It is the breakdown of the relationship of trust that normally justifies termination of employment in cases of employee misconduct. How serious must that breakdown be? Does the employer have to prove such breakdown of trust to justify dismissal?
When employers restructure in order to improve efficiencies, it leads to redundancies. Redundancies can lead to retrenchment, but not necessarily. This is where employers often get it wrong.
Occasionally a customer or other external party is witness to employee misconduct. It may be necessary for such person to give evidence in disciplinary proceedings. If the employee challenges the outcome of the hearing, such evidence may also be needed in arbitration proceedings. But what if the person does not want to get involved? Is hearsay evidence allowed?
When it comes to retrenchment, employers tend to make the mistake of announcing their decision to retrench before consulting with the affected employees or their union. Confronting employees with a fait accompli can be fatal to the process. But does this mean that an employer may not form any opinion before consulting?
In a disciplinary hearing an employee has the right to be heard before being judged. But does an employee have the right to be heard before being suspended pending the outcome of the hearing? Against the background of conflicting case law, the Constitutional Court has finally brought about some clarity on pre-suspension hearings.
Employers were expecting the minimum wage rates in the Wholesale and Retail Sector to be increased with effect from 1 March 2019 – this did not happen.
Adherents to certain religions are reluctant to work on their sabbath or other holy days. But what if such a refusal clashes with the employer’s operational needs?
The national minimum wage (NMW) has been signed into law. Effective 1 January 2019. What exactly does this mean to employers and employees?
A recent Labour Court judgement highlighted the importance of respecting an employee’s home language and right to an interpreter in a disciplinary hearing. But what if the disciplinary hearing is conducted in English and the employee is proficient in English?
People may no longer be prosecuted for cultivating, possessing and using small amounts of dagga for private purposes. But what are the consequences for the workplace?
Can employees escape the consequences of their actions by resigning with immediate effect? There has been uncertainty about an employer’s right to proceed with disciplinary action after an employee’s resignation ‘with immediate effect’ but a judgement of the Labour Court in Cape Town has brought about much needed clarity.
When the CCMA makes an award for the reinstatement of an employee who has been unfairly dismissed or suspended, it seldom goes down well. But what happens if the employer ignores the award?
Employers must exercise their disciplinary powers in a consistent manner. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions, is to ensure that they do not act arbitrarily. In other words, like cases must be treated alike.
South Africans were expecting that a national minimum wage (NMW) would be implemented on 1 May 2018. This did not happen, but the NMW is still likely to be implemented during the course of this year. We can also expect some other changes to labour legislation. How will this affect employers and employees?
Question: Is a statement of intent by an employee to resign enough to terminate employment?
An employee could claim additional compensation if a suspension is regarded as being unfair. In a well-publicised case, the CCMA awarded an employee five months’ remuneration in addition to the normal pay that the employee received while on suspension.
May an employer deviate from disciplinary procedures in misconduct cases?
The potential impact of the drought on the employment relationship should not be underestimated. It may affect the employee’s right to remuneration if it becomes impossible for employees to work, but it may also lead to problems with employee attendance if employees have to queue for water.
An employee resigns with immediate effect after receiving notice of a disciplinary hearing. May the employer proceed with disciplinary action?
Some businesses need water in order to function. The prevailing drought in the Western Cape has led to unpredictable interruptions due to the implementation of water rationing measures. Interruptions to water supply can also be due to a variety of other reasons. Contingency plans may be inadequate, which may result in employees not being able to work
Does setting sales targets make it easier to dismiss an employee for poor work performance?
Are Uber drivers independent contractors or employees?
Special care must be taken before dismissing an employee due to disability. What guidelines should one follow if there’s doubt?
May an employer make deductions for damage or loss caused by employee?
The Labour Relations Act protects employees against unfair dismissal. However, our law makes allowance for a contract of employment coming to an end without it amounting to a dismissal.
The distinction between incapacity due to ill health (‘medical incapacity’) and disability is from both a practical and legal perspective one of the most difficult situations for an employer to manage.
In certain exceptional circumstances it is acceptable for an employer to rely on written statements only in a disciplinary hearing.
There could be several reasons for employers ending up having ‘illegal’ foreigners in their employ. The illegal employment of a foreigner is expressly prohibited by the Immigration Act. What does an employer do if a work permit is due to expire, or has already expired?
Arbitrators will look at the following factors when deciding whether or not a dismissal for ill health was fair.
Much has been said of “the right to remain silent”. It may be raised by a defendant in criminal law, but does it mean anything in the employment relationship?
The issue of ‘plea bargaining’ arises where there are several perpetrators involved in a disciplinary transgression. The employer needs one or more co-perpetrators to give evidence at the disciplinary hearing. Can one agree to a lesser sanction in return for his testimony against the alleged accomplices?
Wilful and persistent refusal to carry out an instruction often results in summary dismissal. It becomes trickier if the employee has a good reason not to follow the instruction. So, what is a good reason to refuse to work?
May employees on probation be dismissed for lesser forms of misconduct?
Earning extra money outside of working hours (also referred to as ‘moonlighting’) may sound like a good idea. But what if the employer objects?
Where employees don’t do what is expected of them, the employer is often faced with a practical dilemma: Do I treat this as misconduct or incapacity?
How high may the employer set the bar when it comes to discipline in the workplace– may a zero tolerance approach be implemented?
The assumption is often made that people who do volunteer work are not employees. But are volunteers protected by labour legislation?
Social media has become a powerful communication tool, but using it can have far-reaching consequences. Can employees be dismissed for expressing their personal opinions outside the workplace and outside of working hours?
Drafting a proper disciplinary notice can be frustrating. Many employers would simply pass the responsibility to external advisors. Yet, provided a few fundamentals are taken care of, there is no reason why managers could not do it themselves and leave only the most complicated cases for external parties to assist with.
As a rule employers should give newly-appointed employees some time to settle in before deciding on their suitability for the job. But would it be fair to expect an employee appointed to a high level job to ‘hit the ground running’?
Time spent travelling between clients and the workplace during the working day would normally be regarded as working time. But what about time spent travelling to work, or time spent at the workplace before commencing with normal daily tasks?
Until recently, our labour legislation has made no reference to part-time employment. What has gone almost unnoticed is the specific introduction of the protection of employees that are employed on a part-time basis in contrast to fixed term contracting that has received a lot of publicity recently.
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.
The workplace is not a democracy. One of the implied terms of the contract of employment is that of subordination – the employee has to submit to the authority of the employer provided this is exercised lawfully and reasonably.
How will an organisation’s upcoming skills development submission impact on its future BBBEE ratings and what steps can be taken to maximise their scores in this element?
Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?
One of the most important changes to the Labour Relations Act , which came into effect on 1 January 2015, is the added protection afforded to employees on fixed term contracts. While some employers and employees are not directly affected, the impact will be far reaching and employers are encouraged to review their current contracts and practices to ensure compliance.
Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.
Imagine a situation where an employer does not have job vacancy, but agrees to accommodate a person as a favour. The person is employed with the clear understanding that if things do not work out, the contract may be terminated without the employee having recourse to the remedies afforded by the Labour Relations Act. Can this be done?
Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?
Do medical certificates issued by traditional healers have to be accepted by employers? While there does not appear to be an obligation to do so at present, indications are that it will be soon become a reality.
Can lapsed warnings be taken into account when an employee faces disciplinary action?
The Employment Equity Amendment Act of 2013 has finally come into effect on 1 August 2014. Not only large employers are effected and some provisions apply to all employers, irrespective of their size. The Department Labour is likely to be very active in assessing employers’ compliance in the months to come.
Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.
When employers want to terminate a fixed-term contract before the expiry date, it would seem to make sense that this could be done as long as they pay the employee for the balance of the term. However, a recent Labour Court case involving the Office of the Presidency has highlighted the fact that premature termination of employment may amount to an unfair dismissal.
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (often referred to as the “youth wage subsidy”). It appears to be a very simple process, essentially administered by SARS.
The date by which employers have to submit their Workplace Skills Plan (WSP) and the Annual Training Report (ATR) to their SETA’s is fast approaching. It has been brought forward to 30 April 2014 (having previously been 30 June of each year).
What if a fellow employee does something that causes the employer harm – is there an obligation on his/her collegues to report this to the employer?
Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?
In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.
Employers have been avoiding liability for unfair labour practice claims relating to “benefits” for some time. It has been argued, often successfully, that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. This and other barriers have since been eroded significantly.
Employees are not necessarily the only ones to blame for the abuse of sick leave in South African workplaces. It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.
It sometimes makes sense for companies to allow certain employees to continue working after the agreed or normal retirement age. The question is this: How does one go about terminating employment during that period?
May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?
It is a misconception that companies can only be reimbursed for training provided by external SETA-registered institutions. Companies can in fact also be reimbursed for structured internal, day to day training as well as Learnerships offered.
The Bill seeks to rectify anomalies and clarify uncertainties that have arisen out from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.
The DTI recently published a number of proposed amendments to the Broad Based Black Economic Empowerment Act for comment, which if implemented will have a significant impact on organisations, making it more onerous to retain or improve their ratings.
In a society with diverse religious beliefs employers are challenged not only to be tolerant, but also to accommodate that diversity in the workplace. To what extent must religious beliefs and practices of employees be accommodated?
Generally an employee may not be dismissed for refusing to sign a contract of employment. But are there circumstances where the employer can take stronger action short of dismissal?
Finally we have clarity about the nature of the forthcoming amendments to the LRA and BCEA.
When a trade union approaches an employer with the news that its employees have joined the union, one can understand that some employers might experience a sense of betrayal. But is it as bad as it seems?
Our law does not provide for a national or general age at which employees have to, or may retire. Contracts of employment may of course contain an agreed retirement age, …
Just as we think that the law pertaining to fixed term contracts has settled, something changes. While the latest development regarding the expectation of renewal of a fixed term contract may be welcomed by employers, there is no reason to celebrate.
Should an employer try to accommodate an employee’s request for leave of absence to be trained as a traditional healer, where the period of absence may be as long as one month or longer? Or to grant leave in excess of the family responsibility leave available to an employee so that she can fulfil her obligation to arrange for a family member’s funeral?
Social networks, such as Facebook, serve as a useful vehicle for sharing one’s personal views. It can also have unexpected and unfortunate ramifications. One example is when an employee makes use of a social network to air his views about his or her employer.
The recently proposed amendments to the Employment Equity Act (‘EEA’) created much discussion and concern. The concern arose from both the substance of some of the proposals and the poor manner in which they were drafted. For now it would appear that the proposed changes (as well as proposed changes to the LRA and the BCEA) will not be passed in law in their current form. We are likely to see, at some point in the not too distant future, better considered and drafted proposals for change.
There is a fair chance that a job seeker has left the employment of the former employer on bad terms. Whatever the circumstances, the applicant is faced with the difficulty that volunteering such information could harm the prospects of getting a new job. The job seeker may get away by being scant on detail in the CV. Being evasive during the job interview is likely to be more problematic. But how far does the duty to disclose go?
Employers engage temporary employment services (‘TES’ or ‘labour brokers’) for various reasons, one being the relative ease with which under-performing or misbehaving placements can be replaced. Unless there is a …
While the proposed amendments to labour legislation have attracted significant media attention, many refinements can still be introduced before the amendments reach the statute book. Even so, employers should be …
Complying with the Employment Equity Act (EEA) is not merely a mechanical process. There are indeed some procedural requirements, but in assessing compliance consideration must be given to whether ‘sufficient progress’ has been made with the …
When an employee is imprisoned for having committed a crime, there could be more than one reason why the employer might want to terminate employment. The employer might feel that …
When employees send e-mails, they don’t always anticipate where an e-mail might eventually end up. What about their right to privacy?
In Shoprite Checkers (Pty) Ltd v CCMA & Others the LAC held essentially that theft should be treated like all other forms of misconduct and that mitigating factors must also be taken into account.
One of the most significant amendments to the Labour Relations Act that became effective on 1 August 2002, relates to the transfer of business as a going concern. In many respects the law is clarified. But here are some sticky questions.
A comprehensive discussion of Sectoral Determination 9: Wholesale and Retail with practical examples can be found on www.labourwise.co.za Wholesale and Retail Sector This employment contract is based on Sectoral Determination …
Retrenching employees has been regarded as a relatively straight-forward process. However, recent judgements have shown that the requirement of fairness stretches beyond the text of legislation.
When an employee is absent for several days without communicating with the employer, the incorrect assumption is often made that the employee has deserted and has therefore dismissed himself.
Managing a situation involving an ‘invisible’ illness, e.g. depression, can be challenging, as the employer in Marsland v New Way Motor & Diesel discovered.
Disciplinary charges can inevitably cause tension between employer and employee. The employee nevertheless has a duty to show respect for as long as the employment relationship continues.
Not everyone applying for a new job has left the previous employer on good terms. How many details of the applicant’s employment history should be disclosed to the prospective employer?
What does one do with whistleblowers who refuse to testify in a disciplinary hearing because they fear intimidation?
The sensitive issue of the use of labour broking services has once again been raised after a recent finding of the High Court of Namibia. What are the implications for employers in South Africa?
While it is generally recognised that the decision not to promote is the employer’s prerogative, employers often don’t realise that the failure to promote may amount to an unfair labour practice.
It is often assumed that a contract of employment has to be in writing to be valid. What about offers of employment via SMS?
Can an employer deduct monies from an employee’s salary if the employee fails to give proper notice of resignation? Does verbal resignation suffice or should it be in writing? More questions answered.
It often happens that an employee who has been appointed on a fixed-term contract is allowed to continue working beyond the expiry date. What is the employee’s status after that …
The unauthorised personal use of company assets by employees is a growing and ongoing problem, and the greatest area of concern is usually the abuse of company telephones. How can this be contained?
Can disciplinary action be taken against staff that threaten or assault fellow employees outside the workplace?
In terms of our common law, there is a price that the employer has to pay for being able to issue instructions and exercise control over its employees while the latter are going about their duties.
Where individuals within a group of employees have committed misconduct, members of the group may refuse to give information to assist in identifying the culprits. What action can be taken?
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