labour law

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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.


While it can be extremely difficult to not immediately sign on the dotted line after getting your job offer, the importance of reading your contract thoroughly and understanding the terms of your contract cannot be understated.

 


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.

 


There are many different reasons that employers lose at arbitration despite their confidence that they would win. Some of those reasons include:


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.

 

 

 


Due to state capture, loadshedding, unexpected power outages, Covid and maladministration South Africa’s economy is in crisis. The biggest fallout of this economic weakness is the very high number of retrenchments in this country.

 


The Covid state of disaster regulations expired on 15 April 2022. However, these were replaced by a code of good practice for managing Covid in the workplace. The purpose of the code is to ensure that employers go the extra mile to protect employees from contracting Covid.

 


It is contentious as to whether second generation outsourcing falls under section 197 of the Labour Relations Act, which is the law protecting employees when a business or a part thereof is taken over.

 


On 4 April 2022, the Minister of Cooperative Governance and Traditional Affairs (“the Minister”) terminated the national state of disaster. 


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 Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in previous articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.


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. 


Even without the effects of Covid absenteeism is a most problematic form of misconduct because it reduces productivity. Most employers therefore require employees who are absent from work due to alleged illness to provide proof, in the form of a medical certificate and/or a positive Covid test result, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness. 

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