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 [...]
Demotion as an unfair Labour Practice
A demotion occurs when there is a change to the employee’s terms and conditions of employment which results in a material reduction of the employee’s remuneration, responsibility or status. However, where there is a diminution of dignity, importance, responsibility, power or status, attendant benefits or a rank change, it can be deemed a demotion. [...]
Hoorsê-Getuienis
Tydens ‘n interne verhoor of tydens die arbitrasieverhoor, is dit soms nie moontlik om direkte of eerstehandse getuienis te bekom of te lewer nie. Dit kan die geval wees waar byvoorbeeld; ‘n sleutelgetuie oorlede is na ‘n verhoor, maar voor die aanvang van ‘n arbitrasie, waar videomateriaal nie meer beskikbaar is nie, waar ‘n sleutelgetuie [...]
Absolution from the Instance and the CCMA
Employers often find themselves dragged to the CCMA by an employee without any knowledge or understanding of the reasons why and how exactly the matter can even proceed at the CCMA. This may occur for numerous reasons including, but not limited to, the simple process of referring disputes to the CCMA; the fact that referring [...]
Refusal to Bargain
You might receive a set down notice from the CCMA citing the dispute as “refusal to bargain”. What does this mean? And are you forced to bargain with the union? Refusal to bargain is defined illustratively, but not exclusively, to include: Refusal to recognise a trade union as a collective bargaining agent; Refusal to [...]
The Hostile Witness
During arbitration, the testimony of a witness is the most crucial of all, and you may find that you have to declare someone a “hostile witness”. A hostile witness is described as a witness who acts against the party for whom they are testifying, in a manner which is inconsistent with previous statements. For example, [...]