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 [...]
What does current case law state regarding unfair suspension in terms of Section 186(2)(b) of the Labour Relations Act
Suspension in the workplace may be of two kinds, namely; suspension of an employee imposed as a precautionary measure pending disciplinary action or as a form of disciplinary penalty. Section 186(2) of the Labour Relations Act states: “unfair labour practice means any unfair act or omission that arises between an employer and an employee. [...]
Can an employer terminate an employee’s service based on incapacity due to the supervening impossibility of performance?
In many industries, employers provide assistance to clients in the form of services, and one such an example would be the security industry. Situations, for various reasons, arise where the client informs the employer that a specific employee is no longer permitted on their premises, the employee’s access is therefore denied. Typical examples would [...]
Should an employee who resigns after being found guilty at a hearing be afforded the opportunity to refer an unfair dismissal dispute to the CCMA?
The Labour Court confirmed in Mafika v SA Broadcasting Corporation Ltd (2010) 5 BLLR 542 (LC), that a resignation is a unilateral termination of a contract of employment by the employee. In a case before the Labour Appeal Court, Kynoch Fertilizers Limited v Webster (1998) 1 BLLR 27 (LAC), the employee was found guilty [...]
It often happens that when an employer suspects that an employee is involved in serious misconduct, the employer requests the employee to undergo a polygraph test and then dismiss the employee on the basis that the employee has failed that test. The employer would assume that the employee must have been guilty of the [...]
What exactly does constructive dismissal mean and what must an employee prove to be successful at the CCMA? In terms of Section 186(1)(e) of the Labour Relations Act, constructive dismissal is defined as when “an employee terminated (a contract of) employment with or without notice because the employer made continued employment intolerable for the [...]
Can the Employer follow the Desertion Procedure, if Dismissal is in Dispute and the Employee referred the Matter to the CCMA Prematurely?
Most employers find themselves in a situation where their employees prematurely refer dismissal disputes to the CCMA, whilst the employer was in the process of instituting disciplinary action against the employee. Thereafter, the employee deserts when he/she unilaterally refuses/fails to report for duty for an unreasonable long period without good reason/notification, and with the intention [...]
Section 187 of the Labour Relations Act lists a number of reasons for dismissal that are automatically unfair, meaning the dismissal is unfair by virtue of the reason for the dismissal. Once it has been established that the reason for dismissal is one of the reasons listed in section 187, the employer will not be [...]
A further form of statutory dismissal is the termination of the contract of employment by the employee with or without notice or leaving employment due to unfair pressure, unreasonable instruction or unbearable conduct on the part of the employer. […]
It often happens that an employee resigns from the workplace and thereafter refers a case to the CCMA alleging unfair dismissal. Many employers don’t realise that even though an employee has resigned voluntarily, this may amount to a dismissal. Such a dismissal is termed “Constructive dismissal” […]