The employment relationship is terminated by the employer, it is a case of dismissal. If the employee terminates the employment relationship, it constitutes a resignation. But there is, in principle, nothing preventing an employer and an employee from concluding a contract to terminate the employment contract a mutually agreed termination of employment. If it is really the case that there was a mutually agreed parting of the ways, there could […]
Employer must apply workplace rules and standards consistently this is not only a cornerstone of workplace justice, but also a consideration listed in the Code of Good Practice: Dismissal. In a recent arbitration, the arbitrator made the point that if the employee’s misconduct is serious enough to justify a dismissal, he or she cannot rely on the fact that another employee received a lesser sanction for a previous incident. For […]
Refusing an Alternative Job: Section 41 of the Basic Conditions of Employment Act provides that an employee who is dismissed for an operational reason is entitled to severance pay but the severance pay be forfeited if the employee unreasonably refuses an offer of alternative employment. The problem is always in determining whether the employee’s refusal of the other job was reasonable or not. For further information on any labour related […]
An employer was dismissed for failure to comply with an instruction to undergo a strip search. Upon a preliminary search, the security personnel noticed something suspicious and the employee was instructed to undergo a strip search (which did not, incidentally, entail the employee’s removing his underwear). The arbitrator concluded that the employee knew of the rule (which was contained in the employer’s Standard Operating Procedures) and that serious consequences attached […]
In terms of the Employment Equity Act (section 60) an employer can be held liable for sexual harassment perpetrated by one employee against another if a number of requirements have been met. The sexual harassment, for instance, must take place at the work place and the employer must be aware of harassment. The employer will also be liable if it failed to take all reasonable and practical measures to ensure […]
In some cases, employees may be reluctant to give evidence in disciplinary proceedings or arbitration proceedings. But this reluctance is not enough it is only where there is a real possibility of intimidation or if a witness fears for his or her safety that the possibility of in camera testimony arises. This will then mean that only the witness and the arbitrator will be in the room, and the arbitrator […]
An employee who refuses to work is guilty of misconduct and may face disciplinary action. However, in some limited cases, employees do have the right to refuse to work. This right is provided by legislation and protects employees who refuse to work if they reasonably believe that the workplace has become a threat to their health or safety or if they reasonably believe that the workplace has become a threat […]
The objective of collective bargaining between an employer and organized labour is to reach agreements that are legal and binding in terms of which their relationship is formalised and wages and conditions of employment are fixed for set periods. Collective agreements differ from individual contracts of employment in that employment contracts are entered into between an individual and his or her employer and establish personal rights and obligations. Collective agreements […]
A dispute about an employer and an employee heads for arbitration; during the course of arbitration the parties settle the matter and the settlement agreement is accordingly made an arbitration award. But the employee not only persists with the misconduct but also tells everyone about what happened at the arbitration proceedings. The employer takes the view that the employee has breached the settlement agreement and refuses to implement it. Could […]
Retrenchment Matters The Labour Relations Act requires and employer to consult with an employee when it contemplates a dismissal for operational requirements. Both the employer and the employee are required to seek consensus on alternative measures to avoid the dismissal or to mitigate the adverse effect of a dismissal. This goes both ways, however, and an employee also has a duty to cooperate with the employer when retrenchment is considered- […]
