The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment-related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury. Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances…
While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The key question is ‘How can the employer go about proving that…
The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned. Under the PDA both employees and employers are protected. That is, employees are…
In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to: Subpoena witnesses and documents On authorisation, enter and inspect any premises on which any relevant document or other object is to be found On authorisation, remove and inspect any relevant document or other object…
Employers too often make the mistake of retrenching problem employees because they perceive the disciplinary process as being too drawn out and complicated. However, they are not allowed to use retrenchment to get rid of ‘deadwood’, trouble makers, poor performers or other undesirables. Retrenchment only becomes a possible option if the job is truly redundant….
The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to: be remunerated for work done be given vacation leave, sick leave, maternity leave and family responsibility leave be paid for overtime worked lunch breaks weekly…
To have a chance of winning a case at CCMA a party must present proof to the arbitrator. In the days when I arbitrated CCMA matters parties argued their cases before me very vehemently, passionately and in great detail but often brought little or no support for their arguments. They were then most surprised when…
When an employer temporarily requires an employee to vacate its premises and to stop performing his/her duties this is called ‘suspension’. The effect of a suspension is that the employee is not allowed to return to work until the employer instructs that he/she may do so. Such suspensions normally occur: While the employer is investigating…
Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include: The employer dislikes the employee for reasons unrelated to the workplace. The owner wants a more attractive secretary The employee is unwilling to grant her superior sexual favours The employee has clashed with a key executive who has…
In a Labour Court review the party who is unhappy with the award asks the Labour Court to set the award aside on the grounds that the arbitrator, in making the award, ‘misconducted himself/herself’. That is, the review application is not an appeal against the award decision but rather a claim that the arbitrator: Committed…