WHAT CONSTITUTES A BENEFIT
Previously the Courts have held that in order for an unfair labour practice to be determined by the CCMA the definition of unfair labour practice was extended only to promotions, demotions, training and benefits.
What constitutes a “ benefit” however was hotly disputed.
In the most recent labour appeal court decision the Court has ruled that benefits are not limited to entitlements which arise from a Contract or which operate by virtue of the law. Benefits could also include advantages or privileges in terms of a policy or practice even if these are subject to the employers discretion.
Ultimately fairness must prevail.
If an employee enters into a voluntary separation agreement or termination of employment agreement when faced with a dismissal for operational requirements; and where the employee entered the agreement voluntarily i.e the employee is not induced to do so by a misrepresentation on the side of the employer, then that agreement will be binding.
Once it had been found that the agreement had been entered into voluntarily, the Court indicated that by doing so the employee had waived an opportunity to consult or participate in the consultation process. There was therefore no dismissal.
WHEN IS THE EMPLOYER ENTITLED TO REINSTITUTE DISCIPLINARY PROCEEDINGS.
The Court held that only when new facts had come to light or when the circumstances had warranted a second hearing, will a reconstituted disciplinary hearing be allowed.
UNFAIR DISCRIMINATION – TERMINATION OF EMPLOYMENT BASED ON AGE
The Court found that where an employee was not a member of a Provident Fund to which an age limit applied or in the absence of any evidence of retirement
age of persons performing the same type of job then a normal retirement age has not been established by the employer. Thus the termination of the employee based on his age would constitute an automatically unfair dismissal.
DISMISSAL OF A SENIOR EMPLOYEE
The labour Court held that a senior employee could not complain of not having receiving a job description and proper training or guidance. Provided it could be shown that this senior employee either failed or could not perform the very purpose for which he or she was employed the termination of employment on the basis of poor work performance would be justifiable.
Any ground which an Applicant wishes to establish as being grounds for review must be set out in the Founding Affidavit. If review grounds are only raised in the Replying Affidavit or in the Argument these grounds would not be considered by the Labour Court.