In terms of Labour Law, there is a difference between the termination of an employment contract and the concept of dismissal. An employee claiming unfair dismissal must establish the existence of dismissal, and it is the onus of the employee to prove the existence of a dismissal, which is not necessarily unfair. Any form of dismissal must be procedurally and substantively fair, and focus is placed on the following six examples in terms of the meaning of dismissal. Termination of employment by...

Can an employee in a labour dispute request the chairperson to recuse themselves because the chairperson is of the same race as the employer’s legal representative? The employee, who described himself as a “Black male”, demanded the recusal of the CCMA-appointed Commissioner, an Indian male, on the basis that the Commissioner and the employer’s attorney and counsel were also Indian. Therefore, the arbitration proceedings were “racially imbalanced” against him. The Commissioner found that this...

When a trade union has majority representation in a workplace, which is 50% + 1 member, one of the organisational rights the trade union qualifies for is Section 14 of the Labour Relations Act 66 of 1995 (referred to as LRA). This entitles them to elect a shop steward (also referred to as a trade union representative) on the condition that at least ten union members are employed with the employer. A shop steward is an employee elected among his fellow union members and can perform various...

Recent developments in our courts, particularly the case of the Minister of Justice and Constitutional Development v Prince, have made provisions for the decriminalisation of possession, use or cultivation of cannabis by adults in their private spaces. This has made for a tricky situation for employers where the use of an intoxicating substance has suddenly become a norm. In the case of Mthembu and Others v NCT Durban Wood Chips, the CCMA held employers are still entitled to discipline...

Employees who believe they have been unfairly dismissed may refer the matter to the CCMA for arbitration. Such an employee will be required to establish only that they had indeed been dismissed. The employer then has the burden to prove that the dismissal was fair, substantively and procedurally. It is trite that this process takes the form of a hearing de novo. That is to say that the matter is heard “anew” by a Commissioner sitting as arbitrator. An employer has to lead evidence as to the...