Latest Articles
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...
Tread carefully when dismissing incarcerated staff
Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees. The Labour Appeal Court (LAC) in SAMANCOR Tubatse Ferrochrome v MEIBC & others (Case No.JA57/08) addressed this conundrum providing some clarity. In this...
Pain of retirement age dismissals
Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal. Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee...
Sangoma training does not qualify for sick leave
A Labour Appeal Court judgment caused quite a stir in addressing leave applications to attend Sangoma training, with many commentators erroneously reporting that the judgment confirmed that it created new law compelling employer’s to accept unregistered Sangoma, or...
Strike guidelines are particularly relevant at this time of year
Various myths and facts are associated with strike activity, especially given the heightened emotions and tension which accompanies strike action. To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration...