Article 14/2023

If the employer holds the viewpoint that it would never have employed an employee had it known about certain factors which the employee failed to disclose, what are the potential remedies for such an employer?

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  • If the employer operates in the public sector, then the following potential avenues exist:
    • an application to the labour court to set the employment contract aside
    • an application to the labour court to review the employer’s decision to appoint the employee
    • the institution of misconduct proceedings against the employee
    • but under no circumstances is the employer entitled to institute self-help like, for instance,
      suspension with or without pay

(MEC Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (5) BCLR 547 (CC) and Chief Lesapo v North West Agricultural Bank and Another 2001 (1) SA 409 (CC))

  • On the other hand, if the employer operates within the private sector, the following potential
    avenues exist:

    • an application to the labour court in terms of s77(3) of the BCEA
    • the institution of misconduct proceedings
    • but under no circumstances it the employer entitled to self-help as set out above
July 3, 2025

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?

June 26, 2025

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.

June 19, 2025

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.