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November 2015

/November 2015

November 2015

The Labour Appeal Court has again set out a roadmap for the termination of employment should the employee be found to be guilty of poor performance. Fairness according to the Labour Appeal Court requires that the employee should not only be informed that the performance is not as expected, but also in what respects it falls short and the employee should be given an opportunity to improve. The Labour Appeal Court again reiterated that termination of employment is an action of last resort.
Delay in holding A disciplinary enquiry
Whilst courts have always held that an employer is prevented from unduly delaying and instituting a disciplinary hearing, this must be seen in the context of each particular case. Even though the employer must bring the disciplinary hearing once it becomes aware of the misconduct, this can be excused if the employer is seen to have taken some steps to investigate the misconduct. The principles of estoppel and waiver include elements of fairness.

The court affirmed that discussions at conciliation and evidence which relates to the discussions should not be disclosed. This is to encourage the parties to speak freely and without fear of discipline or particularly with knowledge that any admissions made cannot prejudice their claim or defence.

The Labour Court has taken a hard stance with regards to late filing of documents, particularly in review applications. The court has recently ruled that the late filing of a record constitutes a withdrawal of a review application. The Applicant was allowed to apply for the reinstatement of the review application and for the condonation of the late filing of the record, however.

In order for an employer to terminate the employment of an employee on the basis of dishonesty, that dishonesty need not involve theft or dishonesty of a kind which may be perceived to be more serious or goes to the root of the employment relationship. Any dishonesty by an employee which leads to a misrepresentation made to the employer may lead to a dismissal.

2018-10-28T14:40:01+02:00March 13th, 2018|