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SEXUAL HARASSMENT A DOUBLE BIND FOR EMPLOYERS


Section 60 of the Employment Equity Act (EEA) EEA, in effect, provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment the employer can be charged with unfair discrimination on the grounds of sexual harassment.

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EMPLOYEE RIGHTS BEGIN BEFORE YOU THINK THEY DO.


According to section 213 of the LRA an employee is:
“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying out or conducting the business of an employer…”

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NO LICENSE TO FIRE AT WILL


Employers are becoming more and more desperate in their attempts to run orderly, productive and profitable businesses. The special obstacles to the achievement of this goal are intense and growing international competition, the world economic crisis South Africa’s culture of crime and disciplinary legislation that severely restricts the rights of employers.

In their attempt to deal with this restrictive labour legislation employers place new employees on probation so as to detect and get rid of ‘bad apples’ without having to travel the tortuous disciplinary procedure route mapped out by the law. However, employers have discovered to their alarm that, while probationary contracts are legal, they are not a license to fire at will.

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FAIR IS FAIR; OR IS IT?


Recently I pointed out that defining the crucial labour law term “unfair” is extremely difficult for employers and employees. Because the term is not defined in any of the statutes parties tend to interpret the concept in a way that suits their needs and legal position.

I have suggested that an act of an employer would be seen in labour law to be ‘unfair’ if it infringes the employee’s rights, is one-sided, unnecessary and/or inappropriate under the circumstances. In order to develop an understanding of what this means in practice we will look this week at some actual cases where the CCMA, Bargaining councils and the courts have interpreted the term ‘unfair’.

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Is dismissal unfair if the relationship remains tolerable?


The CCMA’s guidelines on Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, it should be able to show that the employee’s offence was so serious that it made “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.

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