Tag: Labour Court

Every employer has a right to privacy and as such employees should tread carefully when recording business-related activities, as they could find themselves in breach of confidentiality owed to their employer. While the law provides some leeway for employers to record the conversations and activities of employees, whilst they are engaged in business related activities, and use such recordings against them, as long as it is 'in the interests of justice to do so', employees have a lot less space to manoeuvre when recording the activities of their employers

A recent case decided by the South African High Court has examined the curious interplay of an employee's rights as they arise from both the written contract of employment and, at the same time, labour legislation. Although the judgment may at first seem confusing, a careful analysis of its outcome sheds light on how these parallel sources of the parties rights and obligations operate in conjunction.

The Labour Court has exclusive jurisdiction to determine matters arising from the Basic Conditions of Employment  Act (BCEA) regardless of the stage at which the proceedings are at. In limited instances namely, the determination of any matter concerning a contract of employment, the Labour Court shares jurisdiction with the civil courts. The BCEA does not contemplate a situation where an employee should first approach a labour inspector before seeking relief from the Labour Court.

It is trite law that certain prescribed periods of notice become applicable upon termination of any employment relationship between an employer and an employee. These periods are governed by statute and the individual employment contract. However, notwithstanding this, there is uncertainty in our labour law about the position where an employee resigns with immediate effect in the face of a pending disciplinary enquiry.

Recent regulatory developments have helped to increase the pressure that communities are able to exert on mining companies. This highlights the need for companies to implement more effective negotiations with and solutions for their affected communities.

Employees often resign with immediate effect when facing disciplinary action. Employers may be unsure whether they can continue with an intended disciplinary action? Unfortunately, the Labour Courts' decisions on this issue have not always been clear or consistent.

South African labour law has developed a rich body of case law since the Labour Relations Act was first introduced in 1995, and most employees are well aware of their rights not be unfairly dismissed, and to not be subject to unfair labour practices. 

South African industrial action has become synonymous with violent, unlawful conduct, as was discussed in the recent case of Association of Mineworkers & Construction Union & Others v KPMM Road & Earthworks (JA 147/2017) [2018] ZALAC 28 (31 October 2018).

The Association of Mineworkers and Construction Union (Amcu) has challenged the inclusivity of the Section 189(1) provisions of the Labour Relations Act, arguing retrenchments are so important that everyone needs to be consulted individually. But in our view, Section 189(1) is the most practical solution and in line with the principle of majoritarianism that runs throughout SA law.

Very often, an employee is suspended while an investigation is conducted into allegations of misconduct, or pending the holding and outcome of a disciplinary hearing. South African labour laws do not require such a suspension to be anything more than 'fair', and there is no minimum or maximum time period within which the investigation must be concluded, or in which the enquiry process finalised. However, since the suspension of an employee can be challenged as an unfair labour practice, the courts and CCMA often have to deal with challenges to an employee having been suspended.