- 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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