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Despite being recognised as valid in South African law, verbal agreements are like inscriptions on sand. As soon as strong winds blow over the sand dunes, the inscriptions disappear in the same breath as the wind itself. It is important for parties to reduce their agreements into writing, for record purposes and ease of reference.
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The relationship between an employer and an employee is one based on trust, and where trust is broken it will most likely be untenable for the relationship to continue. This is the reason why when an employee commits misconduct of some sort, he/she may be given a verbal or written warning depending on the severity, whilst for other misconduct a sanction of dismissal is meted without a warning first. Usually, a dismissal on the first instance of committing a misconduct (without a previous warning), is where trust has been broken irretrievably between the parties.
The sine qua non principle in legal discourse, is used to describe an event that is indispensably responsible for a certain result. To put it in other words, it denotes ‘had it not been for the event,’ a certain result would not have been achieved. What this principle seeks to explain, is what was central in the case of Maroveke v Talane N.O And Others 2021 (10) BCLR 1120 (CC) (6 July 2021), although no special reference to the principle was made.
Resorting to strike action by employees or a labour union is indicative of the fact that the grievances raised have remained unresolved. However, strike action may have undesirable consequences for the participants in the event that it is not protected (not in compliance with the law). Therefore, it is imperative for employees and/or their representatives to ensure that the action complies with the law to avoid dismissals. As in the previous instalment under the same title, we shall continue to discuss the legal principles surrounding strikes.
The employer-employee relationship is one where the bargaining power between the parties is not grounded on equal footing. This is because of the competing interests between the two sides and to some extent, the economic bargaining power. When an unskilled or semi-skilled employee negotiates, he/she does so from a position awake to the fact that should no consensus be reached, there is a ready market of job seekers who can offer their services on the very same terms. This often results in grievances, and sometimes strikes. Can employees engage in strikes willy-nilly?
There is a well-known saying that goes like “cutting your losses,” which is usually used where a person has all but accepted that there is no gain that will be realised in a situation, all that is left to do is to at least minimise the loss. Being in such a situation is not ideal for anyone, as the daily endeavor of many people each day is to make gains and leave one at an advantage.
What then becomes, when ‘cutting the loss’ comes a little bit too late? This seems to be what happened in the case of Standard Bank of South Africa Limited v Chiloane.
The recent decision of the government to terminate the national state of disaster, in favour of managing the Covid-19 pandemic further under the National Health Act of 2003, brought more questions than answers in the ongoing debate concerning vaccine mandates. Of particular interest are the conflicting positions between the government’s policy on Covid-19 vaccination as well as the regulations in terms of the National Health Act. Could this be telling of a reality we are soon to face in South Africa in the near future?
Some people might have heard Legal Practitioners talking about what is known as condonation, and could have been unfamiliar with what is being referred to. In order to understand what condonation means in legal discourse, it is helpful to start with consulting the meaning that the English language ascribes to it. The word ‘condone’ in English vocabulary denotes to ‘overlook, excuse, forgive or disregard.’ In legal discourse, the word condone still retains the same meaning and is used in processes where there has been non-compliance with rules or laws, such that the requester would be seeking to be allowed to persist with the matter despite such non-compliance. In this discussion we will shed some light on the requirements that the requester has to motivate in seeking condonation in labour matters at the CCMA.
The 2016 film titled Arrival, features a scene where a character called Louise recites to a Chinese army General (General Shang), his dying wife’s last words. It is portrayed that this played the most critical role in his subsequent decision not to go to war against the aliens. War is severe, chaotic and its effects are far reaching for many generations. With the Russia-Ukraine conflict in full scale, most countries in the world are speaking with one voice that a negotiated settlement be pursued.
Labour and/or employment law litigation requires that disputes, not only be brought within the set time frames before adjudication forums, but also that they be brought before the correct forum. This is important in that jurisdiction is one of the grounds that may be raised as a point in limine (preliminary issues), to have the matter dismissed.
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