Carlien Nienaber

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So far Carlien Nienaber has created 71 blog entries.

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

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?