Public Newsletter
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. Worklaw's August newsletter looks in depth at the requirement of consistency in disciplinary sanctions. We also look at new decisions dealing with testing employees for HIV, how to handle hearsay evidence, and the Constitutional Court's decision on the dismissal of strikers at VW.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Testing for HIV
Section 7(2) of the Employment Equity Act 55 of 1998 states that testing of an employee to determine that employee's HIV status is prohibited unless the testing is determined to be justifiable by the Labour Court in terms of s 50(4) of the Act. Earlier cases suggested that there were no exceptions and that the Labour Court had to be approached in all cases. However in PFG Building Glass (Pty) Ltd v CEPPWAWU & others (2003) 24 ILJ 974 (LC) it has been held that anonymous and voluntary testing of employees for HIV does not fall within the ambit of s 7(2) of the Act. This means that in those circumstances, the employer does not need to approach the Labour Court before testing.
Hearsay Evidence
What does an employer do when a key witness cannot be found or is unavailable and all that is left is a written statement by that witness? InVan den Berg & another and Rainbow Farms (Pty) Ltd (2003) 24 ILJ 1023 (CCMA) it was held that Section 3 of the Law of Evidence Amendment Act 45 of l988 is primarily an exclusionary rule, reinforcing the general reluctance of courts to admit hearsay evidence at all. However the Act gives a discretion to allow hearsay and requires that in exercising this discretion all six factors specified in the Act must be considered, as well as any other factor which should in the opinion of the court be taken into account. The factors listed in s 3(1)(c) cannot be viewed in isolation and will be weighed collectively in determining whether or not it is in the interests of justice to admit the evidence.
Strike dismissals
The saga of the VW strike has involved decisions of the CCMA, the Labour Court, the Labour Appeal Court and now the Constitutional Court. Employees went on strike for no workplace demand that could be met by the employer, but rather because of internal union strife. After extensive meetings and other measures the strikers were dismissed. In the CCMA and Labour Court decisions what is meant by the 'audi alteram partem' rule was explored, and the Constitutional Court, in Xinwa & others v Volkswagen of SA (Pty) Ltd (2003) 24 ILJ 1077 (CC), has now accepted that this requirement of giving employees a chance to present their case before dismissal is met if the employer makes an offer to hear such a case prior to dismissal.
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.
Contact us for more information:
Telephone: 031-561 5004
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E-mail: help@worklaw.co.za
www.worklaw.co.za
Bruce Robertson
August 2003
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