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Scholars ponder Klusener's lot
18 August 2003
Monday Paper recently sought comment from a few scholars at UCT to share their expertise and thoughts on the axing of Lance Klusener from the Proteas squad, and his subsequent case against the United Cricket Board of South Africa (UCB) in front of the Commission of Conciliation, Mediation and Arbitration (CCMA). Klusener is claiming compensation from the UCB for failing to renew his contract, even though, he says, he was told that it would be done.
According to cricket enthusiast Rochelle le Roux of UCT's Institute of Development and Labour Law, Klusener and his lawyers have a two-pronged action to look forward to. He must firstly prove that he has in fact been dismissed (a word with many legal shadings), after which the CCMA has to be convinced (although not so much by him) that the dismissal was unfair.
For the former, Klusener will be turning to section 186(b) of the Labour Relations Act, said Le Roux. This notes that an employee has been dismissed should he or she have "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".
"Klusener must show that he had a reasonable expectation that they would renew the contract, but then didn't," observed Le Roux. "Once he can show that - and it isn't easy - then there is a dismissal."
Should Klusener succeed in doing this, it is then up to the UCB, under section 192(2) - Onus in dismissal disputes - of the Labour Relations Act to prove that the dismissal has been fair. "There is a shift in onus," noted Le Roux.
To make their side of the case, the UCB, under Section 188 of the Act, need to show that Klusener was dismissed because of his conduct or capacity (which includes job performance), or their own operational requirements. Basing their case on performance, for example, could be iffy (Klusener was after all - with the bat at least - one of the better performers during the World Cup, bar his eight-ball, one-run plod in the decisive clash against Sri Lanka), said Le Roux.
But capacity, these days, also includes compatibility, she pointed out. "This means that you're not gelling well, that you don't fit into a particular employment environment. "You're not necessarily a bad apple, but because of your personality, you're an impediment to the team."
This is of course what remarks by captain Graeme Smith would seem to suggest. At a breakfast function after Klusener was dropped, Smith described Klusener as a player who despite his obvious talents, "can cause hassles" and "ruin a team".
According to Helene Smit, a part-time lecturer in group dynamics at the Graduate School of Business (GSB), and Robert Macdonald, a consultant and former MBA director at the GSB, these public harangues could have been avoided. Currently writing a book on depth consulting - working with the deeper, unconscious and often unspoken processes in groups - the two also penned an article on the same topic in which they (admittedly as outsiders not privy to the inner workings of the Proteas team, they point out) touched on Klusener's unceremonious jettison.
Was the question of Klusener's shortcomings as a team player - something often alluded to in the press - properly addressed at the pre-World Cup team-building exercise in the Drakensberg, they pose? Comments by Klusener - he even went so far as to invite Smith for a beer and a candid chat - would indicate not.
How do you tell the star of the last World Cup that you don't want him in your team because he is not a team player, Macdonald and Smit ask in their article? By getting everyone into a room rather than running up and down picturesque hills, they propose. "You need to find out why people are anxious to talk about certain things, then help them to deal with that anxiety and get them to talk about those difficult 'undiscussables'," noted Smit.
For now, it appears that all the talking will be done not by the players or around a cold lager (or, as is wonted in England, a warm one), but by legal representatives in a court of law.
According to cricket enthusiast Rochelle le Roux of UCT's Institute of Development and Labour Law, Klusener and his lawyers have a two-pronged action to look forward to. He must firstly prove that he has in fact been dismissed (a word with many legal shadings), after which the CCMA has to be convinced (although not so much by him) that the dismissal was unfair.
For the former, Klusener will be turning to section 186(b) of the Labour Relations Act, said Le Roux. This notes that an employee has been dismissed should he or she have "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".
"Klusener must show that he had a reasonable expectation that they would renew the contract, but then didn't," observed Le Roux. "Once he can show that - and it isn't easy - then there is a dismissal."
Should Klusener succeed in doing this, it is then up to the UCB, under section 192(2) - Onus in dismissal disputes - of the Labour Relations Act to prove that the dismissal has been fair. "There is a shift in onus," noted Le Roux.
To make their side of the case, the UCB, under Section 188 of the Act, need to show that Klusener was dismissed because of his conduct or capacity (which includes job performance), or their own operational requirements. Basing their case on performance, for example, could be iffy (Klusener was after all - with the bat at least - one of the better performers during the World Cup, bar his eight-ball, one-run plod in the decisive clash against Sri Lanka), said Le Roux.
But capacity, these days, also includes compatibility, she pointed out. "This means that you're not gelling well, that you don't fit into a particular employment environment. "You're not necessarily a bad apple, but because of your personality, you're an impediment to the team."
This is of course what remarks by captain Graeme Smith would seem to suggest. At a breakfast function after Klusener was dropped, Smith described Klusener as a player who despite his obvious talents, "can cause hassles" and "ruin a team".
According to Helene Smit, a part-time lecturer in group dynamics at the Graduate School of Business (GSB), and Robert Macdonald, a consultant and former MBA director at the GSB, these public harangues could have been avoided. Currently writing a book on depth consulting - working with the deeper, unconscious and often unspoken processes in groups - the two also penned an article on the same topic in which they (admittedly as outsiders not privy to the inner workings of the Proteas team, they point out) touched on Klusener's unceremonious jettison.
Was the question of Klusener's shortcomings as a team player - something often alluded to in the press - properly addressed at the pre-World Cup team-building exercise in the Drakensberg, they pose? Comments by Klusener - he even went so far as to invite Smith for a beer and a candid chat - would indicate not.
How do you tell the star of the last World Cup that you don't want him in your team because he is not a team player, Macdonald and Smit ask in their article? By getting everyone into a room rather than running up and down picturesque hills, they propose. "You need to find out why people are anxious to talk about certain things, then help them to deal with that anxiety and get them to talk about those difficult 'undiscussables'," noted Smit.
For now, it appears that all the talking will be done not by the players or around a cold lager (or, as is wonted in England, a warm one), but by legal representatives in a court of law.
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