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I follow a simple rule: the difference between will not (misconduct) and cannot (incapacity). An addict (of whatever kind – alcoholic, drugs, sex etc) cannot control their addiction without help. Therefore the employee’s behaviour is indicative of incapacity and should be treated as such. If after rehab the behaviour persists (ie the gambling not the theft) then the employer should convene an incapacity hearing to determine whether there are alternatives to dismissal (transfer the employee to a position where they do not have access to money) or dismiss.
A “Without prejudice” communication made by one party to another in an attempt to negotiate settlement of a dispute or a debt is inadmissible in a court (and this would apply equally to the CCMA) and therefore a party to the proceedings cannot use such communication as evidence. The following are examples of exceptions to the rule.
1. Fraud or Misrepresentation: If the communication involves fraud, misrepresentation, or any other form of dishonesty, it can be used as evidence.
2. Waiver: If both parties agree to waive the “without prejudice” privilege, the communication can be admitted.
3. Establishing an Agreement: If the communication is used to prove that a settlement agreement was reached, it can be admitted.
4. Costs: In some cases, “without prejudice” communications can be used to determine the issue of costs in litigation.The only private arbitrations which are not permissible (in terms of the Arbitration Act) (a) any matrimonial cause or any matter incidental to any such cause; or (b) any matter relating to status. Anything else can be resolved in terms of the Arbitration Act. Therefore, provided the arbitration is conducted in terms of the provisions of the Arbitration Act (there is a written agreement between the parties which provides for the issue to be adjudicated by a named panel and terms of reference), the award would be final and binding and only subject to review in very narrow circumstances.
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))