Labour Law

Employees do not ordinarily have an automatic entitlement to a pay increase or to advancement up the corporate ladder. However, the Labour Relations Act (LRA) does allow employees who have been passed over for promotion to lodge an unfair labour practice dispute at the relevant bargaining council.

Employees who lodge grievances OR CCMA disputes are too often victimized for exercising their rights. Such victimization often takes the form of dismissals for incompatibility.

Even where an employment contract is silent on the employer’s expectations of the employee common law expects the employee to be loyal to the employer.

The Department of Employment and Labour Is calling on employers to take action to stop harassment in the workplace. This comes after more than 1000 disputes were referred to the Commission for Conciliation Mediation and Arbitration (CCMA) over the last year.

Yes, it is true that our government has lifted its Covid restrictions as a means towards promoting economic activity. While this will assist businesses to improve their sales, employers and employees need to bear some important things in mind:

The Labour Relations Act, seven other labour acts and numerous codes of good practice have all been designed to protect employees. And indeed, employees need protection from unscrupulous employers. However, the imbalance is so great that our labour laws leave employers virtually unprotected.

Our labour dispute resolution system often claims jurisdiction over foreign employers. When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil.

The law makes it essential for employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve.

The CCMA, from time to time, suffers case backlogs and delays in resolving disputes. One of the reasons for this is the fact that the CCMA is overloaded with cases, and the caseload is constantly increasing.

On 18 March 2022, the Minister of Employment and Labour (Minister) published the ‘Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace’ (Harassment Code). The Harassment Code is effective from 18 March 2022. The Minister has, simultaneously, repealed the ‘Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace’.

Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct or poor performance. Normally, such discipline would be found to be unfair. However, one view is that a second disciplinary process might be justified if the employer is able to present evidence that:

Employers are required by law to contribute to the Unemployment Insurance Fund (UIF). Failure to contribute to the fund could leave workers without crucial financial relief if they are unable to work. 

In common law employers and employees have the obligation to treat each other fairly and within the law. 

Where the employer fails to attend an arbitration hearing the arbitrator is entitled to continue without the employer unless the arbitrator is aware of an acceptable reason for the employer’s absence. As the arbitrator has little or no way of testing the truth of the employee’s evidence he/she will most often accept the employee’s version and find against the absent employer. This is called a default judgement.

Whether the dismissal of an employee who accused a fellow employee of racism and threatened and intimidated her was substantively and procedurally fair.

Dishonesty has traditionally been seen as a serious offence and one that could render an employment relationship intolerable. This is because dishonesty damages the ability of the employer to trust the employee. 

When an employer contemplates retrenching employees it is required by the Labour Relations Act (LRA) to first consult about this prospect before making any decision to retrench. Where the relevant employees belong to a trade union the employer is required to consult with that union on a number of issues, the most important of which is any means of avoiding job losses. 

The presiding officer (PO) of a disciplinary hearing must hear the evidence from both sides properly in order to be able to consider it once the hearing is adjourned for purposes of a verdict. The PO then assesses the evidence collected at the hearing in order to decide whether the employee is guilty or not guilty of the charges. 

On Friday 21 January 2022, the Commission for Conciliation, Mediation and Arbitration (CCMA) delivered a much anticipated first pronouncement on the fairness of a dismissal following an employee’s refusal to receive the Covid-19 vaccination.