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Invalid Settlement Agreements
A Settlement Agreement founded on a common mistake is invalid.
Rights and obligations in terms of sick leave
What are employees’ and employers’ rights and obligations in terms of sick leave?
Parental leave amendments
Under the Basic Condition of Employment Act, employees who wish to access the revised parental leave benefits of 10 days per annum are now able to do so with full rights.
Foreign Employers Cannot Escape SA Labour Law
South African labour law strongly protects people employed in South Africa. Furthermore, our courts do not easily give up jurisdiction to foreign courts.
Watch what you say to avoid dismissal
Section 16 of the Constitution affords everyone the right to freedom of expression. However, this right is not absolute and can be limited.
When Remorse Makes Dismissal Unfair
Case law reveals countless reasons given by CCMA arbitrators for an employer’s dismissal decision to be deemed unfair.
Apologise and save your job
It happens often that employers are faced with an employee at a disciplinary enquiry who vehemently denies the allegations against him/her or persistently denies any wrongdoing, even though the...
Absence does not make the heart grow fonder
Employers rely a great deal on, or expect employees to be present at work. It is therefore a major source of frustration for employers when employees are absent.
Hearsay evidence can render dismissals unfair
At a disciplinary hearing, the presiding officer (chairperson) should reject evidence that is legally inadmissible. One type of evidence that may be ruled inadmissible is when it is hearsay. What is...
Be Prepared for Disciplinary Hearings
In a Labour Court review case the employer had dismissed the employee for theft but the CCMA had ordered the employer to reinstate him.
If best candidate declines the job, is second best entitled to be appointed?
In the arbitration between the National Union of Mineworkers obo Donald Andile Mchunu v Tronox Mineral Sands, the Commissioner had to decide whether the applicant, the second best candidate,...
Polygraph Tests
The guidelines that follow are provided by the Commission for Conciliation, Mediation and Arbitration (CCMA) What is a polygraph test? It is a test used to verify a person’s truthfulness and is...
Fixed-term contracts not for permanent positions
Employers often lose at CCMA and bargaining councils in cases relating to fixed-term contracts of employment. A key reason for this is that employers do not understand the legal purpose of...
Reinstatement: A remedy for unfair dismissal and unfair labour practices
Reinstatement is a remedy used in labour law for unfair dismissal and unfair labour practices.
False Allegations of Racism may be Grounds for Dismissal
Can an employee who makes a false allegation of racism against another employee be dismissed? The answer is yes, employees can be dismissed for making false accusations of racism. Facts of a recent...
Jailed employees – dismissal for operational incapacity?
Our previous article was about the rights of jailed employees. This article is more about the employer's rights when an employee is jailed. As was mentioned in our previous article, employers are...
Jailed employees still have rights
It seems obvious to employers that, if an employee is arrested by the police he has ‘dismissed himself'. However, this mistaken belief is born from wishful thinking. Reasons for such wishful...
Smoking cannabis (dagga) at home and reporting for work
Since the Constitutional Court declared the private use of cannabis (dagga) legal in the matter of Minister of Justice and Constitutional Development and Others v Prince & Others [2018],...
Jail time for lying on your CV
In recent times we have read a lot in the media about people lying about their qualifications. The South African job market is tough, so much so, that a high number of people have resorted to lying...
Poaching former colleagues could be costly
A recent court case proved it may be worthwhile for companies to go after former employees who poach their talent. Massmart did exactly that by going after a former employee who had poached an...
Absenteeism and the Law
Many employers experience problems with employees being absent from work. In fact, in many workplaces absenteeism is a major concern as it impacts negatively on the operational requirements of the...
Can an employee resign by e-mail or SMS?
Can an employee resign from a job by email where the employment contract requires resignations to be in writing? The question has interesting implications for how people communicate with each other....
Employee Suspension: A change in due process
On 06 February 2019 we posted an article about employers failing to comply with due process when suspending and employee, in that an employee must be afforded the opportunity to make representations...
Informal Employment Does Not Protect Employers
It is a common and erroneous belief amongst employers that they protect themselves by employing staff without a letter or contract. In fact, the converse is true. The law does not make signed...
Consequences of selective re-employment following dismissal
Re-employing a dismissed or terminated employee can have unintended consequences, especially when the other employees dismissed or terminated for the same or similar reasons find out about this and...
Employee Suspension: Employers STILL getting it wrong
The suspension and ultimately reinstatement of primary school teacher, Elana Barkhuizen from Laerskool Schweizer-Reneke has again highlighted how employers fail to appropriately follow due procedure...
Loophole employees were using to dodge disciplinary hearings are now closed
Employees due to appear in disciplinary hearings have been exploiting a legal loop that allowed them to walk away without having answered to charges of misconduct. It is an increasingly frequent...
Pregnant Employees – Testing Differential Treatment
In the recent case of Impala Platinum Ltd v Jonase and Others, the Labour Court (LC) dealt with an appeal against an unfair discrimination award, brought in terms of section 10(8) of the Employment...
National minimum wage and parental leave
The National Minimum Wage (NMW) and the Labour Laws Amendment Bill have been signed into law on 23 November 2018. These laws will bring about some major changes in South African labour law and will...
Racial insults in the workplace – a rise in racial insults and derogatory remarks
Recently, there has been an unsettling rise in the instances of racial slander in the workplace. In September 2018 we posted and article about an employee who was dismissed for making a racial...
It's again time for that 13th cheque: Is an employer obligated to pay annual bonuses?
We are in the middle of November and employees across the country are without a doubt already busy making the most wonderful plans with their 'Christmas bonus' that has been paid or about to be...
Myths around sexual harassment in the workplace
Our previous article talked about sexual harassment at year-end office functions and the possibility that there could be sexual harassment claims following such parties. While the rules around...
Christmas party / year-end season and sexual harassment claims
It’s that time of the season – year-end parties are upon us. Year-end parties provide staff and clients with a great opportunity to interact in a relaxed social environment without the constraints...
Entitlement to Accrued Annual Leave on Termination of Employment – Court Judgement
Is an employer bound by its own changes to its leave policy? What happens when the employer disputes whether the changes were ever implemented, and there is no witness to deny or contradict claims...
What are employers' rights regarding cannabis (dagga) in the workplace?
The ban on private possession, consumption and private cultivation of cannabis/dagga (marijuana) at home was ruled unconstitutional by the Constitutional Court (ConCourt) on 18 September 2018,...
Can an employee resign and then a week or so later withdraw the resignation?
As a general principle an employee cannot retract his or her resignation without the employer’s consent. If an employee can show that the employer failed to accept his resignation he can withdraw...
Dismissal of an employee who makes racist comments
In recent times, racist comments have featured prominently in local printed and social media. Many of these types of comments are being made in private capacities, but more than often they are made...
When is hearsay evidence enough in a labour dispute case?
The Labour Court (LC) in South Africa was recently tasked with considering the weight that should be attached to the transcribed record of an internal disciplinary hearing. Ordinarily, in the...
Fixed-term Contracts of Employment – Consequences for Employers
Many employers enter into fixed-term contracts with employees for the wrong reasons and then further extend the contracts a number of times without considering or being aware of the possible...
Do SA labour laws apply to foreign nationals?
The recent raids on businesses employing illegal foreign nationals in Cape Town underscores the Department of Labour's mission to ensure that employers comply with labour legislation as it relates...
Refused promotion of an employee
The Labour Relations Act (LRA) allows employees who have been passed over for promotion to lodge an unfair labour practice dispute at the CCMA or relevant bargaining council. This does not mean that...
When is the dismissal of an employee substantively fair?
It often happens that an employer wants to dismiss an employee, but is not certain whether it would be substantively fair. Substantive fairness means that there is a fair or valid reason to dismiss...
Reference Checks – Part 2: Legalities and Effectiveness
In Part 1 we addressed the problems with reference checks, what to cover when doing them and the methods that could be used. This article, Part 2, focusses on the legalities and effectiveness of...
Reference checks – Part 1
Most employers, if not all, conduct reference checks on potential new employees, prior to appointing them. A question which is often raised is, what information may the old employer disclose about...
Restraint of Trade Agreements
What is a restraint of trade agreement? It normally forms part of the terms and conditions of a contract of employment. A restraint of trade is an agreement between an employer and an employee, or a...
Electronic Employment Offers
We are in an age where most of our communication happen electronically via smartphones, tablets and laptops. When it comes to hiring employees, it is no different. How many times have employers...
Elements of a notice to attend a disciplinary enquiry
Our previous article was about the Guidelines to suspend an employee for misconduct. In that article we undertook to discuss in this article the items or elements that a notice to attend a...
Guidelines to suspend an employee for misconduct
If an employee commits misconduct and the employer suspends him before the disciplinary enquiry, a fair procedure must be followed. If not, the employer can be taken to the CCMA for an unfair labour...
Paternity Leave for Fathers
Parliament has adopted the Labour Laws Amendment Bill with the view to regulate the right of paternal leave. The Labour Laws Amendment Bill was first introduced to parliament in November 2015....
Employee Privacy: What are the rights of the employer?
In October 2017 we posted a series of articles about employee privacy as it relates to the use of employee information by the employer. This article focuses on where do employees' rights to privacy...
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