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Filter: Labour Court
Do criminal charges trump a disciplinary hearing?

30 November 2023,  Odirile Matladi

Should an employee be criminally charged in respect of conduct that happened at the employee’s workplace, the question can arise... as to whether the employer is now prohibited from proceeding with disciplinary action against the employee given the pending criminal charges.

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525
Article
Dismissal after retirement age not unfair

30 August 2022,  Sinenhlanhla Khoza

The Labour Relations Act (LRA) states that a dismissal based on age is fair if the employee has reached the... normal or agreed retirement age for persons employed in that capacity. Yet what about cases where the employee was allowed to work beyond their normal or agreed retirement age?

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Article
Labour Court lays down retrenchment rules when a business is under business rescue

15 July 2020,  Sinenhlanhla Khoza

During these difficult economic times, many businesses are experiencing financial distress and have responded thereto by, among other things, getting... retrenchment processes underway. In terms of the Labour Relations Act (LRA), an employer who ‘contemplates retrenchments’ due to his or her operational requirements may issue a notice inviting all affected employees to a consultation. The purpose of the consultation is for parties to attempt to reach consensus on a number of prescribed factors prior to any final decision being taken on retrenchments. The LRA does not prescribe any precondition to be met by such an employer prior to the issue of retrenchment notices. The employer merely has to be contemplating retrenchments due to his economic, structural or other needs of his or her business and must issue retrenchment notices as soon as possible thereafter. This therefore means that the employer has the exclusive prerogative to decide on when to issue retrenchment notices.  This position has, however, recently been changed when it comes to an employer under business rescue as contemplated by the Companies Act. During business rescue proceedings, the business rescuer assumes management control of the company and subsequently ‘steps into the shoes’ of the employer with regards to all rights and obligations the latter had prior to the start of this process. In the largely publicised court-battle between South African Airways (SOC) Ltd and Others v National Union of Metalworkers of South Africa ( NUMSA) obo Members and Another the Labour Court was faced with a question of when a business rescue practitioner may commence with retrenchments in terms of the Labour Relations Act.  In interpreting the Companies Act, the Court ultimately held that the need to retrench must be entrenched in the business rescue plan itself and the business rescue practitioner is not empowered to retrench employees in the absence of a business rescue plan - and that doing so, was procedurally unfair. This judgment, which has been confirmed by the Labour Appeal Court, means that an employer who has been placed under business rescue must address the issue of retrenchment in the business rescue plan itself and only issue notices to the affected employees after the business rescue plan has been approved. In practice, prior to issue of retrenchment notices, employers offer voluntary severance packages to employees who are likely to be affected by retrenchments. In the aforementioned case, NUMSA argued that the offer of voluntary severance packages entails that the employer is contemplating retrenchments which is subject to a consultation process in terms of the LRA. The Courts, however dissented from this view and held that the provisions of the LRA do not prohibit an employer from offering his/her employees voluntary severance packages as a measure to prevent retrenchments and should such an offer be accepted, the employment relationship is terminated by mutual agreement. The Labour Court plays a supervisory role in all retrenchment processes instituted by employers. Therefore, should an employer fail to follow any procedure prescribed by the LRA, any party to the consultation process may approach the Labour Court for an appropriate order which may include compelling the employer to comply therewith, interdicting the employer from dismissing the employee until the former has complied with the procedure or awarding compensation to the employee. Such an employee must approach the Labour Court within 30 days of the employer giving notice of termination of employment or if no notice is given, the date on which the employee is dismissed.Consequently, a business rescuer can only commence with retrenchment process after the business rescue plan has been approved.

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Blog
Labour Court rules, halts intended banking strike

26 September 2019,  Tata Mokwayi

During the past several weeks the trade union, SASBO, and the confederation of trade unions, COSATU, have been urging workers... within the banking sector to down tools and participate in the intended strike action which was set to take place tomorrow, 27 September 2019. Social media has also been ablaze with posts encouraging members of the public to withdraw money from ATMs as the automated machines were also set to be affected by the strike. On Wednesday, 25 September 2019, Business Unity of South Africa (BUSA) approached the Labour Court on an urgent basis to interdict the intended strike. Today, the Labour Court issued the following orders in favour of BUSA's urgent application. The Court ordered that:1. The Court could hear the matter on an urgent basis;2. Any person that partakes in the strike does not enjoy the protection of section 67 of the Labour Relations Act 66 of 1995 ("LRA"). COSATU and SASBO have failed to comply with the provisions of section 77(1) of the LRA. 3. COSATU and SASBO are restricted and restrained from proceeding with and encouraging employees to engage in the intended protest action or any conduct in contemplation or furtherance unless and until such time that they have complied with section 77 of the LRA; and 4. COSATU is directed to advise its affiliates including SASBO and there members that the proposed protest action is unlawful and in breach of section 77 of the LRA.In light of today's Labour Court outcome, employees within the banking sector will be required to report for work as the intended strike will not enjoy the protection of the LRA. 

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Blog

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