Papers by maphatela teffo
First, before an employer can charge an employee, the employer must identify the misconduct. In S... more First, before an employer can charge an employee, the employer must identify the misconduct. In SACCAWU obo Khakhatiba / Country Meat Market (Pty) Ltd1, the commissioner noted that a distinction is to be drawn between abscondment, desertion and absenteeism. Abscondment is deemed to have occurred when the employee has been absent from work for a time that warrants the inference that the employee no longer intends to resume work. Desertion is deemed to take place when the employee expressly intimate that they will not resume work. In all such cases, the onus rests on the employee to explain the absence. Depending on the circumstances and the time period, the unauthorised absence will probably not result in a dismissal for a first offence. This type of offence is also very frequent and common. Abscondment and desertion are serious offences, because it represents a breach of contract. Unauthorised absenteeism can also include taking extended tea breaks or lunch breaks, extended toilet breaks or smoke breaks, being absent for a day or days without consent. Any instance where an employee is away from his workplace without authority, constitutes authorised absenteeism. The case of Jammin Retail (Pty) Ltd v Mokwane & others 2 again investigated the requirements for abscondment. It confirmed the principles as set in the leading authority for the approach to be adopted when dealing with absconding from work – South African Broadcasting Authority v CCMA 3. In this case it was held that where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alterem partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty. " The employer must, therefore, hold an abscondment hearing before it dismisses the employee after everything possible has been done to locate the employee. In Mtshinindo v Cashbuild, Hillfox 4 , the employee was dismissed after six days' absence from work. He claimed that his wife had telephoned the manager of the store at which he worked and informed him that he was being treated by a sangoma. The employer claimed that the employee was not dismissed, but that his employment had terminated automatically in terms of the disciplinary code, which deemed an employee to have absconded if he or she was absent from work for longer than three days. The commissioner held that, notwithstanding the provisions of the disciplinary code, absence from work for longer than three days does not necessarily mean that an employee has absconded, or that the termination of his contract does not constitute a dismissal. To
Every chairperson, when deciding on a sanction, must go through a process where he or she decides... more Every chairperson, when deciding on a sanction, must go through a process where he or she decides whether dismissing the employee is the right or fair thing to do. Fairness, as some may be surprised to note, applies not only to the employee but also to the employer! In Branford v Metrorail Services (Durban) & others 1 the Court stated that the concept of fairness, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case. In judging fairness, a person or a court will apply a moral or value judgment to established facts and circumstances, and in doing so it must have due regard to the objectives sought to be achieved by the LRA. The test of fairness as it applies in dismissal for alcohol abuse, was again considered and applied in the case of Builders Trade Depot v CCMA & others 2. In this case, the dispute arises from the dismissal of the employee by the applicant employer. It is common cause that the employee had been drinking whilst on duty and that, at the time of his dismissal, there was an existing written warning pertaining to the same offence applicable to him. It is also common cause that he is a relief forklift driver, but he was not fulfilling those duties on the date in question, as a salesman, he was dealing with members of the public. The commissioner nonetheless found his dismissal to have been unfair. The employer sought to review the reinstatement award and a rescission award by another commissioner prior to the arbitration. The employer's branch manager visited the store on the day and spoke to the employee. He could smell alcohol on his breath and noticed that he was unsteady on his feet and slurred his speech, and that his eyes were bloodshot. The employee failed a breathalyzer test, whereupon he admitted to drinking beer during his lunch. The employee vigorously denied that he had a drinking problem. The Court then considered whether being under the influence of alcohol is a misconduct and if so, what evidence is required to prove the misconduct? Section 10(3) of the Code of Good Practice: Dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by an employer in assisting such employees. The requirement to assist alcoholic employees by providing them with treatment has been widely accepted. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such. However, when an employee who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, he is guilty of misconduct and not incapacitated. In this regard, Grogan states in his book Workplace Law that employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, according to the learned author, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. It is clear that in certain contexts, being intoxicated on duty, can be treated as a disciplinary offence. Therefore, the court found that the category of misconduct for reporting for duty under the influence of alcohol has not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer from such incapacity does not rest on the 1 (2003) 24 ILJ 2269 (LAC) [also reported at [2004] 3 BLLR 199 (LAC) 2 [2012] 4 BLLR 343 (LC)
Every chairperson, when deciding on a sanction, must go through a process where he or she decides... more Every chairperson, when deciding on a sanction, must go through a process where he or she decides whether dismissing the employee is the right or fair thing to do. Fairness, as some may be surprised to note, applies not only to the employee but also to the employer! In Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) [also reported at [2004] 3 BLLR 199 (LAC) the Court stated that the concept of fairness, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case. In judging fairness, a person or a court will apply a moral or value judgment to established facts and circumstances, and in doing so it must have due regard to the objectives sought to be achieved by the LRA. The test of fairness as it applies in dismissal for alcohol abuse, was again considered and applied in the case of Builders Trade Depot v CCMA & others [2012] 4 BLLR 343 (LC). In this case, the dispute arises from the dismissal of the employee by the applicant employer. It is common cause that the employee had been drinking whilst on duty and that, at the time of his dismissal, there was an existing written warning pertaining to the same offence applicable to him. It is also common cause that he is a relief forklift driver, but he was not fulfilling those duties on the date in question, as a salesman, he was dealing with members of the public. The commissioner nonetheless found his dismissal to have been unfair. The employer sought to review the reinstatement award and a rescission award by another commissioner prior to the arbitration. The employer's branch manager visited the store on the day and spoke to the employee. He could smell alcohol on his breath and noticed that he was unsteady on his feet and slurred his speech, and that his eyes were bloodshot. The employee failed a breathalyzer test, whereupon he admitted to drinking beer during his lunch. The employee vigorously denied that he had a drinking problem. The Court then considered whether being under the influence of alcohol is a misconduct and if so, what evidence is required to prove the misconduct? Section 10(3) of the Code of Good Practice: Dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by an employer in assisting such employees. The requirement to assist alcoholic employees by providing them with treatment has been widely accepted. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such. However, when an employee who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, he is guilty of misconduct and not incapacitated. In this regard, Grogan states in his book Workplace Law that employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, according to the learned author, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. It is clear that in certain contexts, being intoxicated on duty, can be treated as a disciplinary offence.
Drafts by maphatela teffo
What constitutes "benefit" by virtue of section 186 (2) of the LRA-does the early retirement sche... more What constitutes "benefit" by virtue of section 186 (2) of the LRA-does the early retirement scheme initiated by the appellant constitute a "benefit" as contemplated in section 186 (2) of the LRA?-is "benefit" limited only to an entitlement which arises ex contractu or ex lege?-"benefit" in terms of the LRA means existing advantages or privileges to which an employee is entitled ex contractu or ex lege or granted in terms of a policy or practice subject to the employer's discretion.-Hospersa, GS4 Security and Scheepers not followed-early retirement scheme constituted a "benefit". Appeal dismissed with costs.
The Labour Relations Act and other labour legislation protect employees very strongly. This legis... more The Labour Relations Act and other labour legislation protect employees very strongly. This legislation does so by giving employees a large number of very strong rights. Some examples of these employee rights include the right to join trade unions, go on strike, have a fair disciplinary hearing, protection from unfair demotions, be promoted under certain circumstances, minimum wages in many cases, sick leave, holiday leave, maternity leave, compassionate leave, overtime pay, consistent treatment, protection from unfair discrimination and representation at CCMA by a trade union representative. However, labour legislation imposes on employees few obligations. They are obliged to behave and work properly, to carry out the employer's lawful and reasonable instructions and to comply with their fiduciary duties towards the employer. Fiduciary duty refers to the employee's obligation to behave in a trustworthy manner. Specifically, this means that the employee may not: • Place him/herself in a position where his/her interests conflict with those of the employer • Make a secret profit at the expense of the employer • Receive a bribe or commission from a third party • Misuse the employer's trade secrets • Give a third party the employer's confidential information • Tell lies to the employer. In the case of Pillay vs Rennies Distribution Services (2007, 2 BALR 174) the employee was accused of signing a maintenance agreement without authority. He first denied having signed it and then claimed that he had signed it in error, not realising what it was. He was dismissed at a disciplinary hearing. The CCMA arbitrator found that the employee had lied about his signing of the maintenance agreement. The arbitrator said that, in telling this lie, the employee had breached his fiduciary duty towards the employer not to be dishonest. The seniority of the employee made his conduct even more serious. The dismissal of the employee was therefore upheld. While this principle applies generally to employees it applies more strongly to senior employees. In deciding on the extent of fiduciary duty that an employee has the courts consider a number of factors including: • The degree of freedom that the employee has to exercise discretion in making and executing business decisions • The opportunity for the employee to exercise this discretion in his/her own interests • The extent to which the specific circumstances open the employer to abuse of the employee's discretion • The extent to which the employer relies on the employee for expertise and judgement in conducting the business • The extent to which the employee is in a position of trust. Clearly, the more junior the employee the less these fiduciary factors are likely to prevail. That is, with some exceptions, junior employees normally do not have the right or duty to make crucial business decisions or the opportunity to misuse decision-making power. The line between who is a senior employee and who is not and the line between who is in a position of trust and who is not are blurred. Whether, for example, a junior salesperson is in a position of trust or not depends on the specific circumstances of each case. Therefore, in order to protect itself from employees acting against the employer's interests every employer should: • Build in checks and balances that prevent the abuse of power • Inform all employees of their fiduciary duties in relation to their positions of trust • Make sure employees at all levels know the seriousness of breach of their fiduciary duties • Take swift, fair and consistent action against employees who breach their fiduciary duties • Obtain expert legal advice before acting against suspects.
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Papers by maphatela teffo
Drafts by maphatela teffo