The internet has over the years increasingly become an inseparable part of the work environment. Many employers allow employees access to the internet for research or other purposes. Emails have become an indispensable communication tool. There have been an increasing number of dismissals related to internet or information technology offences. According to a recent publication, IT related offences have now overtaken ‘traditional’ offences in the workplace. Recently, CCMA Commissioners have had to deal with a new offence namely that of employees venting their anger or opinions about their employer or managers on social media websites such as Facebook.

Botha/Anglo Platinum Mines CCMA WECT16025, 07/12/09

Mr Botha led employees out on a protected strike. He designed and printed a poster with the slogan “one manager one bullet”

A pre-dismissal arbitration was held at the CCMA to decide Botha’s fate. He claimed that the poster was merely to convey the workers dissatisfaction with management and that the slogan should be seen in conjunction with the employees frustration and political struggle. Although no strike rules had been established, the commissioner noted that the schedule dealing with picketing rules made it clear that employees could not commit unlawful acts or acts which may be perceived to be violent.

The commissioner was unimpressed with the applicant’s contention that the poster was likened to slogans chanted during the apartheid era...

The employee was dismissed.

(2009) 18 LC 9.5.5  

Algoa Bus company sued SATAWU, TARGWU and their members for losses sustained during an unprotected strike.

Algoa claimed R465 000 as a result of losses sustained due to it not being able to transport some 60 000 people. It justified the amount by claiming that the strike had lasted for two days and should therefore include all earnings and expenses that would normally have been incurred.

The Labour Court found in favour of Algoa but stated that the strike had not lasted as long as Algoa claimed. The court found that the strike was for nine hours on the one day and seven hours on the next. The court also rejected the claim of R465 000 and awarded instead damages of only R100 000. The court also decided that the respondents could repay the amount in instalments of R50 per month…

Until recently, the suspension of an employee has been relatively easy and without any legal interference.

Employers have generally suspended employees as a matter of course particularly if the employee is alleged to have committed a serious offence that could result in his or her dismissal.

The principle behind suspensions has generally been to remove the person from the workplace to:

  • Ensure that he/she does not commit the offence again prior to the enquiry;
  • Interfere with the investigation;
  • Intimidate witnesses;
  • Remove or compromise the evidence.

In such cases, the suspension will be with pay given that the employee is presumed innocent until proven guilty at a disciplinary enquiry.

This should be distinguished from suspension without pay. This form of suspension sometimes forms part of the penalties or sanctions that employers have included in their disciplinary procedures. Suspension without payis usually offered to employees as an alternative to dismissal.

The LRA does however include suspensions under section 186(2)(b) – Unfair Labour practice means

Atkins v Datacentrix (Pty) Ltd (Labour Court case no. JS02/07 dated 02/12/2009.

Datacentrix offered Atkins a job as an IT technician. Soon after the interview, whilst Atkins was still working at his previous employer, Atkins informed Datacentrix that he was to undergo a sex change so that he could become a woman. Datacentrix was not impressed with their prospective incumbents intentions and decided to withdraw its offer claiming that Atkins had been dishonest and had failed to disclose material information. Atkins sued for an automatically unfair dismissal on the ground of sexual orientation. The company denied that it had dismissed Atkins for wanting to change his sex but rather that they had dismissed Atkins for dishonesty.

The court accepted that Atkins was a transsexual. It also accepted the fact that the only remedy should a person not wish to remain in betwixt the two was to undergo surgery. Luckily he had not yet resigned from his present employer. His present employer supported his decision to undergo the operation.

The court found that dismissing an employee simply because he was to undergo a sex change operation was clearly discrimination on the basis of gender. This was forbidden by both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998.

The court awarded Atkins five months’ salary as compensation.

Of importance here is that the court rejected Datacentrix’s argument that the applicant was obliged to disclose such information. The court will not support disclosure of information that is in direct conflict with an individual’s right to dignity and privacy.

The last few newsletters focused on the worldwide recession and bloody economic aftermath of one of the world’s worst economic catastrophes. According to most financial gurus, 2010 should by all accounts be less devastating than 2009. In fact it appears that South Africa is showing goods signs of recovery and growth.

Clients often ask what the effect of the recession has been on employment law. Well, we were kept busy. Other than the fact that we conducted more retrenchments in 2009 than possibly any other year, not much else changed. Employees vigorously continued to commit the same offences as before. Unions, despite being aware of companies’ obvious financial predicament, still demanded high wage increases and better benefits. Incidents of theft have not decreased.

On an interesting note, the Labour Court ruled on the much anticipated Solidarity obo Barnard v SAPS.

The facts of this case are briefly:

Renata Barnard was employed as a Captain in the SAPS with the task of investigating complaints against the SAPS. She applied for the position of Superintendent in 2005. The position had been created by the police to improve its complaints handling service to the public. In 2005, Renata Barnard together with six other applicants, applied for the Superintendant position. As is the norm,