Sonja Vorster
A contract of employment is signed by an employee and in this contract several agreements are being reached.
If it is suspected that the employee breached a clause in the contract, proper investigation and a disciplinary hearing must be held.
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Failure to be procedurally and substantively fair could mean that the employer will be found liable of being in breach of the Labour Relations Act.
A recent case: National Transport Movement obo Ramaboka/Fantique Trade 294CC t/a Specialised Security Services (2018) Commission for Conciliation, Mediation and Arbitration (CCMA).
In this matter an employee was stationed at a ‘client’s’ premises and employed as a Senior Checker on behalf of a client. In terms of her employment contract, she was required to submit herself to a polygraph test and if any indication of deception was indicated during a test, she agreed, that she would be removed from the client’s premises.
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The employer would then be obliged to relocate her to an alternative site, if available. If not, retrenchment. The employee underwent a polygraph test, but failed in respect of one of four questions she had to answer.
As a result, the employee was removed from the client’s premises. No alternative sites were available and she was (dismissed) retrenched. The CCMA had to determine whether the employee was unfairly dismissed.
The employer argued that it acted in accordance with the terms of the contract of employment, as the employee had repudiated the contract.
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The CCMA held that a dismissal, despite being lawful, must also be fair. Where no hearing is held and where no corroborative evidence is lead to substantiate the allegations levelled against the employee, her dismissal would be both procedurally and substantively unfair.
The Commissioner held that the employee’s dismissal was unfair and that she should be awarded compensation.
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