Dismissal of arrested or imprisoned employees: Part 2

An employee who has been found guilty in court, sentenced and put in prison won’t be able to work until he is released and may be dimissed for incapacity. Please note that you cannot just dismiss him for having a criminal record. You also cannot fire him/her for not being able to work as a result of his/her sentence. Unless you can show that, operationally, you as an employer cannot be expected to keep the postion open until he/she is released… (more)

Dismissal of arrested or imprisoned employees: Part 1

Acting on instinct, an employer may want to fire an employee who has been arrested or imprisoned. This could be a mistake! An arrested person is someone who has been taken to a police station and formally charged with an offence. He may be also serving a prison sentence. An employee hasn’t been arrested if he/she has just been taken to the police station for questioning. It is therefore very important to distinguish between those taken in for questioning, those who have been arrested and those who are serving a prison sentence… (more)

The importance of maths and science

We are often faced with the situation at the ECA(SA) offices where a prospective employer, student or parent calls and queries the requirements for taking on apprentices or furthering a career as a wireman. In many cases the learner, parent or employer is disappointed because the student lacks maths or has chosen maths literacy, which is not the equivalent of maths… (more)

Unilateral changes to terms and conditions of employment

An employer may sometimes want to change their employees’ terms and conditions of employment, but goes about it in the wrong way. I sometimes appear at Council or the CCMA with disputes relating to such “one sided” or unilateral changes to terms and conditions of employment. The employee states that the employer has made some unilateral change to the original terms and conditions of employment… (more)

A closer look at the Workmen’s Compensation Fund: Part I

The Compensation for Occupational Injuries and Diseases Act (COIDA) is the new name for the Workmen’s Compensation Act (WCA). The act provides compensation for disablement caused by injuries sustained or diseases contracted by employees in the course of their work, or for death resulting from such injuries and diseases… (more)

Probation: what employers should know

Employers quite commonly engage employees for probationary periods, which may be negotiated and stipulated in the contract of employment. After expiry of the probationary period, the employer is entitled to decide whether to retain the services of the employee on a permanent basis… (more)

Insubordination in the workplace

As employees gain confidence in the light of the protection they get from the various labour laws and from the CCMA, they tend to become less subservient to the point where they refuse to obey instructions. To the employer, such insubordination is a nightmare. This is especially true where the employer is taken by surprise and is ill-equipped to deal with insubordinate employees. Because true insubordination goes to the heart of the employment contract, it is vital that both employer and employee fully understand what is expected… (more)

Unfair dismissal: Part Two

You have dismissed and employee at work unfairly, and then made a genuine offer to rectify the mistake. Your employee, on the other hand, refuses the offer. Labour appeal court (LAC).Kemp then appealed to the Labour Court and the issues were confined to the following: whether the employee should have been awarded compensation at all. Whether the amount awarded by the Labour Court was excessive… (more)

Unfair dismissal: Part One

When an employer tries to remedy an unfair dismissal by making a genuine offer, and the employee refuses to accept the offer, the employee may end up receiving no compensation even if the dismissal is deemed to be unfair. In the following case you will notice that the Labour Appeal Court overturned the Labour Court’s findings in favour of the employee… (more)

The concept of summary dismissal

An employee is summarily dismissed when the employment contract between an employer and employee is terminated immediately after a disciplinary inquiry, without notice or payment in lieu of notice. Summary dismissal is only allowed in exceptional circumstances of misconduct… (more)

Polygraph testing Part 2

The CCMA is will generally allow polygraph evidence on the following basis. The CCMA must accept a polygraphist as an expert witness and test his evidence for reliability. The duty of the commissioner is to determine the admissibility and reliability of the evidence. The commissioner must not interpret the test as implying guilt but may regard it as an aggravating factor, especially where there is other evidence of misconduct. In other words, polygraph test results, when used on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence… (more)

Who is an independent contractor?

An independent contractor is a person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another’s control except for what is specified in a mutually binding agreement for a specific job… (more)

Recipe for theft cases (part two)

When leading evidence to prove the theft was committed, one should highlight some critical points such as how honesty goes to the heart of the employment relationship between the employer and employee, and how, as a result of the theft, it has broken down and hence the employee cannot be trusted… (more)

The employment contract – what every contractor should know

An employment contract is a basic and vital employment right. Our collective agreement is silent on the obligation of an employer to provide an employee with such a contract, so one must look to the applicable statutes in place… (more)

Poor work performance is not misconduct

When you dismiss an employee you have to prove you had a good reason, and you followed fair procedure. In law we refer to the former as “substantive fairness” and the latter as “procedural fairness”… (more)