NEW MISCONDUCT FRAMEWORK

New CCMA guidelines relating to misconduct arbitrations recently gazetted, and due to become effective in January 2012.The guidelines highlighted (1) How to conduct arbitration proceedings. (2) Assessing evidence and drafting an award. (3) How to approach procedural fairness. (4) How to approach substantive fairness. (5) How to approach remedies. The guidelines note that “arbitrations typically involve six stages”: (1) Preparation and introduction. (2) The preliminary issues. (3) Narrowing the issues. […]

ARBITRATION COSTS AWARDS ARE RARE

It’s rare for a winning party to win costs in a CCMA or Bargaining Council arbitration case. Section 138(10) of the Labour Relations Act makes limited provision for costs to be awarded in favour of a party to a hearing. Costs may be awarded against a party and/or their representative in the event that either or both act frivolously (“manifestly futile”) and/or vexatiously (manifestly groundless or utterly hopeless in foundation”), […]

PICKETING RULES

Section 69 of the LRA deals with right of strikers and their supporters, to picket, which is further dealt with in an LRA Code of Good Practice on Picketing. This right to picket can be traced back to section 17 of the constitution, which provides that everyone (strikers and their supporters) has the right to assemble, demonstrate, picket and present petitions in a peaceful, unarmed manner. The purpose of a […]

CCMA ARBITRATION HEARING: CHECKLIST

Ensure that the concept of “proof on the balance of probabilities” is clearly understood. This is the burden (or amount) of proof required for an employee to be found guilty in a fair manner. Put simply, the employer must be able to prove that the employee is probably guilty. For further information on any labour related matters, you can contact Bernard Reisner: W.Tel no.: 021 423 3959 Fax: 021 423 […]

Disciplinary Hearing Procedure

A fair disciplinary hearing procedure generally includes a number of rights that the employee is entitled to – including the right to be given notice of the charges in sufficient detail to enable him to prepare a defence, affording the employee sufficient time in which to prepare a defence, informing him of his right to representation and his right to call witnesses to testify on this behalf, and his right […]

Domestic Worker Contract

Domestic Workers have for a long time been known as a lady who works in the homes of the upper class people, thus the term domestic worker If you employ a domestic worker then it is critical to have a domestic worker contract. A Domestic Worker Contract is an agreement between the Employer and the Employee (Domestic Worker) Why do I need a Domestic Worker Contract? Having a domestic worker […]

LEGITIMATE SICK LEAVE

An employee is obliged to furnish an employer with a legitimate medical certificate “if the employee is absent from work for more than two consecutive days or on more than two occasions during an eight week period”. The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established […]

ENTRAPMENT

Occasionally both the CCMA and the Labour Court are required to address the admissibility of evidence garnered by an employer against an employee during an undercover operation. This typically takes the form of taped telephone conversations, audio evidence and the like evolves subsequent to a trap having been laid by the employer. “It seems that provided the courts are satisfied that the use of entrapment is properly scrutinised and the […]

EMPLOYERS RIGHT TO PROTECT THEIR BUSINESS INTERESTS

One issue that employers face more often these days is that of employees who badmouth their managers, clients, colleagues or the work environment in general, on social media sites such as Facebook and Twitter. A very thin one indeed, because just as individuals have a right to privacy, so do employers have the right to protect their business interests. Because of this, employees are not free to do and say […]

CONSTRUCTIVE DISMISSAL

A Definition of Constructive Dismissal It involves employees resigning on the basis that they have concluded that the employer has acted in a fashion which has rendered their on going employment to be unbearable. Section 186(1)(e) of the Labour Relations Act provides that dismissal means “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. “an employee bears an […]

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