Dismissed for one day’s absence while on a final written warning
When an employer loses the end of its patience with the conduct of an employee, it is often just a small straw that breaks the camel’s back and puts an end to the employment contract. That much was obvious in the matter of Malimba v Commission for Conciliation, Mediation and Arbitration and Others (JR1594/18) [2021] […]
Focus on social media can lead to poor performance
The temptation to constantly check your personal emails, WhatsApps, SMSs or the latest posts on Facebook, Twitter or Instagram – and to fire off an immediate response – is extremely powerful. Too much time spent on social media during the working day can, however, cost you your job – and the dismissal will be upheld […]
Resigning Won’t Prevent a Disciplinary Hearing
We have accepted for a very long time that the decision to terminate an employment relationship by means of a resignation constituted a unilateral act effected by the employee. This meant that employees could either resign “with immediate effect”, or by giving notice, whereafter they worked out the notice period if so required. When the […]
Ignoring a subpoena can land you in jail
CCMA and Bargaining Council commissioners have the powers to issue subpoenas, but unfortunately these subpoenas are usually seen as toothless. More often than not, subpoenas are ignored, and the witnesses fail to attend the proceedings. Commissioners can also cite parties for contempt, but as it is necessary to refer such a ruling to the Labour […]
No work, no pay during lockdown
It is common knowledge that large numbers of employees suddenly found themselves without an income when the strict Level 5 lockdown regulations confined them to their homes from 27 March 2020 until 30 April 2020. In terms of the regulations only the essential services and a limited number of industries such as companies essential to […]
Reason for Suspension – Misconduct or Lockdown?
Since lockdown started on 27 March 2020, CCMA commissioners have had to determine a variety of issues resulting from the lockdown. In the matter of Bobotjane/Sebvest Financial Services Group /Sebvest Development Africa (Pty) Ltd the CCMA commissioner had to determine whether the interruption of the applicant’s services constituted an unfair labour practice, given that the […]
When is an utterance racist?
In 2016 City Press carried a story with the headline, “We know racism when we hear it.” Although there is no single legal definition for the term “racism”, this confident headline crumbles somewhat when tested against the guidelines for determining when an utterance is racist as laid down by the Constitutional Court in relatively recent […]
Virtual hearings are no longer science fiction
Lockdown has taken its toll on the hearing of disputes in general. Like the different courts, the CCMA could not open its doors again until quite recently. To ensure the safety of everyone who attended the CCMA premises, a Standard Operations Procedure (“SOP”) guideline was issued in line with section 27 (2) of the Disaster […]
Unfair dismissal may lead to reinstatement
Employers are often perplexed when a dismissed employee is retrospectively reinstated by the CCMA or a Bargaining Council. The employer not only has to take the employee back, but he also has to pay that employee for the period between the date of dismissal and the date of reinstatement. Employers react differently to a reinstatement […]
A REFERRAL INTERRUPTS PRESCRIPTION
The Prescription Act 68 of 1969 provides that if a debt is not claimed in a period of three years it prescribes. It further provides that prescription is interrupted when the debt is claimed. The question whether a claim for unfair dismissal was a “debt” and when the running of such prescription is interrupted, has […]