Article 26/2023

The constitutional court recently, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), had the opportunity to deal with the perception that, once a finding is made that an employee has been unfairly dismissed, he or she is automatically entitled to a remedy.

What was the approach adopted by the constitutional court?

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With reference to Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC), the constitutional court
held the following viewpoint: ‘Although every employee has the right not to be unfairly dismissed in
terms of s185(a) of the LRA, the infringement of that right neither necessarily nor automatically
confers a right to a remedy…’

In short, the above approach entails that arbitrators will be required to justify why a remedy (e g
reinstatement, re-employment or compensation) was specifically granted on the facts of the case and,
if they are not able to do so, this would potentially constitute a reviewable ground for such arbitration
award.

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.