Public Newsletter


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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains the third part in our series on the rules of evidence to be applied at disciplinary hearings. We also look at new decisions dealing with sexual harassment and desertion.

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


Ntsabo v Real Security CC (unreported)

The labour court found that the employer may be held liable for the actions of its employees if it does not intervene. In this case, the employee alleged she had been sexually harassed and claimed constructive dismissal.

The court found that she had been constuctively dismissed because the inaction of the employer was unfair and created an intolerable working environment for the employee The court awarded damages and compensation against the employer. The court held the employer liable for the actions of the supervisor on the basis of vicarious liability. According to the court, the employer should have foreseen the development of a hostile and intolerable working environment in these circumstances.

Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA)

Where an employee fails to report for duty for an extended period, what must the employer do before a dismissal can be called fair? In this case, an employee was absent for work for three weeks while in prison pending trial on a criminal charge. When released, he reported for duty but was told that his employment had been terminated. The arbitrator found that for the dismissal to be fair, it had to be effected in accordance with a fair procedure.

In instances of abscondment, the employer had to, where possible, establish whether the employee had any intention of returning, invite the employee (if found) to attend a disciplinary enquiry, and determine if there were justifiable reasons for his absence. In this case no enquiry was held and this rendered the dismissal unfair.

This case emphasises the importance of the employer acting on a breach of conditions of employment by the employee, and if appropriate terminating the contract procedurally fairly. The employer should not just take the view that the employee, by virtue of the breach , has terminated the contract.


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Bruce Robertson
January 2004
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