Is reinstatement always the appropriate remedy?

One of the primary functions of the CCMA is to “keep employees employed”. Therefore, it is not surprising that reinstatement or re-employment is the primary remedy for an employee whose dismissal was unfair. Section 193 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) provides that where an arbitrator finds [...]

2022-07-05T15:31:33+02:00July 5th, 2022|Dismissal|0 Comments

Dismissal for a WhatsApp message

WhatsApp is a popular means of communication; employers often create group chats within their Company to communicate instructions or share relevant company information. But what happens when an employee uses this means of communication to share his or her view of a topic that could ultimately affect the working environment? In a recent CCMA decision, [...]

2022-06-30T12:19:46+02:00June 30th, 2022|Dismissal|0 Comments

The Impact of Misconduct on the Trust Relationship

The Labour Relations Act places the trust relationship between the employer and employee at the heart of the employment relationship. Therefore, it can be assumed that an act of misconduct would impact that trust relationship and render continued employment impossible. While that may seem like the logical basis for dismissal, employers are cautioned against making [...]

2022-06-14T10:55:16+02:00June 14th, 2022|Dismissal, General|Comments Off on The Impact of Misconduct on the Trust Relationship

“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 [...]

2022-06-13T10:27:39+02:00June 13th, 2022|Arbitration, Dismissal|Comments Off on “It’s like you never left”

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 [...]

2022-06-07T13:50:29+02:00June 7th, 2022|Dismissal, General|Comments Off on Is an employee’s refusal to vaccinate an operational requirement, or does it constitute incapacity?

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 [...]

2022-06-02T12:33:26+02:00June 2nd, 2022|Dismissal|Comments Off on The little white lie, does it justify a dismissal?

Being Provoked, a Valid Defence to Assault, or Not?

Employers should exercise caution when dismissing employees charged with assault, even if the assault is serious. An employer, all too often, reacts emotively to alleged assault due to the grievous nature of the offence. This diverts the employer’s attention from the cold, hard facts when assessing whether dismissal is indeed an appropriate sanction in the [...]

2022-05-19T09:52:02+02:00May 19th, 2022|Dismissal, General|Comments Off on Being Provoked, a Valid Defence to Assault, or Not?

The standard and onus of proof in alleged dismissal disputes

Section 192 (1) of the Labour Relations Act 66 of 1995 (LRA), states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and only then must an employer prove that the dismissal was fair. This is particularly important when an employee alleges that he was dismissed, but the [...]

2022-05-10T11:47:21+02:00May 10th, 2022|Dismissal|Comments Off on The standard and onus of proof in alleged dismissal disputes

An employer’s right to dismiss for misconduct outside the workplace

Employers have the right to discipline and even dismiss employees for misconduct that occurs outside of the workplace if it can be shown that there is a link between the misconduct and the employer, its operational requirements, and where it occurred within the context of the working relationship. The Labour Appeal Court confirmed this aspect [...]

2022-04-11T13:59:02+02:00April 11th, 2022|Dismissal|Comments Off on An employer’s right to dismiss for misconduct outside the workplace
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