GilesFiles Insights

Void ab initio: Dismissal unlawful and legality principle

The labour court declared a purported dismissal as void ab initio which meant that it was regarded as not having taken place and in effect the employee was still employed.  The employer breached contractual obligations that required more than simply having the right...

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Racial remarks: Punish employee or protect business?

Racial remarks: The manager was dismissed, presumably without notice, for reasons related to his conduct.  Management alleged he was insubordinate and made a racial or racist remark. Management took it upon themselves to prove on clear and convincing evidence not only...

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Audi alteram partem rule: Application in employment disputes

Audi alteram partem rule (hear the other side): Reviewing an award at the instance of a former employee the Steenkamp J in the labour court upheld the award after deciding that it was not unreasonable.  It is very refreshing to read a judgment that clearly expresses...

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Invalid reason: Dismissal set aside fairness irrelevant

Invalid reason: How is it that some 34 years after parliament ensured that employees had a right not to be unfairly dismissed, uncomplicated dismissal cases can take nearly ten years to be resolved?  In the above case the former employee successfully represented...

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Labour broker clients: Legitimate service level providers

Labour broker clients: The purpose of sec 27 of the Employment Equity Act (EEA) is to eliminate disproportionate pay differentials within enterprises.  So when 'clients' use the services of labour brokers and those workers are not treated as employees of that client...

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Evidence: clear and convincing in labour disputes?

Evidence: Ponnan JA in Pather v Financial Services Board (866/2016) [2017] ZASCA 125 (28 September 2017) has drawn attention to the various tests used when deciding factual issues.  Senior managers would be wise to adopt the 'clear and convincing' standard given that...

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