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 an article discussing 4 recent judgments, 1 from the SCA and 4 from the LAC, that impact in different ways on the law dealing with recruitment and employment contracts. We also discuss another 3 new LAC judgments that were released during the end-of-year break.
- a LAC decision on whether taking sick leave to attend rugby is a dismissible offence;
- a LAC decision on whether it is correct to separate procedural and substantive fairness in deciding the fairness of an operational requirements dismissal; and
- a LAC decision that looks at the evidence about comparators, in dealing with how to prove gender discrimination.
Taking sick leave to attend rugby: a dismissable offence?
The CCMA and the Labour Court found the dismissal of an employee who claimed sick leave and went to watch rugby, to have been unfair. The LAC in Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49 (10 December 2021) held that unauthorised absence from work on the pretence of illness is dishonest conduct, which clearly negatively impacts upon the trust relationship between employer and employee and may justify dismissal.
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Can you separate procedural and substantive fairness in retrenchment?
In a somewhat controversial judgment, the LAC in Mbekela v Airvantage (Pty) Ltd (JA2/20) [2021] ZALAC 47 (26 November 2021) held that in assessing the fairness of an operational requirements dismissal, substantive and procedural fairness should not be assessed in separate silos. The failure to jointly consider ways to avoid the dismissal can make it substantively unfair, even in circumstances where there is a genuine rationale to retrench.
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Proving gender discrimination
Mdunjeni-Ncula v MEC, Department of Health and Another (PA10/2019) [2021] ZALAC 29; (2021) 42 ILJ 2393 (LAC); [2021] 12 BLLR 1195 (LAC) (20 September 2021) held that when sex or gender discrimination is alleged, an employee must lead evidence to establish that any differentiation in salary between female and male comparators was based on discrimination on grounds of gender or sex. This case again shows how difficult it is to prove sex or gender discrimination.
Read more (Worklaw subscriber access only)
ARTICLE : Case law update on recruitment and employment contract related issues By Prof Alan Rycroft
There have been a number of important recent judgments dealing with recruitment and employment contract related issues, which we have decided to cover in one article. Whilst the issues are not necessarily linked, it is a convenient way of bringing these important cases to our subscribers' attention and to highlight the learnings that can be drawn from the judgments.
Alan Rycroft's article discuses the following 4 judgments, 1 from the SCA and 3 from the LAC:
- Magistrates Commission v Lawrence that prohibited the race-based exclusion of candidates at the short-listing stage of the appointment process;
- Gerber v Stanlib Asset Management that investigated whether an employee is bound by employment policies referred to in the letter of appointment;
- Actom v Numsa & Others on whether an 'accrued' bonus can be forfeited through participating in prohibited industrial action;
- Jacobs v KZN Treasury that answered if an employer can hide behind a confidentiality agreement to prevent an employee giving evidence.
- and when an employer can hide behind confidentiality agreements;
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Bruce Robertson
January 2022
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