DISPUTES THAT CAN BE REPORTED TO CMAC BY AN EMPLOYER (Part 1). The common perception is that CMAC is an institution that represents employees and that only accepts disputes reported by employees and trade unions. This however, is a misconception which is sought to be corrected by this article, which is divided into two parts. Section 76(1)(a) of the Industrial Relations Act, 2000 (as amended and hereafter called the IRA) provides that an employer can also report a dispute to CMAC. Discussed below are a few examples of disputes that can be reported by an employer. The list is however not exhaustive. Failure to serve notice Section 33 of the Employment Act, 1980 (hereafter called the EA) provides for the periods of notice which must be given before the termination of an employment contract. Where an employee abruptly terminates his employment contract, without notice or on short notice contrary to the employment contract, company policy, a collective agreement or the EA, the employer may demand payment for the unserved period of notice. The employer can however not deduct such payment from any amounts being owed to the employee without the latter’s written consent (see Section 57 of the EA). Where the employee refuses to pay the notice pay, the employer may report the dispute to CMAC. Breach of fixed term contract Clause 3.4 of the Code of Good Practice: Termination of Employment, provides that, “If an employee has agreed to a fixed term contract, that employee may only resign if the employer materially breaches the contract. If there is no breach by the employer, the only way that the employee may terminate the contract lawfully is by getting the employer to agree to an early termination.(my emphasis). Where the fixed term contract does not have a termination clause and there is no breach by the employer, the employee cannot lawfully terminate the contract without the employer’s consent. In Buthelezi v Municipality Demarcation Board (2004) 25 ILJ 2317 (LAC), at 2320, paragraph 9, the Labour Appeal Court held that; “There is no doubt that at common law, a party to a fixed term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words, there is no right to terminate such a contract even on notice unless its terms provide for such termination...” In the event of such a breach, the employer may report a dispute for payment of the period outstanding on the contract. In Santos Professional Football Club (Pty)Ltd v Igesund & another 2005(5)SA 73(C), the Supreme Court of Appeal found that Gordon Igesund, a prominent football coach who had breached his contract with Santos to take advantage of a more lucrative from Ajax Football Club, could be compelled, by an order for specific performance to fulfil his contract with Santos. In reaching this decision, the Court inter alia, found that the fixed term contract between the parties expressly provided that, in the event of breach by either one of the parties, the aggrieved party would be entitled to claim for specific performance. Breach of study leave agreement In N.Dlamini v Swaziland Government SCA 18/2000 the employee had been granted 3 years study leave with pay but had failed to complete his studies or to report for duty upon his return yet he continued to claim his salary. The Supreme Court held that the employer was not only entitled to stop his salary but that “To continue to collect his monthly stipend which was being paid to him, despite the fact that he was not doing any work, was not only unlawful but dishonest. Indeed the government would have been entitled to claim back any emoluments paid to him from the time he abandoned his studies in Zambia until he returned to work.” To claim these emoluments, the employer would have to report the dispute to CMAC. This is also true, where upon the completion of his studies, the employee finds alternative employment yet he had agreed to return to work for his employer. WRITTEN BY: COMMISSIONER NSINDISO THWALA.
Posted on: Fri, 27 Sep 2013 08:36:55 +0000
Trending Topics
Recently Viewed Topics
© 2015