Labour Law

A disciplinary warning is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead it is a notification that punishment or other corrective measures could follow.

Employers frequently suspect that serious misconduct has occurred but are unable to prove which employee or employees are responsible. Some case law has given the impression that, in such circumstances, group dismissals may be justified. This impression has been given by two important cases; those involving Score Supermarkets and Snip Trading.

The Unemployment Insurance Fund exists to provide temporary financial assistance to individuals if they ever become employed. The fund follows a process in order to ensure that payments are made to beneficiaries.

South Africa’s Labour Relations Act of 1956 was replaced soon after the transition of government in the mid 1990s because it was considered to favour employers in the view of the new government and its trade union allies. By 1995 South Africa’s new constitution had entrenched labour law rights very strongly and the labour movement had become very strong.

Employers often hire staff on the basis of a fixed-term contract, thinking that this can make life easier for the employer. This is often not the case because, when they want to end the employment relationship, the pawpaw could hit the fan.

Very few workplace issues elicit as firmly held views or fears as the topic of constructive dismissal. Whether it is a manager, fearful of doing something wrong and at risk of an employee lodging the dreadful claim of constructive dismissal, or Harvey Spectre wannabes cascading their views on the legal impact of such a claim: say "constructive dismissal" and you have everyone's attention.

The Department of Labour is now urging employees to normalise applying for the Unemployment Insurance Fund (UIF) on time. 

Can you dismiss an employee who refuses to obey instructions? To answer this, we look at the case of Media Workers' Association of South Africa obo Hoohlo and others v SABC SOC Ltd.

While many individuals look forward to retirement and all it entails, some people want to continue working beyond retirement age. However, this could have legal implications that may allow an employer to terminate your contract once you’ve reached 60 years of age.

While the Basic Conditions of Employment Act stipulates four types of regulated leave to which employees are entitled – annual leave, sick leave, family responsibility leave and parental leave – employers may choose to offer their staff various other forms of leave which are not governed by legislation.

Item 4(1) of the Code of Good Practice: Dismissal (the Code) attached to the Labour Relations Act (LRA) states, in effect, that the employer should conduct an investigation and allow the employee to state a case in response to disciplinary allegations as part of the requirements for rendering dismissals procedurally fair. Countless case law decisions have upheld this requirement.

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.