The rain goes on

The role played in labour relations by bad weather has been aired in the courts, but there are still foggy patches

Everyone knows about Cape Town’s often appalling weather, but until now I had not heard of it playing a role in court. So crucial was it in a recent case, however, that evidence had to be obtained from an expert at the SA Weather Service. The story starts on Wednesday August 14, 2013, when management of Power Construction, having consulted the forecasts, advised its building crews they would be off the following day because of expected bad weather. Workers wanted the Friday off too but management refused.

As expected, Thursday’s weather was foul. On Friday everyone arrived on time but no-one started work. Testifying later, witnesses for the National Union of Mineworkers tried to suggest Friday’s weather was as lousy as on the day before. It started raining soon after they arrived at work, forcing them to take shelter. Later, when they were warned by management to begin work, it started raining again, they said.

And this is where the expert evidence of Riaan Smit, senior forecaster and head of the forecasting unit at the Western Cape office of the SA Weather Service, came in. His evidence was that when it rains less than 2.5mm an hour this is considered “light”, and that on Friday, when workers claimed they couldn’t work because of the downpour, the amount of rain that actually fell was “insignificant”.

In any case, management added, if the workers were concerned about that Friday’s “insignificant” rainfall, they all had official-issue rain suits.

Through that Friday and Monday workers were warned, verbally and then in writing, to go back to work, alternatively to appoint representatives who could discuss their grievances with management. They refused, however, and eventually around noon on Tuesday August 20 all 33 workers were dismissed.

At a meeting the following day management offered to rehire all the sacked workers if they agreed to come back and work and acknowledge that they had not followed the proper course in handling their grievances.

They would also have to acknowledge they were now effectively on final warning in the event of similar behaviour in the future.

Management further reserved its right to discipline anyone involved in intimidation.

But the former employees refused to accept what the court would later call “not unreasonable” conditions. Abortive attempts at conciliation followed, leading ultimately to the labour court hearing.

The matter was finalised in the last week of July, with Judge Anton Steenkamp declaring all 33 dismissals fair.

But there is a significant aspect of the law left unresolved: how are courts to interpret the civil engineering sectoral determination regulating work and pay for days affected by socalled “inclement weather”?

The problem is a 2009 amendment. The determination lays down rates of pay under various conditions when ordinary hours of work are reduced because of the weather. For example, if workers have a day’s notice that there will be no work because of the weather, then they don’t have to be paid for the lost day, except that such reductions may not exceed a third of the week’s wage.

The 2009 amendment, however, says employers must pay a full day’s wage no matter how many hours are lost to inclement weather.

So, does this amendment apply in cases where the employer has given notice the previous day that there will be no work because of the weather? In the Power Construction case, the NUM said it applied; management said it did not.

But because the weather expert proved that on the crucial Friday the weather wasn’t actually “inclement” in the first place, there was no need for the court to interpret this clause.

Thus for now the clause, its meaning and its possible impact all continue to hang over the industry.

Rather like a Cape Town winter storm waiting to break.