When it comes to the difficult question of who is an employee, it is always about relationships and these relationships can be quite complex. It all comes down to the question of who does what, who controls what and how people are paid for what they are doing. But is it mainly a question of control over someone’s activities that is the decisive factor? In a recent CCMA arbitration award it was made clear that the question of control of one person’s activities by another still plays a very important role, a role more important than, for instance, the question of economic dependence. And, of course, the question is whether the employer can rebut the presumption of who is an employee contained in section 200A of the Labour Relations Act.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

In these times, many people are desperate for a job, and they may go to some length to secure employment. Even if it means embellishing their job applications or CV’s, or simply leaving out relevant information. In a recent CCMA arbitration award the employee failed to disclose that he had been employed by the same employer a couple of years previously, and that he resigned while an investigation into his alleged dishonesty had been pending. The employee’s excuses and responses, including that he did not feel that the information was relevant and that he had compiled his CV in a hurry, did not work, and the CCMA commissioner concluded that the employer had a valid and fair reason for dismissing the employee.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

An employee leaves a sealed letter of resignation on his manager’s desk. His manager knows what is in the envelope, but because he has other pressing business to attend to, he leaves the letter where it is. The employee cools down, explains that he resigned in haste, and retrieves his resignation letter, still unread and still sealed. Can it be said that the employee resigned, or does the resignation only take effect once the manager reads it? A recent decision by the Supreme Court of Appeal indicates that a written communication must be read to be effective: an unread communication has no effect.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-4233959
Fax: 021-4232105
Cell: 0824338714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

What happens if an employer transfers a business as a going concern to a new employer? Section 197 of the Labour Relations Act provides that the employees are transferred with the business and the new employer steps into the shoes of the old employer. But what happens if the business is then transferred yet again? This would be a second generation outsourcing, and for some time the question has risen as to whether the employees would be protected by section 197 in the case of a second generation outsourcing. The Labour Appeal Court has now settled this debate by holding that section 197 must be interpreted broadly to include protection for workers who are outsourced again.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

“If an employee for a position misrepresents and/ or qualifications and is appointed to a position on the basis of such a misrepresentation, there is, in my view, no duty on the employer to provide such an employee with counselling, training or assistance. An employee who misrepresents his/her qualifications or experience is dishonest and is not entitled to be appointed to a position in the first place. An employment relationship is based on mutual trust and deceit is incompatible with, as well as destructive of, trust. Moreover, if an employee would, in such circumstances, be required to provide counselling, assistance and/or training to the deceitful employee, it would mean that the employee would in fact be rewarded for his/ her dishonesty or deceit while the employer would be penalized.”

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Employers invariably expect the outcome of a disciplinary enquiry to be the dismissal of an employee. But what happens if the employer does not agree with the sanction imposed by an external chairperson? Can the employer substitute its own sanction without calling another disciplinary enquiry? The employer has the right to do so.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

If an employee discloses information which he or she knows is confidential, the employee is in fact breaching his or her duty to act in good faith in respect of the business of the employer. Dismissal may be fair in a situation where an employee leaks a confidential report.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The essence of negligence lies in the fact that the employee failed to do what a reasonable person in his or her position would have done. Generally, negligence does not warrant dismissal for a first offence, but there are times when the employee is guilty of either gross negligence or, in a worst case, total dereliction of duty. In these cases dismissal may be justified.

“The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm. The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission. To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion.

For further information or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Employees prefer compensation over reinstatement, and CCMA commissioners seem happy to oblige. In a recent case the CCMA commissioner found that the employee’s dismissal was substantively unfair and awarded seven months’ remuneration as compensation. The commissioner calculated the compensation with reference to the employee’s net salary- not the employee’s gross remuneration. The commissioner should have calculated the compensation on the basis of the employee’s (much larger) gross remuneration. The Labour Court agreed.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

A. EXPOSITION OF THE RULE

1. Any party who requires the Commission or a commissioner to subpoena a person in terms of section 142(1) of the Act, must file a completed LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary.

2. A party requesting the Commission to waive the requirement for the party to pay witness fees in terms of section142(7)(c) must set out the reasons for the request in writing at the time of requesting the Commission to issue a subpoena in respect of that witness.

3. An application in terms of subrule (1) must be filed with the Commission at least fourteen days before the arbitration hearing, or as directed by the commissioner hearing the arbitration.

4. The Commission or a commissioner may refuse to issue a subpoena if:

a) the party does not establish why the evidence of the person is necessary.
b) the party subpoenaed does not have a reasonable period in which to comply with the subpoena;
c) the Commission or a commissioner is not satisfied that the party has made arrangements to pay the witness fees and the reasonable travel costs of the person subpoenaed.

5. A subpoena must be served on the witness subpoenaed:

a) by the person who has requested the issue of the subpoena of by the Sheriff, at least seven days before the scheduled date of the arbitration;
b) if so directed by the Commission, accompanied by payment of the prescribed witness fees for one day in accordance with the tariff of allowances published by notice in the Government Gazette in terms of section 142 (7) of the Act and the witness’ reasonable travel costs.
6. Subrules 4 (c) and 5 (b) do not apply if the Commission in terms of section 142 (7) (c), as waived the
requirement to pay witness fees.

B. ANALYSIS OF THE RULE AND CROSS-REFERENCE TO OTHER PROVISIONS

1. Purpose of the rule

The purpose of a subpoena is fourfold, namely:

a) to compel a person who may be able to give information to appear before the CCMA for questioning; or
b) to secure the attendance of a witness, including an expert witness, at arbitration proceedings; or
c) to compel a person who may have a book, document or object relevant to the resolution of the dispute under his or her control or possession, to appear before the CCMA for questioning; or
d) to secure the attendance of a witness to produce any book, document or object relevant to the resolution of the dispute that may be under the control of the witness or in the witness’ possession, in evidence.

The provisions of 142 of the LRA authorise the commissioner who has been appointed to attempt to
resolve a dispute, to facilitate the above.

The section provides:
142 Powers of commissioner when attempting to resolve disputes
1) A commissioner who has been appointed to attempt to resolve a dispute may-
a) a subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute.
b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
d) call any person present at the conciliation or arbitratio9n proceeding or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute.

2) A subpoena issued for any purpose in terms of section (1) must be signed by the director
and must-

a) specifically require the person named in it to appear before the commissioner;
b) sufficiently identify the book, document or object to be produced; and
c) state the date, time and the place at which the person is to appear.

2. Process of issuing a subpoena

Prior authorization is required must request the CCMA or a commissioner to subpoena to subpoena a
person referred to in s 142 (1) of the LRA.

In terms of rule 37(1), the process of facilitating the issue of a subpoena comprises two requirements,
i.e. the prescribed form and a written motivation in the following manner:

a) filing of the completed prescribed LRA form 7.16

b) in addition, filing of a written motivation setting out why the evidence of the person to be subpoenaed is necessary. The motivation deal with the following:

i) the date, time and place at which the person to be subpoenaed will be required to appear; and

ii) reasons why the person to be subpoenaed may be able to give information or evidence assisting in the resolution of the dispute with a reference to the facts of the dispute and which of those facts the witness will testify to; or

iii) reasons, with reference to the facts of the dispute, why a person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, should be subpoenaed to appear before the CCMA to be questioned or to produce such book, document or object, including and identification of the book, document or object; or

iv) reasons why the evidence of an expert witness is necessary and relevant to the resolution of the dispute, with reference to the facts of the dispute and which of those facts the witness will testify to; and

v) if a request is made for waiver of the payment of witness fees, the reasons for such request.

In terms of s 142 (2) of the LRA, a subpoena issued for any purpose in terms of s 142 (1) must be signed
by the director of the CCMA. In practice, the senior convening commissioner of a particular province will
sign the subpoena as the delegate of the director.

For further information on any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za