UNION MEMBERSHIP

The Labour Court has ruled that the employer has no locus standi to
interfere in internal decisions of the union on any aspects of the relationship
between it and its members.

It is not even in a position to enquire about the status of the membership.

Nor will a stop order facility serve as proof of membership of a union, simply
signing an application form is sufficient.

Sanction too harsh

The Labour Appeal Court found the action of dismissal of an employee that
breached the safety rule was too harsh. Even though the employee had
admitted breaching the rule the employer had not suffered actual harm
and there was no evidence of a breakdown in the employment relationship
or a breach of trust. Corrective discipline in that instance was considered
appropriate.

Sleeping on duty

The Labour Appeal Court upheld an Arbitrator’s decision that dismissing
employees for sleeping on duty was too harsh. In that instance the
Arbitrator reasonably engaged in a rational gradation of the offence of
dishonesty and found that the employee’s conduct was not an egregious
form of dishonesty.

The Arbitrator did not…………………………… properly and reasonably exercised
his discretion when the employees were reinstated.

Charges in a Notice to Attend a Disciplinary Hearing

In a number of matters the Labour Court has stated that a Commissioner
or Arbitrator cannot find an employee guilty and uphold a dismissal of
charges that were not included in the Notice to attend the hearing. Whereas
the Arbitrator could not draft his own Notice to attend the hearing whilst
the Arbitration!

Employment Equity- unfair discrimination

A security guard and member of a church wearing who has been
dismissed for failing to shave the beard off was successful in establishing
that he had been unfairly discriminated against. The employer was not able
to illustrate that the employee’s work performance had been affected.

Sexual harassment –vicarious liability

The Courts have consistently held that an employer who places a senior
employee in a special position of trust bears the responsibility of ensuring
that that employee is capable of the trust and position to which he has
been placed. That trust is a link between the employee’s position as a
superior and a wrongful act such as sexual harassment if it is not stopped
or prevented by the employer.

Derivative misconduct

The Court has found that employees were present while acts of misconduct
were being perpetrated those employees simply cannot remain silent.
There is a duty of good faith which binds them towards the employer and
they are obliged to come forward and provide the names of the
perpetrators. The failure to do so amounts to what is referred to as a
derivative misconduct and is a dismissable offence.