Submitting false documentation is a serious offence which warrants a hearing, sadly employers are often lost when trying to establish if medical certificates are valid and this misconduct is often overlooked. Both section 23 of the Basic Conditions of Employment Act (BCEA) and Rule 16 of the Ethical Guidelines from the Health Professionals Council of South Africa (HPCSA) set out requirements for medical certificates. Rule 16 states: (1) A practitioner shall only grant a certificate of illness...

A guide to in-camera proceedings. Intimidation and threats are common in the industrial sphere in South Africa. These actions often come about after serious misconduct is alleged to have been committed - dishonesty, unprotected strikes etc. Employees not only have to work in close conjunction with one another but often live close to each other and use the same transport home. Therefore, it is understandable when an employee is too frightened to testify in a hearing. An Employer cannot compel a...

Due to an increasing backlog at the CCMA and packed Court rolls, parties in a working relationship is encouraged to resolve their own labour disputes and to not make use of formal dispute resolution mechanism. This can be done by entering into a voluntary written settlement. Such a settlement agreement usually determines that the matter is settled in full between the parties and that the employee cannot approach the CCMA with unfair dismissal or unfair labour practice claim. However, this does...

Do employers understand the complexities involved in proving a case of derivative misconduct against an employee in the workplace? This article shall serve as a reminder that any employee who becomes aware of wrongdoing in the workplace, which wrongdoing can adversely affect the employer, and who fails to disclose such knowledge to their employer, can face disciplinary action for having breached his or her duty to act in good faith. Employers ought to keep in mind the difficulties involved...

Kan ‘n werkgewer verantwoordelik gehou word vir rassistiese opmerkings wat deur ‘n kliënt gemaak is teenoor ‘n werknemer? Hierdie vraag moes deur die Arbeidshof beantwoord word in die saak van Shoprite Checkers (Pty) Ltd v Samka en andere  [2018] 9 BLLR 922 (LC). Die werknemer het beweer dat daar teen haar gediskrimineer is op grond van ras nadat sy deur ander werkers van die werkgewer waar sy werk, geboelie, geviktimiseer en getreiter is. Sy beweer ook dat ñ kliënt rassistiese...

Can an employer be held liable if a customer utters racial remarks towards one of its employees? This question had to be answered by the Labour Court in the case of Shoprite Checkers (Pty) Ltd v Samka and others [2018] 9 BLLR 922 (LC). The employee claimed that she had been discriminated against on the ground of race by being bullied, victimised and harassed by the staff of the store at which she worked. She also claimed that a client made racist remarks to her and that management...

Section 20 of the Basic Conditions of Employment Act sets out the usual conditions regarding annual leave, (accumulation rate of annual leave, leave cycle, expiry of leave etc.) however many employers often overlook the conditions set out regarding the payment thereof and are under a misconception of what is legally expected from an employer. Section 21 of the Basic Conditions of Employment Act sets out the following: Pay for annual leave 21. (1) An employer must pay an employee leave pay at...

What is fault and how does it relate to workplace discipline? While I often hear the word fault thrown around by employers and employees at many of the hearings I chair, I am often surprised by the lack of a clear understanding that most persons have of the term. Discipline and eventual dismissal through misconduct are often referred to as fault-based processes and enquiries. This means that before an employee can be said to be guilty of an offence, the employer is required to establish,...

Chapter 5 of the Employment Equity Act 55 of 1998 (hereinafter called EEA) provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. Section 6 provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practise, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or...

The Basic Conditions of Employment Act, 75 of 1997 (“BCEA“), specifically prescribes additional payment for employees who are required to work on public holidays. If an employee works on a public holiday, he must be paid double the wage for work on that day. Employers should also take note of the fact that section 18(1) of the BCEA states that no employer may require any employee to work on a public holiday unless the employee agrees thereto. This requirement does not apply to employees who...