Many employers have heard the phrase “there is insufficient evidence to find guilty” during disciplinary hearings. This is an unfortunate reality for employers, and unfortunately, this has led some employers to feel they would rather ignore a matter if, at face value, it appears to be a situation where one employee is stating one version of events and another employee the polar opposite which is the “he said she said” scenario. In previous articles, the risk of not investigating employee...

Presiding officers in disciplinary hearings are often laypersons, and their decisions must be viewed in that light. In the recent matter of Department of Health, Western Cape v Twalo and Another [2022] 8 BLLR 741 (LC), the Labour Court held that it is not necessarily reviewable if a commissioner or presiding officer cannot give reasons and especially if the decision follows findings already made in the award or ruling or are self-explanatory. Decisions lacking reasons so that the rationale...

Derivative misconduct is a term used when an employee knows of misconduct, for example, theft, and does not inform the employer. Such an employee may be dismissed for such misconduct. Derivative misconduct, therefore, arises when an employee possesses information that would enable an employer to identify wrongdoers in the workplace, but they fail to come forward. The burden of proof on an employer to justify dismissal relying on such conduct is, however, nothing but easy. The Constitutional...

Annual leave and its accrual thereof has always been subject to misunderstanding and controversy. Employers in the past have allowed staff to accrue an indefinite amount of leave. In some instances, employers allowed employees to sell leave days as same may have benefited the business. The differing views and the application of the provisions in the Basic Conditions of Employment Act 75 of 1997 has lead us to answer the question mentioned above: how much annual leave is an employee allowed to...