Incarcerated Employees have Rights
It happens quite often that an employee gets arrested for alleged criminal activities and/or is found guilty of criminal activity and ultimately incarcerated. Some employers then erroneously deem the employer/employee relationship to be automatically terminated. Unfortunately, an employee does not dismiss himself should he be incarcerated. It is no employer’s wish to be associated [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Commercial Reality versus Contractual Clarity
The need for an employee may be urgent as commercial reality dictates. However, employers become warier to employ due to the complex labour laws that apply in South Africa. Employers are forced to decide and to make that decision quickly. As numerous court decisions indicate, the needs of the employer may not always be considered [...]