It is common cause that the employer, as a general rule, does not have a duty to discover certain documents or materials such as video footage and other recordings to the employees and/or their representatives. Discovery refers to the disclosure of certain evidential material that any of the parties to a dispute intends to use in support of their case at an enquiry. Principles of Evidence Schwikkard & van der Merwe 2nd edit. (2002) stated that discovery is a procedure used in civil...

Can an employee be dismissed for serious misconduct committed during a disciplinary hearing? A case study: The Labour Appeal Court (LAC) in the case of Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union and Others recently decided the former issue but refrained from making a finding on the issue. The employee, Skhosana, in the case had been charged with misconduct and was required to attend a disciplinary hearing along with 6 other co-accused employees. Violence broke...

Would it be an inconsistency if the co-perpetrator is given a lesser sentence should the employee testify? Section 3 (6) of Schedule 8 of the Labour Relations Act (LRA) provides that the employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between 2 or more employees who participate in the misconduct under consideration. A distinction can be drawn between historical inconsistency...

What happens if the weather is of such a nature that the employer’s operational requirements cannot continue or even commence? What should the employer do when employees are unhappy or dispute their remuneration effected by the weather? The answer for employers: A system of lay-off The contract of employment should make provision for a system of lay-off clause for circumstances which is out of the employer’s control, usually not limited to inclement weather. The system of lay-off clause must...

What happens to employees when a business goes bankrupt? In the normal sphere of the law, a business needs to start retrenchment proceedings if there is financial difficulties and there is no other way of getting around it. If a business is liquidated, the retrenchment process isn’t always followed. Section 38 of the Insolvency Act, as amended, is our primary legislation in dealing with employees during a liquidation procedure. Step 1: Suspension In a sequestration process, the employees’...