FAILURE TO ENGAGE CONSTRUCTIVELY
The Trade Union in this matter adopted a confrontational and obstructive
approach. It refuses to attend consultations and placed many
unnecessary, inordinate and relevant obstacles in the employers’ way
while the employer was trying to conduct the retrenchment process. This
forced the employer to abandon the retrenchment process. The court
stated that it would not condone such behaviour, that this was patently
unacceptable and that the Union could not then approach the court for
SUSPENSION OF A DISMISSAL
The court recorded that an employee’s dismissal cannot be suspended if an internal appeal has been noted.
A defamatory statement which is made during a CCMA hearing such as arbitration enjoy some privilege, if it can be shown that it was relevant, is based on reasonable grounds and was not motivated by the malice.
SUBSTANTIVELY UNFAIR REMEDY
The court yet again stated that when a dismissal is found to be substantively unfair the primary remedy should be reinstatement.
The court had found that when one employee had called the other one eye as a result of him having lost an eye previously this did not constitute discrimination when the employer had taken action against the offending employee and he subsequently apologised to his co-worker.
When a bank inserted into its contract of employment that a work permit had to be obtained prior to employment that became a condition of employment. Once it suspected that the permit provided to it by the employee was fraudulent it immediately sustained the employee. However, the court found, that the suspension was unlawful and that the bank could take no action until such time as it had determined that the permit was indeed valid.