Carlien Nienaber

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So far Carlien Nienaber has created 236 blog entries.

Can an employee challenge a Final Written Warning during a claim for Unfair Dismissal?

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 [...]

2020-09-17T21:57:12+02:00September 17th, 2020|Dismissal|Comments Off on Can an employee challenge a Final Written Warning during a claim for Unfair Dismissal?

Can the dismissal of an individual employee be deemed an automatically unfair dismissal in terms of section 187(1)(c) of the LRA?

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 [...]

2020-09-17T21:28:47+02:00September 17th, 2020|Dismissal|Comments Off on Can the dismissal of an individual employee be deemed an automatically unfair dismissal in terms of section 187(1)(c) of the LRA?

General incapacity due to non-compliance with a legal requirement

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 [...]

2020-09-17T21:12:53+02:00September 17th, 2020|Dismissal|Comments Off on General incapacity due to non-compliance with a legal requirement

Actions detrimental to your Case: Exercise caution in the use of Blanket Charges

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 [...]

2020-09-17T10:32:13+02:00September 17th, 2020|Dismissal|Comments Off on Actions detrimental to your Case: Exercise caution in the use of Blanket Charges

What Constitutes a “benefit” when dealing with an unfair Labour Practice in terms of Section 186(2)

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 [...]

2020-09-16T15:56:55+02:00September 16th, 2020|General|Comments Off on What Constitutes a “benefit” when dealing with an unfair Labour Practice in terms of Section 186(2)

The odd one out…incompatibility as a form as incapacity

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: - [...]

2020-09-14T17:34:54+02:00September 14th, 2020|General|Comments Off on The odd one out…incompatibility as a form as incapacity

When can an Application for Rescission be brought by a party to the Proceedings?

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 [...]

2020-09-11T14:29:47+02:00September 11th, 2020|Arbitration|Comments Off on When can an Application for Rescission be brought by a party to the Proceedings?

Social Media Misconduct in the Workplace

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 [...]

2020-09-09T16:29:22+02:00September 9th, 2020|General|Comments Off on Social Media Misconduct in the Workplace

Dealing with probationary employees – what are my responsibilities as an employer?

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. [...]

2020-09-07T17:28:30+02:00September 7th, 2020|Contracts|Comments Off on Dealing with probationary employees – what are my responsibilities as an employer?

I am unhappy with the Arbitration Award given, what now?

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 [...]

2020-09-04T16:45:43+02:00September 4th, 2020|Arbitration|Comments Off on I am unhappy with the Arbitration Award given, what now?