Human Resource

Labour Court reverses CCMA award - finds that Commissioner was grossly misdirected in findings. Dismissed employee achieves re-instatement and maximum compensation of 12 months.

The Department of Labour Employment Equity Inspectorate first seeks an undertaking that the employer will comply with the EEA requirements of: consultation with employees, analyzing employment barriers, and preparing an EE plan. When the employer fails to comply, a Compliance Order is issued, and after continued non-compliance, that Order is made an order of court and a fine issued.

A dismissal, which followed a complaint lodged with the Department of Labour and found to be without substance, was found to be fair. The employee's action was taken after the company rejected a medical certificate from an unregistered traditional healer. Because the claim was not valid and genuine, the employee could not claim that it was a "protected disclosure".

Having difficulty achieving action on your settlement agreement? It can be made an order of court which will allow a sheriff of the court to take action to enforce the agreement by attaching assets. In this case the applicants were not successful - read why

Dismissed employees attempting to obtain action on a re-instatement order approached court for action against the individuals, but failed because the respondents were not correctly identified.

The Labour Court confirms - even if remuneration remains the same, if there is a change of status, a change to job content and responsibilities, and prejudice to promotion prospects, this constitutes a demotion.

Does your Union have the right to conclude a settlement agreement on your behalf even though you have withdrawn your mandate to them? Yes, says the Labour Court if you don't also resign your membership. Section 200 of the LRA states that the a registered union is entitled to act on behalf of its members in any dispute, and to be a party to proceedings involving one or more of its members, as does a registered employers' organisation.

Failure to appoint an Executive Manager to a position which she held for 4 years in an acting capacity found to be an unfair labour practice and arbitration award set aside.

What constitutes a reasonable expectation of renewal of a fixed-term contract? If the contract is renewed for a lesser period than the original contract, is this less favourable? See also Govender and General Electric SA. In this case, there is reference to concerns about performance. Avoid becoming embroiled in unnecessary renewals of fixed term contracts - make appropriate use of the "probationary" clause rights afforded to the employer by the LRA.

A dismissed "masseuse/sex worker" could not have the case arbitrated at the CCMA. Although the Constitution provides that "everyone has the right to fair labour practices", the Commissioner found that an employment contract containing requirements to conduct illegal acts (effectively prostitution), was not an enforceable contract. Is this in the interests of public policy?

15 days prison sentence order for the Minister of Health and the Director General of the Department overturned by the Labour Appeal Court: The Department of Health failed to comply with a CCMA award re-instating an employee to her previously held position, but the LAC found that there should first have been a mandamus compelling the Minister and/or the D-G to comply with the order.

For a claim of constructive dismissal to be upheld, an employee needs to ensure that they have exhausted all possible internal remedies in attempting to resolve the behaviour complained off - this holds true for all constructive dismissal claims and in this case for alleged sexual harassment.

The employee had an initial fixed term contract extended for a further 3 months, already had medical aid and provident fund benefits, and had additional tax deducted in expectation of a bonus which would have been paid after the expiration of the renewed contract. The MEIBC arbitrator found that this did create a "reasonable expectation" of permanency.

A shop steward who claims that their dismissal is for reasons related to their union activities - that is an automatically unfair dismissal - must refer the matter to the Labour Court - not to their bargaining council or CCMA.

Pieter Lerm of Employment Equity Implementation Solutions providers EDGE Media looks to debunk myths surrounding the common views of Employment Equity, and looks to explain how the Act should be implemented and what your responsibilities are.

There is no individual right to affirmative action in appointments and anyway, appointments are distinct from dismissal decisions. In retrenchment situations employers cannot use affirmative active for a decision to keep a black employee and dismiss a white employee. This decision also finds that a "required skill set" is an objective criteria for such decisions.

Refusal by an employer to accept a withdrawal of resignation does not fall within the definition of an "unfair labour practice"; and in this case even requesting the employer to do so, disproves the alternative claim of Constructive Dismissal, which to be proved would mean that the employer had made continued employment intolerable.

Two disciplinary hearings and both substantively unfair - writing a book about a court case involving your employer may constitute freedom of speech but clearly didn't constitute a career enhancement move in this case.

Whistleblowers - employees who bring to management's attention irregularities within the organisation - are covered by the Protected Disclosures Act. A subsequent dismissal which can be related to the protected disclosure will constitute an automatically unfair dismissal - this dismissal brought with it the maximum penalty of 24 months pay.

The ASHA Pre-school Association, a community welfare organization servicing the Soweto region, has boosted its payroll efficiency with an investment in the Accsys Peoplepay payroll solution.

When should employees be subject to disciplinary action, and when should counselling be used in its place? Des Squire argues that the term 'discipline' is not appropriate as it denotes a very negative situation. He explains the ins and outs of disciplinary codes and procedures.

The practice of suspending an employee's employment is once again in the public arena following the suspension of radio presenter Gareth Cliff. Mr Cliff was suspended from broadcasting for two days after a complaint that he had insensitively re-broadcast a newsclip about the looting of a Bangladeshi's watermelon shop in the Free State. Media reports are that Mr Cliff is seeking legal advice. Despite the absence of any instructions, here's our brief advice to Gareth Cliff.

"It is difficult to publicly admit," says Services Seta CEO Ivor Blumenthal, "but we are nevertheless failing people with disabilities terribly". "Yes we meet our targets annually but the question remains whether we have generally improved the plight of the disabled to find meaningful, productive gainful employment," asks Blumenthal.

Twenty-four teachers educating deaf learners have embarked on a five-day training course to support the development of inclusive education in South Africa.
The training workshop is an agreement between the Swedish and South African governments to support the Programme of Development of Inclusive Education in the country.


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