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The employer is entirely incorrect. The minister of labour published his own set of regulations. These are quite onerous and very similar to the ones used during the lockdown. There is still a need for a risk assessment. There is also a still a need to adhere to the Health and safety regulations.
Just because you’re looking at superior skills it doesn’t mean you can’t look at length of service. They must look at length of service as well and if she can do the work done by another employee with less service then she can take that position.
I believe dereliction of duty is a failure of an employee to do his or her duty. Gross dereliction is when an employee does this on purpose.
Thank you for your mail Monday 11 April 2022. Items 2(3) and 2(4) are interesting but if you look carefully it specifically says that “the non obligatory provisions of the Code may be justified in appropriate circumstances”. Unfortunately the Section 12(6) appears to be an obligatory clause as it uses the word “must”. I believe that this will be struck down by a court as soon as it is challenged.
The Code is not a guideline on obligatory clauses and not a guideline in that Section 2.3 says that the Code advances in interpretation and should be applied unless the interpretation is reversed by decision of the court. I suppose the word “should’ does give many employers an out in certain circumstances.
The word “must” has created enormous problems and, although employers won’t follow it, there will have to be a court case in due course.
The new Covid Management Code of Practice does not make work place vaccinations mandatory but outlines a system whereby each individual business has to undergo a proper consultation process and in line with the operational requirements and the individual feedback this can be made mandatory in certain circumstances. The code does at least give directions on what is required.
My understand as to what is a workplace is quite simplistic. If it is seen as a separate cost center then that would constitute a workplace. Some of the courts and arbitrators have seen the physical place as a separate work place.
Trainees, apprentices and learnership contracts are not employees. They do not have the protection of the labour statutes.
Reinstatement into their original position on the same term and conditions can be an appropriate remedy however, constructive dismissal in most circumstances would probably not mean a reinstatement is appropriate. Often the relationship is damaged and the position that originally existed does not exist any longer.
Employers can never directly force employees to take the vaccination. However, employers can make it mandatory for employees not to continue in their jobs if they refuse to vaccinate. This could mean dismissal and will be subject to employer policy which must be carefully consulted on before implementation. There are various factors that have to be taken into account before consultation can be completed.
Not only was the 6 month period post-retrenchment principal well entrenched but it has been endorsed by our Labour Court for many years.
In essence managerial employee A has been there longer than employee B. Due to LIFO the employee will have to “bump” employee B and keep employee A.
‘Part of the Organisation’ is a very loose phrase and is interpreted differently by various Commissioners and indeed Judges. I don’t recall any Labour Court Judgment offhand, but normally we would look for anecdotal evidence such as whether the person has a business card or is part of the organogram.
I don’t believe the CCMA’s jurisdiction to deal with an unfair dismissal dispute in the sense that they agreed on a retrenchment. I don’t believe a dismissal post retrenchment is worth anything.
