In the recent case of Moraka / Road Accident Fund (2023), 32 CCMA 6.7.4 also reported at [2023] 7 BALR 786 (CCMA), it was determined that although the employee was suspended and their performance could not be evaluated, that did not mean they were automatically entitled to a performance bonus. The Applicant was a [...]
Constructive dismissal in South African labour law is not determined by whether an employee was forced to resign but by whether the working conditions were intolerable and unendurable. When an employee claims constructive dismissal or expresses that the future or continued working conditions are intolerable, it would be contradictory for that employee to desire [...]
Polygraph tests are often used by Employers when contemplating disciplinary action. However, the age-old questions must be asked, “Can an Employer dismiss an Employee solely for failing a polygraph test? Under what circumstances can it be used? And when can an Employer rely on the results of a polygraph test?” In answering these questions, it [...]
At the core of any Employer-Employee relationship emanates a common law duty of an Employee to render services to an Employer; however, it happens every so often that the Employer will require the Employee to render services beyond their contractual hours, commonly known as “overtime”. Overtime is essentially an instruction that requires an agreement, an [...]
A term often heard in the context of applying discipline in the workplace is the word "consistency" or its opposite, "inconsistency." The term “consistency” should be seen as "treating like with like" or "measuring all by the same standard". In other words, it would be unfair to treat people who have committed similar acts of [...]
Since the Constitutional Court’s judgement in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC) declaring the decriminalisation of the use, possession and cultivation of cannabis by an adult in a private place for their personal consumption, there seems to be a high belief that employers can [...]
Some employees and employers who are not affiliated with any labour consultancy, employer organisation or trade union may need to be better informed about the steps or processes that need to be followed when one of the parties wants to terminate the employment relationship. In some cases, employers may find themselves in situations where employees [...]
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 an employee for legitimate and serious misconduct. Yet, they are informed by the relevant forum that they need to consider [...]
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 commissioner must have regard for that disciplinary procedure's existence and legal status. If there is no workplace procedure, the [...]
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 are guilty of misconduct. Strikes can sometimes become violent and out of control, making it difficult for an employer to [...]