“It’s like you never left”
When a matter is referred to Arbitration, one of the possible awards handed out by the Commissioner is reinstatement. Generally, the award of reinstatement flows as a result of a referral related to a dismissal or end-of-contract matter. With reinstatement, the Commissioner directs the employer (the Respondent) to restore the employee (the Applicant) to their [...]
Who’s responsible anyway? (Vicarious Liability)
When an employee commits wrongful conduct while doing his duties, the doctrine of vicarious liability kicks in. The courts have lately enlarged the definition of this term and have concluded that it includes activities closely related to the accomplishment of such obligations created by employment. In the absence of an exemption provision or agreement between [...]
Is an employee’s refusal to vaccinate an operational requirement, or does it constitute incapacity?
The CCMA first determined whether an employer may dismiss an employee based on incapacity in the matter of Theresa Mulderij v Goldrush Group, GAJB 24054-21. The CCMA found the dismissal of an employee due to her permanent incapacity to be fair and upheld the company's dismissal. In this case, the employee was unvaccinated, and her [...]
Employers hit by default awards
A Default Award is an award made by the Commissioner at the CCMA or Bargaining Council when the employer failed to attend the Arbitration. This means that the Commissioner will only hear the Applicant’s evidence (employee) and make an award based on what the employee tells him/her. The Default Award is a legally binding decision that [...]
The little white lie, does it justify a dismissal?
The Code of Good Practice: The section dealing with Dismissals states that one of the requirements of a fair dismissal is that it must be the “appropriate” sanction. An arbitrator must make a value judgment regarding the fairness of the employer’s decision, considering all the relevant circumstances. When determining the gravity of the misconduct, the [...]
The New Code of Good Practice: Harassment in the Workplace
A new Code of Good Practice on the Prevention and Elimination of Harassment, came into effect on 18 March 2022. The code, issued in terms of the Employment Equity Act (EEA), replaces the previous Code of Good Practice on handling Sexual Harassment cases in the workplace and gives a more detailed meaning to the prohibition [...]
What do I do after the Arbitration has been completed?
After an arbitration has been completed, an arbitration award must be issued by a Commissioner within fourteen (14) days of the date of the hearing as per the Rules of the CCMA. On good cause shown, the CCMA Director may extend this period. It is also important to know what to do when a party [...]
Keep all disciplinary records of your employees even after it has expired
Employers should have a disciplinary code and procedures in the workplace to ensure that each employee contributes effectively and efficiently to the best interest of the company or workplace. Most minor offences committed in the workplace will start with a verbal or written warning for the first offences, and thereafter progressive disciplinary action will apply [...]
How to deal with absconsion where the employee was arrested
Absconsion is defined as an instance where an employee leaves their workplace with no intention to return. Employers usually fall into the trap of assuming that if an employee has absconded, the relationship ends without any effort on their side however, there is a duty on the employer to ascertain that the employee has indeed [...]
Outcomes of an Arbitration
If a dispute is not resolved through Conciliation, a party may request the CCMA to resolve the dispute through Arbitration. Arbitration is a more formal process than Conciliation as it does not promote negotiations. An arbitration is a hearing where a Commissioner gives both parties an opportunity to present their cases regarding the issue in [...]