Labour Law Blog

Dishonesty in that an employee submits a fraudulent, false medical certificate to an employer

It is a common occurrence that employees present fraudulent, false medical certificates to an employer to justify their absence from work and to be paid for a sick day. Your rights as an employer An employer is always entitled to question the validity of a medical certificate, especially if it appears to be dubious. The employer must find evidence that the medical certificate issued is false. The direct approach would […]

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Dismissed for being pregnant

The Basic Conditions of Employment Act and the Labour Relations Act both provide adequate protection and regulate a pregnant woman’s position in the workplace. There is no duty on an employee to disclose the fact of her pregnancy except for the purpose of maternity leave (as per the BCEA) and failure to do so could not be regarded as “deceit” in the context of the relationship of trust between Employer […]

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Racial Slurs

Where derogatory and racial language is used in the workplace, the employer bears the onus to prove that the language used was objectively derogatory.   Collecting evidence However, the employer will bear the onus to prove that the employee uttered the derogatory word/s.  Employers must lead sufficient evidence that the words were indeed used, and moreover, that the words are objectively offensive. This may be done by calling the victim […]

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Vicarious Liability

Vicarious liability is the holding of a person or entity responsible for damages or harm caused by someone else. Most employers are unaware that they can be held liable for the actions of their employees. Vicarious liability is where someone is held responsible for the actions or omissions of another.   When does vicarious liability apply? The requirements for the vicarious liability of an employer are threefold: An employment relationship […]

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Derivative Misconduct

The principle of an employee being bound implicitly by a duty of good faith towards his employer is breached when that employee remains silent about knowledge that he possesses regarding the business interests of the employer being improperly undermined. A breach of the duty of good faith can justify dismissal. Non-disclosure of knowledge relevant to misconduct committed by fellow employees is an instance of a breach of the duty of […]

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Absence without leave – Imprisoned employees

The following factors should be considered in determining if the dismissal was fair:   a) The reason for incapacity, including whether it was lawful arrest;   b) Whether the employee was at fault;   c) Whether he or she caused the situation;   d) Whether the employee was in the end convicted;   e) Whether the employee’s actions leading to the arrest rendered a continuation of the employment relationship intolerable; […]

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Employer rights when employee does not give notice

The Basic Conditions of Employment Act (BCEA) stipulates that an employment contract can only be terminated on notice of not less than: One week , if the employee works for six months or less; Two weeks, if the employee works for more than six months, but not more than one year, and Four weeks if the employee- Works for one year or more; or Is a farm worker or domestic […]

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Resigning with immediate effect puts a stop to disciplinary proceedings against an employee.

If an employee resigns with immediate effect, the employer has no jurisdiction to proceed with a disciplinary hearing against the employee. The contract employment comes to an end with immediate effect and the employer loses the right to discipline and proceed with the disciplinary hearing against the employee. On the other hand, if an employee resigns with notice, in writing, and works out the notice period, the employer can discipline […]

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Definition of dereliction of duty

Dereliction of duty is a charge that refers to an intentional or conscious failure of an employee to do his/her duty. Examples of dereliction of duty include situations where the employee: Abandons an asset of the employer in a place where it is at risk. For instance, a company driver might leave the company vehicle in order to visit a friend despite being well aware that the location is a […]

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