If the poor work performance was sufficiently serious to warrant the dismissal then the alternative to dismissal such as demotion could be deemed to be fair, if the process was fairly done. In essence Section 186 of the Labour Relations Act says that “unfair conduct by the Employer relating to the demotion of an Employee” could mean an unfair labour practice. If there are circumstances of unfair labour practices, then […]
In an interesting turn of events, the Labour Court accepted that it has jurisdiction to act as a Court of Law in a dispute between a labour broker and its client. In this particular case, Transman v SAPO, the client terminated the Employment Contract forcing the labour brokers to in turn have to try and comply with Section 189 of the Labour Relations Act (Retrenchment). The labour brokers tried to get information […]
In an interesting Arbitration, Dlamini & Others v Green Four Security, the Labour Court had once again to decide whether the workplace rules would overrule religious adherence. In this particular case, the employees belong to the Baptist Nazareth Group and they said that their faith did not allow them to trim their beards. Judge Pillay in the Labour Court was faced with the issue and said that it needed to […]
Should there be a conflict between two pieces of legislation, then in terms of Section 210 of the Labour Relations Act 1995, it clearly states that the Labour Relations and its provisions will prevail. An interesting issue arose in terms of the Competition Act, where it is necessary for a business to advertise that certain employees will lose their jobs if a merger or take-over takes place. This however cannot […]
CCMA Rules The CCMA is a statutory body that was set up by the Labour Relations Act. The CCMA rules have been structured to enable the parties to use the CCMA effectively. These rules are to be interpreted and applied in a spirit that will enhance and facilitate the work of the Commission. In essence, these rules have to be administered in a fair and structured manner and they must […]
It is automatically unfair if the employer dismisses an Employee because that Employee had participated in or supported strike or protest action. If this strike or protest action was in terms of the Legislation, then that Employee is to be protected. Furthermore, if any Employee took action or indicated an intention to take action against the Employer, exercising his rights in terms of the Legislation by participating in proceedings in […]
Question for today: Who has the Protection of our Labour Legislation? There is a heated debate about who is an employee. There are guidelines, both in the Basic Conditions of Employment Act and the Labour Relations Act for determining whether persons are employees or not. The employment relationship is a complex and sometimes convoluted relationship which both employers and employees try to disguise. There was often a call by employees […]
We have had many queries over the last few months with regard to fraudulent sick certificates, unreadable and unintelligible and even unsigned sick certificates. We are also faced with numerous queries for sick leave with regard to sick certificates from non-medical practitioners and even nurses and sangomas. Any employee who is away from work for more than 2 consecutive days or on more than 2 occasions during an 8-week period […]
A common occurrence is when employers approach an employee prior to a disciplinary hearing and offer to allow that employee to resign instead of “facing the music”. This in itself is not unfair and certainly does not constitute a constructive dismissal. The employee must prove in constructive dismissal circumstances that the situation had become absolutely intolerable. In an interesting arbitration award Charles Matlala vs Debt Control Management, it was held […]
Often we receive phone calls from Companies who had decided to go to arbitration at the CCMA and to represent themselves. This arbitration, on some occasions, turned nasty and they have had to either reinstate the employee or pay damages. The Companies ask us to launch an Appeal as they are not satisfied with either the process or the outcome. We have, on many occasions, explained that there is no […]