Article Archive

[Abbreviated version] The long-term effects of Covid-19 on businesses have become clearer. Short-term interventions, such as taking annual leave, temporary lay-off, short time and pay cuts, may no longer be appropriate. It may be necessary for a more permanent measure; i.e. retrenchment. But what payments are employees entitled to if they are retrenched?

As we approach the end of a very unusual year, employers are faced with multiple questions surrounding annual leave entitlement.

Many employees took annual leave during the lockdown, resulting in a significant depletion of the leave available to them. Many employees have also been laid off or had their work hours reduced. But how has leave accrued during this period and how must it be calculated?

As the economic effects of Covid-19 drag on, employers are faced with new questions surrounding the temporary lay-off of employees. Surely lay-off cannot continue forever. So, for how long may employees be laid off?

Disciplinary hearings via Skype? Consulting via Zoom? Are such processes allowed? Electronic platforms have become more accessible. The Covid-19 pandemic has alerted us to opportunities that were not obvious before. Does this mean that we may embrace these platforms in labour and employment law processes?

With a large proportion of the population likely to become infected with Covid-19 before a vaccine is available, businesses are in for a rough ride in the coming months. Some employees will have tested positive, others might simply present with symptoms. Are they entitled to paid sick leave, UIF illness benefits or Compensation Fund benefits?

Retrenchment may be the first thought that comes to mind for employers who are hard hit by Covid-19. However, in most cases rushing into the retrenchment process is not a good idea.

Aside from the adverse economic, health and social impact of the Corona crisis on people generally, employers are also confronted by complex legal issues and facing several employment challenges after lockdown.

The basis of every employment relationship is a contract of employment. As the parties are bound by the contract, careful thought should be given to the specific terms and conditions. But how much information should be included and how flexible can it be?

Employees are legally entitled to parental leave, adoption leave and commissioning parental leave as from 1 January 2020. This follows a proclamation issued by the President (on 23 December 2019) in terms of section 17 of the Labour Laws Amendment Act of 2018.

All too often employers are expected to be technically correct when drafting disciplinary charges. But is this fair to the employer? What if the employee has not been prejudiced?

It is the breakdown of the relationship of trust that normally justifies termination of employment in cases of employee misconduct. How serious must that breakdown be? Does the employer have to prove such breakdown of trust to justify dismissal?

When employers restructure in order to improve efficiencies, it leads to redundancies. Redundancies can lead to retrenchment, but not necessarily. This is where employers often get it wrong.

Occasionally a customer or other external party is witness to employee misconduct. It may be necessary for such person to give evidence in disciplinary proceedings. If the employee challenges the outcome of the hearing, such evidence may also be needed in arbitration proceedings. But what if the person does not want to get involved? Is hearsay evidence allowed?

When it comes to retrenchment, employers tend to make the mistake of announcing their decision to retrench before consulting with the affected employees or their union. Confronting employees with a fait accompli can be fatal to the process. But does this mean that an employer may not form any opinion before consulting?

In a disciplinary hearing an employee has the right to be heard before being judged. But does an employee have the right to be heard before being suspended pending the outcome of the hearing? Against the background of conflicting case law, the Constitutional Court has finally brought about some clarity on pre-suspension hearings.

Adherents to certain religions are reluctant to work on their sabbath or other holy days. But what if such a refusal clashes with the employer’s operational needs?

A recent Labour Court judgement highlighted the importance of respecting an employee’s home language and right to an interpreter in a disciplinary hearing. But what if the disciplinary hearing is conducted in English and the employee is proficient in English?

People may no longer be prosecuted for cultivating, possessing and using small amounts of dagga for private purposes. But what are the consequences for the workplace?

Can employees escape the consequences of their actions by resigning with immediate effect? There has been uncertainty about an employer’s right to proceed with disciplinary action after an employee’s resignation ‘with immediate effect’ but a judgement of the Labour Court in Cape Town has brought about much needed clarity.

When the CCMA makes an award for the reinstatement of an employee who has been unfairly dismissed or suspended, it seldom goes down well. But what happens if the employer ignores the award?

Employers must exercise their disciplinary powers in a consistent manner. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions, is to ensure that they do not act arbitrarily. In other words, like cases must be treated alike.