- 2011/10/02 -
The judgement in Mahlamu v CCMA &Others [2011] 4 BLLR 381 (LC) is excellent. Let me explain why. The facts of this case were as follows. The employee was employed by the employer as a security guard in terms of an employment agreement that provided the employment contract would expire automatically on termination of the contract between the employer and his client or if the client no longer required the employee’s services “for whatsoever reason.” These types of fixed terms contracts are prevalent within the private security and cleaning industry and have the effect that the employment of the employee is wholly dependent on the will or whim of the client. The clause in question is described as an “automatic termination” clause. The inclusion of an “automatic termination” gave the employer the right to remove from site simply because the client did not want the employee any longer and …
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- 2011/10/02 -
For the recipients of this unsolicited attention it is often difficult to complain to management because so often the victim is not sure whether the conduct constitutes sexual harassment. The LRA Code of Good Practice deals with the handling of sexual harassment cases and defines sexual harassment as follows;- “Sexual harassment is unwarranted conduct of a sexual nature. The unwarranted nature of sexual harassment distinguishes it from behaviour that is welcome.” Whist this may seem obvious it serves to highlight a defence that some employees use when charged with this offence, in other words the conduct was not unsolicited. However the code goes further and states;- “Sexual attention becomes sexual harassment if-(a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or ( b) the recipient has made it clear that the behaviour is considered offensive; and or ( c) the perpetrator should …
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- 2011/09/25 -
Let’s assume that you underwent a polygraph test at work , and your employer dismissed you on the basis of the results of the test. Can you challenge your dismissal at the CCMA. To begin with lets understand what a polygraph test is? Generally polygraph tests are used to determine the guilt of an employee during an investigation for misconduct. The results of a polygraph test do not prove the offence for which an employee may have been dismissed. At best it may simply corroborate other evidence that an employer may have that an employee is guilty of misconduct and is used during an employer’s investigation process. But the real issue that needs to be determined is just how reliable are polygraph tests and the results that they produce. Before we deal with South African law, let’s have a look at what other jurisdictions provide. In the …
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