During an arbitration, an employee would often raise as a defence that a final written warning was issued unfairly or without reason and therefore should not be considered by the Commissioner when issuing an award. Should this line of argument be entertained, and what is the CCMA’s stance? The matter of Kock v Commission [...]
Section 187(1)(c) of the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. In the recent decision of Jacobson, Merwyn Jack v Vitalab (JS1042/19) [2019] ZALCJHB [...]
Section 188 of the Labour Relations Act 66 of 1995 (herein referred to as the “LRA”), recognises incapacity as a potential fair reason for a dismissal provided that a fair pre-dismissal procedure was followed. 1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove – a. that the [...]
Adopting a comprehensive disciplinary code and procedure is important for every employer to ensure that charges and sanctions fit the transgression. The consequences of a flawed disciplinary code can result in an adverse award in an arbitration hearing. A practice frequently used by employers is to use all-encompassing charges, for example, “Actions detrimental to [...]
NUMSA OBO NGANEZI & OTHERS // DUNLOP MIXING & TECHNICAL SERVICES (PTY) LTD 2019 ZACC25 The Dunlop case has given a new perspective and places a heavier burden on employers when dealing with the concept of derivative misconduct. In August 2012, members of NUMSA engaged in a protected strike for approximately a week. During [...]
We have noticed in recent months that many of our members are uncertain about incapacity proceedings. In September, we will be focusing on various incapacity processes. We will discuss their purpose and application. We hope that the information will be of value to our members and provide them with a greater understanding of the incapacity [...]
In terms of section 186(1)(e) of the Labour Relations Act 66 of 1995 dismissal means that, an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee. Traditionally, CCMA Commissioners and the courts expected employees to exhaust all internal remedies and grievance processes before they resigned. This was [...]
“That apprentice cannot take me to the CCMA” are words that we hear so often from employers, however, are these employers factually correct? Piet Du Plessis was appointed in terms of an apprenticeship programme at X Trucking and received a formal letter of appointment for 1 April 2020. The appointment letter further stated that [...]
In the Twelfth Edition of Workplace Law, John Grogan writes that Section 186(1)(a) reflects what the common law understands as a dismissal – the repudiation of the contract by the employer, or the employer’s acceptance of the employee’s repudiation. It is important to grasp the difference between the termination of an employment relationship under [...]
In Workplace Law 12th Ed. John Grogan writes that one of the general requirements for a fair dismissal is consistency. For many years now, the labour courts have stressed the principle of equality of treatment of employees, the “parity principle”. What this essentially means, is that it would be unfair for an employer to [...]