Tag: Jacques van Wyk
Zero-tolerance policy – National Bargaining Council cannabis ruling
In National Union of Metalworkers of South Africa obo Nyawuza / PFG Building Glass [2024] 6 BALR 595 (NBCCI), the National Bargaining Council for the Chemical Industry (NBCCI) considered an unfair dismissal dispute. The dispute concerned an employee who was dismissed for misconduct after testing positive for cannabis in his system.
Consequences of employees misrepresenting their qualifications
Whether an employee may be dismissed if he/she misrepresented his/her qualifications and/or professional memberships, but nevertheless met the minimum requirements of the position to which he/she was appointed.
Think you are entitled to severance pay? Think again
Section 41(4) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) relieves an employer of the duty to pay severance pay in circumstances where the employee who is dismissed for operational requirements “unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer”.
Offers of employment – don’t take risks
Employers are reminded to avoid providing offers of employment if the relevant recruitment processes or details of a vacant post have not been finalised as a valid employment agreement may still be created and enforced through offer and acceptance.
Resignation terminates contract of employment and cannot be withdrawn
Once an employee has resigned the employee cannot withdraw the resignation unless the employer consents thereto. This consent must be given prior to the expiry of the employee’s notice period when the resignation becomes effective, failing which a fresh agreement of employment will have to be concluded.
You can be fired for not reporting suspicious conduct of colleagues
The dismissal of an employee who failed to report the suspicious conduct of her colleague, in relation to missing monies, was found to be substantively fair. The failure of the employee to inform an employer of their business interests being improperly undermined, constitutes derivative misconduct for which dismissal may be afforded.
Increase to BCEA earnings threshold & minimum wages
On 8 February 2021 the Minister of Employment and Labour, Thembelani Waltermade Nxesi, published a Government Gazette providing for the increase of the earnings threshold, as provided for in the Basic Conditions of Employment Act 75 of 1997 (BCEA). The new earnings threshold will be R211,596.30 per annum with effect of 1 March 2021.
An employer cannot unilaterally change an employee’s retirement age
An employer cannot unilaterally change an employee’s retirement age. Should the employer do so and terminate the employee’s employment, the dismissal may constitute an automatically unfair dismissal and amount to unfair discrimination.
DMA vs LRA: what is considered an ‘essential service’ in strike...
The issue is whether an essential service in terms of the Disaster Management Act (DMA) is deemed an essential service for the purposes of the Labour Relations Act (LRA), thus barring employees from engaging in protected strike action.
Can Zoom be used when conducting retrenchment consultations?
The issue is whether an employer may utilise Zoom when conducting consultations in a retrenchment exercise. If not, does the continuation of the consultations in such circumstances result in procedural unfairness? The Labour Relations Act 66 of 1995 (LRA) does not regulate how section 189 consultations are to be held (i.e. in person or via video conference).
