Carlien Nienaber

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So far Carlien Nienaber has created 58 blog entries.

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|0 Comments

What does current case law state regarding unfair suspension in terms of Section 186(2)(b) of the Labour Relations Act

Suspension in the workplace may be of two kinds, namely; suspension of an employee imposed as a precautionary measure pending disciplinary action or as a form of disciplinary penalty.   Section 186(2) of the Labour Relations Act states: “unfair labour practice means any unfair act or omission that arises between an employer and an employee. [...]

2019-05-17T09:29:41+02:00May 17th, 2019|Dismissal, General|Comments Off on What does current case law state regarding unfair suspension in terms of Section 186(2)(b) of the Labour Relations Act

What to know when presenting evidence at an arbitration

We often get asked whether it is necessary to bring a witness along for an arbitration when the employer has a written statement or audio recording from their witness. The short answer is yes. Failure to bring a witness to testify will amount to hearsay evidence and will bring very little to zero support to [...]

2019-05-10T09:41:14+02:00May 10th, 2019|Arbitration|Comments Off on What to know when presenting evidence at an arbitration

The Establishment of the National Bargaining Council for the Private Security Sector

22nd June 2018 marked a new era in the South African labour relations industry with the registration of the National Bargaining Council for the Private Security Sector (NBCPSS). This came about after months of discussions; negotiations and the formal application being brought to the registrar of labour relations’ attention.  This is in terms of Section [...]

2019-05-03T09:15:56+02:00May 3rd, 2019|General|Comments Off on The Establishment of the National Bargaining Council for the Private Security Sector

Can an employer terminate an employee’s service based on incapacity due to the supervening impossibility of performance?

In many industries, employers provide assistance to clients in the form of services, and one such an example would be the security industry.   Situations, for various reasons, arise where the client informs the employer that a specific employee is no longer permitted on their premises, the employee’s access is therefore denied. Typical examples would [...]

2019-04-26T09:51:31+02:00April 26th, 2019|Dismissal, General|Comments Off on Can an employer terminate an employee’s service based on incapacity due to the supervening impossibility of performance?

CCMA Rule 37: Subpoena

A subpoena is a formal request to produce documents, or a request to appear in legal proceedings. It is an ordered command that essentially requires you to appear at the commission, testify or present evidence that may help support the facts that are in dispute in a pending case.   What is the purpose of [...]

2019-04-18T09:18:32+02:00April 18th, 2019|General|Comments Off on CCMA Rule 37: Subpoena

May an employer overturn the decision of a chairperson?

What should happen in the circumstances when a chairperson in a disciplinary hearing finds an employee not guilty of serious misconduct, while senior management believes the employee should have been found guilty? Alternatively, the employee is found guilty, but the sanction recommended by the chairperson is short of a dismissal. Is it possible for management [...]

2019-04-12T14:02:11+02:00April 12th, 2019|General|Comments Off on May an employer overturn the decision of a chairperson?

What are the rights a director is entitled to as an employee?

Defined in section 213 of the Labour Relations Act 66 of 1995 (as amended), it is stipulated that an employee is regarded as any person, excluding an independent contractor, who works for another person or the State and who receives or is entitled to receive any remuneration.  Or alternatively, any other person who in any [...]

2019-04-05T11:42:44+02:00April 5th, 2019|General|Comments Off on What are the rights a director is entitled to as an employee?

Organisational rights in the workplace and the requirements thereof

Organisational rights can best be described as a trade unions’ request made in writing, to represent employees in a workplace on a variety of different rights. Sections 12,13,14,15 and 16 of the Labour Relations Act 66 of 1995, dictate the most commonly sought rights by unions namely; access to the workplace, deduction of union levies, [...]

2019-03-29T13:01:32+02:00March 29th, 2019|General|Comments Off on Organisational rights in the workplace and the requirements thereof

The extension of the CCMA’s jurisdiction – Section 73A of the BCEA

It has been nearly three months since the legislature has signed into law the Labour Relations Amendment Act (LRAA), Basic Conditions of Employment Amendment Act (BCEAA) and the National Minimum Wage Act (NMWA).   The BCEAA introduced several measures to enforce its provisions, including that of section 73A. The aforementioned section constitutes a significant extension [...]

2019-03-27T14:45:10+02:00March 22nd, 2019|General|Comments Off on The extension of the CCMA’s jurisdiction – Section 73A of the BCEA