Burden of proof during arbitration proceedings dealing with dismissal cases
Ever wondered why the burden of proof shifts between the employer and the employee during dismissal arbitrations? Section 192 of the Labour Relations Act No 66 of 1995 (as amended) stipulates the following: 1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal; 2) If the existence of [...]
Should an employee who resigns after being found guilty at a hearing be afforded the opportunity to refer an unfair dismissal dispute to the CCMA?
The Labour Court confirmed in Mafika v SA Broadcasting Corporation Ltd (2010) 5 BLLR 542 (LC), that a resignation is a unilateral termination of a contract of employment by the employee. In a case before the Labour Appeal Court, Kynoch Fertilizers Limited v Webster (1998) 1 BLLR 27 (LAC), the employee was found guilty [...]
The employment of foreign nationals in South Africa
When it comes to the provisions of the employment of a foreign national, the key Act’s concerning this practice is the Immigration Act 13 of 2002 and the Employment Services Act 4 of 2014. Section 38 of the Immigration Act clearly states that no person shall employ an illegal foreigner, a foreigner whose status [...]
Code of Good Practice on Collective Bargaining, Strike Action and Picketing
In terms of Section 64(1) of the Labour Relation Act No. 66 of 1995 “LRA”, every employee has a right to strike, and every employer has a recourse to lockout. The Code of Practice on Collective Bargaining, Industrial Action and Picketing was created to provide practical guidance on collective bargaining, the resolution of disputes of mutual interest [...]
Employers recourse against employees who give 24 hours notice
It may happen from time to time that an employee resigns and gives his or her employer 24 hours’ notice. This may leave the employer in a difficult situation where they have to incur costs to re-advertise the vacant post, spend time training the new employee and getting the new employee up to standard in [...]
Unauthorised use of Company Property and the Employers Recourse
In general, when employers make property available to employees, it should be for work-related purposes and for the furtherance of their duties in the workplace. Employees may obtain permission from the employer to use company property for other purposes. Company property can be highly valuable and important for the proper running of business. It is, [...]
The Admissability of a polygraph test as evidence at the CCMA
It often happens that when an employer suspects that an employee is involved in serious misconduct, the employer requests the employee to undergo a polygraph test and then dismiss the employee on the basis that the employee has failed that test. The employer would assume that the employee must have been guilty of the [...]
Can claims for statutory money be dealt with in Arbitration proceedings before the CCMA?
An Arbitrator could previously only hear a matter i.t.o Section 74(2) of the Basic Conditions of Employment Act (BCEA) before the CCMA for any outstanding monies, if an employee had instituted proceedings for unfair dismissal and the claim had not yet prescribed. This meant that if an employee had a claim for solely statutory [...]
The Con/Arb Process and the Objection thereof
Primarily the CCMA has two main processes, namely Conciliation and Arbitration. At Conciliation an attempt will be made for the parties to reconcile their differences and settle the dispute between them. This settlement and terms thereof are at the discretion of the parties involved, being the Applicant (Employee) and the Respondent (Employer). Should the [...]
Constructive Dismissal – An Objective Test
Constructive dismissal is a statutory form of dismissal which is defined by Section 186 (1)(e) of the Labour Relations Act (LRA), as the termination of the contract of employment by the employee with or without notice due to the fact that the employer had made the continued employment relationship intolerable for the employee. The [...]