T Contemporary Labour Law - workplace.co.za

1 41 Disciplinary proceedings should n o t take up too much the law reports are filledwith cases where the disciplinaryenquiry seemed to drag on for months,if not years. All kinds of proceduralissues may lead to one postponementafter the other: the employer may failto secure the attendance of animportant witness or to produce asignificant document. The employeemay not succeed in obtaining arepresentative in good time or therepresentative requests more time toprepare for cross-examining a witnessor to peruse documents.

2 Theemployee himself or herself may fallseriously ill and need to be admitted tohospital this again can lead to ahearing again being postponed byweeks or months, depending on theavailability of all the participants. If theenquiry is chaired by a senior manager,scheduling difficulties may drag thecase out even more, and if the employerhas elected to use an externalchairperson to chair a hearing involvinga senior manager, such delays haveobvious cost are any number of reasons whydisciplinary hearings are postponedtime after time.

3 The employer srepresentative may fail to secure theattendance of important witnesses or toproduce relevant documents. The employeemay not succeed in obtaining a representativein good time for the enquiry or may need moretime to prepare a response to the charges,especially if the charges are more complexcharges relating to dishonesty, fraud ornegligence. An employee s representativemay withdraw (perhaps due to other workcommitments), leaving the employee problem an employer may face isthe illness of the employee. The chairpersonof a disciplinary hearing will in all likelihoodpostpone proceedings if an employee is too illto attend on a set date.

4 But the employee shealth problems may persist and may even,to a large extent, be linked to the disciplinaryhearing itself. An employee may be diagnosedwith stress and depression, for instance andDelaying the disciplinary hearingStrategies and shenanigansby Carl MischkeEavesdropping onemployee's conversationsp46 Gunning for the CCMA p50 Managing Editor: Le RouxContributing Editor: Carl MischkeConsulting Editor: by Gavin Brown & AssociatesBox 31380 Tokai 7966 Tel: 021 788 5560 THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA -INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE -HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT?

5 - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCYIN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE- WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUPMISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - TRANSFERRING CONTRACTS OF EMPLOYMENT - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTIONCRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - THE PROTECTION OF WHISTLEBLOWERS - DEFINING REMUNERATION -VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW

6 EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS -DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL -WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUNDSFOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - DISMISSAL FOR ABUSE OF EMAIL - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - PICKETING RULES-REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLENMONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT - DISMISSAL

7 FOR ABUSE OF EMAIL - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS- THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - PICKETING RULES -WORKPLACE PRIVACY AND EMAIL INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE ROLE OF COLLECTIVEAGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA - LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS - INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCESIN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND

8 DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLEOF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL ANDADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - DISMISSAL FOR ABUSEOF EMAIL - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS -REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS -DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT RESTRAINTS ABUSE OF EMAIL - SICK LEAVE- WHO IS AN EMPLOYEE?

9 - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVEJUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL -GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - TRANSFERRING CONTRACTS OF EMPLOYMENT - POLYGRAPHS AND DISMISSAL - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTIONCRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFULACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY

10 INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THEEMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL -ContemporaryLabour LawTHE SUSPENSION OF EMPLOYEES - THE ROLE OFREFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL- FIXED TERM EMPLOYMENT CONTRACTS - THE TESTING OFEMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT -RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIRRETRENCHMENT RESTRAINTS OF TRADE - DISMISSAL FORABUSE OF EMAIL - SICK LEAVE - WHO IS AN EMPLOYEE?