Unfair labour practice dispute on demotion, fairness and duress.
- Unfair labour practice dispute on demotion, fairness and duress.
Case:
Labour Court (LC) in Komatsu Mining Corporation Group v Metal and Engineering Industries Bargaining Council and Others (JR2725/21) [2024] ZALCJHB 361 (29 October 2024)
Background:
On 03 May 2001, Mr. Conference Zwane (“the employee”) was hired by Komatsu Mining Corporation Group (“the employer”) as a Fitter. He was promoted to position as Foreman on 03 October 2018. The employee’s subordinate, Ms. Nonkulunga Kabanvane (an electrician) requested to change her shifts from day shift to night shift. The employee sent an email to Management and informed them that discussions had taken place between other employees to swap the electricians, to enable Ms. Kabanvane to work nightshift. Management of the employer responded to the employee the following day per email, and reminded him of the agreement, which was in place that no woman was going to work night shift. Other important managerial issues were also raised regarding the way decisions were taken. Only certain recipients were copied in these emails. The employee forwarded both emails to Ms. Kabanyane.
As a result, the employer had two allegations of misconduct against the employee for breaching confidentiality when he sent the emails to Ms Kabanyane. A disciplinary hearing followed, and the employee was found guilty and in a recommendation that he be dismissed. The employee lodged an appeal, and the chairperson also found him guilty. It was recommended that he be demoted and transferred to another department. Thereafter, three discussions were held between the employee and the employer. The employer then sent a letter to the employee in which the agreement to the demotion in another department was confirmed.
The employee was accordingly demoted to a Fitter. An unfair labour practice was referred to the bargaining council, which culminated in the award against the employer. In arbitration, the commissioner found that the emails were not confidential and that the demotion and transfer were both inappropriate. Accordingly, the employer committed an unfair labour practice and the employee had to be reinstated to Foreman.
This application was launched by the employer, seeking a review and setting aside the arbitration award. The application was opposed. The LC found that the first email sent and forwarded by the employee, was not confidential. The second email was found to be confidential, as it contained confidential concerns and issues in the managerial level.
The Commissioner found that the employee was not guilty of sharing confidential information, but the LC stated that the decision falls outside the range of decisions that a reasonable decision maker could arrive at based on the evidence.
The employee testified that he was placed under duress and no agreement existed for the demotion. He confirmed the agreement, that he be moved to another department. The LC considered the LAC findings in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation And Arbitration and Others (Builders Warehouse). Whether the demotion was agreed to, is a vital consideration in the assessment of fairness as stated ““may well be decisive when the merits of the complaint are adjudicated“.
On deciding duress, the LC considered Arend and Another v Astra Furnishers (Pty) Ltd 1974 1 SA 298 and applied the facts of this case to the elements of duress. The LC found that duress was not present. After considering all the evidence, it was evident on probabilities that he agreed to the demotion at another department. The employee never responded to the employer nor contested the demotion, after discussions were held and upon receipt of the ‘agreement’ letter. The LC then considered whether the demotion was unfair, despite being agreed to (not through duress), and confirmed that the Commissioner’s finding that it was unfair falls outside a range of reasonable decisions. The LC confirmed that it is bound by the LAC judgement and section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.
Considering the above the LC found that there would be no purpose to remit the matter to the CCMA and a substitution award would be appropriate. The LC ordered that the arbitration award was reviewed, set aside and it substituted the award. The LC dismissed the ‘unfair dismissal dispute’. The LC made no order as to costs.
Key learnings:
- If an employee disagrees that he had an agreement with his employer to be demoted, proof of his disagreement must be present showing that he disputed the ‘agreement’. If an employee cannot prove that he disagreed to his demotion, the assumption will be that he agreed.
- When an employee claims duress in an agreement, the elements of duress must be established in each case:
“i. The fear must be a reasonable one.
- It must be caused by the threat of some considerable evil to the person concerned or his family.
iii. It must be the threat of an imminent or inevitable evil.
- The threat or intimidation must be unlawful or contra bonos mores.
- The moral pressure used must have caused damage.”
- Confidentiality of an employer is not limited to trade secrets or proprietary commercial information but can be confidential in its nature when it pertains to an issue at managerial level.
