Latest Articles
Preparing witnesses for disciplinary and arbitration hearings
In essence, the preparation of a witness for a disciplinary hearing, is the same as that for an arbitration hearing. Our firm chairs disciplinary hearings across the country daily, and it has often been our experience that witnesses have either, at worst, not been...
Employee Negligence can lead to dismissal
Employees have an obligation to meet reasonable performance targets and objectives. In so far as an employees work performance is of such a nature that the actual performance is less than that which the employer can prove it can reasonably have expected from the...
Your hairdo is no ground for dismissal
Who would have thought that your hairdo could lead to your dismissal? Well, the Department of Correctional Services concluded it did when dismissing a number of employees for wearing “dreadlocks”, Rasta style, and refusing to cut their hair when instructed to do so....
Probation is part of our law
There are many misconceptions about the role and effect of probationary periods in employment contracts. It’s not surprising to hear employers conclude that probation periods pretty much give them carte blanche to dismiss probationers in the formative phase of an...
The return of the closed shop
Closed shop agreements are provided for in section 26 of the Labour Relations Act (“LRA”), and are perhaps one of the the most thorny provisions of the LRA, and the most controversial in so far as the constitutionality of such agreements I concerned. Put differently,...
There is no statutory right to smoke breaks
It has become a common site to see employees huddled on balconies, and secluded corners puffing away whilst their non-smoking colleagues have their shoulder to the grindstone. Some employers even have designated smoking rooms for the nicotine-addicted. How fair is...
The thorny question of arbitrator recusals
As you would expect, an arbitrator is required to adjudicate an arbitration hearing fairly and impartially. The CCMA’s Guidelines on Misconduct Arbitration (most recently amended in a 17 March 2015 Government Gazette) state in section 16 that “An arbitrator must...
Suspicion is not enough to prove misconduct
Most disciplinary cases arise out of an employer suspecting an employee of being guilty of one or more acts of misconduct. This typically spawns an investigation to establish whether, or not, there is sufficient proof to prove guilt on the balance of probabilities....
The new Labour Relations Amendment Act
The amended Employment Equity Amendment Act was introduced in recent months, as was the amended Basic Conditions of Employment Act. More recently, on 1 January 2015, the new Labour Relations Amendment Act came into effect. This represents the most widespread revision...
The growing blight of workplace social media e-misconduct
The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ misconduct. Put simply, this primarily involves cases in which employees insult and/or offend their employer and/or...
Summary dismissal is justified on occasion
On occasion, employers dismiss an employee instantly; such dismissal is referred to as a summary dismissal, the net effect of which is that such employee is dismissed without notice pay. The fairness of such a summary dismissal will hinge on whether the employer was...
When is a dismissal decision reasonable?
The Labour Appeal Court passed judgment in the matter of Afrox Healthcare Ltd v the CCMA & others (Case No. JA37/09) on key dismissal decision considerations. This case focused on the manner in which CCMA awards are to be reviewed in terms of the constitutional...