What happens if an employer transfers a business as a going concern to a new employer? Section 197 of the Labour Relations Act provides that the employees are transferred with the business and the new employer steps into the shoes of the old employer. But what happens if the business is then transferred yet again? This would be a second generation outsourcing, and for some time the question has risen […]
“If an employee for a position misrepresents and/ or qualifications and is appointed to a position on the basis of such a misrepresentation, there is, in my view, no duty on the employer to provide such an employee with counselling, training or assistance. An employee who misrepresents his/her qualifications or experience is dishonest and is not entitled to be appointed to a position in the first place. An employment relationship […]
Employers invariably expect the outcome of a disciplinary enquiry to be the dismissal of an employee. But what happens if the employer does not agree with the sanction imposed by an external chairperson? Can the employer substitute its own sanction without calling another disciplinary enquiry? The employer has the right to do so. For further information on any labour related matters, you can contact Bernard Reisner: W.Tel no.: 021 423 […]
Schedule 8 of the Labour relations act confirms that an employer may require a newly hired employee to serve a period of probation before the appointment of the employee is confirmed. It is further indicated that an employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee t make representations and has considered any representations made. Furthermore, a trade union […]
If an employee discloses information which he or she knows is confidential, the employee is in fact breaching his or her duty to act in good faith in respect of the business of the employer. Dismissal may be fair in a situation where an employee leaks a confidential report. CONTACT CAPE LABOUR. For more information on labour law advice or services. Please feel free to contact us at Cape Labour […]
The essence of negligence lies in the fact that the employee failed to do what a reasonable person in his or her position would have done. Generally, negligence does not warrant dismissal for a first offence, but there are times when the employee is guilty of either gross negligence or, in a worst case, total dereliction of duty. In these cases dismissal may be justified. “The test for negligence is […]
Employees prefer compensation over reinstatement, and CCMA commissioners seem happy to oblige. In a recent case the CCMA commissioner found that the employee’s dismissal was substantively unfair and awarded seven months’ remuneration as compensation. The commissioner calculated the compensation with reference to the employee’s net salary- not the employee’s gross remuneration. The commissioner should have calculated the compensation on the basis of the employee’s (much larger) gross remuneration. The Labour […]
A. EXPOSITION OF THE RULE 1. Any party who requires the Commission or a commissioner to subpoena a person in terms of section 142(1) of the Act, must file a completed LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary. 2. A party requesting the Commission to waive the requirement for the party to pay witness fees in […]
The effects envisaged in section 197(2) transpire only if a business is transferred from one employer to another as a going concern. ‘Business’ includes ‘the whole or part of any business trade, undertaking or service’. The term business therefore includes every conceivable form of activity in which employers engage, whether for profit or otherwise, and whether in the private or public sector. Effects of transfer According to section 197, the […]
If employees have been acquitted at a disciplinary inquiry, or if the presiding officer has imposed a penalty less severe than dismissal, they cannot generally be subjected to a second inquiry in respect of the same offence. An essential requirement of the double-jeopardy rule is that the charges against the employee in the second hearing are the same as they were in the first. This does not mean, however, that […]
