SEPTEMBER 2003 PUBLIC NEWSLETTER
Worklaw is a subscription based labour law website compiled by leading South African labour lawyers and arbitrators. It contains all you need to manage discipline at the workplace on one site. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. Worklaw’s September newsletter looks in depth at proposed changes to the Labour Court system. We also look at new decisions dealing with affirmative action, tax on CCMA awards and presenting different evidence at the CCMA.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
A right to affirmative action?
Does an employee have a right to affirmative action? A recent judgment in the Labour Court suggests that this is so. In Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) Judge Waglay took the opportunity to consider whether affirmative action is merely a defence by an employer from attack by some employees unhappy within the employer for using affirmative action as the basis of selecting / promoting a person from the designated groups. The judge said that affirmative action involves more than a defensive posture.
This judgment seems to open the door to employees using the unfair discrimination provisions of the Employment Equity Act to enforce affirmative action against the employer. This argument would go along the lines of the failure to affirm a person in appropriate circumstances constituting unfair discrimination against that person. It will be interesting to see the future impact of this case.
Liability for tax
When the CCMA makes an award for compensation, can the employer tender a lesser amount, having deducted the tax from the full amount of the compensation? This is what happened in Penny v SA Holdings (Pty) Ltd (2003) 24 ILJ 967 (LC). The Labour Court said the tender of the award less the tax directed by the Receiver of Revenue to be deducted constituted a tender in compliance with the award. If the employee wants a different result it is open to him /her to obtain a tax directive to that effect.
Presenting different evidence at the CCMA
Can an employer present completely different evidence at the CCMA to that presented at the internal disciplinary hearing? In Van Wyk and Mndeni Meat & another (2003) 24 ILJ 1033 (CCMA) at the disciplinary hearing the employer relied almost entirely on the results of a polygraph test. At the CCMA the employer did not lead this evidence at all. The Commissioner found that as the CCMA arbitration is a de novo hearing (fresh hearing) an employer could correct any shortcomings in evidence tendered at the disciplinary hearing by producing other evidence to prove the allegations.
GETTING THE MOST OUT OF WORKLAW
Worklaw is designed to be accessed in a number of ways. You may want to find out the law on a particular topic; if so, go toUnfair Dismissal Law. If you need to find a case reference or find a case under a specific topic, go to Case Law. If you are still in the dark, use the Help Line, and we’ll answer your query within 48 hours .You may want to check if you have taken the correct steps in, say, suspending or disciplining an employee; if so go to Forms / Checklists. If you want to institute a new policy or procedure; go to Model Disciplinary and Grievance Procedures. If you need to check the actual wording of legislation, this is all set out at Legislation. The Codes of Good Practice on dismissal, sexual harassment, picketing etc can be found at Codes of Good Practice