Latest Articles
Yet another social media rant leads to dismissal
Unfortunately, but not unsurprisingly, employee postings on social media platforms which put the good name of their employer into disrepute, are becoming increasingly common. More often than not, the social media postings are of such a nature that the dismissal of the...
When it’s one person’s word against another
From time to time, disciplinary cases evolve in which there is only one employer witness, whose evidence is, invariably, contested by the employee. It’s the “one person’s word against another case”. In more legal parlance, the chairperson, or Commissioner, is faced...
What if the employer only has one witness to prove its case?
Disciplinary hearing verdicts depend on whether the employer can prove, on a balance of probabilities, that the employee is guilty of the misconduct alleged. Put differently, the probabilities that the employee is guilty must be greater than the probabilities that...
Circumstantial evidence: when there are no eye witnesses
There are times when employers seek to prove that an employee is guilty of misconduct. When in fact, there were no eye witnesses. Such cases, rather than relying on direct evidence, rely upon circumstantial evidence. Section 192(2) of the Labour Relations Act...
The ‘doctrine of common purpose’ and the workplace
Collective guilt arises when an employer deems it appropriate/necessary to hold one or more individuals liable for the acts of others within a group. The doctrine of common purpose was originally sourced from the field of criminal law the essence of which, as...
Concourt TES judgment severely lessens the viability of long-term labour broker usage
On 26 July 2018, the Constitutional Court handed down a landmark judgment in the application against a judgment of the Labour Appeal Court, to determine the correct interpretation of section 198A(3)(b) of the Labour Relations Act. This Concourt judgment has caused...
You can’t resign to avoid disciplinary action
On occasion, employers are faced with circumstances in which an employee resigns to avoid disciplinary action. In fact, some collective agreements in the Public sector, specifically allow for employees to resign at any time prior to a finding being made, after which...
Labour Arbitration Hearings – Fundamental Principles
The CCMA has been a part of the employment law landscape for approximately twenty three years and, as are Bargaining Councils, it is tasked with the adjudication of many employment disputes if and when conciliation fails, the vast majority of which are related to...
Labour Court rules on Constructive Dismissal
Earlier this month, the Labour Court passed judgment in a review application regarding a constructive dismissal case, between Agricultural Research Council v Silas Ramashowana and Others (Case number: JR1432/15). Constructive dismissal cases are interesting for a...
Moonlighting is not always lawful
Given the pressing economic times we live in, it’s not surprising that the so-called gig economy is evolving at the pace it is. It is a gig economy in which many choose to hire themselves out on a project basis, from gig to gig. Another way of making ends meet is to...
Consistency in disciplinary hearings
Consistency relates to the requirement that like offences, or acts of misconduct, should be treated alike, and different cases treated differently. This principle is also sometimes referred to as the parity principle. Whilst it is important to be consistent, this...
How does the Labour Court determine when dismissal is too harsh?
In our law, dismissals must be fair. More precisely, they must be both procedurally and substantively fair. One of the key elements of substantive fairness is that the sanction imposed must be appropriate, ‘the punishment must fit the crime’, so to speak. This...