Bhekiguru labour law and H.R.Consultants

01/11/2025

Bhekiguru Labour Law & HR Consultants is extending an opportunity to new applicants only for the Workplace Readiness, Labour Law & Dispute Resolution Internship Programme.
Those who applied previously should not reapply, and applicants who do not meet the minimum requirements are advised not to apply.

is Services Seta accredited as a skills development provider

08/10/2025

Bhekiguru Labour Law & HR Consultants is proud to launch the Workplace Readiness, Labour Relations & Dispute Resolution Internship Programme, a fully accredited youth empowerment initiative targeting unemployed young people who aspire to build meaningful careers in Labour Relations, Human Resources, and Dispute Resolution.
Accredited by Services SETA (Accreditation No. 12561) under the National Diploma: Labour Relations Practice – Dispute Resolution (NQF Level 5), the programme combines theory and practical exposure to prepare participants for the modern workplace.

25/02/2025

Celebrating my 10th year on Facebook. Thank you for your continuing support. I could never have made it without you. 🙏🤗🎉

BhekiguruLabourLaw is 10 yrs old

17/01/2024

2024 we will be celebrating our 9th anniversary

28/07/2023

Hearsay: The role of medical certificates in court
14 APR 2023

BY: JACQUES VAN WYK & MICHIEL HEYNS
In the case of Nehawu obo Matras v Commission for Conciliation, Mediation and Arbitration and Others, Mr Matras ('the employee') was employed by Mediclinic from 2006 until his dismissal in 2012.

The employee informed his employer that he was ill by submitting a medical certificate ('sick note') issued by a general medical practitioner. He was absent from work from 1 - 3 June 2012.

On the first day of his sick leave, the employee's supervisor informed him via SMS that she believed he was booked off sick to attend a family member's wedding. This suspicion emerged because of a conversation that the employee previously had with her.

Upon the employee's return to work, the employer charged the employee with the following charge:
"Very serious misconduct due to your dishonest behaviour in that you submitted a sick certificate to cover your absence for the period 01 June 2012 to 03 June 2012 at Mediclinic Potchefstroom. However, during this period you attended to private matters in the region of George."

The employee was found guilty as charged and was dismissed following an internal disciplinary hearing held by the employer. The employee, dissatisfied with the outcome, referred the matter to the Commission of Conciliation Mediation and Arbitration (CCMA). The CCMA found the employee's dismissal to both be procedurally and substantively fair.

Medical doctor suspended for fraudulently issuing medical certificates
25 NOV 2021
The employee subsequently applied to the Labour Court to have the CCMA's award reviewed on the grounds that the Commissioner of the CCMA (the Commissioner) committed a gross irregularity by not applying her mind to the evidence before her, resulting in the decision not being one that a reasonable decision-maker could have reached.

Onus is on...

The employee contended that Mediclinic had no basis and/or reason to dispute that he was ill during the weekend of 1 - 3 June 2012, given that he had submitted a medical certificate to cover this period of absence. He alleged that the Mediclinic failed to call the medical practitioner who issued the sick note to him to dispute the recordal by the medical practitioner that he was too sick to work during this period.

The employee's supervisor testified that she believed the employee had dishonestly informed the medical practitioner that he was ill.

In considering the matter, the Labour Court stated that medical certificates constitute hearsay evidence of a person's incapacity, which must be dealt with as such. The onus to substantiate the medical certificate and call the medical practitioner in question as a witness rests on the employee and not the employer. The fact that the employee did not call the medical practitioner therefore meant that the probative value of the medical certificate was reduced.

Lia Marus
How to deal with fraudulent medical certificates
BY LIA MARUS 6 AUG 2013
Conflicting versions

The version of events tendered by the witnesses of the employer and the witnesses of the employee differed in material respects. The commissioner was therefore faced with two conflicting versions of evidence before her.

The Labour Court held that the CCMA Guidelines on Misconduct Arbitrations provides that when analysing evidence, the evidence must be weighed up as a whole, taking into account factors such as the probability of the different versions and the reliability of witnesses. This approach is endorsed by our Courts.

The Labour Court found that it was evident that the commissioner considered all the evidence as a whole and that she was intimately aware of her duties as an arbitrator and how she needed to approach the conflicting versions presented to her, as well as the hearsay and circumstantial evidence that she was required to analyse to come to her ultimate findings.

The commissioner ultimately preferred the employer's version and found the employee's dismissal both substantially and procedurally fair. The Labour Court confirmed this decision, ruling that her finding was reasonable.

Importance of the case

Medical certificates constitute hearsay evidence of a person's incapacity. An employer is therefore entitled to interrogate the same, should it suspect that an employee is being dishonest about his or her illness. The onus to substantiate the medical certificate and call the medical practitioner as a witness rests on the employee and not the employer.

We specialise in labour and employment law. We currently have offices in Johannesburg, however we work anywhere in South Africa as the clients’ needs dictates

24/05/2023

An employee may not be compelled to undergo a polygraph examination, unless she or he agrees to it or a collective agreement or contract of employment provides for it. the agreement must be in writing.

We specialise in labour and employment law. We currently have offices in Johannesburg, however we work anywhere in South Africa as the clients’ needs dictates

21/03/2023

01/11/2022

Retirement age — Labour Appeal Court judgment gives clarity on an age-old debate

By Nils Braatvedt and Peter le Roux

31 Oct 2022

A recent Labour Appeal Court decision confirms that an employer may fairly terminate a contract of employment on the basis of age, even if an employee has worked beyond an agreed or normal retirement age.

What are the legal consequences of an employee continuing to work after the employee has reached the agreed-upon retirement age? Does a new contract of employment come into force or does the old contract continue operating? Can an employer still terminate employment on the basis that the employee has reached (and passed) their retirement age?

These questions have been the subject of much debate over the years. They were addressed again in the recent decision of the Labour Appeal Court in MISA obo Landman v Great South Panel Beaters.

In this case, a contract of employment provided for a retirement age of 60. The employee in question worked up to and beyond the retirement age without any issues being raised by his employer about his retirement. After nine months of his continuing to render his services, his employer gave notice of the termination of his employment on the basis that he had reached the retirement age of 60.

Aggrieved by this, the employee referred an automatically unfair dismissal dispute to the Labour Court. In terms of section 187(1)(f) of the Labour Relations Act, 1995 (LRA), if the reason for the dismissal is that an employer unfairly discriminated against someone on the basis of their age, the dismissal would be automatically unfair.

However, section 187(2)(b) states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
The Labour Court dismissed the employee’s claim of an automatically unfair dismissal. It found that because the dismissal took place on the basis of the employee’s age after he had reached the agreed retirement age, section 187(2)(b) of the LRA still applied and the dismissal was not unfair. The employee appealed the decision in the Labour Appeal Court (LAC).

The employee’s case on appeal was that, when his employer permitted him to work beyond the retirement age, it waived the right to later rely on the retirement age to terminate the employment relationship. He also argued that, when he worked past the retirement age of 60, a new contract of employment came into existence through the conduct of the parties.
He argued that the initial contract of employment ceased to have relevance. This meant that the retirement age in the previous contract of employment could not be relied upon by the employer to terminate the employment relationship.
The LAC did not agree with the employee’s arguments. It found that if an employer permits an employee to work beyond an agreed or normal retirement age, this does not amount to a waiver of the right to rely on section 187(2)(b) of the LRA to dismiss an employee unless the clear and unequivocal conduct of the employer indicates an intention to waive that right.
It also found that a contract of employment does not automatically terminate by the effluxion of time when the retirement age is reached by an employee, nor is the contract tacitly renewed on different terms.
Instead, the employment relationship continues, which means that the initial agreed or normal retirement age remains applicable. The LAC accordingly agreed with the findings of the Labour Court and dismissed the appeal.
Read in Daily Maverick: “If you’ve left retirement planning until very late, here’s what you need to do immediately”
The decision confirms that an employer may fairly terminate a contract of employment on the basis of age, even if an employee has worked beyond an agreed or normal retirement age. The mere fact that the employee has worked beyond their retirement age does not mean that the agreed or normal retirement age is rendered redundant.
However, the court was careful to confirm that where the clear and unequivocal conduct of the employer indicates that there was a waiver of the right to rely on the retirement age, or where the employer has agreed to a further period of employment, the employer would be bound by this agreement.
It should be remembered that where termination occurs at the instance of one party (the employer in this instance), an employee is entitled to receive notice of notice termination. DM
Nils Braatvedt is Senior Associate in the Employment Department of law firm ENSafrica. Peter le Roux is Executive Consultant in the department.

01/11/2022

With union membership in SA climbing to more than four million, Nxesi warns of militant labour, unprotected strikes

Fin24 reports that according to Department of Employment and Labour (DEL) Minister Thulas Nxesi, trade union membership in SA grew from 3.5 million members in 2013/14 to over 4 million in 2020/21.
The number of registered unions rose from 203 to 220 over the same period. Speaking at the Southern Africa Trade Union Coordinating Council (Satucc) congress on Friday, Nxesi said the rise in union membership and the proliferation of several new splinter unions had had the unintended consequence of sparking more adversarial labour relations and a rise in unprotected strikes. Nxesi interpreted the statistics as a growing trend of unions splintering off due to differences in how they believed they ought to negotiate wages with employers. Nxesi said there appeared to be fierce competition for membership among unions, to the point where some used collective bargaining as "recruiting turf", labelling their rivals as "sell-outs" and resorting to damaging strikes to distinguish themselves. The arrival of newer, more militant unions in various sectors also prompted established unions to negotiate more aggressively to take the advantage away from the newcomers. This blunted unity among organised labour, heightening the risk of prolonged, antagonistic wage talks. Nxesi said that he had raised the proliferation of organised labour with unions, suggesting that they find ways to unite all workers, including those in splinter unions. The DEL’s report to Satucc noted an increase in unprotected strikes and warned that this signalled a deterioration in respect for collective bargaining institutions.

bhekiguru.co.za

18/10/2022

Untu accepts Transnet’s wage offer and calls off industrial action, while Satawu members are still out on strike.