Labour Law

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:

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

The Constitutional Court's dismissal, in late February 2022, of the public service unions' appeal over the 2018 wage agreement with the South African government marks the end of a long legal battle that began in 2018. 

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. 

Labour law accepts the firing of guilty employees only if dismissal is the last resort. The Code of Good Practice: Dismissal provides that, where employers are considering dismissing an employee they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s breach of the trust relationship.

We’ve all been in a situation where we were at our place of employment but wanted to be somewhere else. Is it correct to use sick leave to attend leisure activities?

The Employment Equity Act promotes equal opportunity in the workplace and seeks to eliminate unfair discrimination.

Where the job itself is permanent it is dangerous to employ staff on anything but a permanent contract. This is firstly because the Labour Relations Act provides for fixed-term employees to have a reasonable expectation of renewal of their contracts at the expiry date.

Whether the dismissal of an employee who attended work whilst awaiting a Covid-19 test result, who continued to report to work after the Covid-19 test result came back positive and who failed to follow health and safety protocols in the workplace, was fair.

Labour Law provides employers, employees and businesses with a set of guidelines for a safe and fair workplace.

In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. 

Section 197 of the Labour Relations Act (LRA) comes into effect where an undertaking (or part thereof or a service) of any kind is transferred by one employer to another as a going concern. This forces the new entity to take over all the employees of the old undertaking. 

Employees in South Africa are protected by Labour Laws that ensure fair working conditions.

Labour Laws set out guidelines for employers and employees to follow to ensure that the work environment is safe and fair.

It happens too often that I receive panicked phone calls from employers who had received an unfavourable arbitration award in respect of a CCMA case that they never knew existed. That is, the employer had never received a summons to appear at the CCMA. In one such case the award required the employer to pay many tens of thousands of rands to an ex-employee. This can happen for a number of different reasons including:

Despite South Africa’s employment equity legislation, the biases and discrimination that characterised the ‘old South Africa’ still exists in the hearts and minds of many people.