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.

 

 

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?