Fundamental to any system of law design to promote collective bargaining is the right of employees to join unions of their choice and take part in their lawful activities. To dismiss an employee for joining or participating in the affairs of a union is therefore automatically unfair. Does this mean that all employees are free to exercise these rights, irrespective of their position in the employer’s organisation? This question is […]
Employers clearly have an interest in how their employees behave outside working hours if their conduct affects their work performance, the good name and reputation of the employer or its business dealings, or interpersonal relations in the workplace. Misconduct outside the workplace. Actions performed outside the workplace and working hours are prima facie considered not work-related, and accordingly beyond the reach of the employer’s disciplinary authority. The onus rests on […]
A dismissal is automatically unfair if the employer, in dismissing an employee, acts contrary to section 5 or, if the reason for the dismissal is; a) That the employee participated in or supported, or indicated an intention to participate in or support, strike or protest action; b) That the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time […]
Constructive dismissal is defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee- to such an extent that the employee has no other option available but to resign.” In fact the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct. When any employee resigns and […]
This is the primary piece of legislation (Basic Conditions of Employment Act) which sets minimum standards of employment for employment contracts. Included in a contract of employment are written particulars of employment: The employer’s name and address ; The employee’s name; The employee’s occupation or a brief description of the work, which the employee is employed; The place of work; The date of commencement of employment; The employee’s ordinary work […]
Three categories of dismissals may arise from employers’ operational requirements, retrenchment (termination because the employees are superfluous to the employer’s need), redundancy (termination because the employer no longer has the required skills) and transfers (termination because of the transfer of the whole or part of the employer’s business). In terms of section 189 of the LRA, paragraph 3. The employer must issue a written notice inviting the other consulting party […]
Termination for this reason is generally known as dismissal for incapacity. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure – ie such dismissals must be procedurally and substantively fair. • The employee should have been aware, or could reasonably have been expected to be aware, of the required performance standard; • […]
Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. The legislature has also approved a general code for those employers who do not have their own codes, and against which the fairness of the particular codes can be assessed. This is to […]
Audi alteram partem, literally, ‘hear the other side’, principle must be applied in the employment context. This means that employers cannot take disciplinary action against employees without affording them a fair hearing. SUMMARY After the charge is investigated, the employee is normally served with a notice of a hearing, setting out the charge the employee is required to answer, and informing the employee of the time and place of the […]
About Unfair Discrimination at Work No person may unfairly discriminate, either directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth. For further information on any labour related matters, you can contact Bernard Reisner: […]