It happens that as part of business services to clients, employees may be required work at or to enter a client’s premises or sites to fulfil their specific service offering. Examples range from cleaning companies and service providers to mines. Where service providers have employees fulfilling these services and contract obligations on their behalf, what can employers do in the awkward situation where their client informs them that one of their employees is no longer allowed on their premises?
Not sure how to proceed when access is revoked? Speak to a labour law expert about your obligations.
When clients deny employee access: What are your options?
A service provider faced the problem of having a willing and able person who was unable to fulfil their contractual obligations and was required to be replaced by one who could. What process needs to be followed to ensure fairness? Retrenchment in terms of S189? Or would it be a process of some form of incapacity?
Understanding incapacity versus retrenchment
Incapacity is generally seen as resulting from ill health or poor performance, but in Samcor Chrome Ltd (Tubatse Ferrochrome) v Metal & Engineering Industries Bargaining Council & Others (2010) 31 ILJ 1828 (LAC), the Labour Appeal Court rejected this narrow interpretation and found that incapacity is not limited to instances only relating to performance, ill-health or injury, but that other forms of incapacity also existed.
What is supervening impossibility in labour law?
Should it happen than an employee be unable to access the place of work they were originally employed for, resulting from a supervening factor, such factor not being caused or created by either the employee or the employer, supervening impossibility as a form of incapacity may be the correct process to follow.
Key case law supporting incapacity-based dismissals
In Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) [2017] ZALCJHB 371, it was found that supervening impossibility as an incapacity will be an appropriate process to follow where employees are banned to enter client’s premises. Dismissal under this process qualifies under the form of a “no-fault” dismissal and therefore the employee would be entitled to notice pay. Remember that all alternatives need to be explored and dismissal needs to be the last resort.
Why not follow a process to retrench the employee? The case of FNB v CCMA (JR 1476/2016); [2017] JOL 38283 (LC) (handed down on 10 July 2017) the LC on review upheld the Employer’s reason for dismissal in that it pertained to incapacity, as opposed to a dismissal for operational requirement.
Understanding incapacity vs operational requirements
The Court held that in the event of incapacity, the focus is on the qualities of the Employee, whereas in the event of operational requirements, the focus is on the Employer and its decisions relating to its business. Since the dismissal originated from the Employee’s inability to meet a legal requirement, the Commissioner had committed a material error in law when he changed the reason for dismissal to that of operational requirements.
Risks of using supervening impossibility incorrectly
However, businesses need to be very careful when relying on the doctrine of supervening impossibility as a route to escape their contractual obligations. These legal principles do not provide a simple exit from a contract.
Consult a labour law expert before taking action
Consulting with a Labour Law specialist would be wise if you consider invoking supervening impossibility as a reason for dismissal. Before you make any dismissal decisions, consult with Labournet’s legal experts to ensure compliance with South African labour law.
For more information on the above topic, please contact LabourNet Eastern Cape at Regional Support: 087 292 5808. Contact: Phikolomzi Malamlela (060 6428 659) at pmalamlela@labournet.com or Robert Niemand (082 824 7359) at robertn@labournet.com
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