After an employee has left your employ he/she normally has 30 days in which to refer the matter either to the Commission for Conciliation, Mediation and Arbitration or the relevant Bargaining Council. Obviously, this referral could be done after 30 days but then the employee has to apply to the Commission to ask them to condone the late referral. This Application is known as a Condonation Application and must be […]
It should be noted that as Employers, they are largely responsible for presenting their own Arbitrations. Invariably, we as lawyers are allowed to come to the Arbitrations and to represent our clients. However, on some occasions, when this is not done, the Arbitrator makes a decision on the evidence that is presented before him or her. This decision is not appealable and is final and binding. On very few occasions, […]
We often receive calls from our clients after the Arbitration advising us that the award of the Arbitrator has been negative and they want to appeal same. The arbitration award is final and binding and cannot be appealed. The award can be taken to the Labour Court on Review but a Review means there are very limited grounds and invariably these Reviews are not successful. Arbitrations must be treated seriously […]
We are dealing with a case at the moment where an employee (driver) was suspected of having driven the company’s vehicle while under the influence of alcohol. The employer immediately requested the driver to undergo a breathalyser. The employee was then requested to accompany them to a police station so that further tests could be taken. The employee refused further tests. The employer’s witnesses all testified at the disciplinary hearing […]
In a situation where a business is closing or has become insolvent. Section 197 of the Labour Relations Act kicks in. This section specifically grants the affected employees rights in terms of the Labour Relations Act and outlines that they must be transferred on similar terms and conditions recognising the previous service. In an interesting decision in the Labour Court, Lotz vs Anglo Office Supplies, the business was sold to […]
In an interesting arbitration, an employee had been away without leave for 10 days. The employee had in the past received warnings for being absent without leave. On this particular occasion, the employer conducted a disciplinary hearing and dismissed the employee in the employee’s absence. The arbitrator ruled that the employer should at least have made an attempt to try to contact the employee to come to the disciplinary hearing. […]
If the poor work performance was sufficiently serious to warrant the dismissal then the alternative to dismissal such as demotion could be deemed to be fair, if the process was fairly done. In essence Section 186 of the Labour Relations Act says that “unfair conduct by the Employer relating to the demotion of an Employee” could mean an unfair labour practice. If there are circumstances of unfair labour practices, then […]
In an interesting turn of events, the Labour Court accepted that it has jurisdiction to act as a Court of Law in a dispute between a labour broker and its client. In this particular case, Transman v SAPO, the client terminated the Employment Contract forcing the labour brokers to in turn have to try and comply with Section 189 of the Labour Relations Act (Retrenchment). The labour brokers tried to get information […]
In an interesting Arbitration, Dlamini & Others v Green Four Security, the Labour Court had once again to decide whether the workplace rules would overrule religious adherence. In this particular case, the employees belong to the Baptist Nazareth Group and they said that their faith did not allow them to trim their beards. Judge Pillay in the Labour Court was faced with the issue and said that it needed to […]
Should there be a conflict between two pieces of legislation, then in terms of Section 210 of the Labour Relations Act 1995, it clearly states that the Labour Relations and its provisions will prevail. An interesting issue arose in terms of the Competition Act, where it is necessary for a business to advertise that certain employees will lose their jobs if a merger or take-over takes place. This however cannot […]