CASE LAW CHANGES WHAT YOUR RULES MUST CONTAIN
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Web Address: www.labourlawadvice.co.za.
Not even the most comprehensive staturtes can indicate what is fair in each individual case of alleged misconduct. Therefore, we need to look to case law for more detailed guidance as to what would be fair in specific circumstances.
For example, in the case of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583) the employee was dismissed for reasons including the fact that he swore. However, the arbitrator found that no rule against swearing existed at the workplace. The absence of the rule against swearing together with lack of evidence on the other charges led the arbitrator to find the dismissal to be unfair and to award the employee 12 months’ remuneration as compensation.
While the statutes do not clarify what renders a suspension unfair protracted suspensions could be found by the CCMA to be unfair. Therefore, employers need to incorporate case law principles on suspension into their disciplinary policies.
Another area where case law informs our internal policies is that of double jeopardy. In the case of BMW (SA) (Pty Ltd vs Van der Walt (Contemporary Labour Law vol. 13 No.5 page 49) the Labour Appeal Court held that it is important, that, for a second hearing for the same incident of misconduct to be fair, this should ideally be permitted by the employer’s disciplinary code. In addition, the holding of a second hearing must be fair in all respects. Employers are warned that the holding of such second hearings will only be fair in exceptional cases.
Should employers fail to keep up with such decisions of court judges and of arbitrators they will be unable to run their organisations according to law because labour law is a constantly changing thing.
Should employers fail to update their rules, disciplinary codes and terms and conditions of employment in the light of new case law decisions they will be caught short when it comes to implementing discipline and dismissal. This is because an employer’s rules and policies should encapsulate the latest labour laws so that, when management applies the policies, they are in line with the law.
It can be a laborious and complex task for an employer to draw up a comprehensive set of rules, but dealing with the consequences of having no rules can be far more onerous for employers at the CCMA, bargaining councils and Labour Court. If employers are not in a position to take charge of this vital task there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.
To book for our June seminar in Johannesburg on HOW TO WIN AT THE CCMA please contact Ronni on email@example.com or 0845217492.