In the South African employment landscape, we are fortunately in a position where employees enjoy a right to opportunities for occupational training and advancement.
This obligation is not only underpinned by the rights afforded by the Constitution of the Republic of South Africa – such rights being supported by pieces of legislation, but also our courts going some way to recognizing that employers are in some circumstances obliged to provide such opportunities.
The Constitution of the Republic of South Africa 1996 in the Bill of Rights, seeks to address issues of inequality in South Africa by providing a framework which fosters the protection and development of people by prohibiting unfair discrimination, endorsing the right to fair labor practices, free choice of trade, occupation and profession, a basic education-including adult basic education and further education and also enjoining the state to progressively make available and accessible such education.
The realization of the objects of the Bill of Rights necessitating the training and skills development of the workforce, a framework of legislation has been promulgated including:
1. The Skills Development Act 97 of 1998- which aims to enhance the skills of the South African workforce through a levy-financing scheme which involves mandatory payments by employers to the Commissioner for the South African Revenue Service- which are in turn used to support an institutional and financial framework comprised of the National Skills Authority, the National Skills Fund, and various sector education and training authorities.
The Act’s objectives include increasing investment in education and training within the labor market, encouraging employers to use the workplace as an active learning environment, providing employees with opportunities to acquire new skills, offering the chance to gain work experience to new entrants to the labour market, encouraging workers to participate in learning programs, improving the employment prospects of individuals previously disadvantaged by unfair discrimination and addressing those disadvantages through training and education- thus ensuring that the quality of learning in and for the workplace is maintained.
2. The Employment Equity Act 55 of 1998, which aims to retain and develop people from designated groups and also to implement appropriate training measures- including measures in terms the Skills Development Act.
In addition to the Statutory framework as described above, the Labour Relations Act also supports the right to occupational advancement in that it defines as an unfair labour practice, unfair conduct by an employer relating to the promotion, demotion or training of an employee. In addition thereto, the Act defines constructive dismissal when as an employee terminates its employment because the employer made continued employment intolerable.
The result of this is that an employee who in the workplace is unfairly deprived of access to training and opportunity – thus making the continuation of employment intolerable, may be entitled to resign and claim that he or she has been constructively dismissed and to seek compensation in the applicable forum for the resolution of labour disputes.
This scenario was touched on in the case of National Health Laboratory Service v Yona where the test for constructive dismissal was described in the following words:
“The test for proving a constructive dismissal is an objective one. The conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances”.
In addition to the above, our courts have affirmed the obligation on employers not to let employees stagnate in their positions.
In the case of Ndabakazi Mkhutshulwa vs Department of Health, Eastern Cape and two others, Labour Court of South Africa, Gqeberha (CASE NO: PR 134/17), the court was presented with a claim that the Applicant had been constructively dismissed.
In this matter, whereas the applicant had been employed as an Assistant Director, General Maintenance and enjoyed a diploma in Horticulture and a postgraduate diploma in Project Management, she was marginalized, was not allocated work, found herself doing nothing for months – affecting her mental health and despite reaching out to the employer regarding her working conditions and the failure to assist her perform her KPAs, her grievances received no attention.
As a result of this, the Applicant resigned and claimed that she had been constructively dismissed.
The court upheld the argument for constructive dismissal – reasoning that the employer had an obligation to ensure that the Applicant was given work in order to develop her expertise and also and that paying the applicant her monthly salary was not enough.
Although there were other contributing factors which led the court to come to the conclusion that the Applicant’s continued employment had been made intolerable, the court held that the respondent’s conduct through its employees had made the Applicant’s continued employment intolerable- constituting an unfair constructive dismissal of the applicant.
In Eskom v Marshall & Others [2003] 1 BLLR 12 (LC), the Labour Court held that an unfair labor practice claim relating to the deprivation of training opportunities does not require an antecedent right to be trained and that a legitimate expectation to be considered for an established training programme presented by the employer or on behalf of an employer, would suffice. The result of this is that an unfair labour practice may occur where an employer frustrates an employee’s legitimate expectation of receiving training in terms of an established training program presented by or on behalf of the employer.
Our courts have unfortunately not gone so far as to recognise training as an employee’s right– thus allowing an employee to declare a dispute if none is received. At present, unless the provision of training is an obligation arising from contract or there is a training program at the workplace from which an employee is unfairly deprived of an opportunity to partake in, any claim by an employee that the deprivation of training is an unfair labour practice will likely be unsuccessful.
For now, therefore, in order for employees to challenge the withholding of opportunity or training by employers, employees will have to rely on unfair discrimination, a legitimate expectation or, in extreme cases, constructive dismissal in the case if being denied same.
The above is intended for informational and educational purposes only. Please consult with our team for further advice.
