Carlien Nienaber

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So far Carlien Nienaber has created 39 blog entries.

Dismissal for Misconduct and the onus at the CCMA: Workplace Rules

In dismissing an employee, the dismissal should have two fundamental characteristics. The dismissal should be substantively fair, this meaning that the Applicant should be dismissed for a good reason. The dismissal should also be procedurally fair, there should have been a fair internal process/hearing of which the Applicant had enough prior knowledge and also had [...]

2018-10-26T09:25:59+00:00October 26th, 2018|General|Comments Off on Dismissal for Misconduct and the onus at the CCMA: Workplace Rules

Disclosure of Relevant Documents (Rule 29 of the CCMA Rules)

Employers are aware of the two processes at the CCMA, namely conciliation and arbitration. Conciliation is a means of attempting to conciliate and settle the matter before the next process, namely Arbitration, follows.   Both the Applicant-employee and the Respondent-employer can request that the Arbitration does not proceed immediately after a Conciliation process has failed.  [...]

2018-10-19T11:01:00+00:00October 19th, 2018|General|2 Comments

Arguing of Tacit and Implied Terms in a Contract of Employment at the CCMA

Employers often find themselves in situations at the CCMA or a Bargaining Council where an applicant or a union alleges that a certain transgression made by an employee, was not stipulated in their contract of employment.   This issue is usually raised when an applicant alleges that a specific duty, does not form part of [...]

2018-10-19T11:01:51+00:00October 12th, 2018|Contracts|Comments Off on Arguing of Tacit and Implied Terms in a Contract of Employment at the CCMA

What rights do foreign nationals have without work permits?

It is common knowledge that employing a foreigner without a valid work permit is illegal and exposes an employer to fines and possible prosecution. Therefore, many employers upon discovering that they have employed a foreign national without a work permit or who has an expired work permit, usually panic and follow incorrect procedures which create [...]

2018-10-19T11:02:25+00:00October 5th, 2018|General|Comments Off on What rights do foreign nationals have without work permits?

Locus Standi

It has become “common law” in dispute resolution tribunals that, if an applicant opts to be represented by a trade union (hereafter referred to as “a/the union”), the union needs to prove that it has locus standi in such a dispute resolution tribunal, if questioned by a respondent, by producing the following documents, which are [...]

2018-10-19T11:04:06+00:00September 28th, 2018|General|Comments Off on Locus Standi

BCCEI Extension of Collective Agreements Effective from 24 September 2018

Dear Industry Members The Bargaining Council for the Civil Engineering Industry’s (BCCEI) Wage and Task Grade Collective Agreement and Conditions of Employment Collective Agreement has been published in the government gazette (Government Gazette Numbers 41888 and 41910).  This was the final stage of the extension process.  The effect is that these Agreements will come into [...]

2018-10-19T11:05:18+00:00September 21st, 2018|Latest News|Comments Off on BCCEI Extension of Collective Agreements Effective from 24 September 2018

Section 189 Retrenchment Process and the Employee’s proposals in the avoidance and/or postponement of retrenchments.

Section 189 of the Labour Relations Act (hereinafter called “the Act”) relates to the dismissal of employees based on operational reasons and prescribes a very clear procedure to be followed in the event of such retrenchments.  Throughout this specific section, the Act obliges the employer to consult both the affected employee(s) and/or union on the [...]

2018-10-19T11:10:18+00:00September 21st, 2018|General|Comments Off on Section 189 Retrenchment Process and the Employee’s proposals in the avoidance and/or postponement of retrenchments.

Can an Arbitrator award back pay to reinstated striking employees?

In a recent award in an unfair dismissal arbitration, the Commissioner ordered the Respondent to reinstate the Applicant retrospectively from the date of his dismissal in the same or similar position to that which he had occupied and on the same terms and conditions of employment enjoyed before his dismissal. She furthered ordered the Respondent [...]

2018-10-19T11:11:10+00:00September 14th, 2018|General|2 Comments

Can a Wage Dispute be referred to the CCMA as an Unfair Labour Practice?

CEO recently assisted in a dispute relating to the employer’s failure to increase an employee’s salary, while other employee’s salaries were increased. The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”): “Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee [...]

2018-10-19T11:12:07+00:00September 10th, 2018|Wages|Comments Off on Can a Wage Dispute be referred to the CCMA as an Unfair Labour Practice?

MEIBC Collective Agreements to be Extended

Dear Industry Members Today earmarks a historic event at the MEIBC, as all the parties to the council met, and cast their votes whether or not they support the decision to request to the Minister of Labour to extend the following agreements to non-parties / non-signatories: Registration and Administration Expenses Collective Agreement (RAECA), which CEO [...]

2018-10-19T11:12:28+00:00September 4th, 2018|Latest News|Comments Off on MEIBC Collective Agreements to be Extended