Terry Bell vs Business Report

Complainant: Terry Bell

Lodged by: Terry Bell

Article: Council rules Terry Bell was BR contractor

Date: 28 September, 2014

Respondent: Business Report

Complaint

The story in dispute was published in Business Report (BR, a publication of Independent Newspapers) on 13 August 2014, headlined Council rules Terry Bell was BR contractor.

Bell complains that the story:

  • deliberately misrepresented the ruling made by the statutory Council for the Printing, Newspaper and Packaging Industries; and
  • has done harm to his reputation.

The story

The article stated that the Statutory Council for the Printing, Newspaper and Packaging Industries (“Council”) had handed Independent Newspapers a victory by ruling that axed BR freelance columnist, Terry Bell, had not been an employee – and therefore, that he had not been unfairly dismissed. Bell reportedly referred his dismissal to the CCMA after his column was suspended as part of a strategic review of BR. “Rather than waiting for the outcome of the review, Bell instead claimed to be an employee and [claimed]that he had been unfairly dismissed.” However, Independent Newspapers argued that Bell was a freelance journalist (an “independent contractor”) and not an employee – therefore, he did not enjoy the protection and benefits of the Labour Relations Act, and Council thus lacked the jurisdiction to consider the matter any further.

Bell’s argument

Bell says the statement in the story that the council “handed Independent Newspapers a victory” by ruling that he was “a freelance columnist and not an employee” was beside the point – the extent of council jurisdiction in this matter was merely a “technicality”.  Conversely, he says that the findings of the commissioner, Mr C.M. Bennett, that were absent from the story, “completely vindicated” him.

He states: “I had taken the matter to the council on the basis that my…dismissal as a columnist after 17 years amounted to unfair labour practice, especially since I had already been informed that my next annual cycle of contributions was to begin.  These facts were widely known both within the media and the labour movement.”

Bell argues that Bennett:

  • upheld his complaint that he was “shabbily treated”;
  • noted that his treatment by BR could not have been “construed to be fair labour practice by any standard”;
  • stated that the company had shown a “callous disregard” for the impact its dismissal would have on him (“this scarcely qualifies as a ‘victory’ for the employer”); and
  • concluded:  “It is ironic that a prominent advocate for workers’ rights (Bell) should find himself without the protection of the laws set up to protect workers.”

Bell adds that the article has done harm to his reputation, in particular as an advocate for workers’ rights – and conveyed a wrongful impression to readers and other workers about obtaining redress through the CCMA process.

The newspaper’s response

BR denies that the story misrepresented Council’s ruling, and argues as follows:

  • The main issue in the arbitration proceedings was the question whether or not Bell was an employee of or an independent contractor to Independent Newspapers;
  • Bell was seeking compensation for alleged unfair dismissal. However, in order to be eligible for unfair dismissal rights, an employment relationship had to have existed between him and Independent Newspapers (as only employees, and not independent contractors, enjoy any unfair dismissal rights). So, if Bell was found not to be an employee, he would not enjoy any unfair dismissal rights, there could be no finding of unfair dismissal and he would not be entitled to any of the relief that he sought;

·         Council concluded that Bell:

o   was not an employee, but rather an independent contractor; and

o   therefore did not enjoy the protection and benefits of the Labour Relations Act – which meant, as stated in the finding, that Council lacked jurisdiction to consider the matter further (as Bell did not enjoy any right to compensation for unfair dismissal);

  • Council’s findings did not relate to a mere “technicality” – Bell had claimed a right that he did not have. “This was a complete vindication of Independent Newspapers defence of Mr Bell’s claim that he was an employee and entitled to statutory protection as such”, as well as that of the reportage;
  • The references to shabby treatment and the like did not mean that the story was a misrepresentation in that the comments by the arbitrator in question were:
    • made only in relation to his determination of the ancillary, subordinate issue of whether an order of costs should be made against Bell, given that his case had been defeated – they did not relate to main conclusion of the council in the matter, namely that Bell was not an employee and therefore did not have any of the rights he claimed;
    • gratuitous and not binding or authoritative findings – having found that Bell was not an employee, the arbitrator had no jurisdiction to determine whether Independent Newspapers’ actions could be construed as a fair labour practice. These comments by the arbitrator are accordingly not binding or authoritative findings and did not impact on the substantive decision of Council which disposed of the matter, namely that Bell was an independent contractor who was not entitled to any of the rights to fair treatment and protection from unfair dismissal that he claimed.

Analysis

It is not my task to decide whether or not Bell was unfairly dismissed – my only interest (and jurisdiction) in this matter is whether the story truthfully, accurately and fairly reflected Bennett’s decision.

The outcome of the Arbitration Award, dated 7 August 2014, does not resonate with Bell’s arguments:

After outlining some technical detail and arguments on both sides (pages 2 – 8), Bennett analyses the matter. Firstly, he rejects Independent Newspapers’ argument that the presumption of employment status should not apply, taking Bell’s total income into account. From that perspective, the commissioner puts forward seven factors which, if Bell was able to establish the presence of “any one” of these issues, “the presumption of employment will operate in his favour”.

Having explained these factors and applied the matter at hand to all of them, Bennett states: “Having concluded that one factor is certainly present (hours of work per month) and that a second, economic dependence, may be present, can I reasonably conclude that because of these, Mr Bell was an employee? With so many factors of employment not present, I regret that I cannot.” (Emphasis added.)

In a separate conclusion, Bennett argues as follows: “Having considered carefully all the evidence presented, I conclude that the preponderance of probabilities favour the conclusion that Mr Bell was not an employee, but rather an independent contractor. As a consequence of that finding, Mr Bell does not enjoy the protection and benefits of the Labour Relations Act and therefore the Council lacks the jurisdiction to consider the matter further.”

Having compared the gist of the Arbitration Award with the story, I submit that the article truthfully, accurately and fairly reported the essence of Councils’ finding and, given the nature of the outcome, that it was justified in calling it a “victory” for Independent Newspapers.

As such, I have no ground to find that the story caused Bell any unnecessary harm.

Finding

The complaint is dismissed.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman