Employment rights

Employees have constitutional rights, which include the right neither to be unlawfully nor unfairly dismissed.  Lawfulness requires proof of gross misconduct before employers may dispense with reasonable notice of termination.  Fairness obliges employers to prepare factual allegations and averments and allow employees to respond thereto and be heard before any final decision is taken.

Employees have statutory rights to refer all alleged disputes to the CCMA, bargaining Council or Labour Court.  These rights relieve senior management of any obligation to conduct a formal process similar to a ‘trial’.  The Afrikaans language correctly expresses the difference as ‘aanhoor’ and not ‘verhoor’.

Apart from wrongfulness and unlawfulness senior management must be able to prove not only a valid reason to terminate but also the fairness of that reason. If an incident is completely unintentional it would almost certainly be regarded as unfair to dismiss, despite being a valid reason.

Holistic approach

In other words, validity and fairness involve a holistic consideration of what happened and then to consider the possible impact thereof on the future employment relationship.  Senior managers have the right to manage enterprises according reasonable standards of behaviour and performance, but not to punish employees.  Potential crimes should be reported to the authorities for investigation and possible prosecution.

John Patten

John Patten has provided another thought provoking ‘editorial’ on what happened outside Port Elizabeth and it shows  how critical it is for senior management and employers to know,  understand  and apply employment law correctly.  Very often blame has to be apportioned and not directed only at employees even in the most horrendous circumstances.

19 September 2020 – Racehorses

“What is to be done with the case of the racehorses in the Fairview stables outside Port Elizabeth?

The facts, as publicised so far, are fairly straightforward, but the consequences could be considerable. This is not a simple labour dispute.

What has been made public is that a groom in the Fairview stables stabbed one of the horses and was dismissed by management for this action. Why he stabbed the horse has not been made public. Grooms of the stable united in demanding the reinstatement of the dismissed groom. When this was refused, they went on strike. The matter was taken to mediation. The mediation court upheld the action of the management in dismissing the groom.

Then all hell broke loose. Early one morning this past week a throng of grooms and their supporters descended on the stables, opened the doors and stabbed horses with pangas as they came out. As the horses escaped in all directions, one was stabbed dead, four had broken legs and several were slashed with pangas. Two of the racehorses were eventually found kilometres away alongside the freeway. Several of the horses were so badly injured that they will never race again.

A National Horseracing Authority delegation was sent urgently to Port Elizabeth on Thursday after riot police had to be called to re-establish order. The matter has not been resolved, and there could be questions as to how it can be resolved.

To some, this incident will be viewed as an unspeakable atrocity performed on beautiful and entirely innocent animals. To others it may just be seen as justified revenge for what was regarded as unfair dismissal of an employee.

Almost as an aside to this emotive confrontation is the fact that these racehorses are each valued at hundreds of thousands of rand, in some cases millions of rand. The owners are not South Africans. They live in Europe and Britain.

Many labour disputes which end in violent protest demonstrations and damage to property start with arrests and dismissals but are eventually resolved by charges being withdrawn so that work can be resumed.

Can this be the outcome of this case? Charges of cruelty to animals could be laid. There could be charges of damage to property. There could be massive claims by horse owners of damages for the injury to the horses but claims the grooms would be unable to pay.

Which grooms were responsible for what damage in this case? That would be extremely difficult to prove. It is equivalent to a mob situation where no one takes the blame. The grooms and their supporters would not admit to their guilt in this incident. Proof of guilt on any one of the protesting grooms could be inconclusive.

Any back-away from facing the consequences of killing valuable racehorses could lead to foreign racehorse owners removing their animals from South Africa. The country would have a bad name in the world of horse racing.

Will the Fairview stable ever be able to be resurrected from this disaster? It is difficult to imagine how it can happen.

The trust that is essential to running a horseracing stable has been shattered. Can horse owners ever put the care of their valuable horses in the hands of grooms who have demonstrated that they will kill or maim horses because of a dispute with stable owners?

How deep is the love of horses among grooms, who are essential to the preparing and training of their charges, if they can attack the mounts put in their care? Foreign horse owners who have invested big money in the industry in South Africa have been given a jolting shock.

If the horse owners decide to withdraw their horses from South Africa, the industry will indeed be struggling. As it is, Mary Oppenheimer single-handedly had to come recently to the rescue of an industry already badly affected by the Covid19 pandemic. This is a shocking blow to her efforts to stabilise a noble but struggling industry.

At the bottom of this present trouble appears to be a cultural difference between how grooms see their work and how owners see it.

Racehorses are highly strung animals brought to the peak of fitness to try to win races for their owners. If they repeatedly fail, they fall by the wayside. If they repeatedly succeed, they win big money and go on to stud where they win further big money. It is a game of huge chance where training is vital to success.

Unlike other animals, horses have a competitive instinct which enables them to race to win. A good jockey on a well-prepared horse can do wonders on the track.

I can remember watching a horse in Durban named Flaming Rock enter the final straight in last place in a big race, yet he surged through the ranks to win at the post, because the jockey knew how to time his sprint to perfection and knew what his charge was capable of. It is indeed an exciting thing to watch.

Grooms are a vital part in the training of these animals. They should love them as much as the owners and jockeys do. If they cannot do that, they shouldn’t try to make a career as a racehorse groom. They should never in their greatest moments of frustration harm such animals.

If the grooms’ protest leads to stables closing in Port Elizabeth because grooms can’t be trusted, then the grooms will simply lose their jobs. They will have engineered their own destruction. They live in an area of huge unemployment. Their position would become desperate.

Surely labour disputes should not be allowed to get to this level where everyone in the dispute is injured because a sensible way of dealing with disputes can’t be arrived at.

The industry as a whole will urgently have to find an answer to this problem.

Besides the races associated with horse races, there are whole society events arranged around those races – the Durban July in Durban, the Summer Cup held in Johannesburg, and the Metropolitan Handicap and L’ormarins Queen’s Plate held in Cape Town.

The fashion industry also depends on these events for the display of the latest women’s fashions, and these help to capture the general public’s interest, which goes far beyond horse racing or women’s fashion.

The advertising industry also becomes dependent on such public events. The ripples out from the horse racing industry are considerable.

Those sent to tackle the crisis at Fairview stables carry a heavy responsibility in finding a way forward.”