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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter takes a look at the uses and abuses of polygraphs. We also look at new decisions dealing the right to legal representation and the liability of the employer for the acts of an employee.


Legal representation at the CCMA

The Labour Court has brought clarity to the right of parties to legal representation in the CCMA. In Netherburn Engineering CC t/a Netherburn Ceramics v Madau & others (2003) 24 ILJ 1712 (LC) the CCMA commissioner refused the employer's application to be represented by an attorney and refused to postpone the hearing. The employer, unprepared to proceed in the absence of its attorney, withdrew from the hearing and the commissioner then gave an award in favour of the employee. The employer took the decision on review, asking for the matter to be remitted back to the CCMA, allowing legal representation.

The Labour Court found that the commissioner's refusal to allow representation should stand. However, the court found that the commissioner should have taken into account that the employer was unprepared to take over the matter at short notice. On this basis the award was set aside and remitted to the CCMA before a different commissioner. The employer also argued that s 140(1) of the LRA was unconstitutional, effectively preventing legal representation, but the Court dismissed this argument.

The employer's liability for misrepresentations made by an employee

In employment law there is a principle known as vicarious liability, which holds the employer liable for the wrongs committed by an employee in the course and scope of his/her duties. This principle was tested in Colby v Statistics South Africa (2003) 24 ILJ 1748 (BCA), where a supervisor incorrectly represented that another employee would be compensated at a specific rate for transport. The arbitrator found that the supervisor had been negligent and, using the test of whether the employer had acted fairly in refusing to pay the employee at the rate represented by the supervisor, found that the employer had to take responsibility for the negligent misrepresentation.

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Bruce Robertson
February 2004
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