POOR WORK PERFORMANCE
The Labour Court found that an employee who was dismissed after having twice failed his competency assessments in his field of work was dismissed fairly. The employer could not be expected to provide this employee with additional training as he had been hired on the basis that he was properly qualified.
In order to be successful in a constructive dismissal claim, the Labour Court held that an employee provide evidence that he had been treated
improperly and was also justified in viewing the manner in which he had been treated, in this instance a suspension and unwarranted disciplinary action, as unfair.
However, in this case the employee had not engaged the employer by way of a grievance process and other avenues which were open to him internally. The claim was therefore dismissed.
racism at work
The CCMA found that a racial slur uttered in anger on the spur of the moment constituted actionable offence and undermined workplace relations in respect of which the dismissal was fair.
WHO BEARS THE ONUS OF PROOF
A Commissioner found that although the overall onus to prove that a dismissal was both procedurally and substantively fair was with the employer if an employee raised a defence in other words made positive
allegations then that employee would be required to prove elements of that defence. Failing to prove aspects of that defence may lead to a conclusion that the employer discharged its overall onus.
The Labour Appeal Court yet again confirmed that a refusal by an employee to accept employment at the same or an increased wage prevents them from recovering severance pay.