Shining a light on employee moonlighting
Employees are contractually obliged to render their services to their employer during the agreed-upon working hours as captured in the employment contract. The employee, in return, is free to pursue their commercial interests outside the [...]
Sexual harassment by an employee of a service provider – does the CCMA have jurisdiction to hear the dispute?
The EEA requires employers to take reasonable steps to prevent and respond to sexual harassment within the workplace. The Commission for Conciliation, Mediation and Arbitration (CCMA) has jurisdiction over complaints related to sexual harassment in [...]
It’s all about the procedure followed – How failing to follow the correct procedure prior to dismissal may land an employer in hot water
A situation that many a naïve employer has sat with at the Commission for Conciliation, Mediation and Arbitration (CCMA) or another relevant forum, is that of being confronted by a situation whereby they have dismissed [...]
A peak behind the curtains of the credibility of witness testimony
In a perfect world, the law would always resonate with the person who abides by it, who is right and just, and who speaks the truth. However, the harsh reality of any legal dispute, whether [...]
You’ve deserted, and this time you don’t get a hearing
Readers who frequent the Consolidated Employers’ Organisation (CEO) blog space will know by now that an employer must follow the necessary desertion procedures in cases where an employee does not report for duty. In Machaya [...]
They are not an Employee of mine
There is a clear distinction between an Employee and an Independent Contractor, as each has its distinguishable characteristics. There are, however, many instances where an independent contract may be disguised as an employment contract and [...]
“Piercing the corporate veil” in labour disputes
It is not uncommon for an employer to own multiple businesses. In these instances, employers often appoint management to run them instead while affording the employer a direct influence over each business from afar. The [...]
A Letter to All our Valued Members
2022 has been a year of rebuilding and new outlooks. South African businesses have been faced with a new type of business world and had to adapt not only in the way business is done [...]
A speech impediment – Unfair discrimination or an inherent requirement of the job?
In the matter of GIWUSA obo Mandla Tshaya vs African Explosives Limited J2311/14, judgement was delivered on a case of alleged unfair discrimination in which the Applicant had a severe facial deformity which affected his [...]
The conversation, after a warning
The workplace is regulated by a set of rules and directives that guide the efficiency of the business and the stability of the employer-employee relationship. Often, when an employee has stepped out of line either [...]
Blink, and you miss it
With the speed of the blink of an eye, here we are – in a New Year with a new set of challenges, dreams and objectives! Undoubtedly we are all unsure of what 2023 has [...]
What would a four-day working week look like for the South African labour force?
If the pandemic has taught us anything, traditional working hours are not the only method to “get the job done”. Recent studies have proven that conventional working hours do not equate to optimal productivity. Time-based [...]
The Employer did not follow any procedure prior to the dismissal
The Guidelines on Misconduct proceedings, as published by the CCMA, set out the basic guidelines that employers must follow prior to dismissing an employee for misconduct. It states that where a workplace disciplinary procedure exists, [...]
A final written warning with an obligation
In the matter of Paarl Coldset (Pty) Ltd v Singh (DA1/2021) [2022] ZALCD 8, Mr. Singh (Respondent), a shift manager of Paarl Coldset (Applicant), a printing business, was dismissed after an altercation with an employee [...]
Can an employer collectively dismiss employees with a common purpose to the misconduct?
The Labour Relations Act of 1995 (LRA), as amended, distinguishes between a “protected” and an “unprotected” strike. Employees who participate in a “protected” strike enjoy protection by the LRA and cannot be dismissed unless they [...]
Comparing employees found guilty of the same form of misconduct – Proceed with caution!
It is of the utmost importance that every employer has a reasonable and lawful disciplinary code and applies it consistently. (The importance of a reasonable and lawful disciplinary code will be discussed in another CEO [...]
I can’t take this anymore; I’m out of here!!
Our previous article, "So, are you staying or going?", discussed the factors to consider when evaluating whether an employee resigns without confirming their intention in writing. The courts have held that the employee must prove [...]
So, are you staying or going?
A contract of employment can end at the employer’s instance, in the form of a dismissal, or by the employee in the form of a resignation. Although a written resignation is preferred, sometimes the employee [...]
What do you want from me?
It often happens when a matter is referred to the CCMA that specific issues in dispute are due to miscommunication or misinterpretation between the parties. This can be easily avoided by giving new employees proper [...]
Don’t cover your tracks with dishonesty
The Labour Appeal Court in South African Society of Bank Officials (SASBO) and Another v The Standard Bank Of South Africa Limited and Others JA32/2021 had to decide whether the Labour Court correctly set aside [...]
Labour Court reinforces its zero-tolerance stance on unfair dismissals related to maternity leave
Dismissals related to pregnancy are considered automatically unfair in line with Section 187 of the Labour Relations Act 66 of 1995. The Labour Court has strengthened this position in the case of Brandt v Quoin [...]
Casual Worker or Permanent Employee?
The word “casual” is not defined by the Basic Conditions of Employment Act. The word employee is, however, defined as follows: “Any person, excluding an independent contractor, who works for another person, or the state, [...]
Can an employee claim that they have been unfairly demoted, even though their salary and benefits remain the same?
The Labour Relations Act, under section 186 (2)(a), describes a demotion as an unfair labour practice. The section reads as follows: (2) “Unfair labour practice” means any unfair act or omission that arises between an [...]
What Happens When You Retire from Retirement?
It is generally difficult in these times for a person to retire comfortably, and according to the South African Treasury, it is estimated that only 6 out of 100 South Africans can retire comfortably. In [...]
Entering into an employment contract – Where to start and what to remember
The status of an employee must be established from the beginning of the employment relationship, be it permanent, fixed term or temporary. Once the employee's status has been determined, it is essential to specify the [...]
CEO Compilation – Issue 7
Now that we have concluded the standard processes of the CCMA, both informal and formal, both voluntary and statutory, we will be looking at what comes after the CCMA process has been completed and then, [...]
Reporting delayed is not necessarily justice denied (Sexual Harassment)
Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. In the matter of Solidarity obo B v South African Police [...]
When is it simply not working out: An overview of incompatibility in the workplace
A profound statement was made in Jabari v Telkom SA (Pty) Ltd 2006 10 BLLR 924. It was said that "An employer has the prerogative to set reasonable standards pertaining to the harmonious interpersonal relationships [...]
The Impact & Challenges that a Company Faces when an Employee Leaves
One of the difficulties an employer may face in business is staff turnover, which can lead to a loss of operational capacity and skills needed to perform a business's functions, ensuring productivity. Continuity is essential [...]
Practical guidelines: The Review Application
Once an arbitration hearing has been finalised at the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant Bargaining Council, the Commissioner will issue an arbitration award. The arbitration award will set out the Commissioners [...]
The face behind the mask – The harsh reality of cost orders
We live in a time where it is not unprecedented for parties to refer labour disputes to the Courts, CCMA or Bargaining Councils. Daily, parties disagree, and labour disputes arise (whatever the reason may be), [...]
What documents do I need to complete when an employee leaves?
When a contract of employment is terminated, there are various processes that the employer needs to implement. Aside from the internal processes such as removing the employee from the payroll system, disabling passwords and accounts [...]
To Ballot or not to Ballot – That is the Question
It is settled law that a union can call a strike or embark on industrial action if there is a dispute regarding matters of mutual interest. Many employers, however, raise the question of whether their [...]
Probationary dismissals
The Code of Good Practice: Dismissals (schedule 8 of the “LRA”) makes specific provision for the employment of a new employee to be subject to a reasonable probation period, to allow the employer an opportunity [...]
What happens to the workload when positions become vacant?
Our courts have highlighted that job descriptions can change. An employee cannot believe that once a job description is issued, it is 'cast in stone'. The functions and responsibilities of an employee can be altered [...]
Let’s just move on!
Most contracts of employment have a restraint of trade clause in them. The clause usually states that the employee is restricted from performing certain work within a certain industry for a certain period. The purpose [...]
Where do your interests truly lie?
The employer and the employee have a mutually beneficial relationship, one in which the employee undertakes to provide services, expertise and skills in the interest of their employer in return for remuneration. The question that [...]
I’m sorry he/she no longer works here, is there anything I can help you with?
The management of client expectations is a crucial part of any company, as ensuring the expectations of clients are met will ensure the company's future viability and profitability. These expectations and how they will be [...]
Time to Stop and Smell the Roses
Unfortunately, not all employees can work for their entire lifetime. People naturally grow old, and soon they might be unable to perform tasks they once did with ease. Employees usually look forward to a time [...]
Probation: The Do’s and Don’ts
Employees are one of the most valuable assets in a company, especially having the right employees. Therefore, employers often need to "try out" the employees to see if they have the necessary skills and will [...]
The importance of the exit interview when the employment relationship comes to an end
An exit interview is held with an employee who is about to leave employment. The employee’s reasons for leaving and workplace experience are discussed during the exit interview. It can be a valuable tool for [...]
Can Employees Strike Over Unpaid Meal Intervals?
Section 14 of the BCEA (Basic Conditions of Employment Act) stipulates as follows: An Employer must give an Employee who works continuously for more than five (5) hours a meal interval of at least one [...]
The “Ins and Outs” of Restraint of Trade Agreements
A restraint of trade is a provision within an employment contract which stipulates that in the event of termination of employment, an Employee is restricted from taking up employment of similar work. The restraint of [...]
The “Company” you keep
A workplace is an environment wherein an individual should thrive. There are, however, incidences which are pitfalls in employment. This article explores these potential pitfalls during employment, such as, incorrect application of probation clauses, failing [...]
Section 73A Disputes – Don’t let the rugby referee officiate the soccer match; make sure your game ball is on the right field
Employers are often called to appear at the CCMA after failing to pay an employee's outstanding money. A dispute in terms of Section 73A of the Basic Conditions of Employment Act 75 of 1997, as [...]
Jurisdiction of the CCMA to determine an alleged breach of Section 34(2) of the BCEA
It frequently occurs that employers make deductions in terms of Section 34(1) of the BCEA. These deductions are usually for staff loans, damages to company property, traffic fines and sometimes the excess arising from an [...]
The effect employee-performance management has on employee success
There are diverse types of management styles in the workplace. New research by the consulting firm Hay/McBer found six distinct leadership styles, each springing from different components of emotional intelligence. The styles, taken individually, appear [...]
Oh, my deduction!
The Basic Conditions of Employment Act seeks to provide protection of an employment relationship and give effect and regulate labour practices for it to be fair. Section 34 deals with deductions and other acts concerning [...]
Temporary Employment Services – the sole employer approach preferred by the Courts
The various interpretations afforded to the "Deeming Provision" contained in Section 198A(3)(b) of the Labour Relations Act 66 of 1995 have been shrouded in confusion and uncertainty for a long time. However, the Labour Appeal [...]
The importance of creating a positive environment in the workplace
Many employees will spend the majority of their day at their workplace. It, therefore, forms an integral part of one’s life. The workplace environment will impact various aspects of an employee’s well-being. A workplace that [...]