Article 07/2021

Labour Edge

If an employer deems it fit to include elaborate procedures in a contract of employment, which go beyond what is required in terms of the LRA, is the employer entitled to simply revert to the default position of the LRA?


The labour court, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), dealt with this issue as follows: the express incorporation of the code in the employee’s conditions of employment, both in the contract of employment and the code itself, suggested that it had been intended to create enforceable obligations, and not obligations which could simply be jettisoned at the whim of one party. If the content of the procedures was far less detailed and simply provided an opportunity to exercise the right to audi alteram partem within a rudimentary hearing framework, it might be more plausibly argued that the employer enjoyed greater freedom in determining the conduct of an inquiry. That was not the kind of procedure under consideration here. The fact that the employer had seen fit to include such an elaborate procedure in the contract of employment, which went beyond what is required of it in terms of the LRA, did not mean that it could simply revert to the default provisions of the LRA, when its own procedure did not suit it.

 

 

Is it a requirement that each page of an affidavit must be initialled? Is it a requirement that every page of every annexure to an affidavit must be initialled?

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course.

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.