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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 'How protected are whistle-blowers?' in the light of two recent Labour Court judgments. We also discuss three new cases: The first case looks at whether an abandoned disciplinary hearing constitutes 'disciplinary action short of dismissal' for the purposes of the unfair labour practice definition. The second case considers advice given by the Labour Appeal Court on the drafting of disciplinary charges. The third case asks whether a restraint of trade agreement survives an employee being transferred.

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


What is 'disciplinary action short of dismissal'?

Section 186(2)(b) of the LRA provides that 'unfair disciplinary action short of dismissal' can be an unfair labour practice. In Department of International Relations and Cooperation v Laubscher and others [2023] 1 BLLR 1 (LAC) it was held that a disciplinary enquiry which had not commenced or has been abandoned without imposing a disciplinary penalty on an employee, cannot be equated to 'disciplinary action short of dismissal' as contemplated in that section.

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Drafting disciplinary charges

Employers often get themselves into a tangle by framing misconduct charges in criminal law terms. The LAC in Engen Petroleum Ltd v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and others [2023] 1 BLLR 18 (LAC) held that there is no need to try to label or compartmentalise a misconduct charge. All that needs to be done is for an employer to set out the facts and explain the complaint or issue arising from the facts, and which will be the subject of the disciplinary enquiry.

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Is a restraint of trade transferable?

In Slo Jo Innovation (Pty) Ltd v Beedle and Another (J 737/22) [2022] ZALCJHB 212; [2023] 1 BLLR 68 (LC) (10 August 2022) it was held that a restraint of trade agreement between an employer and an employee and included in a contract of employment, remained enforceable despite the employee being internally transferred to a subsidiary company. Whilst the transfer in this case did not constitute a 'transfer as a going concern' under section 197 of the LRA, the Court also found that a restraint of trade agreement would be transferable under section 197.

Parties seeking to enforce restraint agreements need merely prove the existence of an agreement and a breach thereof. The employer in this case had done both. Transfers under section 197 entail the transfer of "all rights and obligations in existence at the time of the transfer". This would include the transfer of any restraint of trade agreement that may be in place.

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ARTICLE : How protected are whistle-blowers? By Prof Alan Rycroft

Much is made of 'trust' being the essential element in the employment relationship. In many cases dismissal is seen as appropriate and fair where the employee has behaved in a way that undermines trust. But what if the employee cannot trust the employer? What if the employee discovers something illegal or unethical in the employer's practices? Does public disclosure which embarrasses the employer (or "brings the employer into disrepute") justify discipline and/or dismissal?

The Protected Disclosures Act, colloquially known as the 'Whistle-blowing Act' or the PDA, aims to provide protection to whistle-blowers in the private and public sector who disclose information regarding unlawful or irregular conduct by their colleagues or employers. But the reality is that employees are routinely disciplined and dismissed for whistle-blowing, despite the protection afforded them under the PDA.

In his article Prof Rycroft discusses two recent judgments which found that employees had suffered "occupational detriments" as a result of having made protected disclosures. The Court awarded the employee substantial relief in both cases.

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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 2023
Copyright: Worklaw