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Labour Law by Patrick Deale

Keeping Bad Company

Should an employee still be reinstated if a dismissal is unfair but the working relationship has broken down?  This is what the Labour Appeal Court (LAC) had to consider in the recent Afgen[1] appeal. S193 of the LRA provides that – 2. The Labour Court or the arbitrator must require the employer to reinstate or re-employ...

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Labour Law by Patrick Deale

Defining charges in disciplinary procedures

Do disciplinary charges always have to be defined like criminal charges to stick? “No” – said the Labour Appeal Court (“LAC”) in an appeal decided in August 2019[1] There’s often a similarity between misconduct charges in the workplace and charges in the criminal court. In criminal law, each crime has defined “elements”. For example, the...

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Labour Law by Patrick Deale

ENQUIRY DELAYS

When does a delay in prosecuting a disciplinary enquiry become unreasonable and unfair? The general rule is that a disciplinary inquiry must be held within a reasonable time from the date on which the alleged misconduct occurred – or from the date from which the employer first became aware of it. The idea of the...

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Labour Law by Patrick Deale

STRIKE FOR STRESS

Why are workers still willing to go on strike when the odds of scoring real financial gains are stacked against them?   The annual wage negotiations and “strike season” will unfold again in the next few weeks. It’s generally understood that the main reasons workers go on strike are to secure better wages and improved...

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Labour Law by Patrick Deale

Collective misconduct vs delitarive misconduct – why is the difference important?

What’s the difference between collective and derivative misconduct and why is it important to distinguish between them? PRASA Case PRASA[1] had to pay a high price for failing to make the distinction after it fired 700 employees for derivative misconduct. They suspected NTM members of burning train coaches during a strike about organizational rights. Their...

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Labour Law by Patrick Deale

Fast-track procedure to dismiss a CEO – the trust relationship

Can a Board of Directors skip the disciplinary procedure and use a Fast-track procedure to dismiss a CEO when they believe the trust relationship has broken down? This possibility of such a novel procedure emerged in the Labour Court[1] in October. The CEO applied to court for an urgent interdict to stop Transnet from dismissing...

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Labour Law by Patrick Deale

Shop steward misconduct

SHOP STEWARD MISCONDUCT – Where do you draw the line between a shop steward’s duties as a union representative and duties as an employee? There’s a built-in conflict between the two roles so it’s often difficult to clearly define exactly where the line lies. As an employee, the shop steward has a duty to submit...

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