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. This newsletter contains an article on stock shrinkage and team misconduct. We also look at new decisions dealing with video evidence and the employer's responsibility for work-related stress.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Lies and videotapes...
The trend towards surveillance cameras in cities, streets and work premises raises the question of whether videotapes are admissible as evidence of alleged misconduct. The issue arose in Moloko v Commissioner Diale & others (2004) 25 ILJ 1067 (LC). At the CCMA arbitration, the Commissioner had relied on a copy of unauthenticated video footage taken at the supermarket, apparently corroborating a complaint by a customer that an employee had bumped her in a way that constituted assault. The employee took on review the CCMA's decision to admit the video as evidence. The Labour Court found that the video recording was so poor that it could not identify any person being assaulted and consequently the Commissioner had committed a gross irregularity in relying on the video. At the same time the Labour Court gave guidance on the admission of video evidence.
The Court said that if an employee denies that the video depicts what it purports to depict, the employer must establish that-
- the recording device was capable of recording the evidence,
- there were no changes, additions or deletions made to the recording,
- on the evidence as a whole, there existed no reasonable possibility of interference with the recording,
- the recording related to the occasion to which it was alleged it related and to no other.
It is not difficult for a work culture to be intolerant of an employee who suffers from stress. All too often the underlying message is "If you can't take the heat, get out of the kitchen". The decision in Bennett and Mondipak (2004) 25 ILJ 583 (CCMA) requires employers to take a re-think on work-related stress. After corporate restructuring, the employee assumed greater responsibilities and then suffered two nervous breakdowns, involving hospitalization and psychotherapy and being booked off work indefinitely. The employee was offered alternative positions but he refused. Fearing a further relapse, the employer terminated his services for incapacity. At the CCMA the Commissioner was satisfied, on the medical evidence, that the breakdown was a direct result of work-related stress.
Relying on the Code of Good Practice: Dismissal, the Commissioner found that where an employee is capable of performing the work, an employer has an obligation to adapt the work after fully investigating the issues which gave rise to the stress. The employer had to consider whether the 'stressors' could be removed. The Commissioner found that until this is done, the offer of an alternative position is premature and the employee's refusal to accept them did not warrant a negative inference.
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.
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