Employees have the right to take action

It is an implied term of a contract of employment that the employee will always act in good faith towards his employer and that he will serve his employer honestly and faithfully.

It is an implied term of a contract of employment that the employee will always act in good faith towards his employer and that he will serve his employer honestly and faithfully.

This obligation involves and requires that the employee not work against his employer's interests.

But his duty is subject to limitation in certain circumstances.

A recent judgment handed down in the Commission for the Conciliation, Mediation and Arbitration gives further guidance in this regard.

In this case the complainant employee was subject to a disciplinary hearing at the workplace and was dismissed.

The employee was charged with breach of trust and failure to act in support of and in the best interests of the company by referring a dispute about sexual harassment to the Commission for the Conciliation, Mediation and Arbitration.

She also indicated to her colleagues that she wished to defeat the company in the commission proceedings and encouraged a former employee of the company to refer an unfair dismissal dispute of employment to the Commission for the Conciliation, Mediation and Arbitration.

The commissioner found that the complainant's dismissal for the aforementioned reasons was unfair since all employees are entitled to exercise rights that are jealously protected by the Constitution of the Republic of South Africa in general and the Labour Relations Act 66 of 1995 in particular.

Section 187(1)(d) of the Labour Relations Act states that dismissal is automatically unfair if the reason is that the employee took action, or indicated an intention to take action, against the employer by:

l Exercising any right conferred by the Labour Relations Act; or

l Participating in any proceedings in terms of the Labour Relations Act

Proceedings in terms of the Labour Relations Act can relate to, among other things, an employee initiating or taking part in the conciliation and arbitration proceedings at the Commission for the Conciliation, Mediation and Arbitration, and representing and/or advising a fellow employee in a disciplinary enquiry.

The purpose of this section is to prevent employers from victimising the employees who choose to exercise any of these rights.

Employees should be aware that they have the right not to be victimised or dismissed for exercising their rights in terms of section 187(1)(d) of the Labour Relations Act.

If an employee is dismissed for exercising such rights, the dismissal will be automatically deemed unfair and the Commission for the Conciliation, Mediation and Arbitration could award compensation up to a maximum amount of 24 months remuneration to the employee.

n Nthope Mapefane is a candidate attorney at Werksmans Incorporating Jan S de Villiers

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