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.

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.

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.

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.