Labour Consulting Services
Archive for September, 2010
CONSEQUENCES OF TRANSFER
Sep 17th
If a transfer of a business takes place,
a) the new employer is automatically substituted in the place of the old employer
in respect of all contracts of employment in existence immediately before the
date of transfer;
b) all the rights and obligations between the old employer and an employee at
the time of the transfer continue in force as if they had been rights and
obligations between the new employer and the employee.
Once such a transfer of business occurs, the new employer becomes the employer of the transferred employees, and that, subject to the new employer’s right to effect minor amendments, the employees terms and conditions of employment remain unchanged.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
DISMISSAL ON THE GROUNDS OF INCOMPATIBILITY
Sep 17th
The test for the substantive fairness of a dismissal for incompatibility may be formulated as follows:
• Did the employee’s conduct cause disharmony or tension in the work place?
• Was the disharmony and tension the result of the employee’s behaviour?
• Was the disharmony and/ or tension irremediable?
• Did the disharmony and/ or tension have an adverse or potentially adverse effect on the employer’s business?
• Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/ or tension could be removed?
Furthermore, the incompatibility must have caused an irremediable breakdown if dismissal is to be accepted as a fair solution to the problem. As with all forms of dismissal, dismissal for incompatibility is an expedient of last resort; dismissal is not generally accepted as justified if the employee has not been counselled; or where it is possible without undue inconvenience to accommodate the employee in an alternative position.
Where there is incompatibility the employee must be advised what conduct allegedly causes the disharmony; who has been upset by the conduct; what remedial action is suggested to remove the incompatibility; that the employee be given a fair opportunity to consider the allegations and prepare a reply thereto; that he given a proper opportunity of putting his version; and that where it was found that he was responsible for the disharmony he must be given a fair opportunity to remove the cause for the disharmony.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
STATUTORY RLIEF FOR UNFAIR DISMISSALS
Sep 17th
1. If the Labour Court or an arbitrator appointed in terms of this Act finds that a
dismissal is unfair, the Court or the arbitrator may
a) order the employer to reinstate the employee from any date not earlier than
the date of dismissal;
b) order the employer to re-employ the employee, either in the work in which the
employee was employed before the dismissal or in any other reasonably
suitable work on any terms and from any date not earlier than the date of
dismissal; or
c) order the employer to pay compensation to the employee.
2. The Labour Court or the arbitrator must require the employer to re-instate or
re-employ the employee unless
a) the employee does not wish to be re-instated or re- employed;
b) the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
c) it is not reasonably practicable for the employer to re-instate or re-employ the
employee; or
d) the dismissal was unfair only because the employer failed to follow a fair
procedure.
Reinstatement
If employees are reinstated, they resume employment on the terms and conditions that prevailed at the time of dismissal; the period during which the employee has been out of work as a result of the unfair dismissal is regarded as nothing more than a suspension of the employment contract. However, reinstatement need not be fully retrospective to the date of dismissal. Full retrospective reinstatement is usually denied if the employee was partly to blame for the circumstances that led to his or her dismissal, or if the employee unduly delayed pursuing the action. While ‘back pay’ is obviously a form of compensation for the loss of earnings during the period of unemployment after the dismissal, it is generally regarded as distinct from compensation.
Re-employment
The employees begin work afresh with the employer, and any benefits arising from their past employment are not extended to the new employment relationship.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
UNAUTHORISED USE OF EMPLOYER’S PROPERTY
Sep 1st
The unauthorised use of company property is generally regarded as sufficient to warrant dismissal. In such cases, employers must prove that accused employees were indeed in possession of the goods in question, and that they did not have permission to take the goods. Employers must also prove that the employees knew that the goods were in fact in their possession.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
THEFT / UNAUTORISED POSSESSION
Sep 1st
Employees are guilty of theft if they appropriate goods belonging to another with the intention of permanently depriving the owner of the use and possession of those goods. Theft therefore requires proof of intention to deprive the owner of use and possession and knowledge that the act was unlawful. It must also be proved that the employee committed an act by which the owner is actually deprived of possession.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
SLEEPING ON DUTY
Sep 1st
Employees may be disciplined for sleeping on duty only if:
• They are actually asleep at a time when they should be attending to their duties;
• The employee’s unconsciousness was not caused by some cause beyond his or her control;
• The employee was or should have been aware at the time that sleeping constituted a disciplinary offence.
Arbitrators have been ready to accept circumstantial evidence in such cases, such as snoring, the posture of the employee at the time he was spotted. If employees fall asleep as a result of work-related exhaustion or because they are on sleep-inducing medication, they will not generally be guilty of misconduct, unless they could and should have brought their condition to the attention of the employer.
Napping on duty will rarely be regarded as an offence justifying dismissal at first instance, except if the employee is a security guard or is in a position where a momentary lapse in concentration could have serious consequences for the employer or other workers.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
FALSIFICATION OF RECORDS
Sep 1st
Medical certificates are favourite targets of workplace fraudsters, who may either falsify dates or the entire document. Where medical certificates are found tampered with by employees, dismissal is invariably warranted. Falsification of time sheets is another widespread form of deception, for which dismissal has been upheld.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
DRUG USE
Sep 1st
If there is a clear rule against the use of drugs working hours, and the employee breaks that rule, the gravity of the breach must be assessed according to such factors as the employee’s history of drug use, prior counselling, the circumstances in which the offence was committed, the nature of the employee’s work, and other relevant factors. However, if the employee can prove that the offence stems from addiction, the employer is required to treat the employee with the same degree of sympathy afforded employees with alcohol-addiction problems.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
DISHONESTY
Sep 1st
‘Dishonesty’ can consist of any act or omission which entails deceit. This may include withholding information from the employer, or making a false statement or misrepresentation with the intent of deceiving the employer.
A misrepresentation by an employee before the commencement of employment has been held to be sufficient to warrant dismissal, even if the misrepresentation is discovered some time later and the employee has rendered satisfactory performance. A charge of dishonesty requires proof that the person acted with intent to deceive.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
DISCLOSING CONFIDENTIAL INFORMATION
Sep 1st
Disclosure by employees of confidential information to a competitor of the employer clearly amounts to a breach of trust. Acquiring confidential information by deceptive means may also justify dismissal.‘ Whistleblowers’ ie employees who disclose unlawful acts of their employers to authorities now receive special protection under the Protected Disclosure Act. Dismissal of employees protected by that Act is automatically unfair.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za