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This employer’s policy is on all fours with the provisions relating to sick leave in the BCEA – an employee only has to produce a medical certificate if they are absent from work for more than two days in order to be paid for the days on which they were ill. This has nothing to do with discipline.
An employee bears the burden of proving that they were incapable of coming to work because they were ill. The probative value of a medical certificate is the same as any other document – the employer can reject the certificate as proof that the employee was ill and the employee would have to adduce other evidence to prove that they were incapable of coming to work due to ill health. The position would be the same if the employee does not produce a medical certificate.
I don’t think you become entitled to “earnings”until the contract of employment is in place and you have actually worked in order to “earn” a wage or salary.. Therefore applicants for employment would have to refer their dispute to the Labour Court unless they are an existing employee applying for a position in house.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
I totally agree with Ali. The latest ruling from the Labour Court in this regard lends support to it. See NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) which held that it does not matter that employees used dagga in private, that they posed no danger on the day they tested positive for dagga, that their period of employment was not insignificant or that they had a clean disciplinary record. Where the employer has consistently applied a ‘Zero Tolerance’ alcohol and drug policy due to its hazardous workplace and its duty to provide a safe working environment, dismissal will be fair.
The employer was wrong because the existence of a suspension does not prevent the lodging of a grievance.
Like Patrick, I believe the employee’s version (that the pill given by the employer was the cause of his drowsiness) is more probable than that of the employer.
If I was representing the employee I would argue as follows.
• The definition of “dispute” includes an “alleged dispute”
• The employee has the right to refer any dispute or alleged dispute to the CCMA.
• The clause in the contract which prohibits the employee from referring his dispute to the CCMA is unlawful in terms of section 5(3) of the LRA and therefore it is unenforceable.In City of Johannesburg v SAMWU & others (2009)5 BLLR 431(LC), the initial demand by the union was for two managers to be suspended for interfering with certain test results, this was later changed to a demand for suspension in accordance with due process and in a manner not constituting an unfair labour practice. This demand was accepted by the court as not being unlawful. Management had, on receipt of the strike notice, asked the court to declare the intended strike unlawful. The court did not agree, finding that the modified demand made by the union was not unlawful.
On this basis, I would argue that the “threat” is not unlawful if there is a justifiable reason for their demand and that their demand was not for the factory manager to be dismissed without a hearing. In these cirumstances, therefore, the employees cannot be disciplined for making the threat. However, if they were demanding a dismissal without a hearing, that would be unlawful.I agree with Michael save to add that the wording of the contract a between contractor and its employees will be decisive as to whether this is a change in work practice or a change to terms and conditions of employment. (Per Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (“NUMSA”) & others) [2012] 6 BLLR 544 (LC))
In its current form Item 12.6 is obligatory and, as per the preamble (Item 2(4)) employers are only allowed to deviate from the “non-obligatory” provisions of the Code for good reason.
However, experienced labour lawyers are in agreement that an interpretation of Item 12.6 making “accommodation” compulsory cannot be sustained legally and that, provided an employer has fulfilled the requirements for a fair incapacity termination and can prove that it is incapable of accommodating the employee in another position, despite its best efforts to do so, the dismissal would be fair. Whether commissioners and judges will rule along these lines remains to be seen. Another tack may be for employers to go the operational requirements route arguing that, for economic reasons, it cannot accommodate the employee and enter into a section 189 consultation process. I have little doubt, though, that should Item 12.6 find its way to the Constitutional court, it will be found to be unconstitutional in that it impinges on the economic rights of the employer
The definition of workplace will depend on the facts of each case. Different operations may be different workplaces only if they are operationally independent. The pivotal concept is independence.
For me, the critical question and the evidence I, as an adjudicator, require to prove knowledge or awareness of the rule has always been: At the time that the employee committed the offence, did he or she know that what they were doing would attract disciplinary action and what the likely sanction would be. It then rests on the employer to adduce evidence to prove, on a balance of probability that:
• at the time the employee committed the offence, they knew that, if caught, they would be disciplined; and
• at the time the employee committed the offence, they knew what the likely sanction would be.
