This is the eleventh alert notice of those issues that will cause YOU to slip and definitely trip in 2024. These issues will be incorporated into our famous seminar textbook as well as our highly sought-after PowerPoint presentation.
The attached notice deals with the following ‘tricky issues’: the required two-stage approach to be applied to determine whether or not a constructive dismissal has taken place, the role that mental ill-health plays when determining whether or not an employee has been constructively dismissed and the policy decision dictating that a delictual claim is not to co-exist with a claim under the LRA
We look forward to YOU being part of this continuing learning event – secure YOUR seat, register here.
- With reference to Murray v Minister of Defence 2009 (3) SA 130 (SCA), how did the labour appeal court recently identify the nature of a constructive dismissal?
- With reference to Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC), National Health Laboratory Services v Yona and Others (2015) 36 ILJ 2259 (LAC) and Jordaan v CCMA and Others (2010) 31 ILJ 2331 (LAC), what was the two-stage approach applicable to constructive dismissals so recently confirmed by the labour appeal court and how did it apply such approach?
- How did the labour appeal court recently consider the fact that an employee suffers from mental ill-health when determining whether or not such employee has been constructively dismissed?
- What is the approach to be applied to determine whether there is a legal duty on an employer to avoid harm being negligently caused to an employee?
- With reference to Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA), what approach did the supreme court of appeal recently follow in determining the presence or otherwise or wrongfulness, as opposed to the presence or otherwise of negligence?
- There is a traditional reluctance in our law to impose liability for omissions, now supported by the constitutional right to equality. On the other hand, where the conduct of a public authority or functionary is involved, it is usually the business of such public authority or functionary to serve the interests of others. What are some of the considerations identified by the supreme court of appeal as to the imposition of legal duties on such authorities or functionaries and, more specifically, in the employment environment?
- In the scenario where an employee is employed in the public sector and was allegedly victimised by a co-employee in a more senior position, and the employer did not intervene, is such negligent omission actionable in delict, thereby generating an obligation on the employer to compensate the employee?
- The supreme court of appeal recently had the opportunity to consider the judgment of the high court in Jacobs v Chairman, Governing Body, Rhodes High School and Others 2011 (1) SA 160 (WCC). In this case, the governing body of the employer was held liable in delict for the attack executed by a learner on a teacher. On what basis did the supreme court of appeal determine that the question as to whether or not an employer must take reasonable steps to prevent psychological or physical harm to its employee and the failure to do so justifying an award of compensation must always be answered with reference to the facts and circumstances of a particular claim?
- On what basis did the supreme court of appeal recently find that the mere employment relationship between parties, without more, does not establish a duty on the employer to ensure that no harm is suffered by an employee?
- In the scenario where an employee elects not to follow an internal grievance procedure but, instead, makes a conscious decision to institute action against the employer on the basis of a delict, what are the considerations recently identified by the supreme court of appeal to be taken into account when determining that such employee will not be entitled to this cause of action?
- The supreme court of appeal also found that public policy dictates that a delictual claim is not to co-exist with a claim under the LRA – it found that, if a delictual claim is permitted, a dismissed employee can litigate in the court for more compensation than that provided by the legislature in the LRA. What were the main considerations underpinning such approach?
