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...

When considering the charge of failing to comply with a lawful instruction given from a superior the charge is self-explanatory. An instruction given from a superior is deemed as lawful and reasonable if it falls within the employment scope of the employee. This additional instruction will become an added responsibility expected of the employee. If an employee deliberately refuses to do what is expected of him by his subordinate and does not apply the necessary mind to the importance of this...

A grievance usually involves two parties the aggrieved party, the complainant, and the party against whom the grievance is laid, the respondent. If there are more parties involved the grievance has a collective nature with the parties sharing a common grievance. A grievance can be defined as gripes or feelings of discontent or dissatisfaction held by employees relating to poor or unfair treatment whether it be perceived or actual. The purpose of the grievance procedure is aimed at promoting...

Employers are often faced with the decision on whether to suspend an employee pending a disciplinary hearing or to allow the employee to work until the disciplinary hearing. This is a very important decision that must be made by the employer and may result in a CCMA referral if not carefully considered. An employer is allowed to suspend an employee pending a disciplinary hearing but such a suspension may be declared unfair and may in terms of Section 186 (2) of the Labour Relations Act...

As a result of poor performing, economy retrenchment has become a common phenomenon in the workplace. The process is time-consuming and severance packages often cost employers an arm and a leg. Section 41(2) of the Basic Conditions of Employment Act (BCEA)  determines that an employee is entitled to at least one week’s remuneration for every completed year of service. The BCEA, however, makes provision to avoid incurring the often large amounts of severance pay. Section 41(4) of the BCEA...

A default award is an award that is given at the CCMA / Bargaining Council when a matter has been set down and the employer did not show up at the arbitration. This could be for various reasons.  For example, this could be because the employer was not aware of the date of the matter as the CCMA / Bargaining Council failed to send it to the correct address or the employer missed the set down due to oversight.  Every case is unique. The question that arises now is what is the next...

Sexual harassment is defined as a form of unfair discrimination against persons based on the grounds of sex, gender and/or sexual orientation. It has also been described as persistent, unsolicited and unwanted sexual advances or suggestions from one person to another. It is a misconduct that is deemed to be a serious offence which can, and has, led to the dismissal of employees found charged and found guilty of such an offence. The Code of Good Practice for Handling of Sexual Harassment Cases...

The significance of employment contracts Employers normally only issue employees with letters of appointment and erroneously believe that if they do not simultaneously conclude a contract of employment; they protect themselves. They then believe they can then terminate the services of employees at any stage “because there are no contracts”. Even though there is no legal requirement for employees to have a written contract, it is advisable to conclude one to limit the risks that can be imposed...

Hearsay evidence is a common problem during disciplinary hearings. Should such evidence be admitted it could result in serious prejudice to the accused, and excluding it could result in the employer or victim suffering. Hearsay evidence occurs when the person who is giving such evidence is not the person who actually witnessed the incident. A typical example of such evidence is where the person initiating charges submits a written statement from a person who witnessed the offense instead of...