- 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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- 2011/09/25 -
Unfortunately many unscrupulous employers employ employees on a fixed term contact in order to avoid the consequences of employing them as probationary employees. Why do they do this ? A probationary employee is an employee whose appointment as a permanent employee is subject to him successfully completing a probationary period. This period could be anything between one and six months. The Code of Good Practice; Dismissal provides that the purpose of the probationary period is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The Code of Good practice provides that the period of the probation should be determined in advance and be a reasonable duration. During the probationary period the employee’s performance should be assessed. The code also provides that the employer is required to give the employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render …
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- 2011/09/25 -
I had a matter at the CCMA recently where I represented an employee who contended that he had been unfairly dismissed. When I arrived at CCMA the respondent’s representative argued that the CCMA had no jurisdiction because the applicant had signed a settlement agreement in which he had agreed to accept payment of R100.00 in full and final settlement of all claims related to the termination of his employment. The agreement also recorded that what wages and leave pay was due to the employee. He thought that when he signed it he was acknowledging receipt of this wages. What he did not know was that he was signing away his rights to refer an unfair dismissal dispute to the CCMA. Cynical conduct on the part of the employee; undoubtedly. In FNB v Wellman the Labour Court held that the powers of commissioners of the CCMA to rule on the …
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