Dismissal for refusing to sign an employment contract?

Employers are often at a loss when an employee refuses to sign a contract of employment. Can the employee be disciplined or dismissed? What other measures are available to the employer?

One of the most common that employers make is to appoint a person without having agreed on all the terms and conditions of employment. When the employee is subsequently required to sign a contract of employment, the employee refuses or fails to sign the contract. This may be due to some misunderstanding or unhappiness with regard to particular provisions in the contract.

Our law states that verbal employment contracts are perfectly binding. But, obviously, it’s better for both employer and employee to enter into a written contract, to record all the pertinent rights and obligations of both parties. This avoids vagueness.

What should an employer do if it does not have a written agreement in place?

It is important to explain to the employee that it is to the benefit of both parties to have a written contract of employment. The provisions of the contract should be explained to the employee and the parties must establish whether there are any areas of disagreement. If there are none, and the employee still refuses to sign the contract, it serves no purpose to attempt to compel the employee to do so.

The Basic Conditions of Employment Act does not require the parties to enter into a written contract of employment. It simply requires the employer to supply the employee with written particulars of employment and it provides that certain items must be included in such particulars. The employer complies with the provisions of the Act if it provides the employee with a copy of the draft contract with a note that the employee has refused to sign it.

A signed written contract does, however, have definite advantages. It brings certainty and reduces the likelihood of disputes. There might also be provisions that are important to the employer, e.g. confidentiality or a restraint of trade undertaking. The enforcement of such provisions would be very difficult, if not impossible, without a signed contract. 

If the employee refuses to agree explicitly with a provision that is reasonable, the employer may embark on a procedure that could lead to the termination of the employee’s services due to operational requirements (retrenchment). 

Professional advice and assistance are recommended in these circumstances.

How to get that noisy neighbour to shut up

I am often asked what a person can do about excessive noise coming from a neighbour’s property.

The term ‘nuisance’ is derived from the Latin word nocere which means ‘to harm’.

A person may sue his neighbour for damages suffered as a result of excessive noise caused by the neighbour. The person must show that that the noise has detrimentally affected his quality of life, his health, comfort or well-being. An interdict is also available in these instances and can be granted if the neighbour’s conduct is unlawful or threatens to be unlawful. The factors that are normally considered in determining whether the defendant’s conduct was unlawful include the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard. No fixed standard is available to determine the unlawfulness of the defendant’s conduct, the criterion being ‘not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of the ‘reasonable man’, one who, according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property’.

In Prinsloo v Shaw 1938 AD 570 575 the court stated: ‘A resident in a town, and more particularly a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy’.

When can a CCMA commissioner rely on a polygraph test?

Our case law is uncertain. In misconduct matters an employer must present evidence that it used an outside expert to conduct the lie-detection test that links the employee to the offence. 

The person hearing the dispute will decide on the weight to be given to the evidence.  Employers will take a risk if they retrench employees on the ground merely that they declined to submit to a polygraph test.

When is a polygraph test admissible evidence in CCMA proceedings?

The results of a polygraph test should not be admissible if the person who conducted the test is not qualified to testify as an expert about the validity and reliability of polygraph testing in general and the fact that the test in question has been conducted in terms of acceptable standards.

In Truworths Ltd v CCMA and Others (2008) JOL 22565 (LC) the applicant applied to review and set aside an arbitration award.  The test for review is whether the arbitrator’s decision is one which a reasonable decision-maker could not have made.  The arbitrator had ignored the outcome of a polygraph test despite the fact that a trained polygraphist was called to testify at the arbitration proceedings.  The court stated that ”it cannot be said that a decision was reasonable if the arbitrator disregarded material relevant facts or factors placed before her in coming to a decision” and held that this was a reviewable irregularity.  This conclusion lead to the review application being granted and the arbitration award set aside.  The lesson is that a commissioner may not disregard polygraph evidence but still has discretion as to how much weight to accord to the evidence. 

What evidentiary weight must a commissioner place on a polygraph test?

Little weight should be given to polygraph evidence when it is not corroborated by further evidence linking the dismissed employee to the offence.  A dismissal based only on polygraph evidence will thus not be upheld.

Does the refusal to submit to a test justify retrenchment?

In SA Transport & Allied Workers Union & Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC) the employees were contractually obliged to submit to periodic polygraph tests. They refused to do so and were retrenched.  The employees argued that the reason for their dismissal was theft, but the court disagreed and held that “[T]he purpose of the polygraph test was manifestly not to show that theft had actually taken place; it was to test the integrity of all who worked in positions where considerable amounts of theft had previously taken place”.  The court ruled that the retrenchments were fair. However, in National Union of Mineworkers & Others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC) the labour court expressed misgivings about the correctness of the decision in Khulani although it was bound by it. 

The law on this issue is thus not clear and employers should think twice before they dismiss and employee because he or she failed a polygraph test.

Spoliation – when a landlord takes the law into his own hands, at his peril

It is a reality that when faced with a tenant who falls into arrears, some landlords consider taking the law into their own hands, for example by either locking the tenant out of the property or cutting off the electricity or water supply to the property. This can be an expensive course of action for the landlord.

The landlord has a duty to allow the tenant undisturbed use and enjoyment of the leased premises for the duration of the lease. Should the Landlord breach this duty, the tenant has the right to apply to Court, for a SPOLIATION order. This means that the Court will order that occupation of the property be restored to the tenant and the Landlord will be liable for the tenant's legal costs of the Spoliation Application, which can be quite substantial. The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period.

The following cases will demonstrate the repercussions of a Landlord taking the law into his own hands:

Locking Out

NTSHWAQELA & OTHERS v CHAIRMAN, WESTERN CAPE REGIONAL SERVICES COUNCIL, & OTHERS 1998(3) 218 CPD. The applicants had lived illegally in shacks on some land. The police and the Council tried to move the applicants to a township and mounted a removal operation. The applicants launched a Spoliation Application, alleging that they were illegally deprived of the undisturbed use and enjoyment of the land in question. The Court found that all the applicants had to prove was that they were in possession of the land and ordered that they be returned to the sites in question and that they be restored to the position they were in prior to their removal. The respondents were ordered to pay the costs of the applicants herein, and effectively, had to re-build their shacks. 

Cutting Off Electricity Supply

NAIDOO v MOODLEY 1982 (4) 82 TPD. The Landlord gave the tenant notice terminating the lease. Summons was issued, however, the parties settled the matter agreeing that the tenant would vacate the property on 1 April 1981. Tenant did not vacate and was again sued for ejectment. On 9 May 1981 the Landlord cut off the electricity supply. The tenant successfully applied for a Spoliation Order against the Landlord. The Court found that the use of electricity was an incident of occupation and that by cutting off the electricity the Landlord had substantially interfered with the tenant's occupation. The Landlord was ordered to restore the electricity supply and pay the tenant's costs of the application.

When a debt prescribes (lapses)

You may have been on the receiving end of a threat from a debt collector or law firm, demanding that you pay a debt, which goes back years.

The Prescription Act provides that the basic period of prescription is 30 years in respect of any ‘judgement of debt’ and 3 years for any ‘other debt’.

The effect is that in the case of any other debt, where no payment has been made for a period of 3 years, the debt has ‘prescribed’. This means that the debt has been completely extinguished and does not have to be paid.

Prescription is ‘interrupted’ by the issue of summons (before the three years are up) or by any express or tacit acknowledgement of liability by the debtor (such as a payment of any amount towards the debt, within the three years).

So some advice: if a debt collector calls or writes to you to claim payment of a debt that is older than 3 years (and you have not paid anything in the past three years, or admitted liability in that time, or the creditor hasn’t sued you) claim prescription and refuse to pay.