Maserumule Employment Law Podcast

In this week's episode we discuss the Labour Court matter of O’Connor v LexisNexis. O'Connor applied for a job at in December 2023 in response to an advert.

He went through the interview process and on 20 January 2024 he was notified via email that his interview had been successful.

During the finalisation of his appointment, he informed the company that he was previously criminally charged, but explained that the charge emanated from a theft in 2001 and it had since been expunged.  Nine days before he could resume his duties, he was advised that the company was retracting the conditional offer of employment because a criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice.

Tune in to this week's episode to find out what happened to Mr O'Connor.

G4S Secure, the Applicant, approached the Johannesburg Labour Court on an urgent basis, seeking a final order enforcing the terms of a restraint of trade and confidentiality clauses contained in the employment agreement between it and the First Respondent Mr Chetty.

Mr Chetty entered into an employment agreement with G4S Secure in the position of Regional Technology Manager on the 11th of March 2019. The agreement contained restraint of trade and confidentiality clauses, the duration of which was twelve months, with a nationwide scope. Mr Chetty resigned from his employment with G4S Secure, effective, the 31st of August 2023.

Ultimately what G4S Secure seeks in the proceedings is to prevent the possibility of losing the clients that Mr Chetty worked with and seeks to enforce the restraint of trade during the year which Mr Chetty would have been restrained from working with any of its competitors within the Republic of South Africa.

Tune in to this week's episode where we discuss the applicable legal considerations and implications and what the court decided in this matter.

The case discussed in this episode is the matter of Notisi v SAPS and others. In summary the facts were that the appellant employee was employed by the SAPS as a Colonel.

He was charged with two charges of misconduct, namely perjury and interference with the administration of justice, arising out of his alleged conduct during a criminal prosecution of members of his team - who were charged with very serious acts of misconduct.

The appellant was found guilty of both charges at the internal disciplinary enquiry and was dismissed.

Tune in to our latest podcast for a full discussion on the matter.

In its first judgment for the year 2024, in the matter of Brauns and Others v Wilkes N.O and Others the Labour Appeal Court succinctly set out the applicable legal principles governing confessions in the workplace.

Mr Brauns was employed by the South African Police Services (SAPS) as a financial clerk. It was alleged that Mr Brauns misrepresented that he and the two other appellants were entitled to overtime payments, knowing that they were not entitled to such payments. Mr Brauns had made a confession about this misconduct to a Magistrate.

The second and third appellants, were alleged to have defrauded and prejudiced the State by not revealing or informing the SAPS that they had received the overtime amounts which were not due to them.

All three were charged with fraud and with conspiring with each other to defraud the SAPS. They were all found guilty and were subsequently dismissed. One of the appellant's challenges in the appeal court was the confession made by Mr Brauns.

Tune in to this week’s episode to find what the court decided and to gain practical tips when dealing with confessions.

One of the main objectives of the Labour Relations Act is to promote the effective resolution of labour disputes.

This begs the question, what happens when the employer delays instituting disciplinary proceedings against an employee who is alleged to have committed misconduct? Will this have an impact on the fairness of the disciplinary process?

In this week’s episode we will be discussing the matter of Mapyane v South African Police Service & Others. Briefly, Mapyane was employed by the South African Police Service, he held the position of Major General, and was summoned to a disciplinary hearing during February 2015 to address five allegations of fraudulent claims dating back to the period of August 2010 to July 2012, some 3 years later.

Mapyane was found to be guilty by his employer and was summarily dismissed on the 25th of January 2016.

Mapyane had challenged his dismissal all the way to the Labour Court where he alleged that the arbitrators award was unreasonable and irrational.

Tune in to our latest episode to hear what the court has finally decided.

Misconduct in the workplace may also qualify as criminal offences, with theft, fraud and assault being prominent examples.

In this episode we unpack a recent decision handed down by the Labour Court of South Africa where it was decided that employees cannot avoid or delay disciplinary action because of criminal proceedings.

The accused found himself in trouble as he was alleged to have made certain payments without adhering to his employer’s internal control procedures. He was charged accordingly. His employer then also put a charge of fraud against him and simultaneously laid criminal charges too.

The employee alleged that the laying of criminal charges compromised his constitutional right to a fair trial, furthermore, amid the disciplinary hearing, he was concerned that the evidence could be used against him at the criminal trial.

He therefore approached the Labour Court on an urgent basis asking the court to postpone the disciplinary hearing pending the finalisation of any criminal proceedings initiated against him.

Tune in to our latest episode to hear the what the court had finally decided.

In this episode, we delve into the complex issue of employers' obligations towards incarcerated employees. Can an employer dismiss an employee who is in prison? If so, when and why?

We explore the concept of operational incapacity and how it relates to an employee's physical inability to perform their duties. The episode examines a specific case where an employee was fairly dismissed based on their incarceration and the need to fill their position. We discuss the challenges of conducting a fair hearing for an incarcerated employee and whether a post-dismissal hearing is required after their release.

The episode concludes by highlighting that while an incapacity hearing can be held in the absence of the employee, it is crucial for the employer to provide the opportunity for the employee to present their case before making a termination decision. A post-dismissal hearing is not automatically guaranteed but may be necessary in certain circumstances to rectify any deficiencies in the initial hearing conducted without the employee's presence.