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Labour Law Advice & Information Service

Volume I

Legal Document Drafting  & Case Law Library

version 2.4 

Legal Document Drafting & Case Law consists of template pleadings for the labour court and the CCMA (Bargaining Councils), and more than 950 judgments in the LAC and the LC with over 330 pages of legal citations selected referenced and indexed.  This is a publication based on compact disk or flash drive. It includes court & CCMA rules, labour legislation indexed by section. - last update:  June 2011

NEWLY ADDED: Roget's Thesaurus of English Words & Phrases - fully indexed.

Human Resources Edition

Volume II

version 3.9

Human Resources Practitioners, union officials and professionals Manual for handling the legal side of labour and employment issues.  It contains  471  files (88.8MB) with 7668 hyperlinks to 18 Acts related to labour legislation, codes of good practice, contracts of employment wage determinations, forms and answers to frequently asked questions. Also DIY: preparing for arbitration, chairing a disciplinary hearing.

It is a browser based portable library on CD or Flash Drive - last update May 2011.

Cost:  R1 050 per volume or R1 750 for both

e-BOOKS

R45.00 per publication

R165 for any 4.

R200 for any 5. 

Book 7 Free with any book ordered.

Note: Please place your order per email. Delivery will be made by email only upon receipt of proof of payment.  The Default is MS Word 2003 but if required it can be sent in PFD format.

Our details will be provided upon receipt of your confirmation of order.

1.   How to Chair a Disciplinary Hearing –65p.

2.   In Defence of Disciplinary Charges – 44p

3.   How to Prepare for Arbitrations – 55p.

4.   Retrenchment & Restructuring -  33p.

5.   Performance dismissals: Incapacity: Poor Health & Poor Work Performance - 27p.

6.   Resignation & Constructive Dismissal (Incl. Demotion, Sexual Harassment & Unfair Discrimination) - 46p.

7.  Basic Rights of the Employee - 21p.

8.   CCMA & Court Rules, Guidelines & Jurisdiction – 72p

9.   Restraints of Trade - 13p

10. Contracts of Employment   (plus various templates)  - 47p

11. Whistle Blowing -  51p

12. Awards,  Damages & Costs in labour proceedings– 33p

• NOTE: More titles to follow

Contact: mauritz@labourlaw.co.za    Phone :  082 536 9666  Fax:  086 603 2274

    Some excerpts from the INDEXES  in VOLUME I -  (Underlining denotes hyperlinks on the CD/Flash Drive)

Jurisprudence Index

(consists of at least

330 A-4 pages landscape)

950+ Judgments

updated June 2011

List of Cases with references

SUBJECT / ISSUE

NOTE: Below are all excerpts from judgments except where double asterisks are used to indicate explanations, notes or paraphrasing by the editor ** = paraphrased -

Absconsion see also Desertion

AUTHORITIES

1. "...the Court held that desertion amounts to repudiation of the contract of employment which the employer is entitled to accept or reject The acceptance of repudiation amounts to dismissal if employee once again tenders service.^"1

2. “The real problem arises from circumstances of unexplained absence. Mere absence is no more conclusive evidence of desertion (which is absence plus an intention not to return), than it is evidence of wilful absence without leave (which axiomatically includes an intention to return, albeit at a time of the employee's choosing). The means by which the employer established the existence or absence of the intention to return is the critical point of the debate. What constitutes desertion is of course a matter of fact. In some instances an unexplained absence for a reasonable period, that is to say, reasonable in relation to the employer's operational requirements, will establish the fact of desertion.”²

3. “[15] Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.”³

4. Public Sector: "...because the contract was terminated ex contractu, it could not be said that the termination was unfair. In this respect the applicant relied on the authority of the dictum in Phenithi v Minister of Education & Others.¹  The present case is distinguishable from the Phenithi in that in that case the Court was concerned with the provisions section 14(1) (a) and 14(2) of the Employment of Educator’s Act 76 of 1998 (the Act).

In terms of the provisions of section 14 of the Act the employment of an employee who is absent from work without authority for a period in excess of 14 (fourteen) days is deemed to have been terminated by the operation of the law. The authorities are in agreement that such a termination is not a dismissal as the contract is not terminated by virtue of the decision of the employer but the operation of the law. In other words the employment contract is deemed to have been terminated due to absence from work by the employee and not the decision of the employer. This is approach is generally applicable in the public sector and the same does not apply in the private sector. Similar provisions are found in terms of section 17(5)(a) and (b) of the Public Service Act 103 of 1994".²

5. In the private sector cases of abscondtion entails both absence from work without authority and evidence of the intention on the part of the employee not to return to work. To satisfy the requirements of fairness in abscondtion cases the employer had to show that it took steps to locate the whereabouts of the employee.

6. An explanation for an absence would be adequate if employees could prove that the absence was beyond their control.¹

The ultimate question that needs to be decided is whether the third respondent’s absence from work was justifiable. It is trite that in assessing the fairness of a dismissal for absenteeism the following factors are normally considered relevant: the reason for the employee’s absence, the duration of the absence, the employee’s work record, and the employer’s treatment of this offence in the past. The onus rests on the employee to tender a reasonable explanation for his or her absence. ²

7. [14] The commissioner therefore found that the applicant’s conduct displayed “a callous disregard for the cultural practices of black employees and the family circumstances of the applicant”. She also rejected the evidence of Levin that he took her disciplinary record into account, finding that the warnings were irrelevant to the current offence with which she had been charged, and all but one would have expired and should have been expunged from her record. Moreover, even if the third respondent had a current warning for absence without leave, in the circumstances her dismissal would still have been unfair. There was no evidence that mitigating circumstances (including that she was the sole breadwinner of a family of four) had been considered by Levin, and she found the dismissal to be substantively unfair.

[19] In regard to substantive fairness neither the approach adopted by the commissioner nor her conclusion can be faulted. She was justified in finding that in the circumstances an attempt should have been made by the applicant to accommodate the needs of the third respondent. In my view the evidence presented established that the applicant had displayed a callous disregard for the third respondent’s personal circumstances. There was no insinuation that the request for leave was not genuine or that the third respondent had abused the applicant’s leave policy. The submission that she was indispensable to the stock-taking and that her absence caused prejudice to the applicant was further correctly held to be unsustainable on the evidence. The commissioner accordingly complied with the obligations of a decision-maker post-Sidumo in respect of both the conduct of the proceedings and the outcome.

1. SACWU v Dyasi [2001] 7 BLLR 731 (LAC)¹

2. SA Broadcasting Corporation V Commission for Conciliation, Mediation & Arbitration & Others (2001) 22 ILJ 487 (LC)² cited in Khulani Fidelity Services Group v Commission for Conciliation, Mediation and Arbitration and Others (JR 783/07) [2009] ZALC 17 (3 February 2009) at [17]

3. South African Broadcasting Authority v CCMA (2002) 8 BLLR 693 (LAC) at para [15] ³ cited in Jammin Retail (Pty) Ltd v Mokwane and Others (JR2784/08) [2009] ZALC 130 (22 December 2009)  at [14]

4. Phenithi v Minister of Education & Others (2006) 9 BLLR 821 (SCA)¹ cited in Jammin Retail (Pty) Ltd v Mokwane and Others (JR2784/08) [2009] ZALC 130 (22 December 2009) at [12] - [13]² 

Solidarity obo Kotze and Another v Public Health and Welfare Sectorial Bargaining Council and Others (JR2636/08) [2010] ZALC 111 (28 July 2010) AT [8] - 10

5. Solidarity obo Kotze and Another v Public Health and Welfare Sectorial Bargaining Council and Others (JR2636/08) [2010] ZALC 111 (28 July 2010) AT [9]

6. John Grogan, Dismissal, Discrimination & Unfair Labour Practices: Juta & Co Ltd (2005) p.239¹ cited in Kievitskroon .

Kievits Kroon Country Estate (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1856/08) [2010] ZALC 146 (1 October 2010) at [26]²

7. Fairy Tales Boutique t/a Baby City Centurion v Commission for Conciliation, Mediation and Arbitration and Others (JR469/09) [2010] ZALC 160 (20 August 2010)

LEGISLATION & SECTION INDEXES