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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 'Do internal forensic reports have to be disclosed' to employees whose interests may be affected by the report? We also discuss three new cases: The first case clarifies if an employer is insulated from an age discrimination claim, if the employee works past the agreed retirement age. The second case looks at the consequences of an employee's refusal to apologise for misconduct and the aim of progressive discipline. The third case considers appropriate procedures for employees with mental ill-health.

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


What if an employee works past the agreed retirement age?

In Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103 (27 September 2022) it was held that Section 187(2)(b) of the LRA (dealing with fair age discrimination) affords an employer the right to fairly dismiss an employee based on age, at any time after the employee has reached his or her agreed or normal retirement age. This right accrues immediately after the employee's retirement date and can be exercised at any time after this date.

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Consequences of a failure to apologise

The LAC in Paarl Coldset (Pty) Ltd v Singh (2022) 43 ILJ 2010 (LAC) held that dismissal was an appropriate operational response to an employee's repeated serious misconduct for which he refused to apologise, notwithstanding his long service and clean disciplinary record. It also held that progressive discipline is designed to 'bring an employee back into the fold' so as to ensure that, faced with the same situation again, an employee would not repeat the misconduct.

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Appropriate procedures for employees with mental ill-health

In Mogomotsi v Goredema NO & others (2022) 43 ILJ 2063 (LC) it was held that in deciding whether continued employment had become intolerable in a constructive dismissal dispute, the application of the reasonable employee standard must be applied flexibly, taking into account the impact of an employer's conduct on an employee suffering from a mental ill-health condition. An employer should consider an incapacity/ill-health process rather than a disciplinary process where mental ill-health issues are involved.

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ARTICLE: : Do internal forensic reports have to be disclosed?

by Prof Alan Rycroft

Before an employer charges an employee for misconduct, there is often an internal process to investigate whether there is evidence that can establish misconduct. This can be a simple process of interviewing witnesses, but if the misconduct arises from complex financial transactions there may be the need for expert analysis of computer records, cell phones, banking details etc. In these unusual cases, outside lawyers and accountants are often commissioned to undertake these forensic investigations and submit a report with recommendations to the employer.

In his article Prof Rycroft discusses whether an employer, after conducting a forensic investigation to decide if there has been misconduct, is obliged to disclose the forensic report to employees subsequently charged with misconduct? Prof Rycroft covers the recent decision in McCarthy v PPC Group Services (Pty) Ltd (JS204/19) [2022] ZALCJHB 3 (3 January 2022), in which the Labour Court compelled the employer to provide the employee with the forensic report.

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
October 2022
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