“Nemo Iudex in Causa Sua” – A decision-maker must be impartial and have no interest in the case.[1] A chairperson must therefore ensure that he or she is impartial when conducting a disciplinary hearing. The chairperson must weigh all the evidence for and against the employee and then make an informed and well thought out decision.[2] This requires that the chairperson must be impartial in the facts of the matter and that there must be no grounds to suspect that the decision of the chairperson...

It is essential to distinguish between negligence and gross negligence. The reason being that negligence will not warrant dismissal for a first offence, whereas gross negligence could warrant dismissal for a first offence. Negligence is seen as the failure to fulfil the standard of care that ought to be exercised by a reasonable person in a particular situation. In labour law, the reasonable person test is used to establish negligence. The test entails determining whether a reasonable...

COVID-19 has wreaked havoc in the world’s economy, and South Africa was not spared the wrath of the COVID-19 storms, poor economic growth coupled with fears of a third wave has sent shivers down the spine of many businesses. The reality of another lockdown is a frightening one, more so as dwindling turnovers threaten the livelihoods of many South Africans. So what happens when a business is struggling financially, so much so that they cannot honour paying salaries on time? This is the question...

An observation test can be conducted instead of utilising a breathalyser test device to determine whether the employee is under the influence of intoxicating liquor. Instead of using a breathalyser test device to determine whether the employee is under the influence of intoxicating liquor, the employer can also use the Observation test. This is most useful when the employer notices unusual and unfamiliar behaviour by the employee (through observations) when reporting for duty as well as when...

Employers often confuse the rights to consult and to represent during retrenchments with the rights of representation during other internal matters, such as disciplinary hearings. However, retrenchments are often more complex, time-consuming, and require more than one sitting. The Labour Relations Act 66 of 1995 (as amended) sets out the parties that need to be consulted in a hierarchical manner. Sections 189 and 189A of the Labour Relations Act 66 of 1995 (as amended) set out the requirements...

CASE NUMBER: MINT 72392: Applicant: Mr A Section 191 (12) provides that an employee who is dismissed by the employer’s operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if – (a) the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; (b) the employer’s operational requirements lead to the dismissal of that employee only or (c) the employer employs less...