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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 discussing 'The employee injured at work: an employer's obligations'. We highlight the many and different aspects that arise when an employee is injured at work. We also discuss three new cases: The first case asks whether an employer can give a bonus to non-strikers for work done during the strike. The second case had to decide whether an employee's dismissal for representing an employee from another company in a bargaining council process was unfair, in circumstances in which this negatively affected his own employer's interests. The third case investigates whether a motivation to act with ubuntu can ever excuse dishonesty.

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


Can an employer give a bonus to non-strikers for work done during the strike?

In National Union of Mineworkers v Cullinan Diamond Mine (A Division of Petra Diamonds (Pty) Ltd) (2021) 42 ILJ 785 (LAC), shortly before the commencement of a strike, the company urged employees to consider its final wage offer favourably. It added that any employee who went on strike ran the risk of losing a potential bonus payment. After the strike ended, it was decided that all employees, whether they had been on strike or not, would not receive the annual production bonus. Instead, the company paid a performance bonus to employees who had worked during the strike and had contributed to exceptional productivity and performance.

The NUM claimed the company's actions constituted unfair discrimination against its members who had participated in a protected strike. The LAC held that there is no express provision in the LRA prohibiting employers from providing non-strikers with rewards for the extra work or exceptional performance they may put in during the strike. The LAC held that where the incentive measures are suitable and proportional, and where non-strikers are not advantaged for not exercising their right to strike, the payment of bonus will not be an infringement of s 5 of the LRA.

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Dismissal for representing another employee?

In Securitas Specialised Services (Pty) Ltd v Kabelane (2021) 42 ILJ 833 (LAC) a security officer was appointed as a union representative and could represent union members at any labour dispute forum. Whilst deployed as a security officer to KFC, one of his company's important clients, he represented a KFC employee who had been dismissed for theft in unfair dismissal proceedings at the bargaining council.

The LAC held that in an automatically unfair dismissal dispute in which the employee alleges prejudice for his participation in bargaining council proceedings in terms of the LRA, a court will assess whether disciplinary action was instituted solely because of the employee's participation in the proceedings or whether because in doing so, he disregarded and negatively affected his employer's interests.

The LAC confirmed that when there are a number of factors or reasons contributing to an employer's decision to dismiss an employee, it is necessary when deciding whether the reason for dismissal renders it automatically unfair, to establish which of the various reasons was the dominant or proximate reason.

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Is 'ubuntu' a defence to dishonesty?

In City of Johannesburg v Jacobs N.O and Others (JR124/18) [2021] ZALCJHB 12 (8 February 2021) employees were charged with dishonestly assisting candidates in the learner's licence class at the Sandton Licencing Department by indicating the answers to them in the test, thereby bringing the council into disrepute. The dismissed employees argued that the reason for their dishonesty was to assist previously disadvantaged individuals in the spirit of 'ubuntu'.

They lodged an appeal against their dismissal. The chair of appeal hearing found that despite the employees being guilty of the charges against them, dismissal was too harsh a sanction. The chair reinstated the employees with a final written warning.

The LC, while acknowledging that there are varying degrees of dishonesty, held that each case has to be determined on the basis of its own facts, on whether a decision to dismiss an offending employee is a reasonable one.

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ARTICLE: The employee injured at work - an employer's obligations

By Prof Alan Rycroft

In this article Prof Rycroft pulls together the many and different aspects that arise when an employee is injured at work: Who is liable for medical costs? Does sick leave after an accident fall outside the normal paid sick leave provisions? What is the difference between incapacity and disability? When is there unfair disability discrimination? Does an employee have the right to sue the employer for negligence?

Read more (Worklaw subscriber access only)


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Bruce Robertson
May 2021
Copyright: Worklaw