Mere suspicion does not prove an employee guilty of misconduct
Strong suspicion that an employee has committed misconduct, is a persuasive thing. So persuasive, in fact, that employers are frequently lulled into concluding that the suspicion is so compelling, that it proves employee guilt, of misconduct. Nothing could be...
Substantively unfairly dismissed employees may not always be reinstated
Sections 193(1) and (2) of the Labour Relations Act, lists a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings. Retrospective reinstatement is a remedy limited to cases of substantively...
Employers may not randomly select a retirement age
Our labour courts still frequently hear cases in which employers have prematurely retired employees. In the main, this has to do with employers either retiring employees prior to the correct normal retirement date, or imposing a retirement age when none otherwise...
Falsely accused of sexual harassment
The 2005 Amended Code of sexual harassment talks of “…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: 4.1 whether the harassment is...
Charged with one thing and found guilty of another
In the Labour Court case of EOH Abantu v (Pty) Ltd [Case No. JA4/18], the employee had been found guilty of a charge that was not specified in the employer’s charge sheet. In short, the employee had been found guilty of gross negligence, when gross negligence was not...
When the impartiality of a Commissioner is disputed
CCMA and Bargaining Council Commissioners must conduct arbitration impartially, and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct. This is precisely what occurred in the recent Labour Court case between...
The chasm between regret and remorse
An employee may regret having committed an act of misconduct, but they may not be remorseful for having done so. This distinction is important when considering both in the context of mitigating circumstances, after an employee has pleaded guilty, or been found...
Hearsay evidence is admissible at times
Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his/her own eyes or senses, but heard from someone else. Hearsay evidence is considered to be unreliable, problematic as the source of the evidence...
The days of Recognition Agreements are pretty much over
Those old enough to remember the labour relations environment in the 1980’s will remember the emergence of Recognition Agreements. The then Labour Relations Act had no codification of trade union rights, or what we today refer to as ‘organisational rights’. Way back...
Theft of relatively low cost items still typically warrants dismissal
One of our multi-national clients recently lamented the fact that, by a country mile, they experience the highest number of theft-related and dishonesty cases in South Africa, than anywhere else in the world. The unfortunate reality is that our consultancy deals with...
Lots of boxes to tick when proving poor performance
At the end of the day, managers and supervisors are paid to manage and supervise two things, employee conduct and employee performance. From an employment law point of view, the conduct aspect of management becomes important when the employee’s conduct becomes...
Refusal to undergo a polygraph test may be grounds for dismissal
Polygraph and truth verification tests have been around for some time. You won’t need to look far to find someone with an opinion on these tests, with those claiming that they are all but infallible, to those who doubt their accuracy. Regardless, these tests are...