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Category: Labour Law (page 1 of 3)

Getting the facts straight in disciplinary hearing notices

May 18, 2022 / / Comments Off on Getting the facts straight in disciplinary hearing notices

When an employer institutes a disciplinary hearing against an employee, the employee is entitled to know and understand the nature of the charge(s) against him/her. As the employee has a right to answer or provide an explanation to the charge(s) against him/her (known as the audi alteram partem rule), employers need to make sure that they provide the employee with a notice of the disciplinary hearing in which the charge(s) against the employee is clearly set out. This article will briefly discuss to what extent it is expected that the wording and categorising of offenses be correct in such notices, in line with the Labour Appeal Court’s decision in EOH Abantu (Pty) Ltd v CCMA and Others (“EOH Abantu”).

The EOH Abantu case deals with an employee who was charged with theft, fraud, and dishonesty — alternatively, unauthorised removal of material, breach of the confidentiality agreements, and disregard of the code of ethics. During the disciplinary hearing the employer could not prove that the employee acted with the necessary intent to commit the offences. The employee was, however, found guilty and dismissed for gross negligence, a charge that was not contained in the notice of disciplinary hearing.

The employee referred an unfair dismissal case to the CCMA. The commissioner found that the dismissal was procedurally fair, though it lacked substantive fairness. This was because the employee was found guilty of gross negligence which was not listed a charge in the notice of disciplinary hearing. The Labour Court dismissed the employer’s review application, which argued that gross negligence was a competent verdict on the charges as set out in the notice. The Court upheld that the subsequent dismissal was not an appropriate sanction.

The employer appealed the aforementioned decision to the Labour Appeal Court. The Appeal Court held that the charges must be precisely formulated and specific enough to place the employee in a position to answer it. The Court further held that the approach by the commissioners and courts should not be formalistic or technical. The Court’s view is that a lay person often sets out charges too narrowly or incorrectly, therefore, the categorisation of the misconduct is of less importance. The Court ultimately held that it is not a requirement that the competent verdict be listed in the charge sheet for the employee to be found guilty of it. However, the employee should never be prejudiced by the citing of an incorrect charge or verdict.

Prejudice will normally arise where the employee has been denied knowledge of the charge(s) they are expected to meet. There will be no prejudice should the employee been made aware of the possibility of a competent verdict on a disciplinary charge, and the employee is not able to conduct their defence any differently or provide any other defence.

Based on the approach of the Labour Appeal Court, it is important to note that an employer is not restricted to the competent verdict or charge as set out in the disciplinary notice. The essential details of the charge and the relevant work policy should be correct, however. The employee must be in a position to know and understand the charge. It can happen that the employee is found guilty of a lesser charge or competent verdict, should it be proved.

Therefore, it is not expected that employers should draft their notices like skilled legal practitioners. The notices should, however, be drafted in a way that places the employee in a position to know and understand the charges. The employee should not be prejudiced by the incorrect citing of a charge. It is important that the disciplinary notices contain all the essential details of the charge and/or policies which were contravened.

Reference List: 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Is depression a ground for discrimination?

May 18, 2022 / / Comments Off on Is depression a ground for discrimination?

In a matter of Legal Aid South Africa v Jansen, the Labour Appeal Court had to decide whether the Employer’s decision to dismiss Mr Jansen, who was struggling with depression and continued being absent from work a result thereof, was fair. Mr Jansen argued that his behaviour was a result of his deteriorated mental health.

Mr Jansen commenced his employment with Legal Aid South Africa during 2007. In 2010 he was diagnosed and treated for depression. Over the following years,  Mr Jansen was absent from work on numerous occasions, which he attributed to his depression.  Mr Jansen would take unauthorised leave and eventually he received a final written warning for it.

As his condition deteriorated, he continued to be absent from work without following his employer’s leave policy. He was eventually charged with being absent for 17 days, breaching his employer’s policy, showing insolence towards a superior, and insubordination by refusing to fulfil his duties. Mr Jansen pleaded guilty to the offences. However, he justified his actions on the basis of his deteriorated mental health. Legal Aid South Africa, however, proceeded to dismiss him.

Mr Jansen proceeded to challenge the fairness of the dismissal on two grounds. Firstly, he argued that it was unfair in that he was discriminated against on the grounds of disability (in terms of section 187(1)(f) of the Labour Relations Act,66 of 1995) and argued it to be an unfair discrimination case in terms of the Employment Equity Act, 55 of 1998.

The Labour Court (LC) found that Mr Jansen had proven a prima facie case and held that he was unfairly discriminated against after hearing the evidence of his clinical psychologist, who testified and explained his mental condition.

Legal Aid South Africa appealed the decision to the Labour Appeal Court (LAC). The LAC took into consideration that even though Mr Jansen had admitted to the transgressions, he, nevertheless, maintained that his behaviour was a direct result of the depression. The depression, he argued, obscured his ability to conduct himself in such a manner where he could appreciate the wrongfulness of his behaviour, which consequently effected his self-control.

The LAC confirmed that incapacitating depression is a form of illness that places a duty on the employer to implement the procedures set out in items 10 and 11 of the Code of Good Practice.

The LAC held that dismissal for reasons of misconduct would be inappropriate and substantively unfair in the event that it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions. Instead, the employer ought to approach the issue in terms of incapacity or an operational requirements perspective. Conversely, it can also be a mitigating factor if an employee’s depression does not impede on their cognitive and conative abilities. Their depression may, nevertheless, diminish their culpability. According to the LAC, the onus lies with an employee to prove the claim that their depression impacted their conative ability.

Regarding the automatic unfair dismissal claim, the LAC held that,

“for an employee to succeed in an automatically unfair dismissal claim based on depression, the question is different. Here the inquiry is not confined to whether the employee was depressed and if his depression impacted on [sic] his cognitive and conative capacity or diminished his blameworthiness. Rather, it is directed at a narrower determination of whether the reason for his dismissal was his depression and if he was subjected to differential treatment on that basis. Here too, the employee bears the evidentiary burden to establish a credible possibility (approaching a probability) that the reason for dismissal was differential treatment on account of his being depressed, and not because he misconducted himself.” 

Even though Mr Jansen suffered from depression, he had failed to construct a plausible case to prove that his acts of misconduct were caused by his state of depression. The clinical psychologist who treated Mr Jansen could also not place any evidence before the court that his depression caused the acts of misconduct. Accordingly, The LAC upheld the appeal, and the decision of the LC was set aside and substituted with an order dismissing the application.

Therefore, based on the approach of the LAC, if it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions, then dismissal for reasons of misconduct would be inappropriate and substantively unfair. Depression can also serve as a mitigating factor in certain circumstances. The onus, however, to prove the direct link between the illness and the misconduct, is on the employee.

Reference List:  

  • Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC)
  • Labour Relations Act, 66 of 1995
  • Employment Equity Act, 55 of 1998
  • South African Labour Law Reports 2021, 37th Annual Seminar. Author: B van Zyl.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What are fair grounds for dismissal regarding off-duty misconduct?

August 13, 2021 / / Comments Off on What are fair grounds for dismissal regarding off-duty misconduct?

With looting and violence severely impacting certain parts of South Africa in June 2021, many businesses are facing great challenges on various fronts. In light of the recent civil unrest, many employers have been faced with the question as to whether they are entitled to dismiss their off-duty employees for their participation in the looting and violence.

In most instances, an employee’s conduct outside of the workplace and after working hours does not fall within the scope of the employer’s authority. However, where such conduct has an adverse impact on the business, the employer is entitled to follow fair disciplinary procedures, which may possibly lead to the dismissal of an employee.

It is evident from case law that, in specific circumstances, off-duty misconduct can constitute a valid reason for dismissal. Dismissal for off-duty misconduct is more pertinent in cases where the employee’s conduct involves gross dishonesty or corruption and where, as a result, the relationship of trust between the employer and employee is irreparable. Item 7(a) of Schedule 8 of the code of good practice stipulates that the contravention of a rule regulating conduct in the workplace, or of relevance to the workplace, can form the basis for disciplinary action.

Invariably, the question then becomes, “What constitutes conduct that is relevant to the workplace?  Our law provides us with a test to make this determination. First, there must be a nexus (a link) between the conduct that is being scrutinised, the employee’s duties, and the employer’s business or the workplace. Second, the employer must have a legitimate interest in the conduct of the employee outside of working hours. If such a nexus can be established, then the employer is entitled to subject the employee to disciplinary action for his or her misconduct.

Furthermore, our courts have ruled that a nexus between an employee’s misconduct while off duty and an employer’s business exists where the employee’s conduct has an adverse or intolerable effect on the efficiency, profitability, continuity, or reputation of the employer’s business.

Thus, in the context of an employee caught looting, the following instances could establish the aforementioned nexus and potentially entitle an employer to take disciplinary action against an employee for their off-duty misconduct:

  1. If the employee was caught looting in his or her work uniform and can therefore easily be identified as an employee of the employer;
  2. Where the employee is not in work uniform but is still identifiable as being associated with the company. For example, the employee is in management or is ‘the face of the company’;
  3. Where the nature of the employee’s misconduct has an adverse impact on the employee’s duties. For example, if the employee is in the retail sector and is therefore entrusted with the employer’s stock.

In light of the above, it is evident that employers do not enjoy an automatic right to dismiss employees who have been in caught in the act of looting or for any general off-duty misconduct by an employee. Employers are advised to properly assess and evaluate such occurrences before taking any action and speak to their legal adviser should they believe that there may be fair grounds for dismissal.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What if your dismissal is overturned?

September 7, 2020 / / Comments Off on What if your dismissal is overturned?

Reinstatement in terms of the s 193(2) of the Labour Relations Act 66 of 1995 (LRA)

According to s193(2) of the LRA, if it is found that an employee was found to have been (substantively) unfairly dismissed, the Labour Court (LC) or the arbitrator, must make an order that the employee be reinstated, unless:

  1. The employee does not wish to be reinstated;
  2. A continued employment relationship would be intolerable;
  3. It is not reasonably practicable for the employer to reinstate the employee; or
  4. The dismissal is unfair only because the employer did not follow a fair procedure.

The employer cannot simply say that they are not going to reinstate the employee on the basis that they have employed someone else. In Mashaba v SA Football Association, the court held that “the right which the LRA provides is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the subsections are applicable. An order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement. That is of no concern to the arbitrator or the court and the employer is left to its own devices to sort out the mess it finds itself in, having employed someone and then being ordered to re-engage someone in the same position.”

Once there is an order of reinstatement, the dismissed employee and the employer can begin negotiations, to either compensate the employee or create an alternative position for them. However, if the dismissed employee wants to be reinstated in their previous position before dismissal, what will happen to the permanent replacement employee?

In Mashaba, the court goes on to say that “if the employer does not take suitable steps in its contract with the replacement, it ought to realise that it runs the risk that it will be faced with the possibility of terminating that relationship or of trying to re-negotiate the replacement’s contract if the former is reinstated”.

The Commission for Conciliation, Mediation and Arbitration Guidelines on Misconduct Arbitration provides that “The fact that another employee has been appointed in place of the unfairly dismissed employee is not in itself a reason to deny reinstatement, as the reinstatement of an unfairly dismissed employee may constitute a ground for terminating the employment of the newly appointed employee on the grounds of the employer’s operational requirements”. This guideline suggests retrenchment as the solution for the employer.

Retrenchment of replacement employees

Retrenchment will not be an easy way out for the employer. The replacement employee must be satisfied that the process of retrenchment has been properly followed.

Section 189 of the LRA provides for a process of consultation with the employee potentially facing retrenchment based on operational requirements. With regard to consultation, in Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, the court stated that “the ultimate purpose of s189 is thus to achieve a joint consensus-seeking process. In this manner, the section expressly recognises the employer’s right to dismiss for operational reasons, but then only if a fair process aimed at achieving consensus has failed.” Such consultations may not yield a favourable outcome for the employee.

Conclusion

The permanent replacement employee may end up being unemployed if the retrenchment process appears to be justifiable or the Employment contract fails to make provision for this instance. It is, therefore, imperative that employers cater for this in the employment contract where there is still a pending unfair dismissal proceeding. It is best to consult an attorney when faced with this situation to advise on the best possible way forward.

Reference List:

  • De Rebus in 2020 (July) DR 8.
  • Mashaba v SA Football Association (2017) 38 ILJ 1668 (LC).
  • Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

No work-no pay – What does the law say?

September 7, 2020 / / Comments Off on No work-no pay – What does the law say?

Many employers were left in the dark after the President of the Republic of South Africa declared a national state of disaster in terms of the Disaster Management Act, 2002, and implemented a national lockdown thereafter, as a means of reducing the spread of COVID-19. Employers who did not provide “essential services” were in an extraordinary position and due to the uncertain future, a lot of industries faced immense financial pressure.

Besides the grants the South African government made available to employees during the lockdown, to assist employers with their financial strain, , most employers were still left with the burdensome decision of possibly reducing salaries, retrenchment or finding another means to get through the difficult period. As both former options entail strict procedures, which may be both difficult and costly, the principle of “no work – no pay” became the desirable method of keeping businesses afloat.

On the 3rd of June 2020, the Labour Court handed down a judgement in Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others [2020] JOL 47372 (LC) (“Macsteel”). The case was brought before the court on an urgent basis to make an order regarding the status of an unprotected strike. The Labour Court, in order to address the problem at hand, discussed the options of employers during this national outbreak of COVID-19, with specific reference to the “no work – no pay” principle. Even though the Employer in the matter, did not apply the said principle to its employees and continued to pay its employees in full despite the fact that they were not able to render their services. The court made it clear that the principle would be ideally suited for the current circumstances that employers are facing. The court further held that:

“The reality in law is that the employees who rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global COVID-19 pandemic and national state of disaster, are not entitled to remuneration and the Applicant could have implemented the principle of ‘no work – no pay’.”

The said judgment provided clarity on the matter, especially during these uncertain times.

Ironically enough, on the same day, the High Court of Johannesburg, in Mhlonipheni v Mezepoli Melrose Arch (Pty) Ltd and Others; Lwazi v Mezepoli Nicolway (Pty) Ltd and Another; Moto v Plaka Eastgate Restaurant CC and Another; Mohsen and Another v Brand Kitchen Hospitality (Pty) Ltd and Another (2020/10556; 2020/10555; 2020/10955; 2020/10956;) [2020], did not uphold the “no work – no pay” principle and in fact held that employers have a legal obligation to pay its employees over the COVID-19 lockdown period. The facts of the matter, however, differ from Macsteel.

Even though there seems to be a stalemate regarding the “no work – no pay” principle, especially during the National Lockdown, the Macsteel matter seems to provide better reasoning regarding the hot topic. Due to the immense financial impact of the lockdown and the strict restrictions the government regulated during the lockdown, employers will be able to justify the implementation of the “no work – no pay” principle.

Reference List: 

  • Disaster Management Act, 2002.
  • Mhlonipheni v Mezepoli Melrose Arch (Pty) Ltd and Others; Lwazi v Mezepoli Nicolway (Pty) Ltd and Another; Moto v Plaka Eastgate Restaurant CC and Another; Mohsen and Another v Brand Kitchen Hospitality (Pty) Ltd and Another (2020/10556; 2020/10555; 2020/10955; 2020/10956;) [2020],
  • Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others [2020] JOL 47372 (LC).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

New laws for parental leave

March 16, 2020 / / Comments Off on New laws for parental leave

In a welcoming and long-awaited move, President Cyril Ramaphosa signed the Amendment of the Labour Law Act into law on 28 November 2018, giving parents, particularly fathers of newborn children, adoptive parents and commissioning parents, the right to ten consecutive days parental leave. This new law took effect on 1 January 2020.

This new law is seen as a progressive move towards recognising biological fathers, same sex parents, transgender parents, adoptive parents and even surrogates. It further acknowledges the fact that the gap between one or two parents being employed in a household is getting narrower and narrower. The entitlement to parental leave also fosters family bonding between the parents and a child, which is of utmost importance.

This amendment to the Basic Employment Condition Act, 1997 is the insertion of clauses 25A, 25B and 25C, set out below:

Parental Leave

25A.
(1) An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.

(2) An employee may commence parental leave on-
(a) the day that the employee’s child is born; or
(b) the date—

(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of a 30-day-adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the—

(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2(b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

Adoption Leave

25B.

(1) An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to—
(a) adoption leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.

(7) If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.

Commissioning parental leave

25C.

(1) An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—

(a) commissioning parental leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.

This landmark legislation does not apply to mothers who give birth as they are entitled to maternity leave, which is four months maternity leave, in terms of the Basic Conditions of Employment Act.

Maternity leave is paid out of the Unemployment Insurance Fund (UIF). Parental leave, adoption leave, and commissioning leave will also be paid out of UIF. Employees will be given a partial pay out of up to 66% of their salary from the UIF.

We recommend that employers amend the employment contracts to include this new law and further make their employees aware of their new rights.

Reference List:

  • Basic Conditions of Employment Act 75 of 1997
  • Unemployment Insurance Fund Act 63 of 2001
  • Labour Law Amendment Act of 2018

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Unbearable working environments

March 12, 2020 / / Comments Off on Unbearable working environments

Constructive dismissal is defined as a situation in the workplace, created by the employer, that renders the continuation of the employment relationship intolerable to the extent that the employee has no other option but to resign.

In CEPPAWU & another v Glass & Aluminium, the Court explained it best, stating that constructive dismissal involves a resignation due to the work environment becoming intolerable for the employee as a result of conduct on the part of the employer. Section 186(1)(e) of the Labour Relations Act (“LRA”) states that in circumstances where an employee terminated a contract of employment, with or without notice, because the employer made continued employment intolerable, the termination of the contract would constitute a dismissal.

In Pretoria Society v Loots, the Court referred to Jooste v Transnet Ltd t/a SA Airways and stated that the first requirement of an employee is to prove that the sole motive behind the resignation was the employer’s intolerable conduct. In addition to the above, the employee must prove that the employer was solely responsible for the intolerable conditions and that there was no other way of resolving the matter.

There have been many referrals of constructive dismissal to the CCMA that have not succeeded. Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessments, being overlooked for promotions are all examples of referrals that have not succeeded in the past, as the employee cannot prove the employer’s sole responsibility for the intolerable work conditions.

There are, however, some instances in which employees have succeeded, e.g. a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee. In Van der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being demoted as a result of a restructuring exercise. The employer’s failure to consult with the employee was considered unfair and provided sufficient basis for a claim of constructive dismissal. Other matters, such as sexual harassment resulting in the employee’s resignation, may also constitute a constructive dismissal. These areas of constructive dismissal are difficult to handle as there are no “one-size-fits-all” rules. Each case is dealt with on its own merits.

In National Health Laboratory Service v Yona & Others, the Labour Appeal Court did not consider that a resignation on one month’s notice could be construed as a constructive dismissal. In Volschenk v Prima Africa (Pty) Ltd, the Court found that it was inconceivable that an employee would resign on two months’ notice if the employer had made conditions intolerable. This position should not be interpreted as establishing a general principle that resignation on notice is a bar to a claim of constructive dismissal. Resignation on notice can have a bearing on whether a resignation will be construed as constructive dismissal, especially when regarding the factors the employee claims made their employment intolerable.

Employers should note that while constructive dismissal may be difficult to prove, it is not impossible. Tactics like victimization, harassment and/or false disciplinary steps in the hopes of eventually getting the employee to resign, will not work. Legal advice should always be obtained from a legal professional before acting on any matter that may have an effect on the employment relationship.

Reference List:

  • CEPPAWU & Another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC); [2002] 5 BLLR 399 (LAC).
  • The Labour Guide.
  • The Labour Relations Act 66 of 1995.
  • Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC);
  • Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC);
  • Van der Riet v Leisurenet t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC);
  • National Health Laboratory Service v Yona and Others (PA 12/13) [2015] ZALAC 33; [2015] 10 BLLR 1002 (LAC); (2015) 36 ILJ 2259 (LAC) (12 May 2015);
  • Volschenk v Pragma Africa (Pty) Ltd (C414/13) [2014] ZALCCT 24; [2014] 11 BLLR 1146 (LC); (2015) 36 ILJ 494 (LC) (27 May 2014)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The principles of good ethics in the workplace

March 11, 2020 / / Comments Off on The principles of good ethics in the workplace

Ethics are a set of moral values that are relied upon when it comes to making decisions. In the workplace, ethics are an essential component in responsible decision-making. Ethics are more than just words used to enhance the image of a business; they are the very foundation of success. Ethics are not just a guideline for making decisions, but also the criteria on which other people judge you. In business, this is extremely important, because how people view you and your company forms the cornerstone of building trust, and if you choose to make unethical decisions, you will lose credibility, and your company will suffer.

All businesses have the right to develop their own set of ethics. There are, however, certain principles that all businesses should strive to incorporate into their business:

  1. Respect

Probably the most important component of being ethical is “respect” – one should treat everyone with respect, no matter who they are. You can do this by being courteous and treating everyone the same. Ethical workers understand the significance of diversity in the workplace. If you respect others, you will always hear and consider their opinions and when you value everybody’s contributions, creativity will prosper and problem-solving will become easier because you have more options to choose from.

  1. Honesty and trust

You must be honest in everything you do. When people see that you are transparent in your decisions, they will trust your company because of your honesty. People will only do business with people they trust. Being ethical in the workplace means that you do not mislead others by misrepresenting the facts or not telling the whole truth.

  1. Fairness

Fairness shouldn’t be just something you hope for in the workplace, it should be a standard practised by all. Opportunities for career development should be fair; there shouldn’t only be focused on exemplary employees. The way conflicts get handled should also be treated fairly; no favouritism. Fair procedures will ensure happy employees, which is essential if you want to keep your customers happy – happy internal clients mean happy external clients!

  1. Lead by example

The ethics used by leaders of a company to manage employees may impact the values and loyalty of employees. The code of ethics that leaders use is indirectly connected to the procedures of the company as well as the behaviour of the employees working for the company. When leaders have high ethical standards, their workers will be encouraged to meet that same level. Ethical leadership also enhances the company’s reputation. To lead by example means to set standards that other people would want to follow, instead of conforming to the norm. This will make your company stand out from other competitors.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Freedom of Speech has its restrictions

September 13, 2019 / / Comments Off on Freedom of Speech has its restrictions

Due to our controversial past, South Africa has been faced with a difficult task of eradicating all forms of racial animosity and behaviour. This is a problem we often find in the employment sphere as well, between the employer and the employee or between colleagues themselves. As part of its founding provisions, the Constitution states that the Republic of South Africa is founded on the following values, inter alia: human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism. These values are integrated into the employment legislation, such as the Employment Equity Act and the Labour Relations Act, both of which address racism in the workplace.

In numerous cases in the media, we have seen people using derogatory words to express their views of certain racial groups. In most cases, this could lead to claims at the Equality Court and/or criminal charges of crimen injuria, of which we have seen former real estate agent, Vicki Momberg, sentenced to an effective two years in prison for her racist tirade in 2016.

However, what happens when you are faced with racism in the workplace?

The Constitutional Court held in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] JOL 37679 (CC), that “’k*****’ is the worst insult that can ever be visited upon an African person in South Africa, particularly by a white person. It runs against the very essence of our constitutional ethos or quintessence.”

This position was further supported by the court in Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC), where the court held that even seemingly neutral language may be offensive and constitute racism depending on the context and the intention of the speaker. In this case, an employee was dismissed for calling an African colleague a “swartman.” Considering the facts and context of this specific matter, the court held that the dismissal was considered fair in the circumstances.

In a recent judgment in Makhanya v St Gobain [2019] 7 BALR 720 (NBCCI), the CCMA held that the word “boer” carries similar derogatory connotations to the “k-word” and dismissed an application for unfair dismissal that arose after an African employee used the word “boer”.

Recent cases have emphasised that our courts have taken a zero-tolerance policy towards racism and the use of racially derogatory language in the workplace. There is a duty on the employers to alert their employees to the severe consequences that may follow the use of derogatory language both in and out of the workplace.

 

Reference List:

  • The Constitution of the Republic of South Africa, 1996.
  • Employment Equity Act, 55 of 1998.
  • the Labour Relations Act, 66 of 1995.
  • South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] JOL 37679 (CC).
  • Makhanya v St Gobain [2019] 7 BALR 720 (NBCCI).
  • Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC)
  • https://www.cliffedekkerhofmeyr.com/en/news/publications/2019/Employment/
    Employment-alert-29-july-No-more-Boers-allowed-in-the-workplace-.html

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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