecting her ability to work; on the contrary, [the EL’S condition was known]. It was common cause that her work performance was not affected. The Court found, in the circumstances, that the ER had failed to establish that its instruction was not prohibited and concluded that:</p>
<p><em>‘In the absence of being able to establish that clause 17.3 of [the EL’S] contract was <u>justifiable</u> under <u>one of the exceptions</u> to the prohibition in <strong>section 7 of the Employment Equity Act,</strong> that provision is unlawful and unenforceable.’</em></p>
<p>The LC, accordingly, found that the ER <em>unfairly discriminated</em> against the EL and that her dismissal was <em>automatically unfair</em> in terms of <strong>s187(1)(f) of the LRA</strong>. It also found that the ER had discriminated against the EL in terms of <strong>s6 of the EEA.</strong></p>
<p>The LC found further that, it was the EL’S bipolar condition which led to her being required to undergo the examination on pain of dismissal. That in itself was <em>unfair discrimination</em> in terms of <strong>s 6 of the [EEA].</strong></p>
<p>Consequently, her subsequent dismissal for refusing to accede to being tested for that reason was also a dismissal for a prohibited reason in terms of <strong>s 187 (1)(f) of the [LRA].</strong> The knowledge that the EL was bipolar was therefore decisive.</p>
<p>It was noteworthy that the EL’S performance had been rated as <em>"exceptional"</em>; she had no history of absenteeism; the company had not considered it necessary to subject any employees to pre-employment medical or psychological examinations; when the EL had an outburst on 23 October 2009 over her commission dispute, none of the staff had felt threatened by her.</p>
<p>The LC concluded that consequently, it was satisfied that the EL’S dismissal in the circumstances was based on her refusal as a person with a bipolar condition to undergo a medical examination, which she would not have been required to undergo, but for the condition.</p>
<p>The stigmatizing effect of being <em>singled out</em> on the basis of an illness that she was managing, notwithstanding the absence of any objective basis for doubting her ability to perform, is obvious. The act of requiring her to submit to the psychiatric examination in the circumstances was also <em>an act of unfair discrimination</em> in terms of <strong>s 6 of the EEA.</strong></p>
<p>The LC held that “<em>clause 17.3</em> [‘Consent in the contract of employment’] <em>… is not permissible in terms of <strong>section 7 of the Employment Equity Act</strong> and can be declared null and void”</em>.</p>
<p>The LC ordered the ER, in terms of <strong>s194(3)2 of the LRA,</strong> to pay the EL the sum of R222 000,00 as compensation for her <em>automatically unfair dismissal</em> and the sum of R150 000,00, in terms of <strong>s50(2)(b) of the EEA,</strong> as <em>damages for the unfair discrimination</em> committed against her under <strong>the EEA,</strong> as well as an order as to costs against the ER<strong>.</strong></p>
<p>The ER appealed against the whole of the judgment and order of the LC and the EL cross-appealed against its award of compensation and damages. Both the appeal and cross-appeal were granted with leave of the LC.</p>
<p><strong><u>SUMMARY – LAC JUDGMENT</u></strong></p>
<p>The LAC analysed the finding of the LC and held that known fact was that EL suffered from bipolar and that it did not affect her work performance.</p>
<p><strong>Section 7(1) of the EEA</strong> prohibits medical testing of an employee unless the legislation permits or requires the testing or it is <em>justifiable</em> in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.</p>
<p>Of importance is that the LAC found that ‘c<em>onsent’</em> was not a <em>justification</em> as contemplated in <strong>s7(1) of the EEA.</strong> The common cause facts revealed that none of the other salespersons was subjected to any pre-employment medical assessments or questionnaires relating to their ability to cope with stress on the job.</p>
<p><em>Clause 17.3</em> <em>supra</em> of the contract of employment was <em>patently offensive</em> and <em>invasive of the privacy</em> <em>rights</em> of the employee and was plainly inconsistent with <strong>s7(1) (b) of the EEA.</strong> Evidence revealed that ER had discriminated against the EL because of her bipolar disorder.</p>
<p>The ER’S primary concern was the EL’S bipolar disorder and the ‘<em>perceived dangers’</em> associated with it, notwithstanding the EL’S exceptional performance reviews, and no matter the legitimacy of her grievance, the mere fact that she suffered from bipolar disorder was a matter of such grave concern to the ER, that she had to be subjected to a psychiatric assessment.</p>
<p>The LAC held that there was, as a result, a <em>direct causal connection</em> between the employee’s bipolar disorder and her dismissal.</p>
<p>As to the cross-appeal and compensation, the LC failed to take into account that the ER manipulated the employee’s medical condition in order to secure her dismissal. As a consequence, the EL suffered humiliation as a result of the ER’S conduct.</p>
<p>The LAC held further that when considering the appropriate order to make under <strong>s194(3) of the LRA,</strong> the Court must take into account that such dismissals are frowned upon and should deter employers from automatically unfairly dismissing employees.</p>
<p>The LC’S order as to compensation was set aside for the reasons as summarised below.</p>
<p>Damages for <em>injuria</em> - the EL claimed damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against. The Court held there was in principle no difference between her claim for compensation under <strong>s194(3) of the LRA</strong> and her damages claim under <strong>s50(2)(b) of the EEA</strong> for <em>non-patrimonial loss</em>.</p>
<p>To award both <em>non-patrimonial damages</em> and <em>compensation</em> to the employee for the same wrongful conduct of the ER would not be <em>just and equitable</em> as it would amount to <em>penalising the ER twice.</em></p>
<p>The appeal was dismissed with costs and the cross-appeal partially upheld. The LC’S judgment was set aside as far as compensation was concerned.</p>
<p><strong><u>Order</u></strong></p>
<p>In the result, the LAC ordered:</p>
<p><em>1 The appeal is dismissed with costs.</em></p>
<p><em>2 The cross-appeal is partially upheld, with no order as to costs.</em></p>
<p><em>3 The award ordering the appellant to pay the respondent R150 00,00 as general damages for the unfair discrimination committed in terms of s6 of the Employment Equity Act is set aside.</em></p>
<p><em>4 The award ordering the appellant to pay the respondent R220 000,00 in compensation for her unfair dismissal in terms of <strong>s187(1)(f) of the Labour Relations Act</strong> is set aside and replaced with the following order:</em></p>
<p><em>‘The appellant is ordered to pay the respondent R285 000,00 as compensation for her automatically unfair dismissal in terms of <strong>s187(1)(f) of the Labour Relations Act.’</strong></em></p>
<p></p>
<p><strong><u>CONCLUSION:</u></strong></p>
<p>The judgment by the LAC constitutes a clear and unequivocal message to employers of the Court’s disapproval of <em>unfair discrimination</em> based on a <em>listed ground,</em> namely <em>disability – psychiatric illness</em> as stipulated in terms of <strong>section 6(1) of the EEA;</strong> as well as on account of <strong>section 187(1)(f) of the LRA <em>‘automatically unfair dismissal</em></strong><em>.’</em></p>
<p>The amount of compensation and damages is substantial and legal costs incurred would be significant.</p>
<p><em> </em></p>
<p><strong><em>Johann Scheepers</em></strong></p>
<p><em>September 2, 2017.</em></p>
<p><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544795960?profile=original" target="_self"></a></p>
THE LAW OF EVIDENCE IN ARBITRATION PROCEEDINGS - ‘VALUATION’, ‘ANALYSIS’, ‘ASSESSMENT’, ‘PROBABILITIES’, ‘INFERENCES’, ‘CIRCUMSTANTIAL EVIDENCE’, ‘CUMULATIVE EFFECT’, THE RULES OF LOGIC…
tag:www.adrhub.com,2017-10-22:4905899:BlogPost:80904
2017-10-22T00:02:32.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p>“There is no art <br></br> To find the mind’s construction in the face <br></br> He was a good gentleman on whom I built An absolute trust”</p>
<p>- Macbeth l.iv.13.</p>
<p>On Circumstantial Evidence – Cumulative effect:</p>
<p>“[E]ven two articles of circumstantial evidence, though each taken by itself but as a feather, join together, you will find them pressing on a delinquent with the weight of a mill-stone ….”.</p>
<p>‘In S v Reddy & others 1996 2 SACR 1 (A) 8i Zulman AJA quoted, ‘Best on…</p>
<p>“There is no art <br/> To find the mind’s construction in the face <br/> He was a good gentleman on whom I built An absolute trust”</p>
<p>- Macbeth l.iv.13.</p>
<p>On Circumstantial Evidence – Cumulative effect:</p>
<p>“[E]ven two articles of circumstantial evidence, though each taken by itself but as a feather, join together, you will find them pressing on a delinquent with the weight of a mill-stone ….”.</p>
<p>‘In S v Reddy & others 1996 2 SACR 1 (A) 8i Zulman AJA quoted, ‘Best on Evidence’ 10 ed. para 297.’</p>
<p>INTRODUCTORY COMMENTS<br/> Over the years, arbitration has come to play an increasingly important role in the South African industrial relations sphere. There are a number of reasons for its rise to prominence as one of a number of dispute-resolution mechanisms, perhaps the most important of which has been the desire on the part of the parties to a dispute to seek a speedy and cost-efficient resolution of such disputes.</p>
<p>Unfortunately, as more and more disputes are submitted to arbitration, the parties to disputes will, it is so submitted, tend to rely to an ever greater extent on the assistance of legal practitioners to present their cases at arbitration hearings. Inevitably, this may defeat the very purpose for which arbitration is resorted to, namely to avoid lengthy and costly litigation which, ultimately, could alienate the parties from one another.</p>
<p>Having said that, labour law has become inherently complex and technical in substance and nature to such an extent that one could hardly criticize parties who seek assistance and advise of legal representatives.</p>
<p>With the amendments to South African Labour Legislation and the statutory entrenchment therein of arbitration as one of the means of achieving resolution of labour disputes, arbitration is undoubtedly set to play an even more crucial role in the labour relations sphere than ever before.</p>
<p>Moreover, the limited restrictions placed on legal representation in accordance with the provisions contained in the Labour Relations Act, 66 of 1995 (as amended) (the LRA), in certain instances; and no restriction on legal representation in terms of litigation based on the provisions of the Employment Equity Act, 55 of 1998 (as amended) (the EEA) discrimination disputes stand justiciable or arbitrable by the Commission for Conciliation, Mediation and Arbitration (the CCMA) in terms of the EEA, as well as the cost of legal representation, make it imperative for those employers who can afford it, to have personnel on their payroll who are not only highly knowledgeable about all facets of arbitration/dispute resolution, but also skilled in preparing and presenting cases at arbitration hearings.</p>
<p>At the outset it should be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter.</p>
<p>The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.</p>
<p>However, sufficient detail and substance on the subject matter, namely the law of evidence and its applicability in arbitration proceedings will have to be ventilated in order to give meaning to the significance of the law of evidence, including the rules of evidence insofar as it should be applied by the presiding officers of disciplinary enquiries and arbitrators.</p>
<p>I was privileged in that I was trained and mentored as an arbitrator and mediator by the renowned arbitrators and mediators, John Brand and Felicity Steadman.<br/> I also became a mentee of John Brand where after I became a panellist during 1994 of the now-defunct Independent Mediation Service of South Africa (IMSSA).</p>
<p>During the training process the importance of the rules and the law of evidence were topics extensively addressed due to their obvious importance insofar as any arbitrator or trier of fact should be well versed in the aforementioned law and rules; especially their application in the assessment and evaluation of evidence.</p>
<p>In a paper presented at an IMSSA Arbitration Seminar held during 1990, by Advocate P J Pretorius SC “Assessing Credibility in Labour Arbitration” based largely on information gathered during a visit of three IMSSA officials to the United States and on South African Law and practice, the learned counsel submitted ‘This topic is to my mind one of the most neglected in our jurisprudence.</p>
<p>Practitioners of the law and arbitrators for that matter receive little or no training in the field. There is scant writing on the topic and probably less evidence of any empirical research having been done in South Africa. Yet how many disputes that are adjudicated require a decision as to which of two or more conflicting versions of the facts is true or probable?</p>
<p>Such a decision can and often does mean the difference between life and death for an accused in a criminal trial or between a job or unemployment for a grievant in an arbitration.’ [Emphasis added].<br/> At an IMSSA education seminar held during March 1992, the celebrated counsel Advocate Gilbert Marcus SC presented a paper “Evaluating Evidence”, where learned counsel submitted, ‘The result of an arbitration hearing is self-evident of vital concern to the parties. After reading the last page of the award the loser will inevitably seek the justification for the decision.</p>
<p>The written motivation for the award is a characteristic of labour arbitration generally…No matter what the arbitrator might instinctively feel concerning the outcome of the arbitration, the need to justify the result requires an analysis and interpretation of the relevant evidence. This process of evaluation is undoubtedly the most difficult task of the arbitrator.” <br/> Marcus SC made a critical observation, ‘Judges trying civil and criminal cases are skilled in the evaluation of evidence and have formulated rules to guide their discretion. In most cases, labour arbitrations are not conducted with the same formality and rigidity as ordinary civil and criminal cases. But informality does not eliminate the problems of evaluating evidence. Indeed, as will be demonstrated, in some cases the absence of formality makes the process more difficult. [Emphasis added].</p>
<p>The situation changed to an extent in that arbitrators have access to many publications authored by authorities on the subject matter; as well a wealth of case law where the Courts pronounced and gave guidance as to the evaluation and assessment of the evidence. This notwithstanding, errors are made from time to time by arbitrators [and judges].</p>
<p>In conclusion, the reason for drafting hereof is:</p>
<p>Firstly briefly highlight the intricacies and complexities of South African law pertaining to review of arbitration awards; and</p>
<p>Secondly, the difficulty if not incapability by some arbitrators to resolve factual disputes by applying the rules and the law of evidence in the assessment and analysis of evidence.</p>
<p>There seems to be an increase in the incidence of awards successfully reviewed and set aside by the Courts based on:</p>
<p>'Latent irregularities - Errors of fact', to wit:<br/> i) absence of any or sufficient evidence to warrant the conclusion reached by the arbitrator;</p>
<p>ii) failure to have regard to relevant evidence;</p>
<p>iii) being influenced by irrelevant evidence;</p>
<p>iv) incorrect interpretation of evidence;</p>
<p>v) erroneous conclusions are drawn from the evidence.</p>
<p>[See Dr John Grogan 'Labour Litigation and Dispute Resolution' Juta (2010) at 292-293].</p>
<p>I am of the considered opinion that arbitrators, even seasoned ones should receive advanced training or at least regular briefing session on the subject matter of evidence as ventilated in this article.</p>
<p>At this juncture, readers will be well advised to secure a copy of the article by the Honourable Mr Justice HC Nicholas JA, 'The Credibility of Witnesses'SALJ 1985, page 39-40, also delivered at 'The Oliver Schreiner Memorial Lecture, at the University of the Witwatersrand, Johannesburg, on 29 August 1984.</p>
<p>Prior to continuing with the writing hereof, I could not resist the temptation to record a quote from the paper supra hereunder:<br/> "For the assessment of the credibility of witnesses (whether it relates to their veracity or their reliability) there are no formulas, no rules of thumb such as that given by an American who asked how one could tell whether a certain personage was lying, said, 'You look to see if his lips are moving'. [Compare S v Webber 1971 (3) SA 754 (A) at 758H]. [Emphasis added].</p>
<p>THE LAW OF EVIDENCE IN ARBITRATION PROCEEDINGS</p>
<p>The onus and standard of proof.</p>
<p>The onus of proof explained:</p>
<p>The onus of proof (also termed the “burden of proof”) may be defined as the duty (burden) which a party to an arbitration hearing has of persuading the arbitrator that It is entitled to succeed at the close of the hearing.</p>
<p>At this point, it should be mentioned that the onus of proof is a concept which applies not only to arbitration hearings, but also to criminal and civil cases, disciplinary enquiries, et cetera.</p>
<p>In a disciplinary enquiry, for instance, the onus of proof rests on the employer to prove on a balance of probabilities (a concept that will be explained later in this section) that Employee A is, say, guilty of contravening the employer’s disciplinary code by assaulting Employee B. In order to discharge the onus (relieve itself of) which rests on the employer at such hearing, the employer will have to prove all the relevant issues pertaining to the assault.</p>
<p>Let us assume, for example, that the employer is unable to prove on a balance of probabilities that it was Employee A who assaulted Employee B (the alleged assault occurred, say, during a mass meeting during which widespread fighting ensued).</p>
<p>In such a case, the employer will have failed to discharge the onus which rests on it, and will consequently be unable to obtain to obtain a finding of guilt against Employee A. <br/> In short, therefore, if the person presiding at a hearing (eg an arbitrator, chairperson of a disciplinary enquiry, etc.) is unable to decide the issue in question on termination of the hearing, the party bearing the onus will obviously fail to obtain an award/finding in its favour.</p>
<p>One final point which must be considered as regards the onus of proof is the question of who bears the onus?<br/> Section 192 of the LRA stipulates as is quoted below:<br/> ‘192 Onus in dismissal disputes</p>
<p>(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.</p>
<p>(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.’</p>
<p>The standard of proof explained:<br/> Simply stated, the standard of proof is that degree of conviction which the presiding officer must have in order to find in favour of the party bearing the onus; in other words, how convinced Is such officer that the employer in, say, arbitration proceedings has satisfied him/her that It has discharged the onus and has proved that one of its employees is, in fact, guilty of, say, theft?</p>
<p>It should, however, be borne in mind that the standard of proof required differs according to the type of proceedings. In a criminal case, for example, the prosecution must discharge the onus which It bears by proving to the judicial officer concerned that the accused has, beyond a reasonable doubt, committed the crime of which he/she is charged.</p>
<p>In contrast, in civil cases, arbitration proceedings and disciplinary enquiries, for example, the party bearing the onus is required to prove its case on a balance (or preponderance) of probabilities. In simple terms, this means that, say, an arbitrator must determine whether the evidence adduced by the party who bears the onus (ie the employer) is more probable than that of the employee.</p>
<p>Another way of viewing the “balance of probabilities” concept is to consider the evidence the evidence adduced by both parties as being place on a scale similar to a chemical balance.</p>
<p>In the one pan is placed the evidence adduced by the employer, and. In the other, the evidence adduced by the employee. Should the pan containing the employer’s evidence be heavier than that containing the evidence of the employee, the balance is said to favour the employer; hence the arbitrator will be obliged to find for the employer.</p>
<p>If, however, the pan containing the employee’s evidence is heavier, the arbitrator will find In favour of the employee. Obviously, where the scale is in equilibrium, the balance of probabilities favours neither party. <br/> But because the employer bears the onus, and the balance cannot be said to favour such employer, the employer will not have discharged the onus placed on it. In consequence, the arbitrator will again find for the employee.</p>
<p>THE DUTY TO BEGIN <br/> In every type of judicial or quasi-judicial proceeding, be it a criminal trial, a civil matter, an arbitration hearing, a disciplinary hearing, et cetera, there Is a duty upon one of the parties to commence the proceedings by leading evidence to discharge the onus which rests on such party. In a disciplinary hearing, for instance, such duty to begin rests on the employer. <br/> Simply stated, the duty to begin is a rule which, down the years, has been laid down so that the presiding judicial officer (for instance, the arbitrator in arbitration proceedings) is able to hear the evidence led by the parties in a logical order. The duty to begin therefore merely establishes in what order the evidence must be led by the parties.</p>
<p>Not only does the duty to begin to allow the arbitrator to hear evidence in a logical order, but it also eliminates the need for the party upon whom the onus of proof does not rest from having to adduce evidence in instances in which the party upon whom the onus rest, has failed to discharge such onus.</p>
<p>Earlier In this section, it was stated that it can be accepted with a reasonable to the degree of certainty that the onus of proof into an arbitrator rests upon the employer. And since such onus rests on the employer, arbitrators will inevitably expect the employer to begin the proceedings, that is, the duty to begin will rest on the employer.</p>
<p>WHAT MUST BE PROVED? <br/> During proceedings such as an arbitration hearing, there are two classes of facts which must be considered, namely –</p>
<p>i) the facts in issue (ie the facts which have to be proved), and</p>
<p>ii) the facts relevant to the facts in issue. <br/> These two categories will now be considered with the aid of an example:</p>
<p>Assume that Employee A has been charged and found guilty at a disciplinary hearing of breaching a provision in the Company’s disciplinary code which states that no employee may behave improperly on Company premises (the improper behaviour consisting In this instance of Employee A, while on Company premises, being rude and abusive to an important client of the Company). <br/> After appealing unsuccessfully against the finding of guilt and the sanction Imposed, Employee A takes up the matter with his Union. Thereafter, the matter Is referred for arbitration In terms of the relevant provisions in the LRA.</p>
<p>At the arbitration hearing, the Company will have to prove the following facts in issue (assuming, of course, that all such facts are in dispute):</p>
<p>Substantive fairness:<br/> i)That a rule exists within the Company prohibiting improper behaviour (and, specifically, rudeness and abuse towards clients). <br/> ii)That the rule laid down by the Company is a legitimate one. <br/>
iii)That Employee A was aware of the rule. <br/>
iv)That Employee A transgressed the rule (by being rude and abusive to a client of the Company while such employee was on Company premises). <br/>
v)That the penalty imposed for the misconduct concerned was appropriate In the circumstances.</p>
<p>Procedural fairness:<br/> That the Company adopted a fair procedure as regards the disciplinary hearing. <br/> The arbitrator’s approach to the procedural fairness of a dismissal will be determined by the existence of a workplace procedure and the legal status of that procedure.</p>
<p>Schedule 8 to the LRA, Item 4 of the Code of Good Practice: Dismissal (the Code) contemplates an investigation into the misconduct that includes an inquiry, which need not be formal. The Code does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for the leading and cross-examination of witnesses, formal rules of evidence, legal representation and independent decision-making.</p>
<p>The Code contemplates a flexible, less onerous approach. The fairness of an inquiry conducted by an employer without workplace procedures must be tested against the five requirements for procedural fairness contained in Item 4.</p>
<p>i) The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand.</p>
<p>ii) The employee should be allowed a reasonable time to prepare a response to the allegations.</p>
<p>iii)The employee should be allowed a reasonable time to prepare a response to the allegations.</p>
<p>iv) The employee should be allowed the assistance of a trade union representative or fellow employee in <br/> preparing a response and in stating a case in any enquiry.</p>
<p>v) The employee should be given the opportunity to state a case in response to the allegations.</p>
<p>vi) The employer should communicate the decision taken, preferably in writing. furnish the employee with the reasons, and. if dismissed, remind the employee of the right to refer a dispute to the CCMA. a council with jurisdiction, or in terms of any dispute resolution procedure in a collective agreement.</p>
<p>If there is a workplace disciplinary procedure its legal status will affect the arbitrator’s approach when assessing the procedural fairness of a dismissal.</p>
<p>There are three categories:</p>
<p>i) those that are contained in a collective agreement;</p>
<p>ii) those that are contractually binding, and</p>
<p>iii) those that are unilaterally established by the employer.</p>
<p>A departure from the agreed procedure should constitute procedural unfairness. But not every instance of procedural unfairness in these circumstances ought to give rise to an order of compensation.</p>
<p>For the sake of brevity further observations as to procedural fairness have been deemed unnecessary.</p>
<p>TYPES OF EVIDENCE</p>
<p>INTRODUCTION:<br/> Prior to discussing the various types of evidence which may be received during an arbitration hearing (or any judicial or quasi-judicial proceedings), it is necessary to define and explain certain terms relating to the law of evidence. Naturally, the most important concept which requires definition and explanation is the term ‘‘evidence” itself.</p>
<p>Evidence: Means the facts, testimony and documents which may be legally received so as to prove or disprove a fact under inquiry.</p>
<p>Direct evidence: Is what a witness testifies that he/she has perceived with his/her own senses (Note: But not what he/she has heard from other persons concerning the matter in dispute), or what he/she produces in the way of real evidence (see below) (eg an object) and about which he/she has personal knowledge. An example of direct evidence is the case where a witness testifies to the fact that he “saw Employee A, assault Employee B by striking him with his fist”.</p>
<p>Indirect evidence: This is more commonly referred to as circumstantial evidence and is best illustrated by way of an example. Let us assume that, as regards the assault by Employee A on Employee B, a witness Is called who testifies as follows: “As I was approaching Employee B’s office, Employee a emerged. He was holding his face with both hands and I could see that his nose was bleeding. I looked into Employee B’s office, and it was empty, except for Employee A who was gathering up some papers from Employee B’s desk.”</p>
<p>The evidence is indirect or circumstantial because the witness has not testified that he saw Employee A assault Employee B. All that the witness has testified to is facts which have a bearing on the principal fact to be proved, namely the assault.</p>
<p>Hearsay evidence: Is evidence of the statements made by another person which a witness says he/she has heard. <br/> Prima facie evidence: Means prima facie (“on the face of it”) proof of an issue in respect of which a particular party bears the onus of proving such Issue. If the other party does not deny such evidence or fails to rebut it, the prima facie proof becomes what is termed conclusive proof.</p>
<p>Having defined and explained certain basic terms and concepts, let us examine some of the more important types of some of the more Important types of evidence which may or may not be admitted during a hearing (as to why such forms of evidence are, or are not, admitted will become clearer in the subsection dealing with the admissibility of evidence).</p>
<p>HEARSAY EVIDENCE<br/> As pointed out under 4.4.1 above, hearsay evidence comprises evidence which is given by a person who recounts that which he/she did not personally observe or perceive with his/her own senses, but heard from another person. The following is an example of what constitutes hearsay evidence: “I was supervisor on duty on 5 January 2017. Employee A came up to me and told me that Tom Jones had just assaulted John Smith.”</p>
<p>In this example, the supervisor is, in fact, giving hearsay evidence since he is relying on what someone else saw and then recounted to him (the supervisor).</p>
<p>DOCUMENTARY EVIDENCE<br/> The testimony of witnesses (oral or viva voce evidence) is not the only type of evidence which may be tendered at an arbitration hearing. Documents, for example, constitute another important category of evidence which may be adduced at such a hearing. <br/> However, before documents may be introduced as evidence, they must satisfy certain criteria. These criteria will be discussed further in the section on the admissibility of evidence.</p>
<p>REAL EVIDENCE<br/> Real evidence comprises evidence of objects, that is, evidence which can be examined by the arbitrator. Common examples of real evidence include maps, photographs, models, diagrams, video recordings, handwriting specimens. observations made by the arbitrator at an inspection in loco, breathalysers. weapons, et cetera. <br/> The purpose of real evidence is to enable the arbitrator to employ his/her senses (eg to touch, look at, listen to and smell) so that he/she can draw his/her own inferences without having to resort to expert testimony or assistance in this regard, or without having to have the qualifications of an expert.</p>
<p>As will be seen in the next section, for real evidence to be of any real value to the party producing it, such evidence must be accompanied by the relevant testimony of witnesses.</p>
<p>OPINION EVIDENCE<br/> Where a witness testifies to certain facts and thereafter draws conclusions or inferences from such facts, he or she is said to be giving opinion evidence. As to whether or not opinion evidence will be admitted by, say, an arbitrator, will depend on a number of factors, as will be seen below.</p>
<p>CIRCUMSTANTIAL EVIDENCE<br/> This form of evidence has already been dealt with under 4.4.1 above, where certain basic concepts and terms of importance in the law of evidence were explained.</p>
<p>ADMISSIBILITY OF EVIDENCE<br/> The basic criterion for determining the admissibility of evidence is that of relevance. And, in the law of evidence, “relevance” means “sufficiently relevant”. Not only must the evidence adduced be sufficiently (or legally) relevant, but it must not be excluded by any other rules of evidence.</p>
<p>In 4.3 above it was stated that, in a dismissal case, for instance, there are certain facts in issue which must be proved by the employer in order to justify such dismissal. Thus, any evidence which is led which tends to prove (or disprove, in the case of the opposing party) the facts in issue will generally speak, be relevant.</p>
<p>But before a fact which is relevant to a fact in issue will be regarded as proven, it must be:</p>
<p>i) proved by means of the testimony of a witness, or by means of a document; or</p>
<p>ii) it must be admitted by the opposing party. <br/> Although relevance is regarded as the basic criterion for the admissibility of evidence, it should be noted that the arbitrator in an arbitration hearing may be given a wide discretion by the LRA given a wide discretion by the lawgiver to admit evidence that may be inadmissible in a criminal or civil court. <br/> Such discretion is granted to the arbitrator by the LRA, and is to be found in section 138(1) of the LRA ‘The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities’.</p>
<p>Notwithstanding the fact that the arbitrator may have been given judicial and statutory discretion, he or she is still required to ensure that the rules of fairness and natural justice prevail.</p>
<p>Whether or not evidence will be deemed to be admissible <br/> in an arbitration hearing will, it is submitted, therefore depend on the extent of the discretion which has been granted to the arbitrator, on the rules of fairness and natural justice, and on its relevancy. <br/> On the basis of the foregoing three criteria, let us now consider the admissibility or otherwise of the various types of evidence discussed briefly under 4.4 above.</p>
<p>Hearsay evidence:<br/> Prior to the enactment of the Law of Evidence Amendment Act, No 45 of 1988, hearsay evidence was, subject to certain clearly defined exceptions, inadmissible in both criminal and civil courts.</p>
<p>The principal reason for excluding such evidence was that it could not be properly tested under cross-examination. With the promulgation of the Law of Evidence Amendment Act, the position has now changed and such evidence may be led in the following circumstances:</p>
<p>That the party against whom the hearsay evidence is to be lead agrees to the admission of such evidence. <br/> If the person who made the statement which is recounted by the witness will be called to testify himself or herself. <br/> If the court is of the opinion that the interests of justice dictate that the hearsay evidence should be led. The following factors are considered by the court in exercising such a discretion: <br/>
- The type of proceedings. (In an arbitration hearing where, for instance, the terms of reference do not specify instance, the terms of reference do not specifically indicate whether or not hearsay evidence is admissible, this will in all probability be an important factor which the arbitrator will consider in finally determining whether such evidence should be admitted, I, especially in view of the fact that arbitration hearings tend to be less formal and technical in nature.)</p>
<p>- The nature of the hearsay evidence.</p>
<p>- The purpose for which the hearsay evidence is for the purpose for which the hearsay evidence is tendered.</p>
<p>- The reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends.</p>
<p>- Any possible prejudice which might be caused to the party against whom the hearsay evidence is led.</p>
<p>- Any other factors which the court is of the opinion should be taken into account. <br/> Bearing in mind the above relaxations to the hearsay rule, the fact that most terms of reference will in all probability allow the arbitrator to admit hearsay evidence, and the fact that the criterion of fairness to the parties must prevail, it seems safe to assume that arbitrators will in most cases admit hearsay evidence during arbitration hearings. <br/> However, it is important to note that, even though hearsay evidence may be admitted, the party adducing such evidence will still have to convince the arbitrator that the evidence in question has some degree of probative value and is relevant to the facts in issue.</p>
<p>The question of the weight which must be attached to the hearsay evidence will be discussed below when dealing with the question of the evaluation of evidence by the arbitrator.</p>
<p>Documentary evidence:<br/> In order for documents to be admissible at an arbitration hearing, two important requirements must be satisfied:</p>
<p>First, the party intending to introduce the document as evidence must produce a witness who is able to testify that the document is in fact what it appears to be, for example, a directive from management informing employees that rudeness and abuse towards clients of the employer will be viewed that rudeness and abuse towards clients of the employer will be viewed in a serious light and will result in summary dismissal, even for a first offence.</p>
<p>All that such witness is doing is merely informing the <br/> arbitrator that the document in question is a genuine directive from management. He or she is not, however, testifying to the accuracy or truthfulness of the document.</p>
<p>Secondly, the party introducing the document must adduce evidence as to the veracity of the contents of the document.</p>
<p>Should the parties, however, agree that that the document is what it purports to be, and that there is no doubt concerning the veracity of the document, it will obviously be unnecessary for the party seeking to introduce the document to lead evidence on the abovementioned two issues.</p>
<p>Wherever possible, the parties should, prior to the arbitration hearing attempt to reach an agreement concerning these two issues, since this will lead to considerable time-saving insofar as costs are concerned.</p>
<p>Apart from the fact that the above two requirements must be satisfied before a document will be considered admissible, the party seeking to introduce the document must ensure that it is the original document.</p>
<p>This is commonly referred to as the best evidence rule. In arbitration cases, however, the arbitrator may admit copies if a proper search has been made for the original and it cannot be found, or if the original has been destroyed, or if the original document is in the possession of the other party and such party has failed to produce the document in question, (it should be noted that, in terms of the LRA, a party who Is in possession of an original document can be compelled by the arbitrator, on application by the other party, to produce such document. In addition, the of documents.) of documents.)</p>
<p>While on the topic of documentary evidence, reference should be made to the situation in which a witness wishes to refer to a document in order to refresh his or her memory. As to whether this may be done will depend on:</p>
<p>- Whether the witness prepared the document himself/herself, or whether it was prepared under his/her instructions.</p>
<p>- Whether the document was prepared by the witness immediately or soon after the event to which it relates and at a time when he/she could clearly remember the event.</p>
<p>When documents are to be produced at an arbitration hearing, it is sound practice to prepare what is sometimes referred to as a “bundle” of original documents.</p>
<p>Three copies should be made of this bundle, with one being used by witnesses, one being made witnesses, one being made available to the opposing party and one is kept for the use of the representative.</p>
<p>The bundle of original documents should be handed to the arbitrator at the commencement of the arbitration proceedings. For ease of reference, the bundle of documents should be indexed, the pages should be numbered and each document should be inserted according to the date thereof.</p>
<p>As regards this bundle of documents, and as stated earlier, considerable time and money will be saved if, prior to the arbitration hearing, the parties are able to agree that the documents are what they appear to be and that there is no dispute as to their veracity. <br/> Real evidence:</p>
<p>As noted above, there are various forms of real evidence. What should be remembered, however, is that there is no complete list of the things or objects which constitute real evidence that of real evidence discussed below are but a few examples of the things or objects which may be, or are often, tendered as real evidence in arbitration hearings.</p>
<p>For real evidence to be admissible, it must be relevant and accompanied by the evidence of a witness who is able to testify concerning the thing evidence of a witness who is able to testify concerning the evidence of a witness who is able to testify concerning the thing or object which has been produced.</p>
<p>For instance, it is of no value whatsoever to produce a photograph of the damage caused to property by an employee, or employees, unless a witness is called who testifies that he/she took the photograph, when the photograph was taken, where the photograph was taken, that the photograph accurately depicts the damage caused, et cetera.</p>
<p>Video recordings are sometimes also tendered as real evidence in arbitration hearings. Here again, it is necessary to lead supplementary evidence relating to such recordings. Not only must the video be relevant, but the party wishing to produce it at the arbitration hearing must give the opposing party and the arbitrator notice of its intention to do so, and must make the necessary arrangements for the video recording to be viewed during the hearing.</p>
<p>Normally. the video recording is viewed by the parties prior to the arb the video recording is viewed by the parties prior to the arbitration hearing so as to afford them an opportunity to make notes to be used during the actual hearing.</p>
<p>In certain organisations, it has become customary to employ breathalysers to test employees who are believed to be under the influence of alcohol. However, the results of a breathalyser test are of little or any evidentiary value unless supplemented by the testimony of an expert witness who is able to explain the operation of such equipment accurately determining that alcohol was, in fact, consumed.</p>
<p>Moreover, the testimony of a further expert witness is necessary to prove that the employee was in fact under the influence of alcohol.</p>
<p>During arbitration hearings, inspections in loco are sometimes held. Essentially, an inspection in loco entails a visit by the arbitrator and both parties to the place where an incident relevant to the proceedings took place. Such a visit enables the arbitrator to use his/her own senses to perceive the evidence, thus enabling him/her to draw inferences based on his/her own experience.</p>
<p>A party who wishes an inspection in loco to be held must give timeous notice thereof to the arbitrator and the opposing party. As to whether or not an inspection in loco is held, and when, is left to the discretion of the arbitrator.</p>
<p>However, the inspection must not be held at such a late stage that the parties are unable to produce evidence or arguments to explain or contradict the Inferences drawn by the arbitrator. During the inspection by the arbitrator (which must be made in the presence of both the parties), the arbitrator makes a record of his/her observations and discloses them to both parties.</p>
<p>One final comment which should be made as regards real evidence is that such evidence need not be supplemented by the testimony of witnesses if admitted to by the party against whom it is introduced.</p>
<p>Opinion evidence:<br/> If a witness, during the course of his/her evidence, testifies to what he/she he has observed and thereupon draws certain inferences or conclusions based on the facts testified to him/her, such inferences or conclusions are deemed to be opinion evidence, which is inadmissible.</p>
<p>There are, however, certain exceptions to this rule, which will be discussed below. The main reason for excluding opinion evidence is that it is not relevant. What is relevant is what the witness in fact observed. Moreover, the task of drawing inferences and conclusion is that of the arbitrator and not the witness. <br/> A good example of opinion evidence which is inadmissible is the following:</p>
<p>A witness states that Employee A was operating a machine at the time that damage was caused to the machine. <br/> The witness further states that he saw Employee A insert a foreign object into the machine, whereafter the machine seized. Up to this point, the evidence of the witness is entirely admissible.</p>
<p>However, the witness goes further and states that he believes that Employee A was negligent. This last statement (if not given by an expert) constitutes opinion evidence and is totally inadmissible.</p>
<p>In certain instances, the opinions of nonexperts may, in view of the less formal nature of arbitration proceedings, be admitted by an arbitrator – eg opinions as identity, age, the speed of a vehicle, the value of something, et cetera</p>
<p>In cases where, say, the arbitrator is not sufficiently skilled in a particular sphere or does not have the required knowledge to draw conclusion inferences, reliance may be placed on the opinions of expert witnesses. Such witnesses must, however, possess the necessary qualifications to express an opinion in the sphere concerned.</p>
<p>An expert witness could, for example, be a case of dismissal on the grounds of ill health to testify that the dismissed employee was incapable of performing any heavy manual labour, or any other type of manual labour for that matter.</p>
<p>Circumstantial evidence:<br/> The concept of circumstantial evidence has already been explained above. As regards the weight attached to such evidence, it should be pointed out that it is a common misconception that circumstantial evidence is of little or no evidentiary value. In fact, in numerous cases, the bulk of the evidence will in all probability comprise circumstantial evidence.</p>
<p>For circumstantial evidence to be admissible, it must be relevant to the facts in issue. If it is not, it will be deemed to be inadmissible. Furthermore, arbitrators will approach circumstantial evidence along the same lines as those adopted by the civil courts, that is –<br/> - the inference to be drawn from the circumstantial evidence must be consistent with all the facts that have been proved, and</p>
<p>- the inference to be drawn must be the most plausible inference.</p>
<p>CONCLUSION: EVALUATION OF EVIDENCE BY THE ARBITRATOR<br/> As referred to above and for the sake of brevity, the evaluation of evidence, especially where there is a factual dispute was pronounced on, in the often cited judgment by Van Niekerk, J wherein the honourable Judge provided guidance as to the assessment of the credibility of witnesses.</p>
<p>The Court stated that credibility is bound up with an evaluation of the probabilities the testimony of witnesses. [Emphasis added].</p>
<p>See Sasol Mining (Pty) Ltd v Commissioner Nggeleni and others [2011] 4 BLLR 404 (LC) where Van Niekerk J stated at para [9]:</p>
<p>"One of the Commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the Commissioner appears to have appreciated.</p>
<p>What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so.</p>
<p>The Commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version.</p>
<p>The Commissioner manifestly failed to resolve the factual dispute before him on this basis. Instead, he summarily rejected the evidence of each of the applicant's witnesses on grounds that defy comprehension."</p>
<p>‘Enough then…curtains’ </p>
<p>Johann Scheepers<br/> October 15, 2017.</p>
<p>Copyright:<br/> Copyright reserved by the writer hereof. No part of this article/guide may be reproduced, without prior written permission of the author.<br/> The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.<br/>
The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.</p>
LEGAL COSTS: LITIGATION IN LABOUR DISPUTES – ‘SOME SOBERING THOUGHTS' - CONFLICT RESOLUTION CONTINUUM
tag:www.adrhub.com,2017-08-13:4905899:BlogPost:79730
2017-08-13T05:18:03.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544780247?profile=original"><br></br></a> <a href="http://storage.ning.com/topology/rest/1.0/file/get/2544780450?profile=original"><img class="align-full" src="http://storage.ning.com/topology/rest/1.0/file/get/2544780450?profile=original" width="300"></img></a></p>
<p style="text-align: center;">"The first thing we do, let's kill all the lawyers" – Henry the Sixth, Part 2 Act 4, scene 2, 71–78 William Shakespeare.</p>
<p style="text-align: center;">At the outset, the quotation should not be interpreted by the reader literally! It is a lawyer joke -…</p>
<p><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544780247?profile=original"><br/></a> <a href="http://storage.ning.com/topology/rest/1.0/file/get/2544780450?profile=original"><img src="http://storage.ning.com/topology/rest/1.0/file/get/2544780450?profile=original" width="300" class="align-full"/></a></p>
<p style="text-align: center;">"The first thing we do, let's kill all the lawyers" – Henry the Sixth, Part 2 Act 4, scene 2, 71–78 William Shakespeare.</p>
<p style="text-align: center;">At the outset, the quotation should not be interpreted by the reader literally! It is a lawyer joke - "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers." <br/>Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. <br/>“Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution -- thus underscoring the important role that lawyers can play in society." <br/>[See Dickstein Shapiro Morin & Oshinsky LLP Firm Profile].</p>
<p></p>
<p><strong>INTRODUCTORY REMARKS:</strong></p>
<p>It has been for a considerable period that the writing of this article has been contemplated. The precipitating factor that led to the said contemplation has its roots in an article authored and posted by Lorene Schaefer-Hooi, Esq. <em><strong>‘Workplace Conflict: The Continuum of Dispute Resolution’</strong></em> <em>LinkedIn</em> September 10, 2014.</p>
<p>In the article by Schaefer <em>supra</em> the author in passing made the following observation, <em>“A discussion I had with a group of business people at various stages of their careers is the genesis for this blog posting.</em></p>
<p><em>In the discussion, we were talking about the different dispute resolution processes we might use to resolve a dispute that was happening in their workplace. In the course of the conversation, two things became clear. First, we were not all using the various dispute resolution terms in the same manner.</em></p>
<p><em>Second, we were not all clear on when the various tools might be used to resolve workplace conflict and the pros and cons of each of the processes.</em><br/> <em>In that discussion, I found myself sketching out on a piece of paper a dispute resolution continuum. My simple sketch got us through that conversation, but when I got back to my office I decided to “pretty it up” a bit and created the [a] chart…”</em></p>
<p>[See depiction of the chart below].</p>
<p>Shortly thereafter, an article of significant edification was published on LinkedIn by Professor Barney Jordaan <em><strong>“When Ignorance Isn’t Bliss: Corporate and Lawyer Resistance to Mediation”</strong></em> Nov 21, 2014.</p>
<p>[Barney Jordaan is a Professor: Negotiation, Mediation, Conflict Resolution].</p>
<p>It took some time to <em>‘intellectually digest’</em> the importance of the two articles referred to above, where after the election was made to share the substance of the articles, to wit the collective wisdom contained therein with fellow LinkedIn professionals and other colleagues.</p>
<p>Having done diligent research I came across an interesting observation as to the ancient historical roots of mediation as a means of dispute resolution.</p>
<p>The said observation has been quoted hereunder for the sake of completeness and for <em>‘those not educated in the divine’</em> [that includes me]:</p>
<p>“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no long winded wrangling over technicalities; just a chat by the fireside, overseen by a fine, shrewd fellow with a knack for negotiation.<br/></p>
<p>This was the method favoured by Confucius, and others before him through 4,000 years of Chinese folklore. Buddha championed it in India; while Japanese chukka isha (<em>mutual friends</em>) have long helped businesses resolve their differences.</p>
<p>Not to be outdone, the Roman Empire later picked up the tradition, with intercessors, internuncios, interpolators and interlocutors frequently shuttling to and from antagonistic parties in a diplomatic bid for peace.</p>
<p>Over the generations, however, the realm of dispute resolution gradually became more convoluted and complex. Flexibility and prudence gave way to formality and structure. While a fair, regulated court system is doubtless something to be celebrated, it has – some belief – served more to quash the world of common sense negotiation than to complement it.”</p>
<p>[See article posted by Rebecca Lowe <em><strong>“Mediation Back to basics - In-House Perspective”</strong></em>, March 2016, <em>LinkedIn</em>].</p>
<p>In the article by Lowe the following observation has been recorded, <em>“Why businesses have taken so long to incorporate</em> mediation <em>into their strategy – and why so many continue to avoid the option – is something of a mystery, says Michael McIlwrath, Associate General Counsel for Litigation at GE Oil & Gas, a supporter of the pledge’.</em></p>
<p>[<em><strong>‘Pledge’</strong></em> signed by the original <em><strong>CPR Corporate Policy Statement for Alternatives to Litigation</strong></em>, which encouraged companies to focus on ADR in the 1980s. The updated version does not replace the original pledge, which has more than 4,000 companies as signatories, but aims to expand it beyond a focus on individual disputes, to a broader systematic approach, whereby mediation is absorbed into everyday best practice].</p>
<p><em>“Beats me,’</em> he tells <em>In-House Perspective</em>. <em><strong>‘Maybe it’s because they don’t understand the advantages of mediation. It’s a no-brainer, and there isn’t any downside. At a recent conference, some general counsels of large companies in the Nordic countries spoke about</strong> <strong>mediation</strong> <strong>as if it was an abstract concept they had never tried.’</strong></em> [Emphasis added].</p>
<p>After reading the above and eventual realisation of the importance of mediation before litigation this article was conceptualised and drafted, obviously with noble intentions and in the utmost good faith.</p>
<p><strong>PURPOSE OF THE ARTICLE:</strong></p>
<p>At the outset, it should be recorded that postings on the LinkedIn network should preferably be brief and not protracted; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter.</p>
<p>The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.</p>
<p>The purpose of the article is to alert litigants as to legal costs that may be incurred in litigious proceedings.</p>
<p>Furthermore, to advise litigants that adjudication may not be an appropriate process to <em>‘settle scores’</em> or to vent anger due to unjust treatment by the opposing party and the all time favourite that a resolution of a dispute is impossible because <em>‘It’s a matter of principle.’</em></p>
<p>The same considerations, even more so apply to mediation as a means of dispute resolution.<br/></p>
<p>Prospective litigants should engage with the assistance of their legal representatives in what is commonly referred to as a cost benefits analysis prior to litigation in the Courts or tribunals.</p>
<p></p>
<p><strong>COST BENEFIT ANALYSIS:</strong></p>
<p>The question that comes to mind is what is a cost benefit analysis and the rationale for considering the exercise? <br/>Parties may find it of considerable value to conduct a cost-benefit analysis (CBA) prior to conciliation/mediation/arbitration or adjudication.</p>
<p>CBA involves comparing the total expected cost/risk of the non-settlement of a dispute against the benefits of a settlement, in order to establish whether the benefits of a settlement outweigh the costs/risks of non-resolution, and by how much.</p>
<p>It happens ever so often that at the outset of conciliation/mediation proceedings the representative of a party would as an opening remark inform the conciliator/mediator that he/she has "no mandate to settle" - with a follow up comment that the issue in the dispute is, <em>"a matter of principle".</em></p>
<p>An experienced colleague [Mediator/Arbitrator] and friend, CCMA Commissioner Paul Botha, when a party raises the <em>‘matter of principle argument’</em> from time to time responds, <em>‘You do not see them, however, these corridors are strewn with the corpses of costly principle issues’, or words to that effect.</em></p>
<p>Suffice it to mention that there is no obligation in law to settle a dispute.</p>
<p>However legal battles are notoriously costly and protracted.</p>
<p>In order to provide some indication of legal costs it has been deemed appropriate to refer to an article by the celebrated author HJ Erasmus <em><strong>"Cost and Fee Allocation in Civil Procedure - RSA"</strong></em> (17 December 2009) Stellenbosch, Cape Town, 82 to 95 - [Article discussed at CCMA Commissioners Indaba (2013)].<br/>"[VII] Examples [See Erasmus 94 to 95] [Please note the article was published in 2009].</p>
<p>The examples are given below of total costs for both sides, at first; the instance is no more than approximations. The cost of any litigation is ultimately determined by the nature of the issues, the bulk of the documentation, the need (or otherwise) of expert testimony, and the amount of work the legal representatives have to do. In a given case, the total of costs and fees may be considerably higher than the examples given.</p>
<p>1. Small claim: if within the limit of jurisdiction of the Small Claims Court (R7 500.00 or less): There will be no costs.</p>
<p>2. Small to medium claim: if within the limit of jurisdiction of the Magistrate's Court (R1 000 000.00): R25000-R40 000. [The CCMA would fall into this category].</p>
<p>3. Medium to large claim (say a claim for R750 000.00 in High Court): R250 000.00. [Some cases at the CCMA will fall into this category].</p>
<p>4. Large claim (say an application for R7 500 000.00 in High Court): R450 000.00</p>
<p>5. The total cost liability of a plaintiff who loses a claim of R10 million may, depending on the issues, the need for expert testimony, the length of the trial, the bulk of documentation, between R250 000.00 and R700 000.00.</p>
<p>6. The total cost liability of a defendant who loses a claim of R10 million may be in a similar range to that of a losing plaintiff.”</p>
<p>Therefore, an envisaged fee as a deposit may be requested by legal representatives and determined as reasonable having regard to the technicalities and legal complexities inherent in the cause of action.</p>
<p>An approximate and initial amount of security for costs <em>‘give or take’,</em> say R 20 000.00 cannot be said to be exorbitant, unreasonable or disproportionate.</p>
<p>A number of obstacles arise when attempting to assess if costs in civil litigation are reasonable or proportionate.<br/>In an article by Paul Taylor, <em><strong>‘Proportionality and legal costs’</strong> <strong>UK Law Society Gazette,</strong></em> 12 March 2014, wherein the author addressed legal reforms in the UK with the purpose to limit legal costs.</p>
<p>The under mentioned quotation is of value:</p>
<p><em>“The Jackson civil litigation reforms introduced in April 2013 have the concept of proportionality of costs at their core. The idea is that costs should be proportionate to the dispute and this arises in two main contexts:</em></p>
<p><em>1. At an early stage, the court is required to determine whether the cost of taking a particular step in the litigation is proportionate (for example how many independent expert reports are required). The implication is th</em>at <em>if the cost is disproportionate, a different (less expensive) approach will have to be used.</em></p>
<p><em>2. Secondly, in those cases where the losing party is required to pay the winning party’s costs, the court will limit the costs that the winning party can recover to those costs that were proportionate.”</em></p>
<p>However, the meaning of proportionality is not straightforward and the new rules applicable in the UK do not provide clear guidance on how proportionality should be applied.</p>
<p>The suggestion seems to be that a body of law will develop on a case-by-case basis until gradually the meaning will become clear.</p>
<p>Until that happens, litigants, legal advisers and judges will have to guess at what costs will be considered proportionate in particular circumstances.</p>
<p>Taylor then made the observation in the article referred to <em>supra</em>:</p>
<p><em>“[T]hat the best (and arguably the only) person that can decide whether a particular investment of legal costs is proportionate (that it is a risk worth taking) is the litigant.”</em></p>
<p>To a large extent and in general the same considerations as to legal costs apply in South Africa and elsewhere.<br/>Of value and instructive is an article by Heidi Grant Halvorson, PhD’, <em><strong>‘How to Cut Your Losses When It’s Not Working - Learn how to make it easier to cut your losses and move on.’</strong></em> Psychology Today, Feb 10, 2011, <em>“You realise that pursuing whatever it is that you're pursuing - whether it's being successful in your current career, mending a troubled relationship, or renovating your house from top to bottom - will cost you too much financially or emotionally, or take too long. But instead of moving on to new opportunities, all too often you simply stay the course and sacrifice your own</em> well-being <em>in the process.”</em></p>
<p>The above serves as an example or rationale to resolve disputes timeously, not only confined to the workplace but in all spheres of life.</p>
<p>The longer a matter continues unresolved the prejudice that the parties stand to suffer increases exponentially.</p>
<p>The article by Schaefer supra is instructive and should be kept in mind by disputants.</p>
<p>A discussion of and reference to the article by Schaefer follows hereunder.</p>
<p><strong>Workplace Conflict: The Continuum of Dispute Resolution:</strong></p>
<p>[By Lorene Schaefer-Hooi, Esq. published in Leadership & Management and LinkedIn September 10, 2014]<br/>Defining the Dispute Resolution Processes:</p>
<p>Schaefer opens by defining dispute resolution processes as set out hereunder:</p>
<p><strong>Negotiation:</strong></p>
<p><em>“In negotiation, two or more parties discuss directly their conflict and try to resolve it. There are no third-parties involved.”</em></p>
<p><strong>Mediation:</strong></p>
<p><em>“In mediation, the parties in conflict ask a third-party (the mediator) to try to help them resolve their conflict. The mediator is a neutral and does not decide what is “fair” or “right.”</em></p>
<p><em>Rather, the mediator’s role is to moderate and guide the process in an attempt to bring the parties together by defining issues and eliminating obstacles to communication.</em></p>
<p><em>Although a mediator may point out to the parties potential strengths or weaknesses in their positions in an effort to help facilitate resolution, the decision-making power remains always with the parties to the conflict.”</em></p>
<p><strong>Arbitration:</strong></p>
<p>“In arbitration, the parties to the conflict have agreed that a third-party (the arbitrator) will hear the evidence presented by each of the parties and make a decision. <br/>The arbitrator’s decision can either be binding on the parties or non-binding depending on the terms of the parties’ arbitration agreement.”</p>
<p><strong>Litigation:</strong></p>
<p><em>“Litigation is the term used to describe the filing of a lawsuit in court and the process that follows the filing of the lawsuit.</em></p>
<p><em>Most commonly in litigation involving workplace disputes, issues of law are decided by a judge and issues of fact are decided by a judge or jury.”</em></p>
<p><strong>Analysis of the dispute resolution continuum:</strong></p>
<p></p>
<p><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544780350?profile=original"><img src="http://storage.ning.com/topology/rest/1.0/file/get/2544780350?profile=original" width="505" class="align-full"/></a></p>
<p></p>
<p>Parties Retain Control on Left and Cede Control on the Right:</p>
<p>Transgressing from the left to the right the parties increasingly cede control for decision making to a third-party. Many readers may perceive it as of no consequence. It is inevitable that some disputes cannot be resolved by the parties themselves. Therefore, hand the issue to a third-party and let them decide.</p>
<p>Schaefer then makes the observation, <em>“When I discuss the potential of having a jury decide a dispute with parties in a mediation, I often ask them whether they agree with who gets voted on and off of “American Idol” each week. I know I don’t.”</em> <br/> <em>“Those same voters are members of the jury pool. If you are the person involved in a workplace dispute query, whether you want to make the decision of how to resolve the issue or whether you are comfortable turning it over to the “American Idol” voters?”</em></p>
<p>The Likelihood of a Win-Lose Answer Increases as You Move to the Right:</p>
<p>A continuation to the right on the continuum, the parties also increase the likelihood that one of them will be a loser and one of them will be a winner. Notice the missed opportunity for a win-win resolution.</p>
<p>Monetary and Non-Monetary Costs Increase as You Move to the Right:</p>
<p>Costs of lawsuits include not only the legal fees that each of the parties will pay their attorneys but also fees associated with court filings, depositions and expert witnesses. For the employee, there is also the reality of foregoing a regular paycheck if he or she is not working.</p>
<p>There are also the non-monetary costs.</p>
<p><strong>Non-Monetary – Employers:</strong></p>
<p>For employers, there is the productivity drain that an ongoing workplace dispute causes. Research shows that simple incivility or bad behaviour in the workplace (much less the distraction caused by a pending lawsuit) has a significant cost.</p>
<p>According to research by Professors Christine Pearson and Christine Porath reported in their book <em><strong>‘THE COST OF BAD BEHAVIOR: How Incivility Is Damaging Your Business and What To Do About It’,</strong></em> among workers who’ve been on the receiving end of incivility:</p>
<p>• 48% intentionally decreased their work effort;<br/>• 47% intentionally decreased the time spent at work;<br/>• 38% intentionally decreased the quality of their work;<br/>• 80% lost work time worrying about the incident;<br/>• 63% lost work time avoiding the offender;<br/>• 66% said that their performance declined;<br/>• 78% said that their commitment to the organisation declined;<br/>• 12% said that they left their job because of the uncivil treatment;<br/>• 25% admitted to taking their frustration out on customers.</p>
<p><strong>Non-Monetary – Employees:</strong></p>
<p>For the employee, there is the personal distress. As Atlanta plaintiff’s attorney Steve Mixon explains, <em>“employees cannot start their real healing until the lawsuit is over. While the lawsuit is pending, employees are forced to essentially relive what happened every time they have to answer their attorney’s questions, respond to discovery or give testimony.”</em></p>
<p>The Workplace Dispute Becomes More Public as You Move to the Right:</p>
<p>One of the biggest benefits to employees and employers who can successfully resolve their dispute through either negotiation or mediation is that they can agree to keep the resolution – and perhaps even the dispute – confidential.</p>
<p>In a workplace dispute, this can be particularly beneficial to both the employee and the employer. Depending on the terms of the arbitration agreement, it is also possible to have an arbitration and the arbitration decision kept confidentially.</p>
<p>By contrast, litigation is public.</p>
<p>It is particularly important for parties to a workplace dispute to understand this point as it is increasingly easy for any interested party to go online and read all of the various documents that make up a lawsuit.</p>
<p>As such, investors or potential buyers of a company will often, as a part of their due diligence, read court pleadings to get a feel for the corporate culture.</p>
<p>Similarly, potential employers might read court pleadings as a part of their reference checking.</p>
<p><strong>Insights for Employees and Employers:</strong></p>
<p>Schaeffer’s advice is, control your own conflict!</p>
<p><em>‘Sit down and talk to each other face-to-face and see if you can negotiate a resolution.’</em></p>
<p>If you can’t do it on your own, retain an experienced mediator who knows the applicable laws and can work with you to find a win-win resolution.</p>
<p>Articles posted on LinkedIn and in the broader media shows a global trend towards compulsory mediation process prior to litigation.</p>
<p>In an article by Caroline Jan <em><strong>‘A global trend towards</strong> <strong>mediation</strong><strong><em>:</em> views from lawyers in 13 countries - Dispute Resolution Law Blog’,</strong></em> 6th May 2014, the author states that in England and Wales, recent case law highlights that parties in commercial litigation risk adverse costs sanctions if they unreasonably refuse to mediate or if they ignore a request to mediate without providing any justification.</p>
<p>Whilst judges cannot compel parties to mediation, many judges appear to take an active role in case management issues and are keen to encourage parties to agree to mediation.</p>
<p>The same or similar process has been adopted in South Africa where designated magistrate’s courts in Gauteng and the North West have introduced court-based mediation. A litigant will now be able to approach the registrar in writing and request mediation prior to instituting legal action, either by a summons or notice of motion.</p>
<p>The reasons for court-based mediation are many, but its foundation is based on the need to ensure that access to justice is available to all, and to alleviate the burden on our courts which are inundated with civil lawsuits.</p>
<p>It will mean a dispute can now be referred to mediation prior to the institution of legal proceedings or after their commencement but before judgment is handed down.</p>
<p>The registrar has greater powers to convene conferences between parties to a dispute and to explore whether they are amenable to holding mediation.</p>
<p>The office of the registrar will play an important administrative role in ensuring that parties mediate disputes. A litigant can also apply to the court to have a matter mediated and the court has the power to refer the matter to the Registrar to be mediated if there is agreement from the other party.</p>
<p>The court can also mero motu inquire from the parties whether a dispute should not be referred to mediation and if the parties have considered mediating the dispute.</p>
<p>The writer is aware that many lawyers have attended extensive training in civil mediation and received due accreditation as mediators.</p>
<p>Other African countries like Nigeria and Rwanda have had court-based mediation as part of their justice system for some time, and so it will be interesting to see how South Africa fares with its attempt to introduce the process. [See article by Munya Gwanzura<em><strong>‘Pilot of</strong> <strong>cour</strong><strong><em>t</em>-based mediation under way’,</strong></em> December 9, 2014 - Munya Gwanzura is a director in the dispute resolution practice at attorneys firm Cliffe Dekker Hofmeyr].</p>
<p>In an insightful article by the celebrated author and a doyen of South African Labour Law, Professor Barney Jordaan, <em><strong>“When Ignorance Isn’t Bliss: Corporate and Lawyer Resistance to</strong></em> Mediation<em><strong>”</strong></em> Nov 21, 2014, the learned author <em>inter alia</em> deals with resistance amongst lawyers to compulsory or even voluntary mediation.</p>
<p><br/>After perusal of the article by Jordaan, <em>supra</em> writer is of the considered opinion that the resistance to engage in mediation by some legal practitioners would to a large extent be diminished.</p>
<p>Jordaan persuasively submits that the primary goal of a civil justice system is the just resolution of disputes through a fair but swift process, at a reasonable cost. Justice has both a process and a substantive dimension. <br/>The outcome must be just, but the process used to achieve a just outcome must also be fair, i.e., creating a level playing field and be designed to operate without unnecessary delay or excessive expense. Otherwise, the justice system could be rendered inaccessible.</p>
<p>Under the heading <em><strong>‘Problems with litigation,’</strong></em> the author observes that the rights-based justice system provided by law and the courts are usually depicted as involving a set of known, certain and well-established rules and legal principles.</p>
<p>These are supposedly applied by independent courts to all persons equally, through a process which is fair and in which the substantive outcomes are determined through the objective application of the established norms.</p>
<p>According to Jordaan, this idealised view overlooks a number of factors, such as the impact of the cognitive errors even experienced lawyers (like everyone else) are prone to: see Wistrich, Andrew J. and Rachlinski, Jeffrey J., <em><strong>‘How Lawyers' Intuitions Prolong Litigation’</strong></em> <a href="http://scholarship.law.cornell.edu/facpub/602">http://scholarship.law.cornell.edu/facpub/602</a>.</p>
<p>These errors distort lawyers’ choices about what advice to provide their clients concerning settlement. As a result, they sometimes may be encouraging their clients to delay settlement when they should not, or advising them to reject settlement offers that they should accept.</p>
<p>Consequently, litigants will invest more resources in litigation than they need to, their excessive investments will drain from the economic resources that could be more productively deployed elsewhere, and courts will be forced to waste their limited resources by making decisions that are unnecessary.</p>
<p>Litigation should be the alternative if a problem-solving process such as mediation fails to provide a mutually agreeable solution to a dispute. Currently, however, most legal practitioners view mediation as the (soft) alternative and litigation as the primary process for resolving differences.</p>
<p>The author submits that mediation certainly is not a panacea for all disputes nor is it always appropriate, e.g., where urgent relief is needed to prevent financial or other imminent harm, a precedent is required or where one party adopts devious tactics.</p>
<p>However, mediation does offer many benefits to disputing parties, including speed of resolution, cost containment (considering the time value of money); confidentiality; risk containment; control over the final outcome; less stress and formality, and limitation of damage to ongoing relationships.</p>
<p>Compare this to litigation, which essentially involves entrusting one’s problem to a system over which we have no control that is renowned for its high costs and delays that are more than likely to destroy whatever business or other relationship we have with the other party to the conflict - all in pursuit of an outcome that is totally uncertain. <br/>Jordaan contends that the above scenario is absurd and makes neither economic nor business sense. It certainly does not assist in managing risk or creating the kind of certainty and control business strives for.</p>
<p>Add to this the fact that all the effort, stress and strain of litigation will in any event probably result in an out-of-court settlement before trial after massive costs had been incurred, and the picture becomes even more absurd.<br/>The benefits of mediation for business are succinctly captured by the author, <strong><em>“Perhaps most important is the adverse effect that disputes and litigation unquestionably have on business relationships – relationships with customers, suppliers, joint venture partners, and others”.</em></strong></p>
<p>Disputes often result in a significant and ongoing disruption in business relations – or even a complete termination of those relations – resulting in lost business opportunity for both parties. In any successful commercial enterprise, business relationships are critical, and they are as easy to lose as they are costly to develop and maintain.</p>
<p><em>‘Litigation does not build relationships; it destroys the value associated with them. It can also have a serious negative impact on a company's reputation’.</em></p>
<p><strong>CONCLUSION:</strong></p>
<p>The writer deemed it appropriate to quote directly the concluding remarks by Jordaan and references to the words of Mahatma Gandhi hereunder:</p>
<p><em>“My challenge to the legal profession out there is to acknowledge that clients are entitled to accurate information about mediation, an honest assessment of each dispute for its suitability for mediation and cogent reasons if the advice is that mediation is not appropriate in a given case.”</em></p>
<p><em>“My challenge to shareholders and other corporate stakeholders is for them to require accountability for every company decision that involves a choice of litigation over</em> mediation<em>.”</em></p>
<p><em>“I had learnt to find out the better side of human nature and to enter men’s hearts. I realised that the true function of the lawyer was to unite parties riven asunder.”</em></p>
<p><em>“The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.”</em></p>
<p>‘<em><strong>I lost nothing thereby – not even money, certainly not my soul’</strong></em> – Mahatma Gandhi, after persuading two litigants to settle their differences.</p>
<p></p>
<p><em><strong>Johann Scheepers</strong></em></p>
<p>April 29, 2017</p>
<p></p>
<p><strong>Copyright:</strong></p>
<p>Copyright reserved by the writer hereof. No part of this article/guide may be reproduced, without prior written permission of the author.</p>
<p>The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</p>
<p>The commentary or opinions expressed within is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.</p>
PREGNANCY – DUTY TO PROVIDE ‘REASONABLE ACCOMMODATION’ RECENT DEVELOPMENTS IN SA
tag:www.adrhub.com,2015-09-25:4905899:BlogPost:68834
2015-09-25T23:48:43.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><i><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544782768?profile=original" target="_self"><img class="align-full" src="http://storage.ning.com/topology/rest/1.0/file/get/2544782768?profile=original" width="300"></img></a></i></p>
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<p><i>'The use of the comparative method requires knowledge not only of the foreign law, but also of its social, and above all its political context. The use of comparative law for practical purposes becomes an abuse only if it is informed by a legislative spirit which ignores the context of the law.'</i></p>
<p>[O Kahn–Freund,<b><i> “On Uses and Misuses…</i></b></p>
<p><i><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544782768?profile=original" target="_self"><img src="http://storage.ning.com/topology/rest/1.0/file/get/2544782768?profile=original" width="300" class="align-full"/></a></i></p>
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<p><i>'The use of the comparative method requires knowledge not only of the foreign law, but also of its social, and above all its political context. The use of comparative law for practical purposes becomes an abuse only if it is informed by a legislative spirit which ignores the context of the law.'</i></p>
<p>[O Kahn–Freund,<b><i> “On Uses and Misuses of Comparative law”</i></b><i>, The Modern Law Review, </i>(1974) 27]</p>
<p></p>
<p><b>INTRODUCTORY REMARKS</b></p>
<p>In an article by the writer posted on <i>LinkedIn </i>entitled “<b>THE EMPLOYMENT EQUITY ACT, 47 OF 2013 & EMPLOYMENT EQUITY REGULATIONS, 2014 -<i>IMPORTANT ISSUES AND QUESTIONS?”</i></b> <i>September 13 2014</i><b>*</b><i>, </i>it was mentioned that SA employers would be wise to revisit their Human Resources policies, procedures, guidelines and any document that may be relevant thereto with the purpose of ensuring compliance with the amendments to Employment Equity, 55 of 1998 [EEA].</p>
<p><b>*</b>[Also published in: <b><i>“Employment Equity Newsletter – CCMA”</i></b> (April/May 2015) 2nd ed, 6-8; <b><i>“Legal Brief Today – Workplace”,</i></b> (September 17, 2014) Juta & Co Ltd].</p>
<p> </p>
<p>The gratuitous advice referred to in the article <i>supra</i> was given in good faith especially if seen in the light of the promulgation of the amendments to South African Employment Equity legislation, namely Employment Equity Amendment Act, 47 of 2013 [EEAA] and the Employment Equity Regulations, 2014 [EER] which came into effect on 01 August 2014 [EEA].</p>
<p>Following thereon and as recent as on June 1, 2015 the SA Minister of Labour in accordance with the provisions of section 54(1) of the <i>‘new’ </i>EEA, and on advice of the Commission for Employment Equity signed <b><i>“The Code of Good Practice On Equal Pay/Remuneration For Work Of Equal Value”</i></b> where after the Code was duly published in the Government Gazette, on June 1, 2015 – <i>and so be it</i> as the saying goes. </p>
<p>In the article referred to above a friendly comment was made in passing by the writer as to the statutory need to revisit and if necessary add or amend HR policies. It was stated that, <i>“One hopes that employers are not adopting a ‘wait and see’ approach as to compliance with the legislation, for example to await a ‘test case’ or legal precedent to be set by the Courts or even the CCMA”</i>.</p>
<p>The South African Commission for Conciliation, Mediation & Arbitration (CCMA) published the first edition of a publication entitled, <b><i>“Employment Equity Newsletter – CCMA”</i></b> under the editorship of <i>Senior Commissioner Winnie Everett,</i> an internationally recognised authority in employment law and amongst other the subject matter of employment discrimination.</p>
<p>The said publication is bound to become an authoritative work of reference as to important developments in South Africa especially within the field of employment discrimination law not only insofar as it pertains to how the positive law is interpreted and applied by Commissioners of the CCMA and Judges of the Labour Courts.</p>
<p>The publication <b><i>Employment Equity Newsletter – CCMA </i></b>also contains a statistical comparative analysis of <i>trends </i>in the number of cases submitted to the CCMA for resolution as well as information as to the cause of action, outcome, albeit conciliated/mediated or arbitrated <i>‘adjudicated’.</i></p>
<p>Of interest to readers may be the editorial comment by Commissioner Everett in <b><i>“Employment Equity Newsletter” </i></b>(April/May 2015) 2nd ed, “<i>The CCMA commissioners have seized the opportunity to provide clarity on the meaning of arbitrary grounds of unfair discrimination since the amendments to the Employment Equity Act (EEA) came into effect on 1 August 2014.</i></p>
<p><i>The amendments conferred jurisdiction on the CCMA to arbitrate unfair discrimination cases where the dispute involves sexual harassment, and all other unfair discrimination cases where the applicant earns below the Basic Conditions of Employment Act threshold</i> [currently R205, 433.30 per year]<i> or the parties consent to arbitration…In this issue we provide summaries of interesting and important cases dealing with unfair discrimination on both listed and arbitrary grounds. <b>These include cases where the applicant claimed unfair discrimination on grounds of pregnancy…”</b></i></p>
<p>Discrimination on the ground of pregnancy is referred to as one of the <i>listed grounds</i> in terms of section 6(1) of the EEA that deals with the <b>Prohibition of <i>‘Unfair</i> ‘Discrimination:</b> </p>
<p><i> </i><i>‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in <b>any employment policy or practice,</b> on one or more grounds <b>[listed grounds]</b>, including race, gender, <b>sex,</b> <b>pregnancy,</b> marital status, <b>family responsibility,</b> ethnic or social origin, colour, sexual orientation, age,<b> disability,</b> religion, HIV status, conscience, belief, political opinion, culture, language,<b> birth </b>or on any other <b>arbitrary ground.</b>’’; and</i></p>
<p><i>(2) It is not <b>unfair discrimination </b>to –</i></p>
<p><i>(a)…</i></p>
<p><i>(b) distinguish, exclude or prefer any person <b>on the basis of an</b> <b>inherent requirement of a job</b>;</i></p>
<p><i>(3)…;</i></p>
<p></p>
<p><i>(4) A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal </i>value<i> that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is<b> unfair discrimination.”</b></i> [Emphasis added].</p>
<p>In <b><i>“Employment Equity Newsletter” </i></b><i>2nd Ed, 2 - Everett, C </i>under the heading <b>“Pregnancy” [listed round] </b>provides an interesting summary of two matters where the CCMA dealt with unfair discrimination on the ground of pregnancy.</p>
<p>The first matter pertained to a case where woman alleged unfair discrimination on the basis of her pregnancy. It involved a mine in Limpopo [a province in SA], where the underground worker was put on five months’ unpaid leave after a reported pregnancy.</p>
<p>To protect pregnant women, the employer normally takes steps to find alternative surface work, but in this case, the Commissioner found that applicant was placed on unpaid leave simply because she fell pregnant twice in three years. <i>“She was the only person who fell pregnant twice in three years; that is why she was the only person subjected to this type of treatment out of a total of eighteen pregnant employees. She was clearly unfairly discriminated against on the basis of her pregnancy.”</i> (LP5753-14)</p>
<p>The second matter involving pregnancy, the Managing Director of a company stated in an email that, <b><i>“Clearly this pregnancy is becoming a problem. I can see it is becoming a disability and a liability”.</i></b> The Commissioner found that the comment was unwarranted and discriminatory even if it was in response to a perceived drop in performance. (GATW 11893-15) [Emphasis added].</p>
<p>Upon perusal of the summaries of the two matters <i>supra</i> the following could be deduced:</p>
<p> i) That the inconsistent and [unfair] discriminatory treatment of an Applicant vis-à-vis a comparator, regardless of the fact that both are pregnant, could not be a determinative factor used in justification of, or as a defence for differential treatment;</p>
<p> ii) That an Applicant could not be penalised or treated less favourably in the form of the unilateral imposition of <i>‘unpaid leave’</i> for falling pregnant twice within a three year period, ostensibly on the ground of what could be termed <i>‘a predisposition to conceive or repetitive conception’;</i> and</p>
<p>iii) That employers should desist from making unwarranted and potentially discriminatory remarks which may be offensive to the <i>dignitas</i> of the recipients thereof.</p>
<p>Upon perusal of articles posted on LinkedIn the aforesaid unwarranted and discriminatory comments made are not confined to the SA labour [mining] or other economic sectors. Discrimination based on pregnancy is an international phenomenon as is borne out by the cited matter as discussed below.</p>
<p>In an article by C Stoneburner Esq., <b><i>“Hey pregnant lady, why don’t you stay home, enjoy some of our doughnuts, and put up your feet? – Employment Discrimination Report” </i></b>(March 10, 2015) Fox Rothschild LLP, New York, <i>“Although the facts alleged in a recent lawsuit entitled </i><a href="http://employmentdiscrimination.foxrothschild.com/wp-content/uploads/sites/8/2015/03/EEOC-v.-DS-Shipley-Donuts.pdf" target="_blank"><i>EEOC v. D&S Shipley Donuts</i></a><i> are not quite as patronizing as the title of this post suggests; they are close”. </i></p>
<p>The EEOC brought suit against a franchisee of <i>Shipley’s Do-Nuts</i> claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.</p>
<p>The Complaint alleged that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant. However, this was not a simple case of an employee being terminated because she was pregnant. “<i>The complaint alleged that employees who were pregnant were required to provide <b>“a written medical release”</b> assuring the company that they did not have a<b> “high-risk pregnancy</b> “and that it was safe for the employee to perform normal job duties.</i> [Emphasis added]. </p>
<p>The EEOC also alleged that this medical release was required even in situations where employees did not request “<i>any type of accommodations or disclose that there were any medical issues related to the pregnancy”.</i></p>
<p>When rumours spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant. She refused to confirm that she was in fact pregnant. Nevertheless, during this confrontation, the owner told her that she was required to provide <b><i>medical clearance.</i></b> Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note. Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.</p>
<p>According to the author, <i>“This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children. Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.”</i></p>
<p>Having <i>set the scene,</i> so to speak for the purpose of this article it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.</p>
<p>Writer would also refer to the same or similar international jurisprudence on the subject matter that may prove of relevance and edification to the reader.</p>
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<p><b>PREGNANCY – DUTY TO PROVIDE <i>‘REASONABLE ACCOMMODATION’ – </i>CCMA ARBITRATION AWARD</b></p>
<p>[See: <b><i>Tabane and others / Impala Platinum Ltd</i></b> [2015] 8 BALR 873 (CCMA)]</p>
<p>The matter was referred to the Commission for arbitration in terms of Section 10 of the Employment Equity Act, No 55 of 1998 as amended (EEA<i>). </i>The dispute was couched in the form of <i>‘unfair discrimination on the grounds of pregnancy’</i>. [See: NWRB 2464-14 – 25 May 2015].</p>
<p></p>
<p><b><i>SUMMARY OF BACKGROUND & MATERIAL FACTS:</i></b></p>
<p>Four Applicants referred a dispute against their employer, a mining conglomerate in SA, in that they alleged unfair discrimination by the Respondent and more specifically on the grounds as set out hereunder:</p>
<ol start="1">
<li>That they have been discriminated against based on their pregnancy as all other pregnant Employees who were employed in risk positions were placed in alternative positions, as opposed to being placed on maternity leave;</li>
<li>That the Respondent failed to comply with the provisions of its Pregnancy Policy; alternatively applied the said policy in an inconsistent manner and as a consequence they were unilaterally placed on maternity leave long before their actual expectant dates which led to the Applicants having to take unpaid maternity leave in order to recover from childbirth and to fulfil their care giving duties.</li>
</ol>
<p>As a remedy the Applicants prayed for compensation in the form of non – patrimonial loss, to wit the loss of dignity in the form of a <i>solatuim </i>as well as compensation for patrimonial loss suffered for the period having been on unpaid maternity leave caused by the Respondent’s failure to comply with its maternity policy and the unjustifiable inconsistent application of the said policy.</p>
<p>At the commencement of the proceedings the Respondent brought all sorts of preliminary points [application for postponement – denied by the Arbitrator], a point <i>in limine </i>to the effect that the Applicants’ case was bad in law and not capable of succeeding – point <i>in limine </i>dismissed by the Arbitrator] and following thereon an application for recusal of the Arbitrator which application was unsuccessful.</p>
<p>Of some interest was the point <i>in limine </i>raised by the legal representative for the Respondent. She referred to the Constitutional Court judgment in <b><i>Yonela Mbana v Shepstone & Wylie</i> </b>(not yet reported Case No CCT 85/14, handed down on 7 May 2015) where a black female claimed discrimination on the grounds of race and social origin and cited as comparators a black male and two white females. </p>
<p>The Court held that it was unlikely that the differential treatment was attributable to the grounds raised as the comparator is also a black person and in this regard held that her claim that she was discriminated against on the basis of race loses traction. [See par [38] of the award].</p>
<p>The Arbitrator found at [39] <i>“According to the issues in dispute a determination is required on whether or not the Respondent’s conduct constitutes discrimination on the grounds of pregnancy, and if it did, whether or not such discrimination was rational and not unfair or otherwise justifiable. The Applicants in comparing themselves with the five (5) other pregnant Employees, who were given alternative employment (comparators), is according to my understanding but one facet of their claim. </i></p>
<p><i>I would agree with the Respondent that it is unlikely that the differential treatment was attributable to their pregnancy insofar the comparison is made with the five (5) other pregnant Employees. However the Applicants’ claim is wider than a mere comparison with the five (5) Employees mentioned. </i></p>
<p><i>According to the Applicants’ <b>claim of discrimination,</b> it was argued that they have <b>suffered unfavourable treatment as no alternative employment was given to them, they were not consulted prior to being placed on maternity leave and that the maternity leave was unilaterally imposed on them”</b></i><b>.</b> [Emphasis added].</p>
<p></p>
<p><b><i>SUMMARY OF THE ARBITRATOR’S FINDING AND AWARD:</i></b></p>
<p>For the sake of brevity the Arbitrator’s finding and award would be recorded in truncated form hereunder:</p>
<ol start="1">
<li>In matters of discrimination and more particularly pregnancy it is not always necessary to cite a comparator in order to prove differential treatment. In <b>Wallace v Du Toit [2006] </b>8 BLLR 757 (LC) the Labour Court held that the dismissal of Ms Wallace based on the assumption that she would be unable to continue to fulfil her duties as child minder merely because she was pregnant, amounted to unfair discrimination. There was no comparator in the cited case.</li>
<li>In the United Kingdom, the <i>Equity</i> <i>Act of 2000</i> removed the need to point to a comparator when alleging discrimination on the basis of pregnancy.</li>
</ol>
<p>The Respondent argued that the Applicants restricted their claim by agreeing that the reasonableness of the Pregnancy Policy was not in dispute and that no consideration could accordingly be given to any subsequent argument that was raised. </p>
<p>The Labour Court in <b><i>Harmse v City of Cape Town </i></b>[2003] 6 BLLR 557 (LC) held that a failure by an Applicant to specify whether discrimination is direct or indirect does not render a claim expiable. The Applicants were laypersons and unable to distinguish between direct and indirect discrimination. The Arbitrator found that the Respondent was fully aware of the particulars of the Applicant's claim from the very onset of these proceedings and was afforded a fair opportunity to defend the claim.</p>
<p>By referring to Section 26 of the Basic Conditions of Employment Act, 20 of 2013 read with the <i>Code of Good Practice on the Protection of Employees during Pregnancy and after Childbirth</i> (the Code)<b><i>, </i></b>item 5.3 of the Code requires, where appropriate, that the Employer should also maintain a list of employment positions not involving risk to which pregnant or breastfeeding employees could be transferred to.</p>
<p>Likewise item 5.8.2 requires the Employer, the Employee and her representative to determine what steps to take to prevent the exposure to the risk by adjusting the employee’s working conditions.</p>
<p>The Arbitrator also found that having regard to the above and read with Section 15(2) of the Employment Equity Act, <b>a duty to reasonable accommodation is established.</b> <b>A failure to reasonably accommodate and recognize pregnancy and maternity, and in general the reproductive role, can constitute discrimination.</b></p>
<p>Having found that the Respondent failed to adhere to the spirit and letter of its Maternity Policy, by imposing maternity leave on the Applicants, without following a meaningful consultative process in order to seek alternative positions in accordance with the principle of <i>‘reasonable accommodation’ </i>the Respondent acted irrationally, without justification and thereby committed an act of unfair discrimination.</p>
<p>The Applicants were awarded compensation for non-patrimonial loss in the form of <i>solatuim </i>as well as compensation for patrimonial loss suffered for the periods of unpaid maternity leave taken.</p>
<p>The celebrated author Professor John Grogan in <i>J Grogan</i>, <b><i>‘Stork Party’</i></b> <i>Employment Law Journal,</i> August 2015 <i>LexisNexis</i> commented on the <b><i>Impala Plats</i></b> award as is set out hereunder:</p>
<p>At the end of a five month strike in the platinum industry, Impala Platinum found itself inundated with applications for maternity leave. Some of the expectant mothers were underground workers.</p>
<p><i>Implats</i> removed those women from their posts and placed them on maternity leave because, so it claimed, there were no suitable and safe alternative posts for them.</p>
<p>The expectant mothers claimed that they had been unfairly discriminated against on the ground of pregnancy because other pregnant employees had been found alternative work in the past. The case involved a balance between pregnant mothers’ right not to be unfairly discriminated against and their employers’ obligation to ensure a safe and healthy working environment.</p>
<p>In <b><i>Tabane and others / Impala Platinum Ltd</i></b> [2015] 8 BALR 873 (CCMA), the Commissioner accepted pregnant or nursing mothers are prohibited from engaging in hazardous work. The Commissioner noted that the applicants’ claim was wider than a mere comparison between themselves and colleagues. They also claimed that they were discriminated against because alternative work had not been provided. Everybody accepted that <i>Implats</i> was obliged to remove the applicants from underground work.</p>
<p>But <i>Implats</i> was also obliged by its own policy to find ways of accommodating pregnant employees. The search for alternative employment had consisted of one meeting. However, the company’s pregnancy policy required exhaustive attempts to find alternative employment before forcing pregnant women to take maternity leave before they would otherwise have had to take it.</p>
<p>In that regard, the employees had been treated less favourably than some other female employees. Maternity leave, albeit on full pay, had been imposed unilaterally on the applicants before they would ordinarily have been required to take it.</p>
<p>The Commissioner found that the applicants had proved that they were discriminated against on the ground of pregnancy, and that the respondent had failed to prove that the discrimination was fair.</p>
<p>The applicants were each awarded damages of R25 000.</p>
<p></p>
<p><b>DUTY TO PROVIDE <i>‘REASONABLE ACCOMMODATION’</i> – PROBLEMS & PUZZLES</b></p>
<p><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544782880?profile=original" target="_self"><img src="http://storage.ning.com/topology/rest/1.0/file/get/2544782880?profile=original" width="407" class="align-full"/></a></p>
<p></p>
<p>[Picture: Courtesy Julie Brook, Esq., <b><i>“Disability Accommodation”</i></b> (October 21, 2013) CEB blog posts]</p>
<p>In the arbitration award referred to above in paragraphs (iv) & (v) the Arbitrator found that by reference to Section 26 of the Basic Conditions of Employment Act, 20 of 2013 read with the <i>Code of Good Practice on the Protection of Employees during Pregnancy and after Childbirth</i> (the Code) read with Section 15(2) of the Employment Equity Act, <b>a duty to reasonable accommodation is established.</b> <b>A failure to reasonably accommodate and recognize pregnancy and maternity, and in general the reproductive role, can constitute discrimination.</b></p>
<p>The duty to accommodate goes beyond avoiding a specific discriminatory act. Sound workplace policies must be implemented that afford accommodation. </p>
<p>Employers must therefore make <i>bona fide</i> attempts to adapt the workplace and or duties of Employees in order for pregnant Employees to retain their positions and or investigate possible alternative positions wherein these Employees can be temporarily transferred to. These policies should be flexible enough to accommodate the different needs that may accompany different positions and differences in pregnancies. [At 47].</p>
<p>The fact that accommodation may ultimately prove impossible, cannot be ignored, but all options must be seriously considered and weighed before determination is made on the impossibility of accommodation. [At 48].</p>
<p>It is trite that the awards by Commissioners of the CCMA could not be regarded as legal precedent or binding authority. In <b><i>Mustek Ltd v Tsabadi NO and others</i></b> [2013] 8 BLLR 798 (LC) the Court held at [13] <i>“That to argue that a Commissioner is bound by the findings of another Commissioner is repugnant to the rules of precedent.”</i></p>
<p>This notwithstanding, the award by a Senior Commissioner of the CCMA has persuasive value especially in the event that an arbitration award is reported in the relevant law journal.</p>
<p>Nevertheless, it was deemed apposite to restate the relevant statutory provisions in terms of SA law.</p>
<p></p>
<p><b>THE RELEVANT PROVISIONS OF SOUTH AFRICAN LEGISLATION</b></p>
<p>For the purpose of this article it was deemed apposite to refer section 9 and 10 of the <b><i>Constitution of the Republic of South Africa,</i></b> 1996 – <i>“CHAPTER 2 ‘BILL OF RIGHTS’” </i>in that it enshrines the rights of all people in SA and <i>“affirms the democratic values of human dignity, equality and freedom.”</i> [See: section 7 ‘Rights’ – Constitution].</p>
<p>Section 9 and 10 of the Constitution stipulate as set out hereunder:<i> </i></p>
<p><b><i>“9. Equality</i></b></p>
<p><i>(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.</i></p>
<p><i>(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.</i></p>
<p><i>(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, <b>sex</b>, <b>pregnancy</b>, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.</i></p>
<p><i>(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection. </i></p>
<p><i>(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.</i></p>
<p><b><i> </i></b></p>
<p><b><i>10. Human dignity</i></b></p>
<p><i>Everyone has inherent dignity and the right to have their dignity respected and protected.”</i></p>
<p>The list of prohibited grounds of discrimination contained in section 6(1) of the EEA is open-ended, thus making it necessary to distinguish between ‘listed’ and ‘unlisted’ grounds. The listed grounds are identical to those formerly contained in item 2(1)(<i>a</i>) of Schedule 7 to the LRA, with the addition of <b><i>‘pregnancy’,</i></b> ‘HIV status’ and <b><i>‘birth’,</i></b> and include all the grounds listed in section 9(3) of the Constitution with the addition of <b><i>‘family responsibility’</i></b>, ‘HIV status’ and ‘political opinion’.</p>
<p><b><i>‘Pregnancy’</i></b> is defined as including <i>‘intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy’</i> [s 1]. While the definition does not allude to <i>‘potential’</i> pregnancy – that is, the fact that a woman capable of bearing children may be perceived as likely to become pregnant – discrimination against an employee or job applicant on this ground will undoubtedly be treated as sex discrimination. [See: <i>D du Toit et al <b>“Labour Relations – A Comprehensive Guide” </b>6th Ed </i>(2015) 676].</p>
<p>In the authoritative publication by JL Pretoruis et al <b><i>“Employment Equity Law – Reasonable Accommodation” </i></b>(2012) LexisNexis 7-44 to 7-59, the learned authors at [7-18] address the interface between reasonable accommodation and affirmative action under the EEA and makes specific reference to international jurisprudence.</p>
<p>Referral is made to <b><i>‘European Community, Council Directive 86/613 of December 1986 </i></b>and wherein the interface between reasonable accommodation and the protection of women during pregnancy and motherhood was confirmed.</p>
<p>The learned authors at 7-45 to 7-46, paragraph 7.8.2 <b><i>“Examples of reasonable accommodation of pregnancy and maternity” </i></b>analysed international jurisprudence and in effect advise the reader as to measures to be introduced in order to give effect to the principle of ‘<i>reasonable accommodation’.</i></p>
<p>Referral is also made at 7-44 by <i>Pretoruis supra, </i>“<i>Employers will have to state the specific barrier and the subsequent measures instituted in their reports to the Department of Labour in terms of Section 21 </i>of the <b>Promotion of Equality and Prevention of Unfair Discrimination Act of 2000</b>” [See: 7-44, footnote 205].</p>
<p>Section 8(f) prohibits <i>any person </i>from discriminating against <i>any person </i>on the ground of pregnancy. It will, therefore, cover instances where, for example, a medical aid fund discriminates against pregnant women on unfounded assumptions or excludes certain categories of women from cover.</p>
<p>Therefore, it is submitted that the finding by the Commissioner referred to <i>supra</i> insofar as the duty to provide reasonable accommodation in the event of pregnancy forms part of SA employment law could not be faulted.</p>
<p>Furthermore, in an article by DC Saxe et al <b><i>“Vacations, Family and Medical Leave, and Other Time Off – Pregnancy Disability Leave” </i></b>(2015) Continuing Education of the Bar – California (CEB), pregnancy leave falls under the provision of <i>‘Disability Leave’.</i></p>
<p>A woman is <i>disabled by pregnancy</i>, childbirth, or related medical conditions if, in the opinion of her health care provider, she is unable to work at all because of pregnancy, childbirth, or related medical conditions, is unable to perform any one or more of the essential functions of her job, or is unable to perform those functions without undue risk to herself, to the successful completion of her pregnancy, or to other persons. [<b>2<i> Cal Code Regs §11035(f)</i></b>].</p>
<p>A woman also is considered to be <i>“disabled by pregnancy”</i> if she is suffering from severe morning sickness or needs to take time off for prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; postpartum depression.</p>
<p>For the sake of brevity of this article further reference to the relevance of international jurisprudence was deemed inappropriate with the exception of an article by C Tanzola, Esq. <b><i>“Accommodating Employee Disability – Not All That Painful” </i></b>(2014) Sherrard Kuzz LLP, Ontario, Canada, where the learned author provides the reader with some practical <i>tips </i>as to measures to accommodate an employee, albeit due to disability however of general application insofar as pregnancy accommodation is relevant.</p>
<p><i>Kuzz </i>observes that the Ontario <i>Human Rights Code ("Code")</i> requires an employer to accommodate an employee with a disability <i>"to the point of undue hardship."</i> This means considering the employee's restrictions and limitations and either modifying the employee's current job or finding other work as close as possible to the employee's pre-disability job, within the scope of the employee's abilities.</p>
<p>There are four fundamental steps to accommodation:</p>
<p><b>1. Consider whether a disability exists.</b></p>
<p><i>"Disability"</i> is defined broadly under the <i>Code</i> to include any degree of:</p>
<ul>
<li>physical disability, infirmity, malformation or disfigurement caused by an injury or birth defect or illness;</li>
<li>mental impairment or developmental disability;</li>
<li>learning disability or mental disorder, or</li>
<li>injury or disability for which benefits are claimed or received under the <i>Workplace Safety and insurance Act ("Act") </i>[Canadian statute].</li>
</ul>
<p>The definition of <i>"disability"</i> does not consider <i>where</i> the injury or illness occurred; only that it exists. A common cold or stress (which does not otherwise trigger a disability, such as depression or anxiety) is not a <i>"disability"</i> under the <i>Code</i>.</p>
<p><b>2.</b> <b>Complete a procedural analysis.</b></p>
<p>In most cases, an employer becomes aware an employee has a disability when the employee asks for accommodation. However, in some cases it may be incumbent on the employer to make a proactive inquiry.</p>
<p>For example, where the employer observes a dramatic change in the employee's behaviour causing a disruption in the workplace, the employer may need to inquire whether the employee requires accommodation.</p>
<p>Once it has been established that an employee has a disability, the employer <b>must</b> consider what can be done to facilitate the employee's continued participation in the workplace.</p>
<p>This <i>procedural analysis</i> typically begins with an inquiry into the nature of the disability (e.g<i>.</i> physical or mental), the employee's limitations (e.g. no lifting of more than 10 lbs) and for how long the limitations - and thus the need for accommodation - may last.</p>
<p>Where the information from the employee's doctor is insufficient, an employer might consider retaining the services of its own doctor or asking the employee to attend an independent medical examination paid for by the employer. When all else fails, an on-going failure to cooperate can lead to discipline or the denial of the accommodation request.</p>
<p>If it is not possible to modify the employee's regular job, other similar jobs at the same wage rate must be considered. The employer must also explore if the tasks of multiple positions can be combined or bundled. In essence, the duty to accommodate requires the employer to offer work that is as similar as possible to the employee's pre-disability job.</p>
<p><b>3. Complete a substantive analysis.</b></p>
<p>Although closely related to the procedural analysis, the <i>substantive analysis</i> considers the specific modifications that may be required so the employee can fully participate in the workplace. This may include decreased productivity standards, reduced hours, increased breaks and the ability to sit and stand as needed.</p>
<p>To this end, while an employee's input into the accommodation process is important, the employee does not have the right to insist on a more favourable position, and any absence resulting from an employee's refusal to work in an otherwise suitable position is culpable.</p>
<p>Finally, unless the cost of a modification will significantly impact the <i>viability</i> of a business, the cost of accommodation will not be accepted as <i>"undue hardship".</i></p>
<p><b>4.. Follow-up regularly.</b></p>
<p>Once an accommodation plan has been established, the employer should remain in regular contact with the employee and request updated medical information and reports to ensure that as the employee's disability changes (if at all) the accommodation plan is amended accordingly. Ideally, the employee should be working his way back to his pre-disability position.</p>
<p><b><i>Practical Tips</i></b></p>
<p>The duty to accommodate, while at times daunting, can be managed to the benefit of both the employer and employee. To simplify the process remember the following tips:</p>
<ol start="1">
<li>Each case must be evaluated and analyzed on its own merits.</li>
<li>Accommodate to the point of undue hardship for all cases of disability.</li>
<li>Consider every suitable or potentially suitable workplace position, including bundled tasks.</li>
<li>Continue to seek out updated, meaningful medical information.</li>
<li>Work with the employee (and union), to explore and implement appropriate accommodation.</li>
<li>When in doubt, reach out to experienced employment counsel who will help you navigate through the process.</li>
</ol>
<p><b> </b></p>
<p><b>CONCLUSION</b></p>
<p>According to <i>Du Toit supra </i>an employer need not accommodate applicants or employees with disabilities if doing so would impose an <i>‘unjustifiable hardship’</i> on the business of the employer.</p>
<p><i>“Unjustifiable hardship”</i> is defined as <i>‘action that requires significant or considerable difficulty or expense’ </i>and involves considering, among other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.</p>
<p>It should be reiterated that referral to the SA law herein as it pertains to disability should not be seen as equating pregnancy with a form of disability. The referral to the law as it pertains to disability was done with the purpose to provide the SA reader with guidelines as to the manner in which the Courts and Commissioners may approach the employer’s duty to provide reasonable accommodation in the event of pregnancy.</p>
<p>In <b><i>Standard Bank of SA v CCMA </i></b>[2008] 4 BLLR 356 (LC)<i> par 98; </i>[see also <b><i>MEC: Education, KZN v Pillay </i></b>2008 (2) BCLR 99 (CC)<i> par 76</i>]<b><i>,</i></b> the SA Labour Court held, unjustifiable hardship means <i>‘(m)ore than mere negligible effort’</i>, and, as in the case of reasonable accommodation, it imports a proportionality test.</p>
<p><b><i>The Duty to Provide Reasonable Accommodation – An Imposition of a ‘Disproportionate Burden on the SA Employer’?</i></b></p>
<p>In the authoritative publication by Pretoruis et al <b><i>“Employment Equity Law – Reasonable Accommodation” </i></b>at 7-42 to 7-43 <i>supra </i>it is suggested that making <i>‘reasonable accommodation’ </i>should not impose a <i>disproportionate burden</i> on the employer.</p>
<p>It was also noted that comparative law supports the duty to provide reasonable accommodation and that such duty is implied in the Constitution as well as the EEA.</p>
<p>The determination of whether the employer would be disproportionately burdened upon imposition of reasonable accommodation calls for an objective individualised assessment of the nature and cost of accommodation in the light of the employer’s financial resources, workplace structures, workplace environment and extend of business operations.</p>
<p>It calls for, and should be assessed and determined on a case-by-case basis having regard to factors such as:</p>
<p>- the nature and cost of accommodation required;</p>
<p>- an objective assessment of the employer’s overall financial resources;</p>
<p>- the number of persons employed;</p>
<p>- the effect on expenses and resources;</p>
<p>- the impact of the accommodation on the operation and continued commercial viability of the entity; </p>
<p>- geographical separateness, administrative or fiscal relationship of the facility in question to the covered entity. </p>
<p></p>
<p>Whether hardship is justifiable will differ according to the circumstances of each case. In <b><i>Standard Bank of SA v CCMA</i></b> it was held that the expected modification or adjustment in the workplace should be based on a <i>‘pragmatic common sense approach’.</i></p>
<p>The fact remains that the employer is in a better position to formulate accommodation and is duty bound to initiate the process.</p>
<p>The employee has a reciprocal duty to participate in the process and to assist in securing appropriate accommodation.</p>
<p>Any reasonable proposal which is offered to the employee may not be turned down by him/her without just cause or compelling reason; failing whereto the offer may be withdrawn and punitive action may follow as a consequence of unreasonable refusal or rejection of a <i>bona fide </i>offer of accommodation by the employer</p>
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<p><b><i>Johann Scheepers</i></b></p>
<p><b><i>September 13, 2015</i></b> <b>[updated]</b></p>
<p><b><i><u>Copyright:</u></i></b></p>
<p><b><i>Copyright reserved by the writer hereof. No part of this article/ guide may be reproduced, without prior written permission by the author.</i></b></p>
<p><b><i>The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.</i></b></p>
<p><b><i>The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.</i></b></p>
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STRIKE VIOLENCE IN SA – “JUDICIAL SCRUTINY OF DUTY OF UNIONS TO CURB UNLAWFUL CONDUCT?”
tag:www.adrhub.com,2015-01-03:4905899:BlogPost:63662
2015-01-03T13:57:42.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><b><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544778246?profile=original" target="_self"><font face="Arial Narrow"><img class="align-full" src="http://storage.ning.com/topology/rest/1.0/file/get/2544778246?profile=original" width="299"></img></font></a></b> <b><font face="Arial Narrow">INTRODUCTORY COMMENTS</font></b></p>
<p><font face="Arial Narrow"><font size="3">In terms of the</font> <i><font size="3">Section 23(2)</font></i> <font size="3">of the</font> <b><font size="3">Constitution of the Republic of South Africa, 1996</font></b> <i><font size="3">–“(2) Every worker has the right to…</font></i></font></p>
<p><b><a href="http://storage.ning.com/topology/rest/1.0/file/get/2544778246?profile=original" target="_self"><font face="Arial Narrow"><img width="299" class="align-full" src="http://storage.ning.com/topology/rest/1.0/file/get/2544778246?profile=original"/></font></a></b><b><font face="Arial Narrow">INTRODUCTORY COMMENTS</font></b></p>
<p><font face="Arial Narrow"><font size="3">In terms of the</font> <i><font size="3">Section 23(2)</font></i> <font size="3">of the</font> <b><font size="3">Constitution of the Republic of South Africa, 1996</font></b> <i><font size="3">–“(2) Every worker has the right to - …strike”.</font></i></font></p>
<p></p>
<p><font face="Arial Narrow"><font size="3">In an authoritative publication by</font> <i><font size="3">Professor John Grogan</font></i> <b><i><font size="3">“Collective Labour Law”,</font></i></b> <i><font size="3">Juta</font></i> <font size="3">(2010),</font> <i><font size="3">at 12 to 13</font></i><font size="3">, the learned author observes that the extent to which labor rights have been entrenched in the South African Constitution is probably unique in that it reflects the drafter’s determination to avoid a repetition of the abuse to which trade unions were subjected to in the apartheid era.</font> </font></p>
<p></p>
<p><font face="Arial Narrow"><font size="3">It can be submitted that the SA Constitutional</font> <i><font size="3">“right to strike”</font></i> <font size="3">is one, if not the most important right, from a trade union perspective,</font> <i><font size="3">chiseled</font></i> <font size="3">in the SA Constitution and it is jealously protected by the SA trade union federations and its constituent members. After all, it took much effort and resolve by the SA trade union movement to secure a fundamental</font> <i><font size="3">“right to strike”</font></i> <font size="3">as an entrenched right in the SA Constitution.</font></font></p>
<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow"><font size="3">However, and according to</font> <i><font size="3">Grogan supra, Section 23</font></i> <font size="3">of the Constitution is</font> <i><font size="3">even handed</font><b><font size="3">: “it confers on ‘everyone’</font></b></i> <b><font size="3">(including employers)</font> <i><font size="3">‘a right to fair labour practice</font></i><font size="3">s’</font></b> <i><font size="3">and, leaving aside the right to strike, confers identical rights on trade unions and employers’ organizations.</font></i> <font size="3">[Emphasis added].</font> </font></p>
<p><i><font face="Arial Narrow" size="3"> </font></i></p>
<p><font face="Arial Narrow"><font size="3">Therefore, the right to strike should not be perceived as sacrosanct and necessarily as if of more significance or value, when</font> <i><font size="3">compared</font></i> <font size="3">or</font> <i><font size="3">weighed</font></i> <font size="3">with any of the other fundamental rights entrenched in the South African Constitution.</font></font></p>
<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow" size="3">At this juncture it was deemed apposite to record the words of</font> <a href="http://encyclopedia2.thefreedictionary.com/Coleridge,+Samuel+Taylor"><i><font color="#0000FF" face="Arial Narrow" size="3">Samuel Taylor Coleridge</font></i></a> <font face="Arial Narrow"><i><font size="3">(1772-1834),</font> <b><font size="3">“There are no rights whatever…without corresponding duties.”</font></b></i> <font size="3">[</font><i><font size="3">Samuel Taylor Coleridge,</font></i> <font size="3">English poet and man of letters; Ottery St. Mary, Devonshire;</font> <i><font size="3">one of the most brilliant, versatile, and influential figures in the English romantic movement</font></i><font size="3">]</font><b><i><font size="3">.</font></i></b></font></p>
<p><b><i><font face="Arial Narrow" size="3"> </font></i></b></p>
<p><font face="Arial Narrow" size="3">Recent concerns around labour relations in South Africa have to a large extent focused attention on a significant increase in lengthy strike action; and especially the escalation in levels of unlawful conduct by strikers in the form of violence, intimidation, riotous behaviour that led to damage of property and all sorts of direct and indirect financial prejudice suffered by those affected as a consequence thereof.</font><i><br/> <font face="Arial Narrow"><font size="3"><br/></font> </font></i></p>
<p><font face="Arial Narrow"><font size="3">Section 69(1) of the Labour Relations Act 66 of 1995 (the LRA) gives registered trade unions the right to authorise their members and supporters to picket</font> <i><font size="3">“for the purposes of peacefully demonstrating”</font></i> <font size="3">in support of protected strikes and against any lockout. Such demonstrations are invariably part and parcel of South African strikes, as they are in many other countries.</font></font></p>
<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow" size="3">However and unfortunately so, in South Africa in particular, demonstrations by strikers often go far beyond conduct normally associated with picketing. Regrettably, industrial action frequently deteriorates into mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal acts.</font></p>
<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow"><font size="3">In most cases, the public generally bears these antics, if not with a grin, then at least with the hope that they need endure them only until the strikers eventually lose their steam and the situation returns to normal, at least until the next labour flare-up. [See:</font> <i><font size="3">John Grogan</font></i> <b><i><font size="3">“Tone it down! Curbing union exuberance”</font></i></b> <i><font size="3">Employment Law Journal, LexisNexis</font></i> <font size="3">(December 2011)]</font></font></p>
<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow"><font size="3">In the article by</font> <i><font size="3">Grogan supra</font></i> <font size="3">the learned author analysed and commented upon a judgment, that attracted much attention in the press, namely by the South African Supreme Court of Appeal (SCA) -</font> <b><i><font size="3">South African Transport and Allied Workers Union v Garvis & others</font></i> <font size="3">[2011] 12 BLLR 1151 (SCA).</font></b></font></p>
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<p><font face="Arial Narrow"><font size="3">The following passage[s] in</font> <i><font size="3">Garvis</font></i> <font size="3">was referred to in articles pertaining to a</font> <font size="3">legal battle between a trade union SATAWU and a few Cape Town street vendors who claimed damages for losses suffered in 2006 during a riot by union members that worked itself up through the High Court, the SCA and, finally, the South African Constitutional Court</font><font size="3">:</font></font></p>
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<p><i><font face="Arial Narrow"><font size="3">“[46] During the pre-constitutional era, public protests and demonstrations against a denial of fundamental human rights were often met by brute force with resultant loss of life. The Sharpeville massacre and the 1976 Soweto student uprising are stark examples that are etched into the national psyche. In any event, the legislature, after an extensive consultative process, and following on the brutal experiences of the apartheid era, promulgated</font> <font size="3">the Regulation of Gatherings Act 205 of 1993.</font></font></i></p>
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<p><i><font face="Arial Narrow" size="3">[47] Our Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and the advancement of human rights and freedoms. It is calculated to ensure accountability, responsiveness and openness. Public demonstrations and marches are a regular feature of present day South Africa…The Constitutional Court has recognised that the rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organisations…Trade unions should ensure that a noble struggle remains unsullied. The Act was designed to ensure that public protests and demonstrations are confined within legally recognised limits with due regard for the rights of others.</font></i></p>
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<p><font face="Arial Narrow"><b><i><font size="3">[50]…The chilling effect</font></i></b> <i><font size="3">that the provisions of the</font></i> <font size="3">[Regulation of Gatherings Act] (RGA)</font> <i><font size="3">should rightly have is on</font> <b><font size="3">unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state.</font> <u><font size="3">We cannot now be subjected to the tyranny of the mob</font></u><font size="3">”</font></b><font size="3">.</font></i> <font size="3">[Emphasis added].</font></font></p>
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<p><font face="Arial Narrow"><font size="3">In</font> <b><i><font size="3">South African Transport and Allied Workers Union and another v Garvas and others (City of Cape Town as Intervening Party and Freedom of Expression Institute as</font> <font size="3">amicus curiae</font><font size="3">)</font></i> <font size="3">[2012] 10 BLLR 959 (CC)</font></b> <font size="3">the Court determined that Section 11(2) of the RGA did limit the right to assemble in terms of Section 17 of the Constitution, however, the limitation was reasonable and justifiable.</font></font></p>
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<p><font face="Arial Narrow" size="3">The victims of the violence that erupted after the SA Transport & Allied Workers Union convened a gathering in Cape Town, as part of the union’s effort to mobilise members during a strike in the transport industry could institute damages claims in the High Court against the union in terms of Section 11(2) of the RGA. The Court held that Section 11(2) of the RGA was not unconstitutional. Section 17 of the Constitution protects the right to assemble and demonstrate only insofar as the conduct of the protestors was peaceful and the participants unarmed.</font></p>
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<p><font face="Arial Narrow"><font size="3">Somewhat ironically, shortly after the Constitutional Court handed down the</font> <i><font size="3">Garvis</font></i> <font size="3">judgment, during August 2012, the Marikana Tragedy occurred, an event which has been described as a watershed event for the South African labour relations system.</font></font></p>
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<p><font face="Arial Narrow"><font size="3">The nature of the events that occurred at Marikana had been widely published in the media in SA and abroad. In short: pursuant to strike action by a trade union active at the Lonmin platinum mine scores of Lonmin workers were gunned down by police during unprotected strike action.</font> <font size="3">The issues that precipitated the tragedy were incredibly complex and go way beyond the field of labour relations.</font></font></p>
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<p><font face="Arial Narrow" size="3">Suffice it to record the observations by some commentators as to the root causes of strike action in SA, not only with reference to lengthy strike in the mining sector, also the strike action that followed thereafter in the metal and engineering industry.</font></p>
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<p><font face="Arial Narrow"><font size="3">In an article by a senior journalist of a leading SA newspaper, Jan de Lange</font> <i><font size="3">'The resolution of the strike in the hands of Government'</font></i> <font size="3">Rapport 2014/07/20, the observation was made</font> <i><font size="3">'we really need to look beyond production losses and even violence at the drivers of these strikes'.</font></i> </font><a href="http://t.co/QhM018jr3N" target="_blank"><font color="#0000FF" face="Arial Narrow" size="3">http://t.co/QhM018jr3N</font></a> <font face="Arial Narrow"><font size="3"> </font></font></p>
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<p><font face="Arial Narrow"><font size="3">In the article referred to above</font> <i><font size="3">De Lange</font></i> <font size="3">expressed</font> <font size="3">an opinion that the underlying factors that caused the strike in the metal & engineering industry are in substance the same or similar factors or</font> <i><font size="3">'drivers'</font></i> <font size="3">that caused a lengthy strike [5 months] in the mining sector. The strike was correctly labeled as a</font> <i><font size="3">'political strike'.</font></i><font size="3"> </font></font></p>
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<p><font face="Arial Narrow" size="3">Notwithstanding the labeling of the strike and according to Professor Karl von Holdt, a professor in Sociology at the University of the Witwatersrand (WITS) the root cause of the wave of strikes in SA is not primarily due to political aspirations of trade union leaders.</font></p>
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<p><font face="Arial Narrow"><font size="3">According to Professor Von Holdt the real reasons are socio-political and other concerns or issues such as the lack of access to basic amenities and housing. The increase in violence and other forms of unlawful conduct during strikes are symptomatic of increasing levels of frustration and anger in that a large sector of the SA population live in what is known as</font> <i><font size="3">'informal settlements'</font></i> <font size="3">with no service delivery and without access to basic amenities.</font></font></p>
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<p><font face="Arial Narrow" size="3">Therefore, the socio-economic needs of a substantial number of SA citizens remained unfulfilled despite political reform.</font></p>
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<p><font face="Arial Narrow"><font size="3">It follows that South African employers are not in a position to remedy the situation and find them in the unenviable position of being in the midst of socio-economic</font> <i><font size="3">cum</font></i> <font size="3">political conflict that culminated in industrial strife.</font></font></p>
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<p><font face="Arial Narrow"><font size="3">Having regard to a number of orders handed down by the South African Labour Courts, it is very much apparent that the protest action resorted to, and favored by some strikers ever so often takes the form of mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal Acts. [See: article by</font> <i><font size="3">Grogan supra</font></i><font size="3">].</font></font></p>
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<p><font face="Arial Narrow" size="3">The court orders referred to above were obtained out of necessity and on an urgent basis by employers in an attempt to curb strike violence, damage to property as well as other criminal acts committed by strikers in contravention of the Regulation of Gatherings Act 205 of 1993 and agreed picketing rules with the unions involved.</font></p>
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<p><font face="Arial Narrow"><font size="3">An alarming trend that developed is the non-compliance and contempt of court orders by strikers. Unfortunately the incidence of non-compliance and contempt of court orders emanate from the ‘</font><i><font size="3">Apartheid-Era’</font></i> <font size="3">where workers paid scant regard to interdicts or any other order of court based on political reasons as a form of protest and civil disobedience.</font></font></p>
<p></p>
<p><font face="Arial Narrow"><font size="3">This notwithstanding, the</font> <i><font size="3">‘Apartheid-Era’</font></i> <font size="3">is long gone and buried – twenty or more years ago. The resurgence of contempt of court, the propensity to disregard the rule law and the reasons therefore could not by means of regression be labelled as a “</font><i><font size="3">problem inherited from apartheid - a ‘spawn’ of the ‘wicked’ regime in power at the time”.</font></i> <font size="3">As a Law Professor once said to a student who arrived late for class and presented a flimsy excuse for being late,</font> <i><font size="3">“Dear sir…that kite won’t fly”.</font></i> </font></p>
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<p><font face="Arial Narrow"><font size="3">The tendency by strikers to disregard the rule of law and heedlessly act in contempt of court orders are a matter of great concern to the courts, the legislator and the South African public. At the fifteenth annual general meeting held by the South African Society for Labour Law (SASLAW), where Mr Justice Andre van Niekerk delivered the key note address the Judge observed,</font> <i><font size="3">‘The value and effectiveness of legal institutions is dependent entirely on an acknowledgment and commitment to the rule of law.</font></i></font></p>
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<p><i><font face="Arial Narrow" size="3">When citizens or a group of citizens decide that their interests are better advanced by flouting the law, then there is very little to say about the role and perspectives of courts…</font></i> <i><font face="Arial Narrow" size="3">the basic foundation of law is present when citizens are concerned about maintaining the integrity of the legal system, while recognising the inevitability of conflict… When this is not present, and when citizens reject the law as a means of settling normative conflict, then the social good of the law, which includes its capacity to provide a framework of cooperation despite disagreement, disintegrates.’</font></i></p>
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<p><font face="Arial Narrow" size="3">Judge van Niekerk also referred to the role of the court in unprotected strikes and specifically commented on urgent applications to interdict acts of strike related violence.</font></p>
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<p><font face="Arial Narrow"><font size="3">In this regard, he said:</font> <i><font size="3">‘The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them. At its most basic level, this is demonstrative of a rejection of the rule of law, and</font> <b><font size="3">contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’</font></b></i> <font size="3">[Emphasis added].</font></font></p>
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<p><font face="Arial Narrow"><font size="3">At a seminar held at the University of Pretoria, on 28 October 2014, presented by SASLAW the key note speaker was Advocate Anton Myburgh SC with the seminar topic,</font> <b><i><font size="3">“Ensure compliance and contempt of court orders: a viable means to control strike violence?”</font></i> </b></font></p>
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<p><font face="Arial Narrow"><font size="3">[Advocate Myburgh SC also authored a comprehensive article on the subject matter addressed at the SASLAW seminar, published in the authoritative publication</font> <i><font size="3">Contemporary Labour Law</font></i> <font size="3">– Anton Myburgh SC,</font> <b><i><font size="3">“Contempt of court in the context of strikes and violence”</font></i> </b><i><font size="3">Contemporary Labour Law</font></i> <font size="3">(July 2014) Volume 23 No. 12].</font></font></p>
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<p><font face="Arial Narrow"><font size="3">In the comments that follow hereunder referral would interchangeably be made to the published article</font> <i><font size="3">supra</font></i> <font size="3">by</font> <i><font size="3">Myburgh SC,</font></i> <font size="3">as well as some of the issues raised and observations made at the SASLAW seminar.</font></font></p>
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<p><b><font face="Arial Narrow">CONTEMPT OF COURT IN THE CONTEXT OF STRIKES AND VIOLENCE – RECENT JUDGMENTS BY THE LABOR COURTS </font></b></p>
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<p><font face="Arial Narrow"><font size="3">At the outset it should be noted that one could not submit a</font> <i><font size="3">quasi</font></i> <font size="3">academic article or posting as to the subject matter under discussion, in the first instance due to the legal complexity thereof, and in the second instance postings on the LinkedIn network should preferably be brief and not drafted as a law review.</font></font></p>
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<p><font face="Arial Narrow"><font size="3">Four notable judgments by the Labour Courts were dissected by</font> <i><font size="3">Myburgh SC</font></i> <font size="3">and the importance of the judgments; especially the</font> <i><font size="3">‘message therein recorded’</font></i><font size="3">, if not an admonition by the courts as to what could be expected by maverick parties who fail to comply with orders of court, in the context of violent or riotous behaviour, who persist with unlawful conduct under the guise of strike action, albeit unprotected or protected strike action.</font></font></p>
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<p><font face="Arial Narrow"><font size="3">Also noteworthy in the judgments are the real possibility that those who blatantly disregard court orders would be ‘</font><i><font size="3">corrected’</font></i> <font size="3">by means of a</font> <i><font size="3">quasi-</font></i><font size="3">criminal sanction, to wit to be found in contempt of court. One well known example is a judgment by the Labour Court where the court imposed a fine of R 500.000 against a union for contempt, namely</font> <b><i><font size="3">In2Food (Pty) Ltd v Food & Allied Workers Union & Others</font></i> <font size="3">(2013) 34</font> <i><font size="3">ILJ</font></i> <font size="3">2589 (LC).</font></b> <font size="3">On appeal to the Labour Appeal Court (LAC) the union succeeded, on a technical point, as to the wording of the order wherein the union was interdicted and restrained from</font> <i><font size="3">“continuing”</font></i> <font size="3">with the strike and access prevented to the company premises by persons not involved in the strike, referred to by some commentators as</font> <i><font size="3">‘strike sympathisers’</font></i> <font size="3">or</font> <i><font size="3">‘self appointed moral supporters’</font></i> <font size="3">or even</font> <i><font size="3">‘concerned community members’</font></i> <font size="3">(CCM’s).</font></font></p>
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<p><font face="Arial Narrow"><font size="3">Of importance is a key passage by the court</font> <i><font size="3">a quo</font></i> <font size="3">in the</font> <b><i><font size="3">In2Food</font></i></b> <font size="3">judgment, which the LAC</font> <font size="3">amplified, endorsed and adapted - quoted hereunder where Steenkamp J (at 2591H-2592B) pronounced:</font></font></p>
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<p><font face="Arial Narrow"><i><font size="3">“</font><font size="3">“The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members...[The LRA] makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right. However, that right is not without limitations. Firstly, the proper procedures set out in s 64 of the LRA should be followed. And secondly, it must be in line with the constitutional right to assemble and to picket peacefully and unarmed, as entrenched in s 17 of the Bill of Rights...</font> </i><i><font size="3">Very simply, there is no justification for the type of violent action</font></i></font> <font face="Arial Narrow"><i><font size="3">that the respondents have engaged in, in this instance. And alarmingly, on the evidence before me, the union and its officials have not taken sufficient steps to dissuade and prevent their members from continuing with their violent and unlawful actions...</font> <font size="3">These actions undermine the very essence of disciplined collective bargaining and the very substructure of our labour relations regime.”</font></i> <font size="3">[See detailed discussion:</font> <i><font size="3">Myburgh SC - Contemporary Labour Law,</font></i> <font size="3">110 to 113</font> <i><font size="3">supra</font></i><font size="3">].</font></font></p>
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<p><font face="Arial Narrow"><font size="3">Of significance is that the LAC in</font> <b><i><font size="3">In2food</font></i></b> <font size="3">referred to</font> <b><i><font size="3">FAWU v Ngcobo NO & Another</font></i> <font size="3">(2013) 34</font> <i><font size="3">ILJ</font></i> <font size="3">3061 (CC),</font></b> <font size="3">where FAWU was held liable to its own members for failure to prosecute the members’ interests properly in litigation (at paras 18-19):</font></font></p>
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<p><font face="Arial Narrow"><font size="3">“</font><i><font size="3">The respondent’s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its</font></i></font> <font face="Arial Narrow"><i><font size="3">actions or omissions are beginning to gain recognition…</font></i> <i><font size="3">The sentiments expressed by the court a quo</font></i></font> <i><font face="Arial Narrow"><font size="3">which are cited above [see Steenkamp J, above] have been rightly described by Alan Rycroft as a</font> <b><font size="3">‘…’significant moment of judicial resolve’</font></b><font size="3">.</font> <b><font size="3">Indeed, the sentiments deserve endorsement, and are adopted by this Court.”</font></b></font></i></p>
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<p><font face="Arial Narrow"><b><i><font size="3"> </font></i></b><font size="3">[See:</font> <i><font size="3">Rycroft, A</font> <b><font size="3">“Being held in Contempt for Non-compliance with a Court Interdict: In2food (Pty) Ltd v FAWU & Others”</font></b> <font size="3">(2013) 34 ILJ 2589 (LC)”</font></i> <font size="3">2013 34</font> <i><font size="3">ILJ</font></i> <font size="3">2499].</font> </font></p>
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<p><font face="Arial Narrow"><font size="3">Referral was made to three other important judgments handed down by the courts where the courts had to pronounce on the question whether the Respondent was in contempt of court pursuant to an interim order obtained against unruly strikers</font> <i><font size="3">ad factum praestandum</font></i> <font size="3">and upon non-compliance with the order, an ensuing application declaring the non-compliant party[s] in contempt of court and imposing of a sanction.</font></font></p>
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<p><font face="Arial Narrow"><font size="3">For the sake of brevity the three judgments would not be addressed in this posting, however, they would be cited for those who wish to peruse them. They are</font> <b><i><font size="3">Xstrata SA (Pty) Ltd v AMCU & Others</font></i></b> <font size="3">(case no. J1239/13, 25/2/2014, per Tlhotlhalemaje AJ</font><b><i><font size="3">, Ciro Beverage Solutions (Pty) Ltd v SATAWU & Others</font></i></b> <font size="3">(case no. J2630/13, per Shaik AJ)</font> <b><i><font size="3">and Anglo American Platinum Ltd & Another v AMCU & Others</font></i></b> <font size="3">(case no. J158/14, 6/3/2014, per Van Niekerk J).</font> <font size="3"> </font></font></p>
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<p><font face="Arial Narrow" size="3">It is important to mention that facts and circumstances which led to applications made for urgent relief were almost identical in that it involved strike violence as well as a disregard of interim orders obtained. Therefore, the applications made were based on contempt of court. In each of the judgments, the unions and their members escaped sanction based on being found in contempt of court on technical grounds.</font></p>
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<p><font face="Arial Narrow"><font size="3">Of concern was that</font> <i><font size="3">Myburgh SC</font></i> <font size="3">at the SASLAW seminar referred to study conducted during 2012 by the Congress of South African Trade Unions (COSATU), in the form of a poll amongst its members [2.2 million - 2012], wherein it was found that,</font> <b><i><font size="3">"60% of members polled believe that strike demands will not be achieved without violence."</font></i></b></font></p>
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<p><font face="Arial Narrow"><i><font size="3">Myburgh SC</font></i> <font size="3">identified two flash points of violence during strikes namely:</font></font></p>
<p><i><font face="Arial Narrow" size="3"> </font></i></p>
<p><i><font face="Arial Narrow" size="3">“- Early on in the strike > directed against the employer; and</font></i></p>
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<p><font face="Arial Narrow"><font size="3">-</font> <i><font size="3">When support wanes > directed against employees."</font></i></font></p>
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<p><font face="Arial Narrow"><font size="3">Violence during strike action could be classified as a form of</font> <b><i><font size="3">economic duress</font></i></b> <font size="3">and has the following effect:</font></font></p>
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<p><font face="Arial Narrow"><font size="3">"></font> <i><font size="3">It skews collective bargaining power;</font></i></font></p>
<p><i><font face="Arial Narrow" size="3"> </font></i></p>
<p><i><font face="Arial Narrow" size="3">> It disturbs the forces of demand and supply;</font></i></p>
<p><i><font face="Arial Narrow" size="3"> </font></i></p>
<p><i><font face="Arial Narrow" size="3">> It places undue pressure on employers to settle; and</font></i></p>
<p><i><font face="Arial Narrow" size="3"> </font></i></p>
<p><i><font face="Arial Narrow" size="3">> It frightens employers into settlement."</font></i></p>
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<p><font face="Arial Narrow" size="3"> </font></p>
<p><font face="Arial Narrow"><font size="3">It was deemed apposite to quote from the article by</font> <i><font size="3">Myburgh SC supra,</font> <b><font size="3">“But unions would be well advised to take heed of these judgments, as the judicial net is clearly tightening around those of them who are prepared to run the risk of disobeying court orders”.</font></b></i></font></p>
<p><b><i><font face="Arial Narrow" size="3"> </font></i></b></p>
<p><font face="Arial Narrow" size="3">It could be taken as a given that employers and their legal representatives would take due notice of the technicalities that prevented a successful order of contempt against a union and its members and ensure that the drafting of applications for interdicts, and ensuing contempt applications would address the technical shortcomings identified in the judgments cited above.</font></p>
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<p><font face="Arial Narrow"><font size="3">Of critical importance from a trade union perspective would be an awakening that the courts have had enough of strike violence and contemptuous conduct upon being served with interdicts. As was stated at the SASLAW seminar,</font> <b><i><font size="3">“The courts are looking for ways to hold unions accountable.”</font></i></b> </font></p>
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<p><font face="Arial Narrow" size="3"> </font><b><font face="Arial Narrow">CONCLUSION</font></b></p>
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<p><font face="Arial Narrow"><font size="3">The words by Van Niekerk J, at the 15</font><sup><font size="2">th</font></sup> <font size="3">SASLAW</font> <font size="3">annual general meeting held by the South African Society for Labour Law (SASLAW) are of importance - and are repeated hereunder for edification - especially to strikers who after being dismissed for violence or any other unlawful conduct during a strike, where the dismissal was preceded by an application for an interdict, an ensuing successful application for contempt of court and were found to be in contempt followed by a</font> <i><font size="3">quasi-</font></i><font size="3">criminal sanction:</font></font></p>
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<p><i><font face="Arial Narrow" size="3">“The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them.</font></i></p>
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<p><font face="Arial Narrow"><i><font size="3">At its most basic level, this is demonstrative of a rejection of the rule of law, and</font> <b><font size="3">contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’</font></b></i> <font size="3">[Emphasis added].</font></font></p>
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<p><font face="Arial Narrow" size="3"> </font></p>
<p><b><i><font face="Arial Narrow" size="3">Johann Scheepers</font></i></b></p>
<p><b><i><font face="Arial Narrow" size="3">16/12/2014</font></i></b></p>
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IMPORTANT ISSUES AND QUESTIONS?
The SA Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014, ‘with barely a ripple i…
tag:www.adrhub.com,2014-09-14:4905899:BlogPost:60976
2014-09-14T23:50:19.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p></p>
<p style="text-align: left;"><span class="font-size-3"><b><i><u><font face="Arial Narrow">IMPORTANT ISSUES AND QUESTIONS?</font></u></i></b></span></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">The SA Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014, <i>‘with barely a ripple in the human resources community…surprising, since this was the…</i></font></font></p>
<p></p>
<p style="text-align: left;"><span class="font-size-3"><b><i><u><font face="Arial Narrow">IMPORTANT ISSUES AND QUESTIONS?</font></u></i></b></span></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">The SA Employment Equity Amendment Act, 47 of 2013 [EEA] and the Employment Equity Regulations, 2014 [EER] came into effect on 01 August 2014, <i>‘with barely a ripple in the human resources community…surprising, since this was the date on which still harsher human resources legislation came into effect in the form of amendments to the Employment Equity Act.</i></font> <font size="3">[Tony Pace,</font> <b><i><font size="3">‘Amendments to the Act make Job Grading Vital – Remuneration Nightmare Begins’</font></i></b> <font size="3">(2014)</font> <i><font size="3">Workinfo.com,</font></i> <i><font size="3">Newsletter August 2014].</font></i></font></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Reference in the title of the article <i>supra</i></font> <font size="3">namely,</font> <b><i><font size="3">‘Remuneration Nightmare Begins’</font></i></b> <font size="3">and</font> <b><i><font size="3">‘Job Grading Vital’</font></i></b> <font size="3">may be regarded as a stratagem designed to</font> <i><font size="3">‘scare’</font></i> <font size="3">the person who may come across the article out of a state, what is commonly known as</font> <i><font size="3">‘REM – sleep</font></i> <font size="3">to that of a</font> <i><font size="3">‘rude awakening’</font></i> <font size="3">or a state of acute awareness of the enactment of the extensive amendments to South African Employment Equity Legislation and the important issues and questions that may arise from the</font> <i><font size="3">‘new laws’.</font></i></font></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">After all, prior to the enactment of the amended legislation many articles on the subject matter have been published by well known and respected authorities as well as labor law practitioners of leading attorney firms. Furthermore, the Department of Labor held numerous <i>‘Road Shows’</i></font> <font size="3">some in all the major cities within the provinces of SA where the amendments to the legislation and the possible effects</font><font size="3"> </font> <font size="3">thereof were explained to all who took the time to attend. For example, at a</font> <i><font size="3">‘Road Show’</font></i> <font size="3">held at the Sandton Convention Centre in Johannesburg, Gauteng Province on 13 August 2014, the Department of Labour Director for Employment Equity (EE) Director Ntsoaki Mamashela has confirmed that the principle of ‘</font><b><i><font size="3">equal pay for work of equal value’</font></i></b> <font size="3">applies</font> <font size="3"><b><i>'irrespective of the status of employment'.</i></b> </font></font></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">The Director referred to employees <i>'hired on a contract basis', whose 'rights'</i></font> <font size="3">under the new regulations are evidently the same as those of</font> <i><font size="3">'full-time'</font></i> <font size="3">employees. Specific reference was made to EER - Regulation</font> <font size="3"><i>3 <b>(Eliminating unfair discrimination)</b></i></font> <font size="3">that requires that an employer</font> <i><font size="3">[must]</font></i> <font size="3">to take steps</font></font> <i><font face="Arial Narrow"><font size="3">‘to eliminate <u>differences in the terms and conditions of employment</u></font> <font size="3">of employees performing</font></font> <font face="Arial Narrow"><u><font size="3">work of </font> <font size="3">equal value</font></u> <font size="3">if those differences are directly or indirectly based on a</font> <u><font size="3">listed ground</font></u> <font size="3">or</font></font> <font face="Arial Narrow"><u><font size="3">any arbitrary </font> <font size="3">ground</font></u> <font size="3">... prohibited by section 6(1) of the Act'.</font></font></i></p>
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<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Quoted in a widely publicized media statement on the event, Director Mamashela edified employers that - internal dispute resolution mechanisms and Employment Equity Plans notwithstanding - <i>'if human resources policies are not clear'</i></font> <font size="3">on the issues concerned</font> <i><font size="3">[EEA & EER]</font></i> <font size="3">nothing prevents an aggrieved employee from lodging a complaint with the Commission for Conciliation, Mediation and Arbitration (CCMA). Commissioners having been trained</font> <i><font size="3">'well ahead'</font></i> <font size="3">of the implementation of the Employment Equity Amendment Act; the CCMA is</font> <i><font size="3">'ready'</font></i> <font size="3">and has the capacity to</font> <i><font size="3">'deal'</font></i> <font size="3">with all related disputes.</font></font></p>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">In a paper presented by Talita Laubscher et al, <b><i>‘Equal pay for equal work’</i></b> <i>(2014) Bowman Gilfillan Attorneys</i></font> <font size="3">the learned author advised employers</font> <font size="3"><i>‘</i><i>to carefully scrutinize their pay practices in order to ensure that any disparity</i></font> <font size="3"><u>[remuneration – including employment benefits, terms and conditions of employment]</u></font> <i><font size="3">is objectively justifiable and does not give rise to an attack based on any of the listed grounds, or other arbitrary grounds’.</font></i></font></p>
<p style="text-align: left;"><i><font face="Arial Narrow" size="3"> </font></i></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">A possible reason for the perceived inactivity on the part of employers, as referred to in the article by <i>Tony Pace supra,</i></font> <font size="3">may be that employers and to a lesser extent employees [trade unions] are in the process of analysing the amendments with the purpose of eliminating unfair discrimination by taking corrective measures in order to eliminate differences in terms and conditions of employment, benefits and remuneration. [See: Section 5 of EEA & Regulation 3 EER].</font></font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">One hopes that employers are not adopting a <i>‘wait and see’</i></font> <font size="3">approach as to compliance with the legislation, for example to await a</font> <i><font size="3">‘test case’</font></i> <font size="3">or legal precedent to be set by the Courts or even the CCMA.</font><font size="3"> </font></font></p>
<p style="text-align: left;"><font face="Arial Narrow"> </font></p>
<p style="text-align: left;"><span class="font-size-4"><b><font face="Arial Narrow">Equal Pay for Work of Equal Value: How do We Get There?</font></b></span></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">[See: ILO – UN Global Compact Webinar <b>‘<i>Equal Pay of Equal Value: How do We Get There?’</i></b> </font><font size="3">March 2011].</font></font></p>
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<p style="text-align: left;"><font face="Arial Narrow" size="3">Having perused the introductory part to this article various questions and problems come to mind such as:</font></p>
<ol style="text-align: left;">
<li><p>What is an <i>‘arbitrary ground’?</i> [See: excerpt article by <i>Talita Laubscher –</i> Section 6(1) EEA & Regulation 3 EER];</p>
</li>
<li><p>The definition and meaning of <i>‘equal pay for work of equal value’?</i> [See: Section 6(4) EEA & Regulation 4 EER];</p>
</li>
<li><p>The methodology for determining <i>‘equal value claims’?</i> [See: Section (6)(4) EEA & Regulation 4 to 6 EER];</p>
</li>
<li><p>The assessment whether work is of <i>‘equal value’?</i> [See: Regulation 4, 6 EER & excerpt article by <i>Tony Pace</i>];</p>
</li>
<li><p><i>‘Equal pay claims’</i> v. <i>‘equal benefits, terms and conditions of employment’?</i> [See: Section 6(4) EEA & Regulation 6 & 7 EER];and</p>
</li>
<li><p>Grounds or ‘<i>Factors justifying differentiation in terms and conditions of employment’?</i> [See: Section 11 EEA & Regulation 7 EER].</p>
</li>
</ol>
<p style="text-align: left;"><font face="Arial Narrow" size="3"> </font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Due to the extent of, and legal technicalities/questions arising from the amendments to the former EEA, 55 of 1998, now the EEA, 47 of 2013 as well as the Regulations, EER, 2014 it was deemed appropriate to submit brief comments, as to the questions and problems, (i) to (vi) <i>supra.</i></font> <font size="3">Some of the issues listed above have been analyzed and addressed by Professor PAK le Roux in a recent article published in the authoritive publication</font> <i><font size="3">Contemporary Labour Law.</font></i> <font size="3">[See: PAK le Roux,</font> <b><i><font size="3">‘The Employment Equity Act: New amendments set</font></i> <font size="3">problems</font> <i><font size="3">and posers’</font></i></b> <font size="3">(2014) Contemporary Labour Law Vol. 24 No. 1].</font><b><font size="3"> </font></b></font></p>
<p style="text-align: left;"><i><font face="Arial Narrow" size="3"> </font></i></p>
<p style="text-align: left;"><b><u><font face="Arial Narrow" size="3">ARBITRARY GROUND?</font></u></b></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Section 6 (1) of the EEA includes “<i>Prohibition of Unfair Discrimination, direct and indirect…race, gender… [Listed grounds] <b>‘or any other arbitrary ground’.</b></i></font> <font size="3">The</font> <i><font size="3">‘Listed grounds’</font></i> <font size="3">contained in Section 6(1) are not a closed list by virtue of the wording</font> <i><font size="3">‘on one or more grounds, <b>including…’.</b></font></i> <font size="3">Therefore, in addition to the listed grounds as</font> <i><font size="3">‘codified’</font></i> <font size="3">in Section 6(1)</font> <i><font size="3">‘other</font></i> <font size="3">[analogous]</font> <i><font size="3">grounds’</font></i> <font size="3">as well as</font> <i><font size="3">‘any arbitrary ground’</font></i> <font size="3">may constitute unfair discrimination.</font></font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">According to <i>Le Roux supra,</i></font> <font size="3">the EEA contains three sets of grounds whereupon a claim of unfair discrimination may be brought, to wit (i) listed grounds; (ii) unlisted analogous grounds; (iii) arbitrary grounds. Therefore,</font> <font size="3">the traditional grounds for potential litigation are extended and include inequality in benefits, terms and conditions of employment and remuneration, as is addressed more fully hereunder.</font> </font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">As to the burden of proof another interesting distinction is to be found in the EEA in that if unfair discrimination is alleged on a ground listed in <b><i>section 6(1)</i></b> <i>supra</i></font> <font size="3">the employer against whom a claim is brought must prove, on a balance of probabilities, that:</font></font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">(i) discrimination did not take place; or</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">(ii) discrimination is rational, not unfair or is justifiable.</font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">If discrimination is alleged <b><i>on an arbitrary</i></b> <i><b>ground</b></i></font> <font size="3">the claimant [employee(s)] must proof, on a balance of probabilities, that:</font></font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">(i) conduct complained of is not rational;</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">(ii) conduct amounts to discrimination; and</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">(iii) discrimination is unfair.</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3"> </font></p>
<p style="text-align: left;"><font size="3"><font face="Arial Narrow"><b><i>‘<u>EQUAL PAY FOR WORK OF EQUAL VALUE’?</u></i></b></font></font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Regulation 1 of the EER defines - <b>"work of equal value"</b></font> <i><font size="3">includes works that is the same, substantially the same or of the same value as other work, as contemplated in regulation 4 of these Regulations.</font></i></font></p>
<p style="text-align: left;"><font size="3"><font face="Arial Narrow">Regulation 4 – <b>“Meaning of work of equal value”:</b></font></font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3">Regulation 4(1) – Performing the same work, that</font> <font size="3">is identical or interchangeable;</font></font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">Regulation 4(3) - Job title not determinative, an objective assessment of the actual duties performed required.</font></p>
<p style="text-align: left;"><font face="Arial Narrow"><font size="3"> </font><font size="3">Therefore, it could be deduced:</font></font></p>
<ol>
<li style="text-align: left;"><p>The test is not whether the same or similar work is performed; rather it involves an objective analysis <b>or assessment of equal value.</b> The work performed may in nature be entirely different, however <i>intrinsically of equal value;</i></p>
</li>
<li><p style="text-align: left;">Job evaluation systems or methods would be scrutinized as to <b>objectivity</b> in that the criteria for evaluation would in all probability be subject to challenge as discriminatory or subjective in substance and nature.</p>
<p style="text-align: left;">According to <i>Le Roux supra,</i> it is of importance to keep in mind that in general reference is made to <i>‘equal pay’</i> claims<i>,</i> however, <b>discrimination claims are not limited to salaries or wages and will cover all benefits, terms and conditions of employment</b>, for example leave and pension/provident fund arrangements. These claims also include a cause of action where <i>‘indirect discrimination’</i> is alleged.</p>
</li>
</ol>
<p></p>
<p><b><u>DETERMINING EQUAL VALUE CLAIMS?</u></b></p>
<p></p>
<p>This question has to a large extent been addressed above. This notwithstanding, Regulations 4 to 6 of EER provide guidance as to how two different jobs should be accorded the same value. Regulation 6 sets out, in peremptory terms the criteria for value assessment:</p>
<p></p>
<p>Regulation 6(1)(a) – Responsibility for, people, finances and materials;</p>
<p>Regulation 6(1)(b) - Skills, qualifications and prior learning required to perform the work;</p>
<p>Regulation 6(1)(c) – Effort, physical, mental and emotional effort required to perform the work;</p>
<p>Regulation 6(1)(d) - Work context, i.e. conditions under which the work is performed, physical environment, psychological conditions, time when and geographic location where work is performed.</p>
<p></p>
<p>According to <i>Le Roux supra</i> the stipulations contained in Regulation (6)(3) are of specific importance in that the assessment process of the value of work must be conducted in a manner devoid from bias on the grounds of race, gender or disability <i>or any other listed or arbitrary ground.</i></p>
<p></p>
<p>Regulation 6(4) makes allowance for justification of value assigned on the ground of the provisions contained in a sectoral determination pertaining to classification of a specific job.</p>
<p>At first glance Regulation 6(3) opens the way for judicial innovation in that the employer’s pay structures, job evaluation or job grading schemes, performance appraisals and collective agreements may be challenged as subjective, scientifically unreliable or invalid, and biased against an employee or group albeit on the grounds of <i>[unfair]</i> direct or indirect discrimination. </p>
<p></p>
<p><b><u>FACTORS JUSTIFYING DISCRIMINATION IN TERMS AND CONDITIONS OF EMPLOYMENT</u></b></p>
<p></p>
<p>Regulation 7(1) contains a list of factors that justify differentiation in terms and conditions of employment, including remuneration notwithstanding that the work performed is of equal value, with the proviso that the differentiation does not constitute unfair discrimination and that the difference is rational and based on any of the grounds such as seniority, length of service, qualifications and performance.</p>
<p></p>
<p>In the first instance the above factors may give rise to an inconsistency or objectivity challenge.</p>
<p></p>
<p>In the second instance some of the factors <i>prima facie</i> justify discrimination, however upon closer scrutiny may constitute indirect discrimination, for example seniority and length of service.</p>
<p></p>
<p>The employee may contend that seniority as a factor in justification of discrimination is inherently unfair in that the employee, due to an earlier discriminatory practice, has been excluded from certain positions and therefore not had the same opportunity to accrue seniority or experience.</p>
<p></p>
<p>In conclusion the observation by <i>Le Roux supra</i> is apposite in that preparation for any litigation, including CCMA arbitration would have to be thorough and detailed.</p>
<p></p>
<p>It is envisaged that the testimony of expert witnesses may on occasion be necessary in order to be successful in litigation. </p>
<p></p>
IN PURSUIT OF 'EQUAL PAY FOR WORK OF EQUAL VALUE'
tag:www.adrhub.com,2014-08-20:4905899:BlogPost:60400
2014-08-20T18:42:00.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><em>The South African Employment Equity Amendment Act, Act No 47 of 2013</em> (the EEAA) came into operation by means of promulgation with effect from 01 August 2014.</p>
<p>The EEAA as well as other amendments to SA Labor Legislation, to wit the Labor Relations Act, 66 of 1995 (the LRA) and the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon <em>'consensus'</em> was…</p>
<p><em>The South African Employment Equity Amendment Act, Act No 47 of 2013</em> (the EEAA) came into operation by means of promulgation with effect from 01 August 2014.</p>
<p>The EEAA as well as other amendments to SA Labor Legislation, to wit the Labor Relations Act, 66 of 1995 (the LRA) and the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon <em>'consensus'</em> was reached as to most of the amendments required in order to reform SA Labor Legislation.</p>
<p>To date only the EEAA has become law and it is expected that the amended LRA and BCEA would be enacted in the very near future.</p>
<p>This article is intended to be 'PART-ONE' of possible follow-up articles wherein the focus would be on the EEAA, Sections 6(4) & (5) - the amendments to the principal Act, namely the Employment Equity Act, 55 of 1998, and more specifically the Sections in the EEAA that deals with <em>'Equal Pay for Work of Equal Value'.</em></p>
<p>At the outset it should be recorded that the subject matter <em>'Equal Pay for Work of Equal Value'</em> is by its very nature complex in substance, legally technical in nature insofar as it raises all sorts of legal questions, as well as concerns pertaining to issues such as the practical implementation of measures in compliance with the law; and other more controversial issues based on the economic or financial realities of employers that may inhibit legal compliance - to name a few of the many variables.</p>
<p>It was deemed apposite to refer to a panel discussion by Labor Law Experts, P Benjamin, S Gaibie & C Todd, <em>'24th ANNUAL CURRENT LABOUR LAW SEMINAR'</em> LexisNexis (2013) where the observation was made that Sections 6(4) & (5) clarify rather than change SA Equity Laws. The question posed was will the EEAA lead to an increase in litigation?</p>
<p>The World Economic Forum gave SA a score of 0,65 for wage equity, namely that male workers receive 30% more than females doing the same work.</p>
<p>In an authoritative article by J Grogan, <em>'The New Dispensation, Part 2: The Amendments to the EEA and the BCEA'</em> Employment Law Journal LexisNexis (2014) Vol. 30 Part 3, the learned author observes: <em>'<span>As is now well known, the EEA attempts to strike the delicate balance enjoined by the Constitution between the individual’s right to equality and the promotion of equality by legislative measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination” (Constitution of the Republic of South Africa, 1996, sections 9(1) and 9(2)). The Employment Equity Act 55 of 1998 is the legislative measure designed to promote equality in the workplace. Employment equity plans adopted in terms of that act are the “measures”.</span></em></p>
<p><span><em>The overall aim of the amendments to the Employment Equity Act 55 of 1998 is “to further regulate the prohibition of unfair discrimination against employees” and “to provide afresh for the assessment of compliance by designated employers”. As will appear from the review of the amendments set out in this article, the former aim seems to have been made decidedly subservient to the latter</em>.'</span></p>
<p></p>
<p><strong><span><span>Insertion of new sections 6(4) and 6(5) – Work of equal value</span></span></strong></p>
<p></p>
<p><span>The new Section 6(4) has been introduced to deal explicitly with</span> <span>unfair discrimination by an employer in respect of the terms</span> <span>and conditions of employment of employees doing the same</span> <span>or similar work or work of equal value. A differentiation</span> <span>based on a proscribed ground listed in Section 6(1) or any other</span> <span>arbitrary ground will amount to unfair discrimination unless</span> <span>the employer can show that differences in wages or other</span> <span>conditions of employment are in fact based on fair criteria</span> <span>such as experience, skill, responsibility and the like.</span><span>In terms of Section 6(5), the Minister of Labor will be empowered</span> <span>to publish a code of good practice dealing with criteria and</span> <span>methodologies for assessing work of equal value.</span></p>
<p><span>Suffice it to record that the EEA Regulations, 2014 has been published and the contents thereof as well as other pertinent issues and questions as to the subject matter would be addressed in PART-TWO.<br/></span></p>
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INTRODUCING THE NEW EQUILLORE LABOUR DISPUTE RESOLUTION PRACTICE – SOUTH AFRICA
tag:www.adrhub.com,2014-02-15:4905899:BlogPost:57274
2014-02-15T10:52:58.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p style="text-align: left;">On the <strong>1st of October 2013</strong> dispute resolution in South Africa entered into a new era <font face="Arial Narrow" size="3">with the accreditation of <strong>Equillore</strong> , a private dispute resolution agency, by the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the provisions of section 127 of the Labour Relations Act, Act 66 of 1995 (the LRA) to perform dispute resolution functions<strong> </strong>as stipulated in…</font></p>
<p style="text-align: left;">On the <strong>1st of October 2013</strong> dispute resolution in South Africa entered into a new era <font face="Arial Narrow" size="3">with the accreditation of <strong>Equillore</strong> , a private dispute resolution agency, by the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the provisions of section 127 of the Labour Relations Act, Act 66 of 1995 (the LRA) to perform dispute resolution functions<strong> </strong>as stipulated in the LRA.as a an accredited service provider by the Conciliation, Mediation and Arbitration (CCMA).</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">The importance of this occurrence is that <strong>Equiillore </strong> may perform dispute resolution functions<strong> </strong>as stipulated in the LRA,</font> <font face="Arial Narrow" size="3">a move that will dramatically increase and improve access to professional</font> <font face="Arial Narrow" size="3">Dispute Resolution by employees and employers, and assist to</font> <font face="Arial Narrow" size="3">build stability in the South African labour market.</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">The accreditation allows <strong>Equillore</strong> to conduct Conciliation, Mediation and</font> <font face="Arial Narrow" size="3">Arbitration processes (which include Pre-dismissal Arbitration /</font> <font face="Arial Narrow" size="3">Enquiry by Arbitrator) in relation to disputes emerging from the</font> <font face="Arial Narrow" size="3">workplace.</font></p>
<div>It is noteworthy that the <strong>EQUILLORE PANEL PROFILE OF LABOUR EXPERTS</strong> consist of 35 Senior Commissioners/Arbitrators/Mediators and Labour Experts, selected by virtue of their extensive experience and proven skills in labour law, labour relations and conflict resolution.</div>
<p style="text-align: left;"></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3">Established in 1997, <strong>Equillore</strong> is a leader in Commercial</font> <font face="Arial Narrow" size="3">Dispute Resolution services with a nationwide panel of over</font> <font face="Arial Narrow" size="3">200 qualified Commercial Mediators.</font></p>
<p style="text-align: left;"><font face="Arial Narrow" size="3"> </font><b><u><font face="Arial Narrow" size="3">Equillore Services:</font></u></b></p>
<p><b><font face="Arial Narrow" size="3">• Disciplinary Hearings</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Grievance Proceedings</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Pre-dismissal Arbitration /</font></b></p>
<p><b><font face="Arial Narrow"><font size="3"> Enquiry by Arbitrator</font></font></b></p>
<p><b><font face="Arial Narrow" size="3">• Appeal Hearings</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Conflict / Crisis Mediation</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Mediations in Collective Bargaining</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Training & Consulting</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Dispute Prevention Design</font></b></p>
<p><b><font face="Arial Narrow" size="3">• Employment Policy and Contract Design</font></b></p>
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“NEGLIGENCE” - GROUNDS FOR DISCIPLINARY ACTION IN THE HEALTH CARE SECTOR - A SOUTH AFRICAN CASE STUDY
tag:www.adrhub.com,2014-01-28:4905899:BlogPost:57025
2014-01-28T01:46:11.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><span class="font-size-4" style="font-family: arial,helvetica,sans-serif;"> <span style="text-decoration: underline;"><strong>MEMORANDUM</strong></span></span></p>
<p align="center"></p>
<p align="center"></p>
<p align="center"></p>
<p align="center"><font size="3">1.</font></p>
<p align="center"><font size="3"> </font></p>
<p><b><u><font size="3">INTRODUCTION:</font></u></b></p>
<p><font size="3"> </font></p>
<p><font size="3">The importance…</font></p>
<p><span class="font-size-4" style="font-family: arial,helvetica,sans-serif;"> <span style="text-decoration: underline;"><strong>MEMORANDUM</strong></span></span></p>
<p align="center"></p>
<p align="center"></p>
<p align="center"></p>
<p align="center"><font size="3">1.</font></p>
<p align="center"><font size="3"> </font></p>
<p><b><u><font size="3">INTRODUCTION:</font></u></b></p>
<p><font size="3"> </font></p>
<p><font size="3">The importance of highly qualified and skilled employees employed within the healthcare sector speaks for itself; especially due to the very environment within which nurses are employed, which requires a substantial standard of skill and degree of care by virtue of the fact that human lives may be at stake in the event of failure to exercise the expected standard of care and skill by an employee.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">It could be argued that every patient admitted in a hospital should have the confidence that every effort would be utilized to maximise that patient’s chance of recovery, if not survival. </font></p>
<p><font size="3"> </font></p>
<p><font size="3">Therefore, the operational requirements and/or demands by the employer; and the public’s expectation of a <i>“zero tolerance”</i> approach to the incidence of gross negligence is to be expected and respected by every employee employed in the healthcare sector.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">The purpose of this memorandum is to attempt to address the problems and difficulties experienced by employers in the healthcare sector in the administration of disciplinary action in the event where an employee stands to be disciplined based on an allegation of negligence. </font></p>
<p><font size="3"> </font></p>
<p><font size="3">The writer will make reference to, and analyse a collection of authoritative materials relevant to the stated problem, which comprise of binding judicial decisions and other persuasive authorities such as Labour Court judgments, arbitration awards and authoritative publications on the subject matter.</font></p>
<p><font size="3"> </font></p>
<p align="center"><font size="3">2.</font></p>
<p><font size="3"> </font></p>
<p><b><u><font size="3">WHAT IS "NEGLIGENCE"?</font></u></b></p>
<p><font size="3"> </font></p>
<p><font size="3">In most arbitration cases which served before the writer and where the Applicant (employee) was dismissed on the ground of negligence, the Respondent (employer’s) disciplinary code or disciplinary rules made reference to the disciplinary offence of negligence, or gross negligence.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">It is important to record that strictly speaking the inclusion of <i>“negligence”</i> as a disciplinary offence may lead that the trier of a fact may in error interpret negligence as denoting <i>dolus</i> [intention] which comprises the direction of the will <i>[wilfulness]</i> to commit a prohibited act; or an intention by the employee to deviate from the standard of conduct that the <i>diligens paterfamilias</i> or the notional reasonable man <i>[person]</i> would have adopted.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">In order to be negligent, it is not necessary for an employee to have intentionally or wilfully deviated from the standard of conduct that the notional reasonable man <i>[person]</i> would have adopted. It is sufficient that deviation took place. The notion of <i>“wilful negligence”</i> is therefore a contradiction in terms. This notwithstanding, in contemporary labour law it is not unusual for disciplinary codes to contain references to the disciplinary offence of negligence or gross negligence.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">To determine negligence the courts employ the classic three-part test as formulated in <i>Kruger v Coetzee</i> <b>1966 (2) SA 428 (AD)</b>. <b>Holmes JA</b> said the following at 430 E – H:</font></p>
<p><font size="3"> </font></p>
<p><i><font size="3"> “For the purposes of liability culpa arises if -</font></i></p>
<p><i><font size="3"> (a) a diligens paterfamilias in the position of the defendant -</font></i></p>
<p><i><font size="3"> (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and</font></i></p>
<p><i><font size="3"> (ii) would take reasonable steps to guard against such occurrence; and</font></i></p>
<p><i><font size="3">(b) the defendant failed to take such steps.</font></i></p>
<p><font size="3"><i>This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence, the futility, in general, of seeking guidance from the facts and results of other cases”.</i> [Courtesy Advocate B Geach SC].</font></p>
<p><font size="3"> </font></p>
<p><font size="3">Dismissals are often challenged on the ground that dismissal was an inappropriate sanction in that the employer failed to prove <i>“gross negligence”</i>; and therefore a disciplinary sanction short of dismissal should have been meted out.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">The immediate question that comes to mind is what can be termed as “<i>negligence ordinary”</i> or gross negligence, when will it constitute a disciplinary offence, and when will dismissal be justified on this ground? (See Prof<b>. P.A.K. le Roux, <i>Negligence – The Grounds for Disciplinary Action</i></b> <b>Contemporary Labour Law Vol. 5 No. 1 August 1995 at 1 to 6</b>).</font></p>
<p><font size="3"> </font></p>
<p><font size="3">In the article <i>supra</i> Le Roux observes that the concept of negligence is one which has attracted much attention, not only in the field of Labour Law, however, especially in the field of Criminal Law and the Law of Delict. </font></p>
<p><font size="3"> </font></p>
<p><font size="3">The authoritative materials and literature in respect of the concept of negligence are often technical. Furthermore, the concept of negligence need not necessarily have the same content in Labour Law as it has in the Law of Delict or Criminal Law. </font></p>
<p><font size="3"> </font></p>
<p><font size="3">A recent reported judgment by the Labour Appeal Court attracted much attention and precipitated debate as to the legal question(s) that arose from the facts and questions of law; specifically as regards gross negligence within the healthcare sector. </font></p>
<p></p>
<p><font size="3">(See <b><i>Afrox Healthcare Ltd v. CCMA & Others</i> [2012] 7 BLLR 649 (LAC); [</b><b>2012] JOL 208 779 (LAC);</b> also see <b>Dr. John Grogan, <i>“Deadly Negligence”</i> Employment Law Journal, August 2012 <i>LexisNexis</i> August 2012). </b></font></p>
<p><b><font size="3"> </font></b></p>
<p><font size="3">In order to establish what is meant by negligence, Le Roux <i>supra</i> noted that the undermentioned general principles are relevant.</font></p>
<p><font size="3"> </font></p>
<p><font size="3">According to Le Roux <i>supra</i> in general terms, an employee is negligent if his or her conduct deviates from the conduct that a reasonable man <i>[person]</i> would have adopted in the same circumstances. The following three elements should have to be considered:</font></p>
<p><font size="3">According to Le Roux <i>supra</i> in general terms, an employee is negligent if his or her conduct deviates from the conduct that a reasonable man <i>[person]</i> would have adopted in the same circumstances. The following three elements should have to be considered:</font></p>
<p><font size="3"> </font></p>
<ul>
<li><p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Would a reasonable man <i>[person]</i> in the particular circumstances of the employee, have foreseen the reasonable possibility that his/her conduct would cause harm to another person or his/her property?</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
</li>
<li><p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Would a reasonable man <i>[person]</i> have taken reasonable steps to prevent such harm occurring?</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">If the answer to the above questions are in the affirmative and the employee did not foresee such harm and/or did not take such steps he/she will have been negligent.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In the authoritative publication by <b>Grogan J, <i>Dismissal</i>, Juta 2010 at 200 to 202</b> the learned author deals with negligence as well as poor work performance. According to <i>Grogan,</i> negligence is a failure to comply with the standard of care that would be exercised in circumstances by a reasonable person. In the employment context, there is an obvious overlap between negligence and poor work performance, and perhaps, in some cases, between negligence and incapacity. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Where negligence or poor work performance results from circumstances beyond an employee’s control, such as physical or mental incapacity, it should be treated as such. However, it is also permissible in appropriate circumstances to treat both negligence and poor work performance as forms of misconduct.</span></p>
</li>
</ul>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><font size="3"> </font></span></p>
<ul>
<li><p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Would a reasonable man <i>[person]</i> in the particular circumstances of the employee, have foreseen the reasonable possibility that his/her conduct would cause harm to another person or his/her property?</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
</li>
<li><p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Would a reasonable man <i>[person]</i> have taken reasonable steps to prevent such harm occurring?</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">If the answer to the above questions are in the affirmative and the employee did not foresee such harm and/or did not take such steps he/she will have been negligent.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In the authoritative publication by <b>Grogan J, <i>Dismissal</i>, Juta 2010 at 200 to 202</b> the learned author deals with negligence as well as poor work performance. According to <i>Grogan,</i> negligence is a failure to comply with the standard of care that would be exercised in circumstances by a reasonable person. In the employment context, there is an obvious overlap between negligence and poor work performance, and perhaps, in some cases, between negligence and incapacity. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Where negligence or poor work performance results from circumstances beyond an employee’s control, such as physical or mental incapacity, it should be treated as such. However, it is also permissible in appropriate circumstances to treat both negligence and poor work performance as forms of misconduct.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">The question that arises from the commentary and observations by <i>Grogan</i> and <i>Le Roux</i> is what is meant by a <i>“reasonable man/person”</i>. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">The notional “<i>reasonable person”</i> and the question what would the reasonable person have done under the circumstances based on the notion that the person assumed, has skill, attributes and knowledge of an ordinary person is addressed in the publication by <b>J. Neethling, J.N. Potgieter & P.D. Visser, <i>The Law of Delict¸</i> Butterworths 1989 110:</b></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> "<i>The reasonable man is merely a fictitious person, which the law invents in order to have a workable objective form for conduct in society. Accordingly, reasonable man is not an exceptionally gifted, careful or developed person, but neither is he underdeveloped, nor someone who recklessly takes chances or who has no prudence. Between the two extremes the qualities of a reasonable man are found.”</i></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In the healthcare sector and in the event of an allegation of negligence against a nurse, the reasonable person test would not suffice by virtue of the fact that in order to determine whether a highly skilled and specialised worker was negligent, one would not look to the standard of conduct which could be attributed to the reasonable person in the street, but rather to the conduct of a reasonable person with the same degree of skill and knowledge required for that position.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In the much publicised <b><i>Afrox</i></b> judgment the Labour Appeal Court scrutinised the merits and found that the employee, a nursing supervisor, had been amiss in his supervisory responsibility over a trainee nurse on duty in the hospital’s ICU ward, and as a consequence of the supervisor’s lack of care which resulted in the death of a patient, the supervisor was correctly dismissed on the ground of gross negligence.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">According to <i>Grogan</i> at 201 the test for negligence could therefore not be applied <i>in vacuo</i> or against the standard of reasonable people generally, but in the context of the particular workplace or industry.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p align="center"><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">3.</span></p>
<p align="center"><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><b><u>GROSS NEGLIGENCE DEFINED:</u></b></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In order to justify summary dismissal as an appropriate sanction for negligence, the employer carries an onus to prove that the acts or omissions as it manifested constituted gross negligence.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In <b><i>National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop</i> [2013] 5 BALR 481 (MIBC)</b> Van Aarde, C. [at 5.3.5] succinctly defined gross negligence versus ordinary negligence as follows:</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><i>“The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. Gross negligence can be described as a <b>conscious and voluntary disregard of the need to use reasonable care,</b> which has or is likely to cause <b>foreseeable grave injury or harm to persons, property or both</b>. It is conduct that is <b>extreme when compared to ordinary negligence</b></i>. <i>Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur. ...</i> [At 5.3.6] <i>Ordinary negligence and gross negligence accordingly differ in degree of consciousness or inattention; and both differ from ‘<b>wilful misconduct’</b>, which is conduct that is reasonable calculated to cause damage or injury.”</i> [Emphasis added].</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p align="center"><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">4.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><b><u>BRIEF ANALYSIS - <i>AFROX JUDGMENT:</i></u></b></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><i>Grogan J</i> in <i>“Deadly Negligence” supra</i> summarized and commented on <i>Afrox</i> as analysed hereunder.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">A patient was admitted to a certain hospital’s intensive care unit after surgery. Doctors thought the patient would recuperate, but he died the next morning.</span></p>
<p></p>
</li>
<li><p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">It transpired that the patient had developed complications at night which had not been reported to the ICU day staff when they took over. The nurse/supervisor in charge of the night staff and an assistant were charged with negligence and dismissed. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">The Labour Appeal Court held that even without the testimony of junior nurse, there was abundant evidence to prove that the senior nurse had failed lamentably to perform the duties expected of him. He was an experienced nurse held in high esteem by his peers. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">On the night in question, the senior had chosen one of the least experienced nurses in the unit to supervise the patient, and had known early in the evening that his subordinate had made incorrect entries on the patient’s chart.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">He failed dismally in his duty of due diligence and care expected from a person in his position in that he had not drawn the duty doctor’s attention to the errors committed by the junior nurse.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">The Court in effect held that the senior nurse failed to properly supervise his subordinate; and failed to act responsibly when realising that the patient’s condition was deteriorating.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">A further aggravating factor was that the senior nurse had simply handed over to the day staff without mentioning that the patient was in difficulties. The Court found his insistence that the patient had remained in a stable condition incomprehensible. </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In conclusion and of importance was that the LAC accepted that dismissal is <i>“momentous”</i> for most employees. But in the <i>Afrox</i> case the employee had vast experience and worked in an environment in which most decisions were matters of life or death. Given the nature of the employer’s business and the public expectation that the business would be conducted properly, the senior nurse’s dismissal was eminently fair.</span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> </span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Upon analysis of <i>Grogan J</i> in the article referred to <i>supra “Deadly Negligence”</i>, the act or omission and the lack of care and skill manifested itself in the form of the conscious and voluntary disregard of a need to use reasonable care, which was likely to cause foreseeable grave injury or harm to the patient as well as to his employer, in that an employer could be held to be vicariously liable by virtue of the demise of the patient.</span></p>
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<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Our courts have shown to be less tolerant of employees who possess or claim to possess special skills and who, because of their position and experience – qualification – can be expected to be aware of the performance standard set by the employer.</span></p>
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<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">Where the degree of professional skill is required, is on a very high level and potential consequences of the smallest departure of that high standard are so serious, then one failure to perform in accordance with those standards is enough to justify dismissal. (See <b><i>Somyo v. Ross Poultry Breeders (Pty) Ltd</i>, [1997] 7 BLLR 862 (LAC).</b></span></p>
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<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;">In conclusion, dismissed employees often use as a defence in cases of dismissal on the gound of negligence lack of; or non-existence of professional in service training and continued education by the employer either as a complete defence; or as mitigating circumstances. In such event it would be incumbent on the employer to submit evidence in rebuttal, failing whereto the presiding Commissioner may find in favour of the employee and order either retrospective reinstatement or a substantial amount in compensatory relief to the employee.</span></p>
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<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><b>___________________________</b></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><b>JOHANN SCHEEPERS</b></span></p>
<p><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"><b>CCMA Commissioner - Tshwane Region</b></span></p>
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<p><strong><span class="font-size-3" style="font-family: arial,helvetica,sans-serif;"> November 2013</span></strong></p>
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"WHY SHOULD YOU CARE ABOUT DIVERSITY, EQUITY & INCLUSION"
tag:www.adrhub.com,2014-01-16:4905899:BlogPost:56564
2014-01-16T19:37:45.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p><span class="font-size-4"><b><u><font face="Arial Narrow">WORKPLACE CONFLICT IN SOUTH AFRICA - A CASE STUDY OF WESTERN CULTURE v AFRICAN CULTURE</font></u></b></span></p>
<p><font face="Arial Narrow" size="3">In a recent judgment by the South African Supreme Court of Appeal (SCA), the Court pronounced on a labour dispute which some of the readers may find of some interest. Following hereunder a posting by the writer in which he dealt with the judgment and its potential consequences for South…</font></p>
<p><span class="font-size-4"><b><u><font face="Arial Narrow">WORKPLACE CONFLICT IN SOUTH AFRICA - A CASE STUDY OF WESTERN CULTURE v AFRICAN CULTURE</font></u></b></span></p>
<p><font face="Arial Narrow" size="3">In a recent judgment by the South African Supreme Court of Appeal (SCA), the Court pronounced on a labour dispute which some of the readers may find of some interest. Following hereunder a posting by the writer in which he dealt with the judgment and its potential consequences for South African employers. Following hereunder, a comment which employers, employees and trade unions may find of assistance in clarifying the subject matter.</font></p>
<p><font face="Arial Narrow"><font size="3"> <b>THE LEGAL STATUS OF A TRADITIONAL HEALER'S CERTIFICATE v. MEDICAL CERTIFICATE - QUESTIONS ARISING FROM KIEVITS KROON COUNTRY ESTATE v. MMOLEDI & OTHERS (875/12) [2013] ZASCA 189 (29 NOVEMBER 2013) </b></font></font></p>
<p><font face="Arial Narrow" size="3">By now most zealous readers of South African Labour Court judgments have come across the as of yet unreported Kievits Kroon judgment delivered by the SCA on 29 November 2013. The judgment has caused a stir amongst employers for what appears to be all the wrong reasons. The perception is that the Court elevated a "certificate" or "letter" from any traditional healer to the same status as that of a medical practitioner as defined in section 1 of the BCEA, 75 of 1997. In Kievits Kroon the employee was dismissed due to unauthorised absence from work in that she attended a course to become a traditional healer. She requested permission to be absent from work for a month and submitted a letter, as well as certificate from a traditional healer in substantiation of the necessity to be trained as a traditional healer. The training and eventual graduation as a healer was a ancestral calling which she was obliged to honour failing whereto she would face all sorts of evil including death. The employer refused permission; however, the employee in defiance attended the training and upon return to work was dismissed. Subsequent to a dispute referral to the Commission for Conciliation, Mediation & Arbitration (CCMA) she was reinstated without back pay.</font></p>
<p><font face="Arial Narrow" size="3">The employer took the matter and review and appeal and was unsuccessful. The Labour Appeal Court (LAC) held that, <i>"Section 23 of the Basic Conditions of Employment Act, Act 75 of 1997 (BCEA), finds no application on the issue in this case. Similarly, the argument [by the employer] that by enacting section 23 of the BCEA the legislature in express terms opted for standards in line with Western standards as opposed to African culture is misplaced as well. I am as a result unable to find, as we are urged to do, that the Commissioner usurped the function of the legislature by elevating the role of traditional healers to that of medical practitioners".</i></font></p>
<p><font face="Arial Narrow" size="3">It was contended further that the effect of the Commissioner’s findings and award was to open the floodgates to <i>“malpractices that operate towards turning the work environment into total disarray, contrary to the latter and spirit of labour legislation”.</i> The LAC rejected the argument, <i>"It would be disingenuous of anybody to deny that our society is characterized by a diversity of cultures, traditions and beliefs. That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The Constitution of the country itself recognizes these rights and practices. It must be recognized that some of these cultural beliefs and practices are strongly held by those who subscribe in them and regard them as part of their lives".</i> The arbitration award and the two court decisions, which were upheld by the SCA, despite references made to illness, Kievits Kroon was not a case dealing with absence from work due to illness. The case turned on whether an employee's unauthorized absence from work justified dismissal.</font></p>
<p><font face="Arial Narrow" size="3"> </font><font face="Arial Narrow"><font size="3">The Commissioner found that the employee had a justifiable reason for being absent. Regarding the <i>"opening of floodgates"</i> the LAC referred to what Langa CJ said in <b><i>MEC for Education, KwaZulu-Natal and others v Pillay</i></b> <b>2008 (1) SA 474 (CC) at par [107] [also reported at [2008] JOL 20810 (CC) – Ed]</b> <i>...Firstly, this judgment applies only to bona fide religious and cultural practices. It says little about other forms of expression. The possibility for abuse should not affect the rights of those who hold sincere beliefs...These authoritative remarks are equally relevant in this case. It must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges".</i></font></font></p>
<p><font face="Arial Narrow" size="3">A reader of the posting posed the following question:</font> <i><font face="Arial Narrow" size="3">“Are we really expected to conduct business on this basis. Surely there needs to be more stringent guidelines. What about all the other beliefs of all the various religions that exist? <br/> There is a little too much emphasis being placed on cultural beliefs and rights to the detriment of the rights of the employer”.</font></i></p>
<p><b><u><font face="Arial Narrow" size="3">The Reply:</font></u></b></p>
<p><font face="Arial Narrow"><font size="3"><i>“Dear Sir, as is the case in all judgments it is important to first read the facts and then ascertain from the reasons contained in the judgment, the findings of the Court and the legal principles established, if any. Of importance was that in the LAC judgment which preceded that of the SCA, the LAC specifically made reference to the decision of the Constitutional Court in <b>MEC for Education, Kwazulu-Natal and Others v. Pillay</b></i> <b>2008 (1) SA 474 (CC),</b> <i>wherein the CC pointed out that protection would only be granted to bona fide cultural and religious practices, that diversity was something to be celebrated and not feared. The acceptance of one practice would not require an employer to permit all practices. If accommodation would impose an unreasonable operational burden on an employer it need not make such an accommodation. Employers should consider "Kievits Kroon - scenarios" with care and, where possible, to seek to accommodate the employee in this regard, taking into account its own legitimate operational and other requirements.</i></font></font></p>
<p><i><font face="Arial Narrow" size="3">In the LAC and SCA judgments the Courts identified that there will always be instances where diverse cultural and traditional beliefs and practices create challenges within our society. Employers should study the arbitration award and the High Court judgments wherein reference was made, in passing, as to a legitimate and fair manner which a Kievits Kroon-scenario should be managed. However, employers should not expect the Courts to assume an advisory role in Industrial Relations Management. It is the duty of responsible management to engage employees in a joint consensus-seeking process in an attempt to reach an agreement on a policy and procedure in order to manage the issue”.</font></i></p>
<p><font face="Arial Narrow" size="3">In conclusion, one could use the expression, <i>“Never a dull moment for South African managers”!</i> However, solace is to be found in the knowledge that from the contents of the postings on the various blogs it is very much apparent that South African managers should not get despondent due to the prevalence of workplace strife. In an article by Mr Ed Sweeney, chairman of ACAS, a UK based organization wherein he observed, "There are signs that the difficult economic climate in recent times has seen an increase in individual disputes, as employers look to cut costs and improve performance. For example, the CIPD's 2011 conflict management survey reported that 'the scale of workplace conflict is remarkable and has increased in the recession' - importantly, one message has emerged loud and clear - senior management in organizations needs to start thinking about conflict as a strategic issue". Innovative approaches to conflict management need to be integrated with broader strategies related to employee health, wellbeing and engagement.</font></p>
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<p><font face="Arial Narrow" size="3">There is growing evidence that workplace mediation can help to resolve issues that might otherwise result in long-term absence and litigation, offering substantial savings in terms of staff time and cost.</font></p>
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<p><i><font face="Arial Narrow" size="3">Johann Scheepers</font></i></p>
<p><i><font face="Arial Narrow" size="3">Commissioner of The Commission for Conciliation, Mediation & Arbitration (CCMA) - South Africa</font></i></p>
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"Equal Employment For All Act" - A South African View
tag:www.adrhub.com,2013-12-26:4905899:BlogPost:56350
2013-12-26T17:14:18.000Z
Johann Scheepers
http://www.adrhub.com/profile/JohannScheepers
<p align="left"><b><font face="Arial Narrow" size="3">A South African View Of “The Equal Employment For All Act”</font></b></p>
<p align="left"><font face="Arial Narrow" size="3">By</font> <a href="http://www.foxrothschild.com/attorneys/bioDisplay.aspx?id=2674" title="Visit Richard Cohen’s website"><font face="Arial Narrow" size="3">Richard Cohen</font></a> <font face="Arial Narrow" size="3">on December 24, 2013Posted in…</font></p>
<p align="left"><b><font face="Arial Narrow" size="3">A South African View Of “The Equal Employment For All Act”</font></b></p>
<p align="left"><font face="Arial Narrow" size="3">By</font> <a title="Visit Richard Cohen’s website" href="http://www.foxrothschild.com/attorneys/bioDisplay.aspx?id=2674"><font face="Arial Narrow" size="3">Richard Cohen</font></a> <font face="Arial Narrow" size="3">on December 24, 2013Posted in</font> <a title="View all posts in General Employment Discrimination" href="http://employmentdiscrimination.foxrothschild.com/articles/another-category/"><font face="Arial Narrow" size="3">General Employment Discrimination</font></a><font face="Arial Narrow" size="3">, “Employment Discrimination Report” , Fox Rothschild LLP.</font></p>
<p align="left"><font face="Arial Narrow" size="3">We</font> <a href="http://employmentdiscrimination.foxrothschild.com/2013/12/articles/uncategorized/what-is-the-equal-employment-for-all-act/"><font face="Arial Narrow" size="3">recently posted</font></a> <font face="Arial Narrow" size="3">about this legislation proposed by Senator Elizabeth Warren that would prohibit inquiries into the credit histories of job applicants.</font></p>
<p align="left"><font face="Arial Narrow"><font size="3"><b><i><u>Johann Scheepers</u></i></b>, Commissioner at the Commission for Conciliation, Mediation and Arbitration in the <b>Johannesburg Area of South Africa</b>, provided an interesting perspective:</font></font></p>
<p align="left"><font face="Arial Narrow" size="3">“I fail to see the nexus between a ‘bad credit history’ vis-a-vis trustworthiness or reliability as selection criteria used in making appointments. In the current unfavorable economic climate most employees, who could be categorized as from the middle class, struggle to make ends meet. It has been said that many employees ‘are one pay cheque short of bankruptcy.’ If the criterion of ‘bad credit’ is used as a yardstick for employment, employers may find it difficult, if not impossible to fill vacant positions. The said criterion is in substance and nature based on a subjective employment practice such as recruitment decisions based on the exercise of personal judgment or the application of subjective criteria. It therefore constitutes indirect discrimination in employment practice.</font></p>
<p align="left"><font face="Arial Narrow" size="3">In terms of South African legislation, an employer has a statutory defence in that if the employer could prove that the discriminatory act is the result of ‘an inherent requirement of the job,’ the act would be fair. This notwithstanding, the Courts and tribunals adopted a narrow construction of the ‘inherent requirement of the job defence,’ and stressed that the defence ought to be construed narrowly, ‘[A]ny legislatively formulated justification of discrimination constitutes, in effect, a limitation on the constitutionally entrenched right to equality and this militates against an expansive reading of the phrase “an inherent requirement of the job.’</font></p>
<p align="left"><font face="Arial Narrow" size="3">It would be interesting to know if the US Legislator included a similar ‘escape clause’ in the Act under discussion based on the wording of other US legislation, for example, ‘business necessity’ or ‘bona fide occupational qualification’ or prerequisite for employment?”</font></p>
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