CONTRACT OF EMPLOYMENT IN TERMS OF THE BASIC CONDITIONS OF EMPLOYMENT ACT (BCEA)

This is the primary piece of legislation which sets minimum standards of employment for employment contracts. Included in a contract of employment are written particulars of employment:  The employer’s name and address ;  The employee’s name;  The employee’s occupation or a brief description of the work, which the employee is employed;  The place of work;  The date of commencement of employment;  The employee’s ordinary […]

DISMISSAL FOR OPERATIONAL REQUIREMENTS

Three categories of dismissals may arise from employers’ operational requirements, retrenchment (termination because the employees are superfluous to the employer’s need), redundancy (termination because the employer no longer has the required skills) and transfers (termination because of the transfer of the whole or part of the employer’s business). In terms of section 189 of the LRA, paragraph 3. The employer must issue a written notice inviting the other consulting party […]

Dismissal for Poor Work Performance

Termination for this reason is generally known as dismissal for incapacity. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure – ie such dismissals must be procedurally and substantively fair. • The employee should have been aware, or could reasonably have been expected to be aware, of the required performance standard; • […]

Dismissal For Misconduct

Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. The legislature has also approved a general code for those employers who do not have their own codes, and against which the fairness of the particular codes can be assessed. This is to […]

FAIR DISCIPLINARY HEARING

Audi alteram partem, literally, ‘hear the other side’, principle must be applied in the employment context. This means that employers cannot take disciplinary action against employees without affording them a fair hearing. SUMMARY After the charge is investigated, the employee is normally served with a notice of a hearing, setting out the charge the employee is required to answer, and informing the employee of the time and place of the […]

UNFAIR DISCRIMINATION AT WORK

About Unfair Discrimination at Work No person may unfairly discriminate, either directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth. For further information on any labour related matters, you can contact Bernard Reisner: […]

Freedom of Association

Every employee, therefore, has the right to join – or not to join a union, and if the employee does join a union, to participate in its lawful activities. This right extends to ‘every employee’, including applicants for employment. It follows that no employer may forbid an employee to join a trade union on any ground, even if members of a trade union are incompatible with the employee’s status or […]

EMPLOYERS NEED TO PROVE A BREACH OF TRUST

If an employer is dishonest in the workplace, it can cause a breakdown in the trust relationship between the employee and the employer. However, it is essential that the employer convene a disciplinary hearing to prove that the employee’s dishonesty caused a breakdown in the trust relationship. It is not good enough for employers to simply say there has been a breach of trust. The employer has to lead evidence […]

SUSPENSION FROM WORK

An employer who suspects an employee is guilty of misconduct can hold a disciplinary hearing to establish whether or not the employee is guilty and, if he is, to decide on an appropriate penalty. However, sometimes it takes time to properly investigate the incident. If the issues are serious, employers may want to suspend the employee pending the outcome of the disciplinary hearing. There are minimum standards to ensure fair […]

EMPLOYERS’ RESPONSIBILITY FOR SAFETY OF STAFF

We have seen many cases recently where sexual harassment of one staff member by another has led to a successful claim against the employer. This concept obviously can go one step further in that the physical, emotional and psychological safety of your staff is often the responsibility of the employer. It becomes the employer’s responsibility if the staff point out imminent danger. We see in the current press that ambulance […]

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