Question: An employee makes many mistakes, but it is not clear whether she is unwilling or unable to do the job. Do I treat it as misconduct or incapacity?
The difference between misconduct and incapacity
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Barney Jordaan
Disciplinary Hearings: Is suspicion of theft enough?
Question: There is a strong suspicion of theft, but is there enough evidence to prove it?
How to formulate disciplinary charges
Question: How to formulate disciplinary charges.
Contract for “occasional” employment
Question: I contract with an employee to do occasional work. I use him full time (i.e. 5 days per week) for two months and then just stop calling on him. Can he claim that he has been unfairly dismissed?
Contract of Employment: Lie Detector tests
Question: I am in the security industry. May the contract of employment state that the employee agrees to undergo a lie detector test?
Tea Intervals – Paid or unpaid?
Question: Are tea intervals paid or unpaid?
Annual leave and maternity leave
Question: Does annual leave accrue during maternity leave?
May employers pay a “flat rate”?
Question: Is it permissible to have fixed rate that includes overtime pay, Sunday pay, leave pay, etc?
Public holidays and “other” religious holidays
Question: Do employers have to recognize holidays that are not official public holidays in terms of the Public Holidays Act?
How formal must the Disciplinary Hearing be?
Question: How formal/informal must the disciplinary process be?
Disciplinary Hearings: How to deal with new evidence
Question: How can new evidence that comes up in a disciplinary hearing affect the finding and the sanction?
Disciplinary Hearings: Is a senior employee entitled to legal representation?
Question: Who represents a senior employee?
Dealing with incompatibility or a “bad attitude”
Question: Dealing with incompatibility. What procedures must be followed when someone has a bad attitude or just does not fit in?
Contract of Employment: Flexible working hours
Question: May an employment contract have clause that says ” You will work according to a shift roster for a number of hours that can vary between 10 and 45 hours per week”?
Refusal to work overtime
Question: May an employee be dismissed for refusing to work overtime?
Contract of Employment: Change to Working hours
Question: Would the following clause in the employment contract be valid: “Your hours of work can be changed, provided you are given 12 hours notice of such change”?
PHYSICAL SEARCHES, ALCOHOL, DRUG AND POLYGRAPH TESTING-MAY AN EMPLOYER INSIST?
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.
EMPLOYER RIGHTS PERTAINING TO PREGNANCY AND MATERNITY LEAVE
Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?
TERMINATING AN EMPLOYEE’S SERVICES BY AGREEMENT
Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.
CHANGING A DISCIPLINARY SANCTION
Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?