In practice, employers are often faced with a situation whereby a union has recruited employees in the workplace and now wishes to meet with the employer to negotiate organisational rights such as access to the workplace, stop order facilities in respect of union membership fees, the election of shop stewards and disclosure of information.   Section 21 of the Labour Relations Act (Act 66 of 1995), hereafter “The LRA”, determines that the union must notify the employer in writing of its...

There comes a time in any employer/business owner’s tenure that employees will engage in negotiating either increase, retrenchment packages or conditions of employment. This is often conducted through a representative Trade Union. These negotiations are often superseded by a long letter that contains various demands. Employers are often reluctant to engage meaningfully with trade unions as they often have the misguided perception that the process is futile and will ultimately end up in...

Many employers are concerned regarding HIV or AIDS in their workplace and the protection of their staff.  They often wonder if they could insist on being informed by an employee who has contracted the decease and if disciplinary action can be taken against an employee whom does not reveal their HIV or AIDS status or refuses to do so. The answer and solution for those employers are simple. Section 14 of the Constitution of South Africa, Act 108 of 1996, provides all with the right to privacy. ...

The Beeld News Paper published an article in it’s 5 November 2019 edition regarding paternity leave and the right to claim paternity benefits from the Unemployment Benefit Fund, which may cause some confusion. The article named “Pa’s kan vir 10 dae na baba se geboorte van WVF eis” is to some extent factually wrong. This article may cause readers to assume that the rights to paternity leave in terms of the future amendments to the Basic Conditions of Employment Act via the Labour Laws Amendment...

Nowadays employees have the tendency to secretly record all internal labour matters and often employers are caught off-guard by these audio recordings submitted by accused employees as evidence during disciplinary hearings. Employers are often of the view that such evidence is inadmissible as it was either obtained unlawfully, no consent was given or they had no knowledge of the recording. Recently, the Amabhungane Centre for Investigative Journalism disputed parts of the Regulation of...

What happens when an employee becomes unable to perform their duty for reasons beyond their control?  Be it the suspension of a driver’s licence, expiration of a work visa, imprisonment, or legislation that has been promulgated rendering the employee incapable continuing their work, how does an employer deal with such a situation?  Does the employer retrench the employee based on operational requirements set out in Section 189 of the Labour Relations Act (LRA) or follow the general...

Background In the recent Labour Court matter, heard on 17/05/2019, Jacobson v Vitalab (LC) (unreported case no JS 1042/12, 25/05/19), Van Niekerk J dealt with the interpretation and the ambit of section 187 (1)(c) of the Labour Relations Act 66 of 1995 (LRA). The matter at hand was if an individual employee can successfully rely on section 187 (1)(c) to claim that his dismissal was automatically unfair. Section 187(1)(c)  was amended in 2014 to provide that a dismissal is automatically...

Misconduct such as theft is by its very nature not easy for employers to identify, simply because it is not intended for them to find out. It is, therefore, common practice for employers to resort to trapping the employees by for instance bugging their phones, installing hidden cameras or utilizing any other method. This is an aspect that affects us all and maybe we should discuss the legal status of evidence obtained from Entrapment. Often employers get confused between the method of trapping...

Schedule 8 Item 7 of the Code of Good Practice: Dismissal (Labour Relations Act) states that to determine whether a dismissal is fair, the following needs to be considered: If the employee contravened a rule or standard regulating conduct in or of relevance to the workplace and;If a rule or standard was contravened: whether that rule or standard was valid or reasonable;the employee was aware or could reasonably be expected to have been aware of the rule or standard;the rule or standard has...