Variation of employment contracts
A contract of employment commences once both parties have agreed on the essential terms of the offer. Put differently, the contract is complete, or perfecta, once the employee has accepted the offer of employment made by the employer. Unless the provisions of the contract provide otherwise, neither party may unilaterally vary the terms of the [...]
Opinion Evidence
In preparation for arbitration, employers are advised they will be required to have witnesses available to testify. As the arbitration is a legal process, the Commissioner appointed will be required to decide on a balance of probabilities which version of events is more likely and who to believe. The general rule is that the opinion [...]
Admissibility of and evidential weight attached to hearsay evidence
In terms of section 3 (4) of the Law of Evidence Amendment Act 45 of 1998, hearsay evidence is defined as evidence, whether oral or in writing which probative value depends on the credibility of another person other than the person giving such evidence. Hearsay evidence is generally not admissible in legal proceedings as the [...]
Tacit and implied terms of employment
The primary purpose of concluding a written contract of employment is to create certainty as to the parties’ respective rights and responsibilities. Expressly defining and explaining the terms and conditions of employment will go a long way in assisting both parties in understanding the terms to which they are agreeing. Although a well-drafted employment contract [...]
Should you make use of a breathalyser test if your employee arrives to work under the influence of alcohol?
For years employers have made use of breathalyser tests to establish whether a person is intoxicated. The breathalyser test is generally accepted as sufficient proof that an employee is under the influence of alcohol. It’s important to note that what matters is not whether the employee is intoxicated, but rather it’s whether the employee is [...]
Circumstantial evidence
There are various forms of evidence that can be used at the CCMA or Bargaining Councils to prove a case. The best evidence, of course, would be direct evidence linking an employee to the commission of an offence, for example, closed-circuit television (CCTV) footage of an employee helping themselves to money from the cash register. [...]
The contract of employment and written particulars
At common law, parties to an employment relationship are not required to observe any formalities when concluding contracts of employment. The contract arises when there is an unconditional acceptance, by the employee, of the employer’s offer. Therefore, once either a tacit (the employee commences employment after receiving the offer) or express (the employee communicates written [...]
Law of evidence: Objects as a form of evidence
Evidence establishes facts. For instance, the evidence of video footage would help to establish the fact that a certain person was at the scene of the commission of what it is being alleged he committed. Real and demonstrative evidence are two important forms of evidence, but they can only be used at a hearing if [...]
In a world of so much uncertainty, where does an employer stand?
On 25 August 2021, Kwa-Zulu Natal firefighters battled to contain a fire in a chemical factory in Durban, whereby massive damage had been reported. This factory, which manufactures resin, remains closed, and police continue to investigate the cause of the fire. From March 2020, till current, many South African employers have experienced and continue to [...]
Documentary Evidence – Sounds straightforward, right?
Employers often rely on different types of evidence to prove their case during a Disciplinary Hearing at the workplace and/or an Arbitration proceeding at the CCMA/Bargaining Council. Both the employer and employee party must submit all relevant evidence before the Chairperson (Disciplinary Hearing) and/or Commissioner (Arbitration proceeding), who cannot reasonably ignore or refuse to hear [...]