SINGLE BLOG ARTICLE

by Jonathan Goldberg and Grant Wilkinson

Welcome to the latest edition of the Labour Newsflash.
Our labour market is in a constant state of flux and shortly after our Annual Employment Conference a new federation, SAFTU, was formed.

It is anticipated that the new federation will have its work cut out in terms of getting representivity on bodies like Nedlac. There are specific requirements to allow participation at Nedlac that requires a specific time as well as a corporate governance financial record.

It will be interesting to see what approach the federation will take, entering a labour market which is shedding jobs. One cannot turn a page in a newspaper without reading about a retrenchment happening somewhere in South Africa.

The economic situation is tight in our country and it is these times that call for innovative thinking and a new approach. As you would have read in our previous newsletters, this innovative approach is what was highlighted at our Employment Conference. In order for business and labour to survive, we need to see past our positions and reach across the divide to seek new solutions to our problems.

Bearing this changed approach in mind, we will be changing the format of our Labour Law Updates. To make the seminars more interactive, delegates will be provided with an information pack beforehand so that they can arrive armed for engagement with Johnny. Johnny will be covering case updates as well as issues impacting the labour market, such as the national minimum wage, changes in collective bargaining, etc.

Come join us at our Mid-Year Labour Law Updates around the country:

  • East London – 14 June 2017
  • Johannesburg – 21 June 2017
  • Cape Town – 23 June 2017
  • Durban – 27 June 2017
  • Port Elizabeth – 30 June 2017

 

Please enjoy the two case summaries. The first illustrates the balancing of rights and the latter deals with the issue of sexual harassment, which together with harassment in general and bullying has come to the forefront of discussions again.
Click here to watch a recent interview related to this topic (the interview starts at 18min58sec).

We look forward to seeing you at our Mid-Year Labour Law Updates.

Till next time
Johnny and Grant

Case 1

Balancing of rights

In National Education Health and Allied Workers Union obo Molubi and others / Avondgloor Old Age Home (2017)26 CCMA 8.37.4 ,  as a result of a pay dispute, the employees (who were caregivers at an old age home) refused to attend to patients.

The case deals with both an unfair suspension as well as the alleged unfair dismissal. This summary discusses the latter.

After consideration of the facts, the Commissioner noted that the employees had been found guilty of gross negligence. Negligence is gross when it is committed with actual knowledge or wanton disregard of legal obligations. As a result of their wilful decision and the fact that the employees had admitted that they had not performed their duties, the Commissioner found that they were guilty of gross negligence and that the dismissal of the employees was justified.

Lesson to be learned
Even though employees may have gripes with their employer, they cannot fail in their obligations. There are processes in place to resolve any grievances and these need to be followed to resolve the situation. Any wanton disregard is punishable by dismissal.

Case 2

Sexual harassment

We are living in a society where sexual misconduct of all forms has become more prevalent and the most unacceptable defences are raised to these allegations.

Case in point being, Jordaan / Capitec Bank Ltd – (2017)26 CCMA 8.25.3. In this matter, the employee was dismissed for sexually harassing a much younger female subordinate by touching her inappropriately.

Whilst the applicant did not deny the alleged misconduct, he brushed it off saying that it only happened once and that he was just a friendly guy and that his subordinate had been flirting with him.

In assessing the merits of the matter, the Commissioner had noted that the alleged victim was clearly upset by the incident and had even left the proceedings. Her corroborated evidence was not sufficiently contradicted by the evidence of the accused employee. His defence of falling into the trap of the victim and inappropriate physical contact was not sufficiently put to the victim and had also not held water evidentially. The alleged victim’s version was further corroborated by her e-mails which clearly illustrated her trauma as a result of the unwelcome conduct.

Even if the alleged victim was flirtatious, the employee had to do what the responsible manager would do and not engage in such conduct.

After an evaluation of the evidence and having given consideration to the Code of Good Practice, the Commissioner ruled that the conduct of the employee constituted sexual harassment and that dismissal was appropriate in this matter.

Lessons to be learned
As management, one has to act in an appropriate manner and not find yourself guilty of such behaviour. Added to this, employers need to train all staff on what constitutes sexual harassment and how to prevent same. Employers should not forget their potential vicarious liability should they fail in their obligation to ensure a safe workplace.

RELATED POSTS

Avoiding the Pitfalls of Equal Pay

Posted on June 22, 2017

Developments in B-BBEE

Posted on June 14, 2017

Labour Law Update 6

Posted on June 8, 2017

Emotional Intelligence

Posted on June 1, 2017

Various B-BBEE Related Matters

Posted on May 25, 2017

Are we getting training right?

Posted on May 11, 2017

Year End Message

Posted on December 15, 2016

Status of Sector Codes and B-BBEE Transactions

Posted on December 9, 2016

Employment Equity Reporting online deadline is looming

Posted on December 2, 2016

Skills Development Update

Posted on November 25, 2016

Newsflash: The National Minimum Wage

Posted on November 21, 2016

Labour Newsflash Edition 12

Posted on November 18, 2016

Determining “Value” under Equal Pay for Work of Equal Value

Posted on November 8, 2016

B-BBEE Newsflash: Empowering Supplier Status Change

Posted on November 3, 2016

The effect of the new B-BBEE Codes on the vehicle manufacturing industry

Posted on October 28, 2016

Labour Newsflash Edition 11

Posted on October 21, 2016

Labour Law Newsflash Edition 10

Posted on September 23, 2016

Labour Law Newsflash Edition 9

Posted on August 26, 2016

Labour Law Newsflash 2017 Edition 8

Posted on August 1, 2016

Labour Law Update 2016 Edition 7

Posted on July 1, 2016

Labour newsflash – standing your ground

Posted on April 2, 2015

Driven to the Brink – Application of the DEMERIT System (AARTO) and its impact on the Employment Relationship

Posted on April 1, 2015

7 Breaches of the Companies Act that you must know now!

Posted on April 1, 2015

Business Law and Tax Review

Posted on April 15, 2014

Collective Bargaining and Representatives Beware

Posted on September 20, 2013

Labour Brokers’ business model on the line

Posted on August 29, 2013

The wheels are in motion…

Posted on August 23, 2013

Labour Law Update: Editon 9/2013

Posted on July 23, 2013

ANC makes U-turn on labour brokers, strike votes

Posted on June 6, 2013

Banning labour brokers would be disastrous: reports

Posted on June 6, 2013

Labour Law Update: Edition 5 / 2013

Posted on May 31, 2013

A commentary on the strikes and what it means for your business…

Posted on January 24, 2013

Labour Law Update – Unfair Labour Practices & Practice and Procedure

Posted on September 17, 2012

Labour Law Update – Practice and Procedure & Outsourcing

Posted on August 20, 2012

Labour Law Update – Fairness of Dismissal & Breach of Confidentiality

Posted on July 23, 2012

Labour Law Update – Fixed Term Contracts & Misconduct Dismissal (under the influence of alcohol)

Posted on June 26, 2012

Labour Law Update – Practice and Procedure & Substantive Fairness in Dismissal

Posted on May 29, 2012

Labour Law Update – Sexual Harassment & Social Media

Posted on May 2, 2012

Labour Law Update – Essential Services & Running Riot

Posted on March 5, 2012

Labour Law Update – Double Jeopardy & Using Facebook to air Grievances

Posted on January 27, 2012

Labour Law Update – Incapacity & Falsifying Medical Certificate

Posted on January 9, 2012

Labour Law Update – Freedom of Association

Posted on December 2, 2011

Labour Law Update – Running Riot

Posted on November 14, 2011

Labour Law Update – Territorial discrimination & Striking award

Posted on November 11, 2011

Labour Law Update – Procedural Fairness & Changes to Conditions of Employment

Posted on October 24, 2011

Update: Protest Postponed

Posted on October 3, 2011

Stay Away: 5 October 2011

Posted on October 3, 2011

Labour Law Update – Conditions of Employment & Appeal and Review

Posted on September 29, 2011

Labour Law Update – Misconduct Dismissal & BCEA

Posted on September 16, 2011

Labour Law Update – Dismissal on basis of HIV/AIDS status & Substantive fairness

Posted on August 19, 2011

Labour Law Update – Intoxication & The right to Bargain

Posted on August 5, 2011

Labour Law Update – Substantive Fairness & Non-disclosure

Posted on July 22, 2011

Labour Law Update – Reviews & Misconduct – Misrepresentation

Posted on July 8, 2011

Labour Law Update – Substantive Fairness & Sexual Harassment

Posted on June 24, 2011

Labour Law Update – Annual Leave & Strikes

Posted on June 13, 2011

Labour Law Update – Dismissals

Posted on May 26, 2011

Labour Law Update – Disclosure & Working Hours

Posted on May 13, 2011

Labour Law Update – 21 April 2011

Posted on April 26, 2011

Labour Law Update – Representation and Dismissals

Posted on April 8, 2011

Download past Labour Law Updates

Posted on March 27, 2011

COMMENTS

There are 2 comments on this post.

  • I would like to get updates of case studies

    nontsasa makupula - May 18, 2017 Reply
    • Thank you, Nontsasa. You’ve been added to our mailing list.

      GBS - May 18, 2017 Reply

ADD YOUR COMMENT