Carlien Nienaber

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So far Carlien Nienaber has created 67 blog entries.

A quandary for employers: the unilateral changes to terms and conditions of employment

Business owners and managers, who comprise the ‘employer’ component of any workplace are often in the best position to make decisions to suit the profitability of the enterprise concerned.  Employers may want to change business operations regularly to ensure growth and sustainability.  In practice, organisational change goes against the grain of the terms and conditions [...]

2019-07-19T08:45:51+02:00July 19th, 2019|Contracts|0 Comments

Essential Services: A Restriction on an Employees’ constitutional right to Strike

Section 23(2)(c) of the Constitution of the Republic of South Africa, 108 of 1996 (the Constitution) gives all workers in South Africa a right to go on strike, this right is further entrenched in section 64 of the Labour Relations Act, 66 of 1995 (the LRA) as amended. The question that arises now is, is [...]

2019-07-11T13:21:46+02:00July 11th, 2019|General|Comments Off on Essential Services: A Restriction on an Employees’ constitutional right to Strike

Die ware betekenis van artikel 198A(3)(b) van die wet op Arbeidsverhoudinge

Igna Klynsmith het op Maandag 24 Junie 2019 in Regsake op RSG, die onlangse uitspraak van die Konstitusionele Hof oor die implikasie van Artikel 198A (3)(b) van die Wet op Arbeidsverhoudinge, bespreek. Wanneer kan ‘n werker wat tydelik deur ‘n arbeidsmakelaar by ‘n werkgewer geplaas is, aanspraak maak op status as permanente werknemer?   Op [...]

2019-07-05T08:48:33+02:00July 5th, 2019|Labour Relations Act|Comments Off on Die ware betekenis van artikel 198A(3)(b) van die wet op Arbeidsverhoudinge

An employee’s entitlement to Severance pay

The question of whether an employee is entitled to severance pay usually arises once a retrenchment has been concluded and there is a dispute referred to the CCMA or a Bargaining Council. An arbitrator dealing with this dispute may only decide whether the employee is entitled to the severance pay, which is a statutory entitlement. [...]

2019-06-27T13:42:26+02:00June 27th, 2019|General|Comments Off on An employee’s entitlement to Severance pay

An Employer’s duty in intimidation disputes

Intimidation can be defined as making one fearful or to put fear into a person and has been found to include things such as verbal threats and aggressive and threatening body language. Proof of actual fear is not required in order to establish intimidation as intimidation may be inferred from one’s words or conduct.   In the [...]

2019-06-21T08:56:17+02:00June 21st, 2019|General|Comments Off on An Employer’s duty in intimidation disputes

Is Retirement age a barrier to Reinstatement?

Reinstatement is the primary remedy under the Labour Relations Act, 1995 and involves placing an employee back into the position they would have occupied before their dismissal.   Is reinstatement the correct remedy when an employee has passed the retirement age? This question was answered in the Labour Court in Samuel v Old Mutual Bank [...]

2019-06-14T08:53:25+02:00June 14th, 2019|General|Comments Off on Is Retirement age a barrier to Reinstatement?

The Right to Picket

In the past, once parties reached a deadlock at the CCMA in terms of a section 64 dispute, a certificate to go on strike was issued.  Either party to the dispute would have to refer a further dispute to the CCMA for assistance in establishing picketing rules.  This has now changed with the new amendments [...]

2019-06-07T11:13:53+02:00June 7th, 2019|General|Comments Off on The Right to Picket

The Importance of Jurisdiction when referring a dispute to the CCMA & a Bargaining Council

The term jurisdiction refers to the extent of power which the CCMA; Bargaining Councils; Labour Court and Labour Appeal Court have in order to make legal decisions and judgments.   It is imperative that employees become aware of the relevant forums in which they can refer their disputes, in order to ensure that the correct [...]

2019-05-31T09:13:43+02:00May 31st, 2019|General|Comments Off on The Importance of Jurisdiction when referring a dispute to the CCMA & a Bargaining Council

The de novo principle in Arbitration proceedings

Commissioners are entitled to conduct arbitration hearings in a manner that they consider appropriate in order to determine a dispute before them fairly and expeditiously.   Section 138 of the Labour Relations Act 66 of 1995 stipulates that the commissioner can use his/her discretion as to the manner in which he/she would like to conduct [...]

2019-05-24T10:07:05+02:00May 24th, 2019|Arbitration|Comments Off on The de novo principle in Arbitration proceedings