During an arbitration, an employee would often raise as a defence that a final written warning was issued unfairly or without reason and therefore should not be considered by the Commissioner when issuing an award. Should this line of argument be entertained, and what is the CCMA’s stance? The matter of Kock v Commission [...]
Section 187(1)(c) of the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. In the recent decision of Jacobson, Merwyn Jack v Vitalab (JS1042/19) [2019] ZALCJHB [...]
Section 188 of the Labour Relations Act 66 of 1995 (herein referred to as the “LRA”), recognises incapacity as a potential fair reason for a dismissal provided that a fair pre-dismissal procedure was followed. 1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove – a. that the [...]
Adopting a comprehensive disciplinary code and procedure is important for every employer to ensure that charges and sanctions fit the transgression. The consequences of a flawed disciplinary code can result in an adverse award in an arbitration hearing. A practice frequently used by employers is to use all-encompassing charges, for example, “Actions detrimental to [...]
Employers often deal with disputes referred to the CCMA as an unfair labour practice relating to benefits. The CCMA and Labour Court have however faced much uncertainty over the years with what constitutes a “benefit” in terms of Section 186(2) of the Labour Relations Act 66 of 1995. The uncertainty surrounding the concept of [...]
During the last few years, there has been an increased focus on interpersonal relationships in the workplace. Ever so often, employers may be confronted with a situation where one employee may not be compatible with the workplace dynamic and in extreme cases may disrupt workplace harmony. The questions many employers are confronted with are: - [...]
In applications of this nature the fundamental question is whether the party to whom the award was made, has made a case as contemplated in section 144 of the Labour Relations Act, 1995, which allows for a commissioner to rescind, where an award: Was erroneously sought or erroneously made in the absence of any party [...]
With the rapid growth of the use of social media, it may be necessary to regulate or provide guidelines to such use in the absence of legislation regulating the same, especially in an era where more and more employees are dismissed for "social media misconduct". Social media has become one of the most prominent [...]
In the context of incapacity, the concept of probation is often incorrectly interpreted by employers who believe that they are within their right to simply terminate the employment contract after an unsuccessful probation period. This misunderstanding of what an employer’s responsibilities entail towards a probationary employee may often lead to costly consequences at the CCMA. [...]
In terms of the Labour Relations Act 66 of 1995 (LRA), an arbitration award issued by a Commissioner is final and binding and may be enforced as if it were an order of the Labour Court. The LRA does not allow any party to appeal against an arbitration award, but these awards can be [...]