Unfair Discrimination on an Arbitrary Ground
Section 6(1) of the Employment Equity Act, as amended states that: No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, [...]
The National Minimum Wage Bill
The South African labour market is characterised by high levels of inequality, unemployment and poverty. Due to such a characterisation, the South African National Minimum Wage (NMW) will be introduced as one of the measures to reduce these levels. The implementation of a NMW is drawing closer. The official bill has recently been adopted [...]
Double Jeopardy
When an employee causes damage to the property of the employer or the employee causes the employer to suffer a loss, the employer might find themselves in a position where they would not only want to take disciplinary action against the employee, but also recover the loss or damage suffered. This then begs the [...]
Incarcerated Employees have Rights
It happens quite often that an employee gets arrested for alleged criminal activities and/or is found guilty of criminal activity and ultimately incarcerated. Some employers then erroneously deem the employer/employee relationship to be automatically terminated. Unfortunately, an employee does not dismiss himself should he be incarcerated. It is no employer’s wish to be associated [...]
Dismissal for Misconduct and the onus at the CCMA: Workplace Rules
In dismissing an employee, the dismissal should have two fundamental characteristics. The dismissal should be substantively fair, this meaning that the Applicant should be dismissed for a good reason. The dismissal should also be procedurally fair, there should have been a fair internal process/hearing of which the Applicant had enough prior knowledge and also had [...]
Disclosure of Relevant Documents (Rule 29 of the CCMA Rules)
Employers are aware of the two processes at the CCMA, namely conciliation and arbitration. Conciliation is a means of attempting to conciliate and settle the matter before the next process, namely Arbitration, follows. Both the Applicant-employee and the Respondent-employer can request that the Arbitration does not proceed immediately after a Conciliation process has failed. [...]
Arguing of Tacit and Implied Terms in a Contract of Employment at the CCMA
Employers often find themselves in situations at the CCMA or a Bargaining Council where an applicant or a union alleges that a certain transgression made by an employee, was not stipulated in their contract of employment. This issue is usually raised when an applicant alleges that a specific duty, does not form part of [...]
What rights do foreign nationals have without work permits?
It is common knowledge that employing a foreigner without a valid work permit is illegal and exposes an employer to fines and possible prosecution. Therefore, many employers upon discovering that they have employed a foreign national without a work permit or who has an expired work permit, usually panic and follow incorrect procedures which create [...]
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 [...]