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17/05/2026

Read these qualifying conditions & requirements for Unemployment Benefits. Apply at your nearest Department of Employment and Labour's labour centre.

21/06/2024

Unfair Dismissal: Protecting Employee Rights

Employees are protected against unfair dismissal under the Labour Relations Act. This legislation outlines the grounds on which an employer can legally terminate an employee's contract, as well as the procedural requirements they must follow.

Employers are prohibited from dismissing a worker for reasons related to the employee's race, gender, pregnancy, marital status, family responsibility, HIV status, disability, religion, belief, political opinion, or union membership. Employers must also have a fair reason for dismissal, such as the employee's conduct, capacity, or the employer's operational requirements.

Furthermore, the dismissal process must be procedurally fair. This generally means the employer must conduct an investigation, hold a disciplinary hearing, and provide the employee an opportunity to respond before making a decision. Failure to follow proper procedures can render a dismissal unfair.

Employees who believe they have been unfairly dismissed can refer their case to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council. Remedies may include reinstatement, re-employment, or compensation.

Understanding these protections is crucial for both employers and employees in navigating South Africa's labour laws and preserving workplace rights.

Stay tuned for more!

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Admin

06/01/2024

20/05/2023

Good morning, Why wait in the queue when you can apply online on Ufilling?
uFiling is a FREE online service that allows you to submit your declarations and pay your monthly contributions securely.
http://ufiling.labour.gov.za/uif/

08/02/2023

BEST EVIDENCE: How does an arbitrator assess the weight of evidence to determine guilt on a balance of probabilities?

LABOUR LAW in a Nutshell January 2023

BEST EVIDENCE: How does an arbitrator assess the weight of evidence to determine guilt on a balance of probabilities?

Most internal disciplinary enquiries involve charges of misconduct. And so most cases that find their way into the CCMA involve claims of unfair dismissal for misconduct.

The CCMA arbitration is a re-play of the enquiry. It gives the dismissed employee a second chance to overrule the findings of guilt in the enquiry. The focus in most CCMA arbitrations is thus on whether there was sufficient evidence to find the employee guilty of the misconduct.

The rules of evidence are central in assessing the evidence. Which version of the facts is more probable than the other versions? The same rules of evidence apply in the internal enquiry and in the CCMA arbitration.

There’re dozens of academic legal and “how-to” textbooks written on the principles and rules of evidence. And there’re as many writings and court judgements on how they’re applied in practice in decided cases.

So, what are the basic rules of evidence?

This “Evidence Filter” diagram provides a simplistic but useful guide to explain the basic rules. Information is “poured” into the top of the filter. It could be in any form - witness statements, documents, verbal, digital videos, photographs etc. But these may or may not be useful as evidence to prove or disprove the facts of the case. The information must first pass muster against certain “rules” before it can emerge at the bottom of the filter as the “best evidence”.

Admissible Evidence

Some information is not admissible as evidence and can’t be used. An example is evidence which is illegally obtained or against public policy. Indirect or hearsay evidence is generally inadmissible. But some may be admitted in the arbitrator’s discretion to decide how much weight to attach to it.

Relevant Evidence

Irrelevant information is not admissible as evidence. There’re often disputes between the parties and with the arbitrator on what is relevant and what’s not. The arbitrator can either make a ruling on admissibility or can admit the evidence also subject to the discretion to decide what weight to attach to it.

Credible Evidence

The arbitrator assesses the credibility of the evidence. He or she considers the inherent probabilities of the version and whether it’s consistent and corroborated by other evidence. The credibility of the witness is a secondary consideration which is factored into all the evidence presented as a version.

Best Evidence

This is what emerges from the bottom of the filter. The arbitrator then assesses the collective weight of the items of evidence in the “scales of justice”. This enables the arbitrator to decide which of side of the scale carries the most weight and thus which version is the most probable.

TIP: The arbitrator has a duty to apply the rules of evidence properly during the cut and trust of leading and cross-examining evidence in the arbitration. The assessment of the probabilities based on the best evidence calls for careful consideration and sound judgement This duty applies equally to chairpersons of disciplinary enquiries.

28/09/2022

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07/04/2022

The power of positive thinking…

06/04/2022

Written Statements at Disciplinary Hearings

This question arises time and time again. Very often, it emanates from the fact that trade unions, or the accused employee’s representative, will demand to be given copies of any witness statements (or affidavits) or other evidence in the possession of the employer, prior to the disciplinary hearing.

Firstly, it must be remembered that the disciplinary hearing is an internal matter – the disciplinary hearing is not a court of law – and therefore any such principles that may be applicable to a Court of Law does not necessarily apply to the disciplinary hearing.

In terms of the disciplinary hearing, the employer can make provision in its disciplinary code and procedure regarding such matters. It must further be remembered that the forum for presenting evidence is at the disciplinary hearing – not prior to it.

The accused employee (or respondent) must, during the hearing, listen to the evidence of the other side, must listen to any verbal evidence given by witnesses, and make notes regarding any points in that evidence that he requires to contest or dispute in cross-examination.

In ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA) this very question was addressed. It was ruled that employees are not entitled to be furnished, prior to disciplinary hearings, with documentary evidence which the employer intends to introduce.

It is sufficient that employees be given, prior to the hearing, sufficient detail of the charges to enable the employee to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence of the complainant.

Among other things, the trade union contended that the disciplinary proceedings were unfair because none of the dismissed employees had been furnished in advance with documentary evidence which the employer introduced at the hearing.

The employer’s disciplinary code made specific provision in this regard – it provided specifically that accused employees should be given an opportunity to examine evidence only during the disciplinary hearing. There was no provision in the Code for employees to be placed in possession of such evidence prior to the hearing.

The award stated further that accused employees do not have an absolute right to access the employer’s evidence in advance of disciplinary hearings. In this particular case, the employees had been given a reasonable opportunity to examine the documentary evidence during the disciplinary proceedings – and therefore there was no procedural unfairness in that respect.

It is not a good thing for an employer to introduce written witness statements into evidence, and it is not a good thing to allow the employer’s witness to merely read from his written statement as evidence. If he does so, then generally the other side becomes entitled to a copy of that written statement – and they can cross-examine the witness on the content of his written statement rather than on his verbal testimony.

That sort of situation can cause problems if the witness has skipped over, or left something out of his evidence, in his verbal submission when it is written into his written statement. Employers should properly prepare their witnesses before the disciplinary hearing, and lead the witness in his evidence in such a way that the witness testifies to everything that is in his written statement, but does so verbally and the written statement is not actually introduced into evidence. It is possible during a hearing that the accused employee or his representative may ask for an adjournment in order to enable them to study any documentary evidence that has been introduced. Obviously, provided the request is a reasonable one, there is nothing preventing the respective parties from agreeing to a reasonable postponement or adjournment.

The full article can be found here:

https://labourman.co.za/written-statements-at-disciplinary-hearings/