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LABOUR BROKERS TO FIGHT LABOUR APPEAL COURT JUDGEMENT IN CONSTITUTIONAL COURT

On 11 July 2017 Jonathan Jones from Norton Rose Fulbright reported that The Labour Appeal Court on 10 July 2017, confirmed the CCMA’s view that the employment relationship that existed between the TES and its temporary employee, will come to an end if that employee has worked for the client of the TES for a period exceeding three months. The temporary employee of the TES will therefore automatically, in terms of legislation, become a permanent employee of the client. The court considered the provisions of sections 198 and 198A on the whole and held that the “joint and several liability” provision,...

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Poor work performance

A dismissal for poor work performance implies that there must be an objective standard of performance against which the employee can be measured, before the employee may be dismissed for failing to meet that standard. It is generally accepted that the setting of performance standards is within the employer’s prerogative. There are various ways in which an employer may establish performance standards and appraise an employee’s ability to do the job to the satisfaction of the employer. At the outset of the relationship the employer may decide to put the employee on a period of probation. The Code distinguishes between employees who are...

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Incompatibility of employees

A company has an employee who continually lays grievances against management, lodges complaints at the Department of Labour, and refers disputes to the CCMA (in which he is always unsuccessful). Management is frustrated with the employee but cannot find enough evidence of any offence and the employee does his work reasonably well. However, his actions are causing disharmony amongst his fellow employees and with management. Management feels that they cannot tolerate such an employee but are wary to proceed with any action against him as they know that they will face another referral to the CCMA. Such an employee may...

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Employees on probation – a Guide

Item 8(1) of the Code sets out the basic principles in respect of probationary employees: An employer may require a newly hired employee to serve a period of probation before the appointment of the employee is confirmed. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. The practice of dismissing employees who complete their probation periods, and replacing them with newly hired employees, is not consistent with the...

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Dismissal for incapacity

Incapacity is one of the internationally recognized grounds for a fair dismissal, provided that a fair reason exists for the dismissal and that a fair procedure has been followed. Section 188 of the LRA refers only to "incapacity." It does not distinguish between poor work performance and ill health or injury. This distinction is, however, drawn in the Code of Good Practice: Dismissal (the Code). Different sets of guidelines are provided for each: Item 11 deals with ill health or injury; item 9 deals with poor work performance. According to the former Prime Minister, "It will probably take a long time...

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Dismissal for operational requirements

An employer may find itself facing financial ruin (due to unsound strategy, large clients or contracts having been lost, or factors in the economy at large). Under pressure, the employer may be forced into considering reducing its wage bill by restructuring the organisation, which may mean dismissing some employees. In this scenario, the word "retrenchment" is often used. Section 188 of the LRA recognizes that an employer also has operational requirements and needs, and that, in certain cases, these may also be a fair and valid reason for dismissal. According to section 213 of the LRA, "operational requirements" are requirements based on...

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