Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
In common law employers and employees have the obligation to treat each other fairly and within the law.
For its part, the employer is required to pay the employee the agreed remuneration by the normal pay date. The employer is also required to employ the employee in reasonable working conditions and to avoid rendering the employment circumstances intolerable. Failing this, the employee is entitled to seek legal remedy.
The employee has the obligation towards the employer to carry out his/her work to the best of his/her ability and to refrain from misrepresenting his/her qualifications. The employee must also be honest and serve the legitimate interests of the employer. Failing this, the employer has a right to legal remedies including discipline, dismissal and even court action.
While both parties have legal recourse against the infractions of the other, they must beware of the dangers of taking such action.
That is:
- The judge or arbitrator sometimes orders the losing party to pay the legal costs of the winner.
- A party may also be punished for bringing a case to the CCMA with ‘dirty hands’. For example, an employer may be accused by the employee at the CCMA of retrenching him unfairly. However, the employer may be able to show that the employee’s disloyal or malicious behaviour was the cause of the financial backslide and the need to cut back on staff. This misbehaviour of the employee would then mean that he has come to the CCMA with dirty hands. This is likely to count against him/her at the arbitration.
In the case of Simani vs Coca Cola Furtune (2006, 10 BALR 1044) the employee was dismissed for dishonesty. The arbitrator found that the employee, well aware of his guilt, nevertheless approached the CCMA. This was unacceptable as it was not a genuine dispute. The employee came to the CCMA with dirty hands and, in addition to having his case dismissed, was ordered to pay the respondent’s costs.
In the light of all the dangers discussed above employers and employees should:
- Avoid making the decision to go to CCMA or court merely because they are angry
- Avoid misusing the CCMA as a means of extorting money out of the other party
- Gather solid proof of their allegations
- Check that their own hands are clean before pointing a finger at the other party.
