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Is the labour law reasonable?

Ivan Israelstam

HR professionals grapple with the legal term 'reasonable' because when defining this concept, dictionaries use terms that also need to be defined, making it difficult to reach a universal understanding. The concept of reasonableness has a strong subjective element. For instance, if you're pressing for a salary increase then a raise of 50% might seem reasonable to you if you've been earning less than other people doing similar jobs. However, if your employer is short of cash and doesn't want to set a precedent of giving 50% increases then a demand for a 50% increase wouldn't be reasonable to him.

The term 'reasonable' is used in labour law not only to describe pay demands but in many other areas as well. For example, this concept comes up when the following questions are asked:

  • Can the employer prove that the employee - accused of insubordination - refused to obey a 'reasonable' instruction'? Why was it a reasonable instruction? What made it unreasonable to the employee?
  • Was the trade union's decision to embark on an unprocedural strike reasonable?
  • Is it reasonable for an employer to hire armed security guards to evict strikers from their premises?
  • Was the employer's decision to dismiss an alcoholic employee fair and reasonable under the circumstances or would a 'reasonable' employer have sent the employee for treatment?
  • Was it reasonable for the employee involved in retrenchment consultations to refuse the employer's offer of a transfer to another branch?

Another area in labour law where 'reasonable' appears is in section 186(1)(b) of the Labour Relations Act (LRA) which says that the meaning of 'dismissal' includes where "an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it."

In the case of Scholtz and Others vs Dynamic Labour Brokers, the Commission for Conciliation, Mediation and Arbitration (CCMA) held that the employer's decision not to renew the fixed-term contracts of some of its employees was an unfair dismissal because the arbitrator believed that the employees had reasonable expectations that their contracts would be renewed. The arbitrator's view was based on the following facts:

  • The employer did renew the contracts of some employees doing the same work as the applicants. This showed that there was work available after the contracts expiried and that it was reasonable to expect a renewal.
  • The 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 "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".

This judicial definition means that a reasonable expectation 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."

This is because a 'rational decision' is based on rational thought and the facts presented and not on subjective needs or problems.