Norton Rose launches a new blog

As announced yesterday, Norton Rose has launched a new blog entitled the Global Workplace Insider which will provide readers with commentaries on labour and employment matters across the globe. 

We hope that you will join us at www.globalworkplaceinsider.com!

How an employee behaves after a disciplinary measure

Altercations between employees can be the subject of disciplinary measures and many grievance arbitration cases have discussed the reasonableness of these measures in such cases. Can the attitude of a person after his/her suspension be taken into consideration by the arbitrator to decide whether the disciplinary measure was justified or not in the first place? This was one of the questions arbitrator Jean Ménard recently had to decide in Syndicat des employees et employés de la scierie de St-Michel-des-Saints (CSN) et 6929818 Canada inc, 2013 CanLII 648 (QC SAT).

In this case, the plaintiff, Mr. Hogue, filed a grievance alleging that his 5-day suspension was unreasonable. Mr. Hogue, a union representative, had a heated argument with another employee, Mr. Vadnais, following a divergence of opinion on an issue involving the affairs of the union. Following the altercation, the plaintiff was suspended for 5 days. A few weeks after his suspension, the plaintiff told the employee with whom he had the altercation, that if he had a problem, he would not defend him. He also told another employee that if Mr. Vadnais testified against him during the hearing, he would exclude Mr. Vadnais from the union.

Appearing before the arbitrator, on one aspect of the file, the employer argued that the latter should take into consideration the attitude of the plaintiff which continued even after his suspension, showing that he had no remorse whatsoever. The union’s attorney objected to the admissibility of the evidence, saying these were facts subsequent to the grievance and were consequently irrelevant to the case.

The arbitrator decided that the facts were not only relevant, but admissible as evidence. They helped the arbitrator appreciate the plaintiff’s credibility and the reasonableness of the disciplinary measure. Although it is true that a 5 day suspension can seem unfair for a “one minute altercation”, the attitude of the griever after his suspension, in addition to the other elements showing that the employee had committed a serious fault, showed that it was in fact justified.

This decision is certainly interesting in that the observance of a behaviour after a contested disciplinary measure can act as an element of evidence to justify the disciplinary measure itself.

In collaboration with Audrey Anne Chouinard, articling student at Norton Rose Canada LLP

Jurisdictional point or conciliation proceedings in South Africa?

The Labour Appeal Court, in Shell SA Energy (Pty) Ltd v NBCCI and others: unreported JA42/10,  found that where necessary and warranted, evidence should be led to prove jurisdictional points and if a commissioner disallows this evidence, such conduct may constitute a reviewable irregularity.

The facts of the case were briefly that Mr Ali was employed by Shell Sudan and was assigned to Shell South Africa for a period of 4 years.  Mr Ali was compensated on a completely different system to that of Shell South Africa’s employees.  While on assignment Shell Sudan was bought by Oil Libya and Mr Ali was advised that he should start planning his repatriation back to Sudan prior to the effective date of the sale.  Mr Ali received a severance package from Shell Sudan and did not make use of any of the Sudanese dispute resolution procedures. 

Instead he referred an unfair dismissal dispute against Shell South Africa.  At conciliation Shell South Africa’s legal representative raised a jurisdictional point that there was no employer-employee relationship between Shell South Africa and Mr Ali and in turn Mr Ali objected to the presence of Shell South Africa’s legal representative.  Shell South Africa’s legal representative also submitted that oral evidence should be heard to resolve the material disputes of fact regarding the true identity of Mr Ali’s employer and that the resolution of a jurisdictional point did not form part of the conciliation process.  This would accordingly not preclude legal representation.  The commissioner ultimately ruled that Shell South Africa’s legal representative should leave the room and argument was led by an employee of Shell South Africa and Mr Ali.  During the argument both parties referred to certain documents and no oral evidence was lead.  The commissioner found that Shell South Africa was Mr Ali’s employer.

The matter was taken on review to the court a quo which found that a conciliator had no discretion to allow legal representation at conciliation proceedings and that Shell South Africa was not entitled to legal representation.  The court further found that in terms of the jurisdictional point, a written application should have been submitted, which would have granted Shell South Africa legal representation.  The court a quo went on to find that the commissioner had correctly found that Shell South Africa was Mr Ali’s employer.

On appeal the main issue was that notwithstanding the jurisdictional objection, the court a quo found that the proceedings constituted a conciliation hearing which disallowed legal representation.  In addition the commissioner engaged in a fact finding exercise instead of allowing the presentation of evidence to establish whether an employer-employee relationship existed. 

The Labour Appeal Court found that the court a quo erred by not finding that the commissioner’s refusal to allow evidence and relying on the documents was reviewable. This approach is dangerous in that the court relied on form rather than substance. 

The Labour Appeal Court further found that the commissioner’s refusal to allow Shell South Africa to lead “viva voce” evidence constituted a material irregularity warranting the setting aside of the decision.  On this basis the Labour Appeal Court deemed it unnecessary to consider the other alleged irregularities.  The order of the court a quo was set aside and the matter was remitted back to the NBCCI for a fresh hearing before a different commissioner.  

Audi alteram partem and the mail

It is not uncommon for companies to elect domicile at their attorney’s offices. The attorney receives the client's correspondence and ensures that the necessary follow-ups are done. But what happens when there is miscommunication between the attorney and the client? This was recently the question before the Superior Court of Quebec in Maxi-Crisp Canada inc. c. Commission des relations du travail, 2013 QCCS 298.

It all started with a complaint for wrongful dismissal, filed pursuant to section 124 of the Act Respecting Labour Standards. After a failed conciliation attempt, the Commission des relations du travail (CRT) sent both parties a notice of hearing for January 4, 2012. The employer had elected domicile at its attorney’s offices in downtown Montreal. Upon receiving the notice, the lawyer, who was only responsible of the company’s corporate affairs, sent the notice to the external auditor. The auditor then transmitted the notice to the employer by fax, but it was later discovered that the transmission had failed. The company never received the notice of hearing and was consequently absent on the scheduled date.

On January 5^th, the employer received a judgment from the CRT upheld the complaint. The employer filed for a review of the decision, alleging that it had not had the opportunity to be heard or present its position, as required by the rules of natural justice (audi alteram partem). The CRT rejected the motion, the administrative judge being of the opinion that the hearing notice had been validly served and that the employer had to live with the consequences of having a complex mail transmission method. Aware that conciliation had failed, the employer should have taken the necessary means to ensure that the correct address was on file. Moreover, the company could not raise the negligence of a third party.

The employer then asked the Superior court to quash the CRT’s decision because the audi alteram partem principle had not been respected.  The Superior Court begins by noting that according to the Supreme Court’s decision in Dunsmuir, the standard of review for alleged violation of the duty of procedural fairness is the standard of correctness. According to the judge, the reasons raised by the employer were serious and ought to have been accepted by the administrative judge. The judge notes that there is no grave injustice for the complainant should the review decision be quashed, as she will simply have to repeat her arguments regarding her unjust dismissal complaint before the CRT once more.  The employer having been deprived of its right to be heard, the CRT’s review decision is quashed and the unjust dismissal case was returned to the CRT to be heard on its merits.

While the rules of natural justice prevailed, this decision certainly underscores the importance of keeping track of all correspondence and ensuring that the right documents are sent to the right place the first time around.

In collaboration with Audrey Anne Chouinard, articling student at Norton Rose Canada LLP

How much money will a court award an employee whose fixed term contract of employment has been unlawfully terminated?

A fixed term contract of employment refers to an employment contract that is for a limited duration only. In the matter of the South African Football Association v Kwena Mangope, the Labour Appeal Court reduced the damages which the Labour Appeal Court awarded to Mr Mangope from R1.7 million to R669 903.

Mr Mangope was employed by the South African Football Association as its Head of Security for 3 years mainly to ensure a safe Soccer World Cup in 2010. After 4 months of rendering services Mr Mangope’s employment was terminated without further ado for alleged poor performance.

Mr Magope approached the Labour Court, not claiming that he was unfairly dismissed, but claiming that his contract of employment was unlawfully terminated. The South African Football Association was unable to proof that Mr Mangope breached or repudiated his employment contract as it could not proof that Mr Mangope was not performing to satisfaction or even if his performance was poor, that it amounted to a breach of the contractual obligation to perform.

In assessing the amount of damages which the Labour Court awarded to Mr Mangope, the Labour Appeal Court stated that the perception that when a fixed term contract of employment is terminated prematurely and unlawfully, the employee would be entitled to be paid out for the remainder of the contract, is a misperception. The employee would still need to prove his actual damages which would be reduced by any benefits received by the employee during that time. The employee is also obliged to mitigate his loss, meaning if he can find employment, he should do so.

As to an employee’s future loss, this needs to be proved as well. It could be that the employee has no future loss being immediately employed at the same or an even higher salary. When it comes to future loss, the value of the future salary should be established before and after the breach. If the employee can proof that, but for the breach, he would for the remainder of the employment period, have earned his salary he would be entitled to that salary for the remainder of the period less any amounts that he reasonable might have earned. The court will look at the reasonable period it would take a person in the position of the employee to obtain similar employment. The court will also look at the fact that monies paid now would be of more worth than monies paid in future. 

Mr Mangope could only proof damages of R669 903 and accordingly the Labour Appeal Court reduced the damages originally awarded to him to this amount.