THERE IS A GENERAL RULE THAT EVERY EMPLOYEE HAS TO BE HEARD BEFORE A DECISION OF DISMISSAL IS TAKEN

In the field of employment law, the general rule applies that before any decision is made, the employee must be heard. The Latin phrase, audi alteram partum, means both sides must be heard. When in doubt, it is always better to have a disciplinary hearing or at least a discussion before a decision is made. There is however an exception to this rule. When, in certain circumstances, a decision is […]

Bosses “DRESS UP” Reasons for Sacking Pregnant Women

In an article by Sarah Womack in the Telegraph, it appears that England has exactly the same problem we have in the South African Labour Legislation. According to the Equal Opportunities Commission, there are numerous instances where employers have chosen other reasons to try and dismiss employees who report that they are pregnant. In this day and age, most employers are fully aware that to dismiss simply for being pregnant […]

Disciplinary Hearings – Who is competent to chair?

A vexed question of law often has been – who can chair a disciplinary hearing? Obviously, any person who has been involved in the investigation has knowledge of the facts and of the “charges”, is disqualified from being the Chairperson. The cornerstone of competence of the Chairperson is one of dependence and any sort of bias might be interpreted in favour of the employee and the Chairperson should recuse him or […]

Retrenchments – Refusal to Accept Reasonable Alternative Offer

Refusal to Accept Reasonable Alternative Offer In terms of Section 189 of the Labour Relations Act, the Employer is obliged to try and find alternative positions for the people who are occupying positions that will in due course become redundant. If there is a reasonable and similar position to the one held by the employee affected, and this position is offered at a similar salary, then the refusal to accept […]

REFERRALS TO CCMA AND BARGAINING COUNCILS

After an employee has left your employ he/she normally has 30 days in which to refer the matter either to the Commission for Conciliation, Mediation and Arbitration or the relevant Bargaining Council. Obviously, this referral could be done after 30 days but then the employee has to apply to the Commission to ask them to condone the late referral. This Application is known as a Condonation Application and must be […]

PRESENTATION OF ARBITRATION

It should be noted that as Employers, they are largely responsible for presenting their own Arbitrations. Invariably, we as lawyers are allowed to come to the Arbitrations and to represent our clients. However, on some occasions, when this is not done, the Arbitrator makes a decision on the evidence that is presented before him or her. This decision is not appealable and is final and binding. On very few occasions, […]

THE FINALITY OF ARBITRATIONS

We often receive calls from our clients after the Arbitration advising us that the award of the Arbitrator has been negative and they want to appeal same. The arbitration award is final and binding and cannot be appealed. The award can be taken to the Labour Court on Review but a Review means there are very limited grounds and invariably these Reviews are not successful. Arbitrations must be treated seriously […]

Drinking on Duty

We are dealing with a case at the moment where an employee (driver) was suspected of having driven the company’s vehicle while under the influence of alcohol. The employer immediately requested the driver to undergo a breathalyser. The employee was then requested to accompany them to a police station so that further tests could be taken. The employee refused further tests. The employer’s witnesses all testified at the disciplinary hearing […]

Transfer of employees

In a situation where a business is closing or has become insolvent. Section 197 of the Labour Relations Act kicks in. This section specifically grants the affected employees rights in terms of the Labour Relations Act and outlines that they must be transferred on similar terms and conditions recognising the previous service. In an interesting decision in the Labour Court, Lotz vs Anglo Office Supplies, the business was sold to […]

DISMISSAL FOR ABSENTEEISM

In an interesting arbitration, an employee had been away without leave for 10 days. The employee had in the past received warnings for being absent without leave. On this particular occasion, the employer conducted a disciplinary hearing and dismissed the employee in the employee’s absence. The arbitrator ruled that the employer should at least have made an attempt to try to contact the employee to come to the disciplinary hearing. […]

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