Labour law should not be an afterthought

28 Experts Warn Against Pitfalls When Firing an Employee

South African labour relations have, over time, become dominated by a large number of advisors. It is important that an organisation guard against poor advice which, once implemented, will result in unintended risk and cost to business down the line. Adding to the problem is the fact that many employers/organisations do not seem to believe labour law is very important.

Most common areas of mistakes include (but are not limited to):

  • Probation (how to handle and terminate the relation);
  • Suspension or no suspension (how to deal with it);
  • Formulating allegations (“charges”);
  • Emotional employers (not removing emotion when disciplining an employee);
  • Failing to properly investigate a misconduct; and
  • Failing to prove the allegation/s (charges) against the employee.

Dismissals are a very sensitive and problematic area. This often requires going through a very elaborate process and using extensive resources.

Many jurisdictions require employers to have just cause for terminating employment and to follow a fair preceding procedure. The prescribed local procedure varies from merely allowing the employee an informal opportunity to state a case, on the one extreme, and a quasi-judicial process involving presiding officers, employer-prosecutors, extensive leading of evidence and cross-examination, on the other end of the spectrum. However, critical in most disciplinary inquiries are the fundamental questions of (1) did the employee do something wrong and, if so (2) what sanction should be imposed?

In respect of the first question, we often see or read in the law reports of employees adopting an attitude of “Well, prove it.” The difficulty with this approach is that employees fail to appreciate the difference in proving matters using the civilonus versus the criminalonus. Internal disciplinary matters are considered on a balance or preponderance of probabilities. This essentially means: “which of the various versions is more probable?” An employer is not required to prove beyond a reasonable doubt that an employee committed misconduct (the criminal lawonus used by the state in prosecuting criminals).

A presiding officer or manager considering whether an employee broke workplace rules has to evaluate the evidence and argument available, and then determine which version is more probable. There may still be reasonable doubt as to whether the employee committed the misconduct, but based on the probabilities the manager or presiding officer should be comfortable that the employee probably committed the offence.

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The Skills Development Pillar of the Revised Codes of Good Practice explained

The Skills Development Pillar of the Revised Codes of Good Practice explained
One of the most important changes in the Revised Codes of Good Practice (RCoGP) is that there are now three priority pillars: Ownership; Skills Development; and Enterprise and Supplier Development. A minimum 40% threshold applies to certain indicators in respect of these pillars, and failure to comply will result in companies being penalised. Companies not meeting the threshold of these elements will drop one level on their BEE scorecard.
The purpose of the Skills Development Pillar is to achieve economic growth and social development that will enrich the creation of decent work and sustainable livelihoods for all South Africans. Organisations need to educate themselves now about sustainable livelihoods within the context of the communities in which they do business. This has the added possibility of leading to new and innovative business channels. Community based manufacturing informed by that particular market = market already in existence. Pharmaceutical companies do community based health training which is a need for these communities – these are also future clients and employees.
In the skills and development learning matrix, Category F (informal training outside of the workplace by way of workshops, conferences etc) & Category G (informal training that takes place at the workplace) training have been capped at 15% collectively. This echoes the government’s push for accredited training. In addition, the SETA workplace skills plan and Actual training report and Pivotal skills report now need to be approved by the relevant sector SETA. This means that organisations can no longer afford to ignore SETAs but instead need to foster in partnership and co-creation, especially when considering the business risk of not scoring well on ones scorecard.
There are now five bonus points if 100% of the black learners are absorbed into employment with the organisation or in the industry. Organisations will now have to choose learners carefully and choose quality learners and learnerships rather than just focusing on the numbers. It also means that we will see a rise in learnerships for senior, top and executive level as a response to the section on Management Control (previously Employment Equity and Management Control) Sub –minimums in this pillar have been removed however there are specific targets for African, Coloured and Indian people according to gender. These targets appear to be based on the national statistics of the economically active population of South Africa. This could be a new challenge for companies with a strong demographic bias e.g Durban or Cape Town.
Gone are the days of haphazard training due to ethnic and gender capping because the RCoGP now force departments in organisations to not work in silos. Skills development, human resources, recruitment and line managers who make placement decisions need to be aware of the organisation’s Management Control (EE) strategy because the implications of not having the “right” mix of African, Coloured and Indian people will impact the company’s ability to reach the sub-minimum the for Skills Development.
Transcend can assist with structuring a learning and development strategies that responds to your own unique business needs whilst scoring on the BEE scorecard.

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1. Advertising of available positions
2. Assistance with interviews
3. Pre-employment polygraph testing
4. Criminal clearance certification;
5. Reference checks;
6. Pre-employment history checks;
7. ITC (credit vetting) verification (credit history of employee).
8. Proof of Residence and inspection of applicant residence according to CV;

PAYROLL [We also supply payroll services in the UK to Customers]
1. We offer a complete payroll solution and can manage your entire workforce’s wages, fortnightly, and monthly payments
2. This is a service that is offered nationally and is not limited to the proximity of our office.

1. Establishing custom made contracts of employment
2. Establishment of HR Manuals and Policy implementation
3. All documentation and notices needed to run your HR department are custom made to fit your company profile
4. The restructuring of departments to improve productivity and operational requirements

1. Chairing of Disciplinary Enquiries
2. CCMA Advice and Guidance
3. CCMA and Bargaining Council Representation
4. Drafting of CCMA and Labour Court documentation
5. Labour Court Representation
6. Strike Handling and Advice
7. Investigation of allegations
8. Polygraph Testing
9. Debt Collection

1. Security Services Employers Organisation
2. General Domestic & Professional Employers Organisation

We offer the following Training Programmes Nationally:
1. Basic Labour Relations
2. Presenting your Case at the CCMA/BC
3. Conducting a Disciplinary Hearing
4. Managing Discipline in the Workplace (including the Disciplinary Hearing)
5. Adapting to the new Labour Relations Amendment Bill of 30 March 2012
6. Developing Company Policies and Procedures Workshop
7. Train the Prosecutor (Investigator / Initiator of Disciplinary Proceedings)

1. Our Internal Labour Relations Auditors provide a full screening of vendors, providing Vendor Validation Certificates, ensuring that your company’s Supply Chain Partners comply with the minimum requirements.

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Can an employee have two claims on the same set of facts?

The Labour Appeal Court in Gauteng Shared Services Centre v Ditsamai (JA 44/09 of 7 December 2011) found that it would be acceptable for an employee to lodge a claim for unfair dismissal based on discrimination in the Labour Court and lodge a claim for compensation in terms of the Employment Equity Act (EEA) on the same facts.
In this case the employer had advertised several posts including a post for Forensic Auditor, which the employee was interviewed for. The employee did not successful secure a permanent post and signed a contract for the Temporary Junior Forensic Auditor post for a limited period. The employee was dismissed by the employer following the employee lodging a grievance of victimisation, bias and unfair treatment after two fellow employees secured permanent employment.
The employee referred a claim of unfair dismissal to the General Public Service Sector Bargaining Council (“the bargaining council”), where he was awarded compensation for unfair dismissal in terms of section 186 of the LRA but the arbitrator held that reinstatement was not a competent remedy. The Respondent then referred another dispute to the CCMA for unfair discrimination in terms of section 10(1) of the EEA based on the appointment of the two fellow employees in permanent positions whilst he could only secure a temporary junior position.
The employer argued the principle of res judicata in that the same set of facts was relied on for both claims. This argument was dismissed in both the court a quo and the Labour Appeal Court where Judge Davis relied on Sorghum Breweries Sorghum Breweries v International Liquor Distributors 2001 SA 232 (SCA) where Judge Olivier described the requirements for successful reliance on res judicata as “demanding the same thing on the same grounds” or “on the same cause for the same relief”.
The employer failed to discharge this onus of proof and as a result the appeal was dismissed.
Cases like the above have created an untenable position whereby the effective resolution of matters in terms of the LRA is undermined and secondly, it poses a threat to employers who will remain fearful that they may be required to defend an issue on the same set of facts again after having resolved the issue on another forum. It is unfortunate that the Constitutional Court has not pronounced on the matter as yet. Academic writers Grant and Whitear-Nel¹ suggest intervention by the legislature to clear up the confusion in this area of law.
¹Grant, B and Whitear-Nel, N “Can An Employee Claim Damages As A Result Of Breach Of An Implied Contractual Term That He Will Not Be Unfairly Dismissed? South African Maritime Authority V McKenzie” 130.2 2013 SALJ 309

Contact Charles Kinnear on 072 3138344 or

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Consumer court for Cape

Consumer court for Cape

January 6 2012 at 12:34pm Cape Argus report

CA_bolnaii1lyse comins

National Consumer Forum Chairman Thami Bolani



Staff Reporter

CAPE Town will get its own consumer tribunal next month. It will run like a court and allow people to get redress from errant companies.

The National Consumer Forum has welcomed the establishment of the tribunal, saying it’s a chance to level the playing field between consumers and businesses.

The Western Cape office of the Consumer Protector received just more than 9 000 complaints from the public last year and resolved 6 000 of them.

While thousands more are still being processed, the 20 which have resulted in stalemates between the complainants and the companies will be the first cases referred to the tribunal.

The tribunal, which will be based in the city but will move wherever it is needed in the province, is being established in terms of the Consumer Protection Act.

Panel members, or trialists, who must hear arguments and rule on the outcome, are drawn from a range of backgrounds.

They include an advocate with more than 25 years’ experience, a lawyer, a former businessman and a consumer advocacy group representative.

Advocate Ashley Searle, the director of the provincial office of the Consumer Protector, said the tribunal would operate in the same way as a court.

Unresolved disputes would be referred to the tribunal.

Before a case could be heard, subpoenas and summonses would be issued. Pre-trial hearings would have to be completed before the formal “trial” could begin.

These processes were prescribed by law.

Every consumer whose case goes before the tribunal will be represented by the Consumer Protector. The company against whom a complaint is made will be allowed to hire a lawyer.

After the case has been proved, with evidence of a transgression, the tribunal will make a decision and will have the authority to compel the company to refund the consumer, or order it to replace the product.

The tribunal could even order the company to pay compensation to the consumer.

“This legislation means that we will now be able to ensure that the rights of consumers in the Western Cape are fully protected,” said Searle.

National Consumer Forum chairman Thami Bolani said the tribunal could be the element needed to level the playing field between consumers and businesses.

But, he cautioned, it was still vital that consumers be educated about their rights and that the offices of the Consumer Protector were “highly visible” and easily accessible.

Other provinces would get tribunals in the coming months.

Gauteng already had a consumer court.

Bolani said most consumer complaints came from the Western Cape, Gauteng and KwaZulu-Natal.

Most of the complaints received by the National Consumer Forum had been about the motor industry. The forum had been flooded with calls during the festive season about defective cars and dealers who refused to acknowledge the vehicles’ problems.

Another serial offender was the cellphone industry, Bolani said.

Many people had been locked into contracts without fully understanding the terms.

The forum had also received a number of complaints about the food industry, particularly smaller retailers.

Bolani said he was optimistic about what the tribunal could do, but that the proper enforcement of rulings was critical.

Western Cape Tourism and Economic Development MEC Alan Winde said the tribunal was in line with provincial legislation and the guidelines laid out in the Consumer Protection Act.

“The legislation has never been an issue for those responsible companies who endeavour to give the best service,” said Winde.

He said the tribunal would deal with companies that did not abide by the rules.

l To contact the office of the Consumer Protector, call its toll-free number             0800 007 081      .

The protector’s Western Cape office is in the Waldorf Arcade at 80 St George’s Mall.You can write to the provincial office of the Consumer Protector at Box 979, Cape Town, 8000, fax a letter to            021 483 5872       or e-mail

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Reasonable expectation of renewal of fixed term contracts

Reasonable expectation of renewal of fixed term contracts


C. Kinnear 072 313 8344

The issue concerning legitimate expectation is dealt with in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995 (“the Act/LRA”) which includes a dismissal’ to mean that (b) employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it.”


In NUMSA obo Mdhuli v Scaw Metals Group[1], the applicant employee was employed by the respondent on a MERSETA contract in terms of which the employee would be afforded on the job training to complete his apprenticeship. When the employee acquired his artisan’s qualification, he was told to leave. He claimed that he had been unfairly dismissed because he had not been given the required notice of termination, and was under the impression he would be permanently employed by the respondent by being allowed to continue working for 14 days after acquiring his qualification.


The commissioner noted that the contract required the respondent to train the employee until he qualified as an artisan. The applicant had been allowed to stay on for a while after he completed his training to enable the respondent to investigate whether there was a post for him. He was given 14 days’ notice after it was established that there was no suitable vacancy.


The commissioner noted further that the applicant was not seeking renewal of a fixed-term contract, but an order compelling the respondent to employ him indefinitely. That being the case, the employee could not be said to have been dismissed within the meaning of that term in section 186(1)(b) of the Labour Relations Act 66 of 1995, and the council lacked jurisdiction to arbitrate the dispute.


The application was dismissed.


In the case of NUMSA obo Mnyakeni v Janong Security Services CC[2] the employer renewed the fixed term agreement more than once. The commissioner confirmed that an expectation must be created which relies on the facts. The respondent employed the applicant employee on three successive fixed-term contracts, all identically worded. Each contract provided, inter alia, that the employee would acquire no expectation of permanent employment if the contract were to be renewed, and that non-renewal would not constitute a retrenchment. When the respondent indicated that the contract would not be renewed a fourth time, the employee claimed that he had been unfairly dismissed.


The commissioner found that, although the union had claimed that the employee’s contract had been terminated on notice, the dispute was really over whether the employee had a reasonable expectation that the contract would be renewed. The common law position that a contract concluded for a stipulated period expires at the end of that period has not been changed by legislation. In addition, to showing a subjective expectation that a contract will be renewed, an employee claiming a legitimate expectation for the renewal of a contract must adduce objective evidence of that expectation i.e. he must prove the existence of facts which, in the ordinary course, would lead a reasonable person to anticipate renewal. The clear basis for a legitimate expectation is if a promise of renewal had been made. In the present matter, there was no evidence of either and implied or express promise made by a person who had the authority to make such a promise.


The applicant may also have had a legitimate expectation if there had been a practice in the workplace of renewal. The applicant first testified that the respondent employed all other employees, some of whom had been employed for 17 years, on fixed-term contracts that were regularly renewed. The only statutory change is that employees who have acquired a reasonable expectation of renewal can claim to have been dismissed if that expectation is dashed. The onus of proving such an expectation rested on the employee. That onus would be discharged only if the circumstances would have induced a reasonable employee to believe that the contract would be renewed.


The employee had not been promised that his contract would be renewed. He relied rather on a claim that the respondent had retained some employees on short fixed-term contracts for as long as 17 years. That claim had not been proved. That the employee’s contract had been renewed twice before did not in itself create a reasonable expectation of renewal. Despite the absence of evidence from the applicant that the renewal of his contract on two occasions had created a reasonable expectation of renewal, his case was presented on the basis that he had expected a renewal because he had been appointed on three successive fixed-term contracts.


In SA Bank of Athens Ltd v Cellier NO & others (2009) 30 ILJ 197 (LC), it was held that, where the employer repeatedly renewed a fixed-term contract, the weight to be attached to the practice probably increases in proportion to the number of successive contracts the parties have concluded. However, the mere fact that a fixed-term contract has been renewed a number of times does not in itself indicate the existence of a reasonable expectation of renewal – the question is what the respondent said to the applicant at the time of concluding the contract or thereafter, and the motive for terminating the relationship. On the contrary, the contract expressly stated that the employee had no right to renewal, and the employee was aware of this provision. The commissioner found that the applicant had failed to prove a reasonable expectation that the contract would be renewed, and accordingly to discharge the onus of proving that he had been dismissed.


The application was dismissed.


In Peetz v Cash Paymaster Services[3] the procedure to cancel a fix term agreement was the topic of the dispute. The applicant, a project manager, was responsible for overseeing payments of social grants by the respondent. When he reached retirement age, he was retained on a series of fixed-term contracts, which were finally discontinued. He claimed that the respondent had effectively retrenched him without consultation. The respondent contended that when the Social Security Agency, to which it was contracted, had changed its retirement requirements, it had no option but to retire the applicant. The applicant had accordingly not been dismissed.


The commissioner noted that the critical issue was whether the applicant had a reasonable expectation that his contract would be renewed. The more frequently the employer renews fixed-term contracts, the more likely it is that an employee will acquire such an expectation. The mere fact that the contract contains a clause saying that its renewal should not be construed as creating an expectation of renewal is not in itself sufficient to prove that the employee did not acquire a reasonable expectation. Other factors might include the nature of the employer’s business and the failure to give reasonable notice that the contract will not be renewed. Grogan points out that merely inserting a clause saying the employee should not develop any such expectation “is not conclusive proof” that the employee could not reasonably have expected the contract to be renewed, in itself. Other relevant factors might be the nature of the employer’s business, and the failure to give reasonable notice of non-renewal. The respondent’s reliance on the SSA’s change of policy would not have affected the employee’s expectation because the contracts had been repeatedly renewed after the respondent contracted with the agency. The applicant’s contract had been renewed for different periods six times in seven years, without a break in service. Given all these factors, the applicant’s expectation of a further renewal was reasonable. The employee had, accordingly, proved that he had been dismissed.


The commissioner held further that the respondent could not rely on the fact that the employee had reached the normal retirement age because it had continued to employ him beyond that age. The applicant was, accordingly, entitled at the very least to a hearing before his services were finally terminated. Grogan points out that where an employee had reached the retirement age and continued to work, in Botha v Du Toit Vrey & Partners CC (2005) 26 ILJ 2362 (LC) [also reported at [2006] 1 BLLR 1 (LC) – Ed], the court finds that “an employer is obliged to at least follow a fair procedure before terminating the eservices of an employee who has already worked beyond retirement age”.


If the respondent’s operational requirements had changed, he should have been consulted. The applicant’s dismissal was accordingly procedurally unfair.

The applicant was awarded compensation equal to three months’ remuneration.


In IDWU obo Mathebula & others v Band V Mining & Slabs[4], the applicant employees, all truck assistants, worked for the respondent on weekly fixed-term contracts for about eight months.

When their final contract was not renewed, they claimed they had been unfairly dismissed, pointing out that three of their former colleagues were still in the respondent’s employ. The respondent claimed that retaining employees on short duration contracts was necessary because work in the building industry fluctuates, and that the employees’ contracts were not renewed because of a slump in demand for residential property.


The commissioner noted that the issue to be determined was whether the employees indeed expected their contracts to be renewed and, if so, whether that expectation was reasonable. There was no doubt that the employees expected their contracts to be renewed, since this had been done on a regular basis for a lengthy period. The habitual renewal of the contracts also rendered their expectation reasonable. The employees had, accordingly, proved that the non-renewal of their fixed-term contracts constituted a dismissal. Since the respondent had failed to prove its claim that there was insufficient work for the employees and because the respondent had not consulted the employees, their dismissals were substantively and procedurally unfair. The Commissioner referred to the test to be the following:


In University of Cape Town v Auf Der Heyde (2001) 22 ILJ 2647 (LAC) [also reported at [2001] 12 BLLR 1316 (LAC) – Ed], Du Plessis AJA stated at 2654 B–C:


“In order to determine whether the respondent had a reasonable expectation, it is first necessary to determine whether he in fact expected his contract to be renewed or converted into a permanent appointment. If he did have such an expectation, the next question is whether, taking into account all the facts, the expectation was reasonable.”

In Dierks v University of South Africa (1999) 20 ILJ 1227 (LC) [also reported at [1999] 4 BLLR 304 (LC) – Ed], the Labour Court made it clear (at 1246D–H) that, in order for an employee to show that he/she had a reasonable expectation that his/her fixed term employment contract would be renewed, he/she must convince the court that there was an objective basis for the creation of the “reasonable expectation” aforementioned.


[1] (2011) 20 MEIBC 1.1.2 and [2011] 7 BALR 749 (MEIBC)

[2] (2011) 20 MIBCO 8.34.1 and [2011] 7 BALR 754 (MIBCO)

[3] (Pty) Ltd (2011) 20 CCMA 7.1.5 and [2011] 9 BALR 996 (CCMA

[4] (2010) 19 CCMA 8.34.5 and [2011] 1 BALR 46 (CCMA)


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Disciplinary Hearings – Be Prepared

Disciplinary Hearings – Be Prepared


C Kinnear 072 313 8344 Preparing for a Labour Court review case. The employer had dismissed the employee for theft amounting to R11000 but the CCMA had forced the employer to reinstate him.


We were puzzled by the CCMA’s decision because, on discussing the case with the employer, I unearthed strong evidence that the employee deserved to be dismissed. However, on further investigation, I discovered that most of the evidence against the employee had not been presented at the hearing.


The reason for this was that the charging officer had neither conducted a proper pre-hearing investigation nor had she properly prepared her witnesses and documents for the disciplinary hearing.


The result was that the evidence presented at the disciplinary hearing and at arbitration was insufficient to justify the guilty finding of the chairperson of the disciplinary hearing. Thus, the employer lost the case at CCMA not because the CCMA arbitrator was biased, incompetent or mistaken, but because the case presented was very weak. This was tragic for the employer because existing strong evidence that would have won the case for the employer was not presented.


This same problem of weak case presentation occurs very often. There are two important reasons for this. The person presenting the case for the employer may be insufficiently trained and therefore unskilled in case presentation. Alternatively, the employer may have failed to prepare the evidence properly. The reasons for this failure include:

  • The employer does not want to spend the time necessary to carry out proper preparations for the hearing
  • The employer not know how to prepare properly for a disciplinary hearing.


However, where the manager responsible for bringing the case on behalf of the employer fails to do so properly the likelihood is that the CCMA arbitrator’s decision will go against the employer. This is because the employer has the full onus of proving that the employee was guilty and that the misconduct merited dismissal as opposed to less drastic and more corrective disciplinary step.


For this reason it is vital that all managers and other staff responsible for discipline acquire a full understanding of how to prepare for and how to present a case at a disciplinary or arbitration hearing. The steps for preparing a case include:

  • Assessing the allegations to establish whether they have been brought in good faith or whether the accuser has a hidden agenda
  • Investigating the circumstances of the alleged incident(s)
  • Assessing the circumstances leading up to and surrounding the alleged incidents of misconduct
  • Evaluating the evidence gathered in the investigation to establish whether it constitutes proof or not
  • Formulating the charges to be brought against the accused at the disciplinary hearing
  • Establishing who will present the evidence at the disciplinary or arbitration hearing
  • Deciding which witnesses and other evidence will be used
  • Preparing questions for the employer’s witnesses
  • Preparing questions to be used in order to cross-examine the evidence brought by the accused
  • Preparing a draft closing statement.


In the case of NUM and others vs RSA Geological Services, a division of De Beers Consolidated Mines Limited (2004 1 BALR 1) the employer dismissed all the employees of its laboratory because a large quantity of kimberlite sample was found hidden on the premises. It was believed that the employees did this in order to falsely enhance their sorting rate and thus qualify for a performance bonus.


While the employer was able to prove that three of the employees had been involved in the scam there was insufficient evidence presented to merit the dismissal of several others. The employees were therefore reinstated.


Had the employer prepared properly for the hearing and had it brought sufficient evidence that all employees had been involved in the deception it would have been unlikely to have had to reinstate the dismissed employees.

This indicates the crucial need for expert skills in preparation for and presentation of evidence at a disciplinary hearing. Employers and managers are not born with these skills. They either need to hire in such skills or to arrange for managers to be trained in how to prepare evidence for disciplinary hearings and how to present such evidence successfully.

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New CCMA policy document clears up some confusion.

New CCMA policy document clears up some confusion.

C Kinnear 072 313 8344 (Cape Town)

The CCMA’s guidelines on misconduct dismissal arbitrations have been completed and gazetted and will be effective from January 2012

The stated purpose of these proposed guidelines is to “…promote consistent decision making in arbitrations dealing with dismissals for misconduct.” The guidelines spell out in detail the procedures that arbitrators are to use when arbitrating cases where unfair dismissal on the grounds of misconduct has been alleged. The guidelines also set out some basic principles and factors that arbitrators are to take into account when deciding on whether a dismissal is procedurally and substantively fair. The gazetted document states that the guidelines constitute CCMA policy but is silent as to whether or not the guidelines apply to arbitrators outside of the CCMA.

That is, the document does not state whether arbitrators on the panels of bargaining council dispute resolution centres and of other dispute resolution forums accredited by the CCMA are obliged to follow these guidelines. It would make sense for all bodies accredited by the CCMA to arbitrate dismissal disputes to be required to follow the policy of the institution with which they are accredited. As the document does not define its scope the result could be inconsistency between CCMA and non-CCMA arbitrations in the way that they are handled and in the awards themselves.

The LRA contains a large number of very big and crucial legal gaps. This fact, together with the fact that the concept of what is and is not ‘fair’ is heavily influenced by the views of each arbitrator, has historically rendered the labour law jungle an extremely dark, uncertain and dangerous place for employers to be. It is therefore high time that a document was put together to clear up these uncertainties. While the CCMA Guidelines do not entirely fulfil this function they do go some way towards clearing up some uncertainties as regards the law of fair misconduct dismissal.

The document does indicate, at least in part, that the guidelines represent CCMA policy and should thus be applied by commissioners in carrying out arbitrations. However, a factor that could detract from the good intentions of the guidelines, is that item 4 thereof allows Commissioners to depart from this CCMA policy where they have “…good reason for favouring a different interpretation to that which is represented in the guidelines.” However, this licence to be inconsistent is balanced by the requirement that arbitrators are to set out their reasons for adopting an approach different to CCMA policy as reflected in the guidelines. The draft guidelines further require commissioners to interpret and apply the LRA and other legislation in accordance with judicial decisions that are binding on the CCMA and that the most recent binding decisions of the highest court must be followed by Commissioners. These include decisions of the Constitutional Court, the Supreme Court of Appeal, Labour Appeal Court, High Court and Labour Court.

Item 10 of the guidelines makes it compulsory for arbitration awards and rulings to be lawful, reasonable and procedurally fair. This item of the guidelines draw directly on the provisions of Section 33 (1) of South Africa’s Constitution which gives everyone the right to administrative action which is lawful, reasonable and procedurally fair. It appears that this has paved the way for parties taking arbitrators to the Labour Court on review to do so on the basis that the arbitrator failed to comply with these Constitutional provisions. The guidelines deal with a wide spectrum of aspects relating to misconduct dismissal cases. These aspects include, amongst others, the manner of conducting the arbitration hearing, the nature of the arbitration, requirements for different stages, explanation of the inquisitorial approach as opposed to the adversarial approach, rules for the assessment of evidence by arbitrators, the components of substantive and procedural fairness, the role of the employers’ disciplinary procedure and code and discipline of trade union representatives. The guidelines also reinforce the principle that the legal onus is on the employer to prove the fairness of the dismissal. It still remains to be seen whether the “consistent decision making” desired by the CCMA will be achieved and whether fewer reviews at the Labour Court will be successful. However, I am optimistic that if these guidelines are taken seriously by Commissioners, arbitration awards will begin to be more consistent and less reviewable.

For employers and other parties to obtain a fuller understanding of the content and meaning of these guidelines and of their significance for employers they will need to speak to experts in labour law and to attend seminars on this topic.

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Due to the inherent nature of fraud which often involves trickery and deception, large amounts of money can be spirited away without the employer ever becoming aware of it.

 To prove fraud it is necessary to show that:


  • a false representation was made (1) knowingly, (2) without belief in its truth, or (3) recklessly, without concern whether it was true or not.


  • the employee committed the act for gain. However, such gain would not have to be confined to direct financial advantage.


For example, claiming false qualifications for a job would be fraudulent as the job applicant would be gaining employment based on a lie.


While fraud can occur at any level it is at its most dangerous at the upper levels of the organisation. This is because senior employees:


  • often have easier access to bigger amounts of money


  • can be in a better position to cover up irregularities


  • are often trusted more than are junior employees


Employers need to take seriously all reports or hints of irregularities, responding in away that makes it clear that fraud will not be tolerated under any circumstances.


Failure to discipline and dismiss the perpetrator will perpetuate the culture of dishonesty.


On the other hand failure to investigate and manage the incident properly can result in a dismissed fraudster being reinstated or being granted financial compensation for an unfair dismissal. 

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Amendment of Sectoral Determination 7: Domestic Worker Sector

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