Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. Worklaw's June newsletter looks in depth at the new con-arb procedure. We also look at new decisions dealing with an employer's responsibility for the wrongful acts of the employee, and also the controversial decision on whether employees have a right to affirmative action.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
When is an employer liable for an employee's wrongdoing?
Our law has long recognised that an employer is liable for a wrongful act committed by an employee if that act was committed "in the course and within the scope of his or her duties". Whether or not the act falls within the scope of the employee's duties is always a question of fact. The Supreme Court of Appeals recently in Costa da Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Anthony Reddy [SCA Case Number: 486 / 01] overturned the decision of the High Court, which had ruled in favour of a customer who had been assaulted by an employee immediately outside the employer's premises. The Court of Appeals held that the assault outside the tavern occurred after the employee had abandoned his duties, and considered the liability of the employer in these circumstances.
The employer's right to transfer a managerial employee
Does an employer have the freedom to transfer an employee, particularly a managerial employee to a career path different to that hoped for by the employee? In Visser v Vodacom (2003) 24 ILJ 693 (ARB) the arbitrator held that it is not an unfair labour practice for an employer to transfer an employee to another position where there is a legitimate commercial and operational reason for the transfer and as long as the employee does not suffer a loss of benefits or a diminution in status. An employer is not precluded from utilizing an employee's services in the most effective manner possible.
A right to affirmative action?
When the City of Cape Town appointed two white males to executive posts, an applicant (an existing employee) alleged that the decision of the employer not to shortlist him for any of the three posts for which he had applied constituted unfair discrimination prohibited by s 6 of the Employment Equity Act 55 of 1998. The case of Harmse and City of Cape Town (unreported Labour Court decision) considered the City's contention that affirmative action may only serve as an employer's defence or "shield". The Court said that having regard to the Act's requirement that an employer must take measures to eliminate discrimination in the workplace, it also serves as a sword in the hands of an employee who can demand that an employer takes measures to achieve equity.
INFORMATION ABOUT WORKLAW
Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa's most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.
Contact us for more information:
Telephone: 031-561 5004
Fax: 031- 561 6906
E-mail: help@worklaw.co.za
www.worklaw.co.za
Bruce Robertson
June 2003
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