Employment update - November 2018

• South Africa

• Employment law

30-11-2018

Welcome to our employment case studies feature. Drawing on our team’s experience, our aim is to keep you up to date with recent key developments to help you manage your employment challenges. We do hope you find it useful. Please do not hesitate to contact us if you wish to find out more.

Recent updates

Sign on the dotted line

Employees wanting to pursue cases for unfair dismissal in either the CCMA or various Bargaining Councils typically kick-start the process by completing and signing the requisite dispute referral forms. While this process has been simplified for the purposes of a quick and easy dispute referral, it is not uncommon for employees to enlist the help of attorneys. Often attorneys will sign dispute referral forms on behalf of expectant employees. However, doing so may be tantamount to signing the proverbial death warrant for that unfair dismissal dispute. Read more…

Manyi ordered to pay back the money

Labour Court orders DSTV News Channel: Afro Worldview to follow retrenchment procedures after being shut down.

It is well-known that employers are legally obliged to issue a notice to employees inviting them to consult on their possible redundancy, the moment the employer even thinks about this as a possibility. But what are the consequences if the employer deliberately or negligently shirks this legal obligation? Read more…

Less remorse more punishment

What is an employer to do when it has (i) run an internal disciplinary hearing of one of its employees, (ii) found him/her guilty of the charges and, (iii) when it comes to sanction, is faced with a situation where said employee refuses to acknowledge any wrongdoing on his/her part and claims that he/she was acting under the instruction of his/her superior? Read more…

Is your workplace "a lonely hearts club?"

In Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen the Labour Court, delivered a scathing judgement wherein it criticised a CCMA commissioner for taking a “misogynistic, patriarchal and insensitive approach” towards allegations of sexual harassment.

This judgement demonstrates the seriousness with which the Labour Courts are viewing sexual harassment in the workplace and is a precautionary tale for all employers to review the wording of their sexual harassment policies accordingly. Read more…

Is a fixed term contract really that fixed?

Currently employers believe that:

• if they prematurely terminate a fixed-term employment contract, they will have to pay the employee the remainder of contract; and
• they can only retrench employees employed on fixed term contracts if the contract contains a clause specifically allowing them to do so.

This does not appear to be the case in terms of contract law. Read more…

Desertion- who decides?

Employers are often confused as to when employees are deemed to have deserted the workplace. Should employers wait a mandatory number of days before declaring an employee a deserter? Are there any obligations on the employer to discharge the onus of proving the employee’s desertion? Read more…

ConCourt endorses a “rational” war on racism

In the recent judgment of Duncanmec (Pty) Ltd v Gaylard N.O [2018] ZACC 29, the Constitutional Court observed that complaints of racism in the workplace are rising rapidly and that the courts have a critical duty in the fight against racism, which they must play firmly but fairly. Read more...