Public Newsletter


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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'The consequences of providing false information', which looks at the implications of an unemployment insurance form containing false reasons for the termination of employment, and in submitting false medical certificates.

We also discuss three new cases. The first case deals with an employer's right to discipline for "off-the-job" misconduct. The second case involves sexual harassment by an employee of a member of the public. The third case, a judgment of the Constitutional Court, deals with the test for the reasonableness of a secondary strike.

This public newsletter is a free edited version of the subscriber newsletter.


Misconduct outside the workplace

In Horn v Beesnaar NO & others (2022) 43 ILJ 115 (LAC) it was confirmed that an employer may discipline an employee's misconduct which occurs away from the workplace, if the misconduct has the effect of destroying or seriously damaging the employment relationship. An employee, a specialist geologist, had assaulted another employee outside work after a heated altercation between them.

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Sexual harassment by an employee of a member of the public

In Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 2 (27 January 2022) it was held that sexual harassment committed by an official employed in the public sector, in the course of providing services to a member of the public, constitutes serious misconduct and amounts to an abuse of a public position of authority.

A member of the public was sexually harassed twice when visiting a municipality's vehicle licensing centre.

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When is a secondary strike unreasonable?

In February 2019, AMCU issued notices of secondary strike action on ten mining companies in support of a strike by the union's members at Sibanye Stillwater over wages and other conditions of employment. The secondary strike was to last for seven days. All these companies launched urgent applications to interdict the union from initiating strike action at their operations and to declare the proposed secondary strike to be unprotected.

The Constitutional Court in Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others (CCT 233/20) [2021] ZACC 42; [2022] 2 BLLR 115 (CC); (2022) 43 ILJ 291 (CC) (12 November 2021) held that section 66(2)(c) of the LRA imports the principle of proportionality in assessing the reasonableness and the substantive lawfulness of secondary strikes. It seeks to balance the impact of secondary strikes on secondary employers on the one hand, with their effect on the business of the primary employer on the other hand.

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ARTICLE : The consequences of providing false information By Prof Alan Rycroft

One of the cornerstones of the employment relationship is the duty on employees to act with good faith toward the employer and to act honestly. The Code of Good Practice: Dismissal states that gross dishonesty is an example of serious misconduct and may justify dismissal. The duty of honesty also lies heavily on employers. Labour legislation obliges employers to report on a wide variety of issues - the Employment Equity plan and annual report under the EEA; the keeping and submitting of records under the BCEA and LRA; reporting of workplace accidents in terms of COIDA and OHSA; and so on.

There have recently been two cases which illustrate the consequences of dishonesty or misrepresentation in two very different contexts - the filling in of an unemployment insurance form, and in submitting false medical certificates.

In Swanepoel v KPMG Services (Pty) Ltd (J494/19) [2021] ZALCJHB 457 (13 December 2021), an ex-employee brought an application to the Labour Court to compel the employer to amend the employee's UI-19 insurance claim form to reflect the reason for termination of employment to be 'retrenchment'.

In National Union of Metalworkers of South Africa (NUMSA) and Others v Kaefer Energy Projects (Pty) Limited (JS567/2018) [2021] ZALCJHB 280; (2022) 43 ILJ 181 (LC) (7 September 2021) employees submitted false medical certificates to justify their absence from work, when staying away in support of their wage demands.

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About Worklaw's services

Worklaw is an online labour law advice and information subscription service - see Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.

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Bruce Robertson
February 2022
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