Does the “helping-hand principle” still apply in Arbitrations?
The “helping-hand principle” can be found in Clause 20 and 21 of the CCMA guidelines on misconduct arbitration. The applicable sub-clauses can be summarised as follows: Clause 20: “At the start of the arbitration, the arbitrator should welcome the parties and advise them of – … 20.9) the requirement that if evidence of a [...]
The conundrum of incitement
The disciplinary charge of incitement may seem simple at face value, but if you put this misconduct under the microscope, there is far more to it. What is incitement? In Albion Services CC v CCMA (D 275/10) [2013] ZALCD 12 the Labour Court held that the definition includes that an employee purposefully acted in [...]
Employee claims against an Employer in business rescue in the Labour Court
The Labour Court, in the case of Marais and Others v Shiva Uranium (Pty) Ltd (In Business Rescue) and Others (J3049/18) [2018] ZALCJHB 346; (2019) 40 ILJ 177 (LC); [2019] 5 BLLR 472 (LC) (5 October 2018), recently ruled on whether employees are entitled to approach the Labour Court to enforce a claim against their [...]
Agreement of full and final settlement, the end of the Road?
When parties enter into a full and final settlement agreement in order to terminate the employment relationship, most employers are of the opinion that the matter has been settled and that the employee has waived his/her right to refer the matter to the CCMA. However, in the recent Labour Court award of Cook4Life CC [...]
Contempt of the CCMA
Contempt of the CCMA normally relates to conduct either during or after proceedings, for instance, where a party refuses to comply with an award which requires an act to be performed. Section 142(8) regulates what constitutes contempt during CCMA proceedings and includes, inter alia: Failure of a witness who has been issued a subpoena [...]
New Rule relating to the Pre-Arbitration Conference
At the commencement of 2019, we saw the introduction of an updated set of Rules for the CCMA (Commission for Conciliation, Mediation and Arbitration). One of the rules which saw significant amendments was Rule 20 – “When must parties hold a Pre-Arbitration conference”. This article will only deal with the important amendments relating to Rule [...]
All employees have a right to privacy, but is that privacy limited?
All employees have a right to privacy, but does it end there? In the recent Labour Court decision of NUMSA and Another v Rafe N. O. and Others (JR1022/12) [2016] ZALCHJB 512, the question of whether an employer had the right to examine an employee’s cellphone, was permissible, secondly the employees’ refusal to have his [...]
CCMA Rule 31B: Application for compliance order to be made an arbitration award
Employers have been faced with a “BCEA Form 15” regarding an application for a compliance order to be made an arbitration award in terms of the New Minimum Wage Act and are unaware of what to do once a form of this nature has been received. In light of the new amendments to the Labour [...]
A quandary for employers: the unilateral changes to terms and conditions of employment
Business owners and managers, who comprise the ‘employer’ component of any workplace are often in the best position to make decisions to suit the profitability of the enterprise concerned. Employers may want to change business operations regularly to ensure growth and sustainability. In practice, organisational change goes against the grain of the terms and conditions [...]
Essential Services: A Restriction on an Employees’ constitutional right to Strike
Section 23(2)(c) of the Constitution of the Republic of South Africa, 108 of 1996 (the Constitution) gives all workers in South Africa a right to go on strike, this right is further entrenched in section 64 of the Labour Relations Act, 66 of 1995 (the LRA) as amended. The question that arises now is, is [...]