Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks in depth at the rights of an employee to sue an employer for defamation arising from misconduct allegations made during the course of isciplinary proceedings initiated against the employee. We also look at new decisions dealing with affirmative action and the case of an employee refusing to attend a disciplinary enquiry.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Affirmative action: shield or sword? Further developments.
The Constitution and the Employment Equity Act (EEA) legitimize discrimination in the form of affirmative action. In other words the law provides a shield for the employer to defend itself from allegations of discrimination when it makes an affirmative action appointment. But is the EEA also a sword in the hands of an employee to empower him or her to insist on affirmative action? A judgment in 2003 in the case of Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) suggested that an employee has an individual right to affirmative action (see September 2003 newsletter).
In Dudley v City of Cape Town (2004) 25 ILJ 305 (LC) an applicant (a black female) for the post of Director: City Health asked the court to set aside the appointment of the successful candidate (a white male), and to appoint her to the post, or to reconsider the appointment in compliance with its non-discrimination and affirmative action obligations. The judge held that the EEA does not establish an independent individual right to affirmative action that could be decided by the Labour Court and refused the order sought by the applicant.
The court distinguished between Chapter II of the EEA (which prohibits unfair discrimination and which is directly enforced by a single aggrieved individual or by the members of an affected group) and Chapter III (which concerns affirmative action measures) and which can only be brought into operation within a collective environment.
Refusing to attend the disciplinary hearing
One of the basic principles of natural justice is that persons should have the right to be heard before a decision is made which affects their rights. Does this mean that, if an employee refuses to attend a disciplinary hearing, the outcome is tainted and the procedure unfair?
In CEPPWAU & others v Metrofile (Pty) Ltd (2004) 25 ILJ 231 (LAC) one of the issues the court dealt with was whether disciplinary hearings can be instituted during a protected strike. The court said that a protected strike is not a licence to engage in misconduct. The employee has the right to institute disciplinary action at any time if misconduct is involved, particularly if it is of a criminal nature. It was not procedurally unfair to institute a hearing during the strike.
The other issue was the non-attendance at the hearing. The court's view was that once an employer institutes disciplinary action and gives notice, it is open to the employee to attend or refuse to attend the enquiry. Should employees refuse to attend, they must be prepared to accept the consequences of the hearing proceeding in their absence.
INFORMATION ABOUT WORKLAW
Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa's most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.
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