Towards the end of last year the Supreme Court of Appeal confirmed that the CCMA rules which restricted legal representation in certain types of matters were not irrational and did not infringe on litigants constitutional rights. It was argued that where the termination of employment was either the result of misconduct or incapacity legal representation should be allowed.
The CCMA only allows representation in these types of matters under certain circumstances and the Commissioners retain a discretion as to whether to allow this.That position following the Judgment of the Supreme Court of Appeal remains.
Restraint of trade
The Labour Appeal Court found that the Court could prevent a former employee from resuming employment with a competitor for the balance of a restraint of trade period even if the period remaining is less than 1 year. It however found that it was not permissible of the Court to Order the new employer to terminate that employee’s employment as that would force the new employer to dismiss the employee despite the fact that the restraint period had expired.
Parties are bound by agreements which they reach at the CCMA. This is regardless of whether the parties intend there to be an offset against the settlement agreement such as for instance repayment of a loan which is to be made from salary payments. The CCMA will not consider and is not allowed to consider any changes, variations or amendments to a settlement agreement. A party would have to approach the Labour Court
to set aside or vary a settlement agreement and have good reasons to do so.
In this matter, all employees liable for stock losses within one department were dismissed and the dismissal was termed a “team misconduct”. The Commissioner found that this was justified where each member of the group could be held accountable for the loss alternatively each member of that group in his or her own way failed to ensure that the loss did not take place by complying with the rules or exercising due care.
ASSAULT OUTSIDE A WORKPLACE
Where one employee assaults another employee outside of the workplace the Bargaining Council found that the employer was within its rights to discipline the offending employee on the basis that the injured employee could not resume normal duty.
In this reported matter we acted on behalf of the Applicant who was employed as a Magistrate. She has been passed over for promotion. It was
argued that the employment policies of the Minister of Justice failed to provide for the advancement of disabled people and as such were unfairly discriminatory. The claim was successful, and our client was placed on a short list for consideration for the appointment to the position of a Senior Magistrate.