Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
One of the most unfathomable words used in labour legislation is the word ‘reasonable’ because the statutes do not define this word and it has a highly subjective component.
The term ‘reasonable’ comes up when the following questions are asked:
- Can the employer prove that the employee, accused of insubordination, refused to obey a ‘reasonable’ instruction’?
- Was the trade union’s decision to embark on an unprocedural strike reasonable?
- Can the Labour Court, in considering the review application of a CCMA arbitration award, decide whether the arbitrator’s decision to disallow certain evidence was a reasonable one?
- Was it reasonable for the employee involved in retrenchment consultations to refuse the employer’s offer of a transfer to another branch?
In the case of Scholtz and Others vs Dynamic Labour Brokers the CCMA held that the employer’s decision not to renew the fixed-term contracts of some of its employees was an unfair dismissal. This was because the arbitrator believed that the employees had a reasonable expectation that their contracts would be renewed. The arbitrator’s view was based on the facts that:
- The employer did renew the contracts of some employees doing the same work as the applicants in the case. This showed that there was work available after the expiry of the contracts and that it was therefore reasonable to expect a renewal
- Those employees whose employment was terminated were chosen at random.
In the case of Auf der Heyde vs University of Cape Town (2000, 8 BLLR 877) the Labour Court advanced a definition of the concept of “reasonable expectation”. The Court defined it as, “an equity criterion, ensuring relief to a party on the basis of fairness in circumstances where the strict principles of the law would not foresee a remedy”. I interpret this judicial definition to mean that a reasonable expectation is one which entitles the holder to win an award based not on a piece of legislation but on the fairness of the circumstances surrounding the expectation. While this definition may act as useful guideline to legislators it is not useful to the average employer because it is circular in nature.
I prefer to define the concept of ‘reasonableness’ as, “a situation, decision or viewpoint based on objective thinking, the facts of each case and a balance between the rights and legitimate needs of the parties concerned.” The decision is based on rational thought and on the facts presented rather than on subjective needs or problems.
Due to the endless interpretations that can be placed on this concept employers need to obtain sound labour law advice on the reasonableness of their plans before taking actions relating to employees.
Details:
To book for our Cape Town Seminar on 13 November on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via ronni@labourlawadvice.co.za or 0845217492.
