Public Newsletter
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 'Managing delays in disciplinary hearings'. We also discuss three new cases: The first case investigates when a transfer can be regarded as a demotion for the purposes of the unfair labour practice definition. The second case looks at dismissal for regular private use of cannabis. The third case, another CCMA arbitration award, deals with whether a retrenchment for not complying with an employer's mandatory vaccination policy was fair.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When is a transfer a demotion?
Worklaw subscribers will be aware that transfers in themselves are not covered by the unfair labour practice definition - only promotions and demotions are. Capitec Bank Ltd v Commission for Conciliation, Mediation and Arbitration (JR1746/19) [2022] ZALCJHB 166 (22 June 2022) provides guidance as to when a transfer may be regarded as a demotion. It held that a demotion has less to do with the demoted employee's salary. The primary and decisive factor is the employee's reduction in rank, position or status. An unfair labour practice arises where the decision to demote or transfer the employee is already decided before the employee is consulted.
Read more (Worklaw subscriber access only)
Dismissal for regular use of cannabis
Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20; JS 926/20) [2022] ZALCJHB 161 (1 June 2022) highlights the problem that a positive cannabis test does not necessarily mean that the employee's functions are impaired. It held that drug intoxication is defined legally through testing, be it urine, breathalyser or blood samples. It found that an employer's substance abuse policy that required employees to be tested, was consistently applied and treated all employees in the same way, was not discriminatory.
Read more (Worklaw subscriber access only)
The reasonableness of mandatory vaccination policies?
Having included other CCMA awards in favour of mandatory vaccination, it was important to report on this latest award that is clearly opposed to it. In Tshatshu and Baroque Medicinal (Pty) Ltd (CCMA GAJB 20811-21, award date 22 June 2022) the commissioner expressed the view that "mandatory vaccine policies are not only unreasonable, ...they have no place in our labour market." It held that where an employer cannot establish the reasonableness of a rule requiring mandatory vaccination, retrenchment of an employee who refused to be vaccinated will be unfair.
Read more (Worklaw subscriber access only)
ARTICLE: ARTICLE: Managing delays in disciplinary hearings
By Prof Alan Rycroft
It is reported that in January 2021, 6 344 public servants across the country were "actively" on suspension with full pay pending the finalisation of their disciplinary cases. Salary expenditure for suspended officials in the 2020-21 financial year amounted to nearly R2 billion by the end of January in that year. These delays are not confined to the public sector, and many private employers find themselves with serious delays in finalising disciplinary enquiries.In this article we discuss issues related to how and why hearings may be unnecessarily delayed, thereby hopefully providing Worklaw subscribers with the means to prevent this from happening.
Read more (Worklaw subscriber access only)
About Worklaw's services
Worklaw is an online labour law advice and information subscription service - see www.worklaw.co.za Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.
Contact help@worklaw.co.za for more information.
Bruce Robertson
July 2022
Copyright: Worklaw
www.worklaw.co.za