Employment Law Frequently Asked Questions

Jun 2, 2022

Find answers to frequently asked questions about corporate labor and employment law, specifically related to employers and employees in the workplace.
Is a medical certificate hearsay evidence?

The simple answer, yes!

It has long been held by the Labour Appeal Court in Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 that medical certificates are no different to other documentary evidence, and therefore constitutes hearsay in the absence of the testimony or an affidavit from the doctor concerned.

Sick leave abuse among employees is a reality, and employers are entitled to be suspicious and sceptical of copies of medical certificates that do not make sense or say little about the employees’ alleged ailment, especially those copies that are presented after prolonged periods of absence from work, and which appear to have been post-dated.

Employers are therefore entitled to query the validity of a medical certificate by requiring further supporting documentation from the medical practitioner in question. Employers should however only require an employee to submit further supporting documentation if there is a reasonable suspicion that the employee was not sick.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

What happens if an employer fails to confirm whether an employee is appointed permanently at the end of the probation period? Does this mean the employee is automatically a permanent employee?
In Ubuntu Education Fund v Paulsen NO and Others (15 August 2019), the Labour Appeal Court dealt with the above issue.

The Court held that although the employee’s probation period has ended, it is clear from the evidence that when the probation period came to an end, the employer was still engaged in an ongoing review and evaluation process. By 15 February 2015 (the last day of the employee’s probation period), the review process had not been completed and continued for another 3 weeks. The Court held that it may therefore reasonably be inferred that the employer intended to extend the probation period until the review and evaluation process was completed.

The Court referred to item 8 of the Code of Good Conduct: Dismissal (the Code) which entitles employers to require a newly-hired employee to serve a probationary period before the appointment of the employee is confirmed.

The Court concluded and held that in light of the ongoing review and evaluation process, an inference that the employer impliedly confirmed the employee’s permanent employment was neither plausible nor consistent with the facts. The LAC agreed with the employer that the commissioner and the Labour Court had erred in concluding that the employee automatically became a permanent employee simply because her employment extended beyond the termination of the probation period of 18 February 2015.

From the above matter it is evident that an employee’s probation period can be impliedly extended. It must however be noted that this implied extension will only be applicable in certain instances and we therefore advise that in the event where an employer contemplates the extension of an employee’s probation period, a fair procedure be followed and that the employee be informed of the extension in writing.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Does section 187(1)(c) of the Labour Relations Act apply to the dismissal of a single employee?
Section 187(1)(c) states that a dismissal is automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. This section has made it difficult for employers to dismiss, on grounds of operational requirements, employees who refuse to accept a change to their terms and conditions of employment as such a dismissal could possibly be seen as being automatically unfair.

The cases of Fry’s Metal v Numsa and Numsa v Aveng Trident Steel both dealt with Section 187(1)(c), but both involved the dismissal of more than one employee.

In Jacobson, Merwyn Jack v Vitalab, the Labour Court dealt with the question of whether Section 187(1)(c) is applicable where one employee is dismissed. The Court held that this provision does not apply to dismissal disputes involving a single employee as the application of the section is limited to the collective sphere. The wording of the section, specifically the reference to “employees”, “them” and “their”, clearly indicates that the section refers only to collective dismissals and not to individual dismissals.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

COIDA Claims: When is an employee acting in the course and scope of employment?

X, an employee of Tick-Tock Digitals (Pty) Ltd (“the employer”), injured his lumbar spine when the lift he was travelling in fell approximately seven floors. He was inside the lift for the purposes of gaining access to his office which is/was situated on the 48th floor of his employer’s building. As a result of this, he instituted court proceedings in the High Court where he claimed damages he allegedly suffered as a result of the injuries he sustained from his employer. The employer opposed the aforementioned claim and raised a special plea by placing reliance on the argument that X suffered the injuries during the course and scope of his employment and thus his claim was covered by COIDA. Do you support the employer’s view? Can X have a claim against the employer?


This matter was dealt with in Dee Gee v Transnet SOC Ltd (30085/2015) [2019] ZAGPJHC 2 (29 January 2019). The High Court (“HC”) had to determine whether an accident arose out of and in the course of an employee’s employment. In terms of section 35 (1) of the Compensation for Occupational Injuries and Diseases Act (“COIDA”), an employee who suffers an “occupational injury” has no action for the recovery of damages against his/her employer. In terms of the definitions in COIDA, an “occupational injury” is one that is sustained as a result of an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or death of the employee. The phrase “arising out of and in the course of employee’s employment” was the crux of this matter, taking into consideration that the incident occurred when the employee was en route to his office in a high rise building where he is employed, which is owned by the employer.

The employer, in an attempt to avoid liability, submitted that the incident occurred whilst the employee was at the premises owned by the employer and during the employee’s course and scope of employment. According to the employer, the employee was, at all relevant and material times, an employee and was acting within the scope of his employment with the employer. Therefore, it follows that the employee was covered by COIDA and cannot claim against the employer as is stipulated in section 35 of COIDA. The claim was statutorily barred as the employer is indemnified by section 35 of COIDA.

The employee submitted that this was not an injury on duty arising out of or in the course of the employee’s employment, and when the accident occurred, the employee was not executing his contract of employment but was merely on his way to his place of work.

In establishing whether the incident was an injury arising out of or in the course of the employee’s employment the HC considered various court decisions and/or authorities from which it derived guidelines in determining whether an employee was within the sphere or area of his employment when an accident occurred. In establishing this, the court had to answer the following questions:

Was the employee doing something he was employed to do at the time when the accident occurred?
In travelling on elevator number 017 of the Carlton Centre to reach his office on the 48th floor of the building, was the employee fulfilling an obligation to his employer imposed by the contract of service? In other words, in doing so was the employee ‘doing something that was part of his services to his employer’?
Was elevator 017 the ‘nearest available route to the employee’s office’? Or, was elevator 017 the prescribed route or prescribed means of conveyance for the employee to reach his office?
Was the duty imposed upon the employee to travel on elevator 017?
Was elevator 017 a private means of access to the employee’s office which he was entitled to use by reason only of his status as an employee or was the lift accessible to the general public?
In travelling on elevator 017, was the employee fulfilling an express or implied term of his contract of service?

The HC held that the employer’s observation that “the incident occurred whilst the employee was at the premises owned by the employer” is not decisive to make an accident one arising out of and in the course of the employee’s employment. Even if the accident occurred at a place which is not owned by the employer it could still give rise to an occupational injury. The facts provided in this case were inadequate to support a finding that, on the balance of probabilities, at the time of the accident the employee was acting within the course and scope of his employment. Seemingly, none of the essential questions could be answered in the affirmative. Therefore, the HC held that section 35 of COIDA does not prohibit the employee’s claim against the employer and thus the employer’s special plea was dismissed.

Based on the given facts, it follows that, in the absence of the employer proving that X’s injuries occurred during the course and scope of his employment, COIDA will not cover the employee’s claim and such damages can be claimed directly from the employer.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Prohibiting employees from wearing union t-shirts at the workplace

Spicy Chicken (Pty) Ltd (“the employer”) implemented a workplace policy in which it prohibited employees at the workplace from wearing any ‘political party or union’ clothing during working hours. Not complying with the aforementioned policy was construed in a serious light and it was stated that necessary disciplinary action would be taken against employees who fail or neglect to comply accordingly. Is this policy fair and reasonable?


A similar matter was dealt with in NUMSA obo its members v Transnet SOC Ltd (JS427/15) [2018] ZALCJHB 352. The Labour Court (“LC”) in this matter had to establish whether it is legitimate for an employer to prohibit the wearing of union t-shirts in the workplace. NUMSA contended that such prohibition would breach the rights of expression and freedom of association of its members. According to Transnet, there is no substantive right to wear a union t-shirt in the workplace as an element of the exercise of the right to expression or freedom of association, or on any other basis, except with its consent.

The constitutionality, lawfulness and validity of the t-shirt ban policy was challenged on the basis that it infringed:

The right to freedom of expression guaranteed by s16 of the Constitution;
The labour relations rights established by s23 (2)(a) and (b) and (4)(a) and (b) of the Constitution, and s4 (1) (b) and 4(2)(a) of the LRA;
The right to freedom of association in terms of s18 of the Constitution;
The prohibition of unfair discrimination in terms of s5 (1) and s5 (2)(c)(i), (iii), (iv), (v) and (vi) of the LRA; and
The prohibition of unfair discrimination in terms of s6 (1) of the EEA, on the grounds of conscience, belief, political opinion, the arbitrary grounds of union membership, and unreasonableness.

The LC held that wearing of a union t-shirt is not an adjunct of membership per se. The real issue is whether the scope of protection in respect of ‘participation in the lawful activities of a trade union’ can be said to extend to a right to wear a union t-shirt in the workplace. In deciding on the latter, the LC held that wearing of union t-shirts constitutes ‘lawful activities’ as contemplated by s5 (2)(c)(iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement, constitutes a form of prejudice. In short, the t-shirt ban was found to be unlawful and invalid with reference to s5 (2)(c)(iii).

To the extent that s5 (2)(c)(vi) prohibits an employer from prejudicing an employee on exercising any rights conferred by the LRA, and the wearing of a union t-shirt, as discussed above, constitutes lawful activity under the LRA, it follows that the union t-shirt ban is also an infringement of s5 (2)(c)(vi) and is invalid.

This is not to say that the exercise of the right of freedom of association by wearing union t-shirt in the workplace is unlimited. The LC held that one can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. In appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of union t-shirts and union insignia.

Considering the given facts, in the absence of evidence which justifies the prohibition and/or limitation of the right to freedom of association, represented by the t-shirt ban, the employer’s policy is invalid and/or unfair and/or unreasonable.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Selective re-employment of previously dismissed employees

On 17 March 2018, 7 (seven) employees of Shoe Shine (Pty) Ltd (“the employer”) were dismissed for insubordination. Subsequent thereto, they did not challenge the dismissal and accepted that they had committed what amounted to serious misconduct. However, on 07 January 2019, almost a year later, the employer decided to re-employ 4 (four) of the previously dismissed employees due to an increase in work volume. The employer thought it would be time consuming to recruit new employees due to the demand in work and it needed people with experience to do the work which was required. The remaining 3 (three) employees became aware that the other employees were re-employed and upon realising this, they decided to engage with the employer and then requested to be re-employed as well. Despite this, the employer refused to re-employ them and they referred an unfair dismissal dispute to the CCMA. Can this constitute an unfair dismissal?


In terms of s186(1)(d) of the Labour Relations Act 66 of 1995, as amended (“LRA”), it is a ‘dismissal’ when “…an employer who has dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.” It follows that the above set of facts amount to a dismissal. The question which remains is whether the dismissal was fair nor not. In order for a dismissal to be fair, it must be substantively and procedurally fair.

In Liberated Metalworkers Union of South Africa obo Molefe and others and Harvest Group [2018] 11 BALR 1217 (CCMA), the employer acknowledged that he had re-employed 11 (eleven) employees and placed reliance on the allegation that the re-employment was a bona fide mistake. The arbitrator in this case found that the employer knew that the 11 (eleven) employees were a part of a group that was previously dismissed for the same or similar misconduct, and that the reason for the selective re-employment was due to the employer needing experienced staff urgently. Therefore, the selective re-employment was found to be unfair and the arbitrator ordered reinstatement of all the previously dismissed employees who requested to be re-employed.

It follows that should the employer, in the above facts, fail to prove substantive and procedural fairness, the selective re-employment may constitute an unfair dismissal.

The option the employer should have taken is to advertise the vacancies. Or for instance, if the employer had the mobile numbers of the previously dismissed employees, it should have:

sent messages to all; and
thereafter, interview all prior to making an appointment.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

May an employee refuse to work on Saturdays because of her religion?

X was requested by her employer, Down Town (Pty) Ltd, to participate in monthly stock taking exercises that took place on Saturdays. X refused to participate. Her reason for doing so was that she was a Seventh Day Adventist (Adventist), a religion in which Saturday is regarded as Sabbath. As a result of this, X was dismissed. Was X’s dismissal fair?


This matter was dealt with in TFD Network Africa (Pty) Ltd v Faris (Unreported CA 4/17 5/11/2018). What was common cause was that TFD, a logistic company whose warehouse carried significant quantities of its customers’ stock, found it obligatory to conduct monthly stock taking on a Saturday. In fact, this was considered as a business requirement and was undertaken by managers of TFD. Managers were rostered for this duty. Nonetheless, Faris, who was also a manager, declined to perform these activities as she was not prepared to compromise her religious belief. Subsequently, Faris was dismissed for her refusal to work on Saturdays. Her dismissal was characterised as incapacity.

The Labour Court found that the dismissal had been automatically unfair as well as substantively and procedurally unfair. TFD was granted leave to appeal. The LAC found that the dismissal would not have occurred if Faris had not been an Adventist. Had she not been an Adventist she would have willingly worked on a Saturday. The employer has a duty to reasonably accommodate an employee’s religious freedom unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale.

Therefore, it follows that X’s dismissal was automatically unfair.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Which code is the employer expected to apply in the case of sexual harassment cases?

The code of good practice on the handling of sexual harassment cases and the amended code of good practice on the handling of sexual harassment cases in the workplace?

Which Code is the employer expected to apply?


When dealing with workplace sexual harassment, employers initially considered the Labour Relations Act 66 of 1995’s Code of Good Practice on the Handling of Sexual Harassment Cases, which was published as far back as 1998 (“the Code”). This Code was amended on 04 August 2005 by the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (“the Amended Code”) which was published in terms of the Employment Equity Act 55 of 1998.

Generally and in principle, the Amended Code should have replaced the Code. However, despite the latter, the Code was never repealed. As a result, both the Code and the Amended Code applied when considering and/or dealing with cases of workplace sexual harassment. This created misperceptions as employers could not be certain regarding which code to apply.

On 19 December 2018, the Minister of Labour issued a notice formally repealing and replacing the Code with the Amended Code. This has now provided certainty and clarity for organisations. It follows that when an employer is considering workplace sexual harassment, the employer now only has to apply the Amended Code.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Are polygraph test results admissible in order to establish 'guilt' in a disciplinary hearing?

On 3 February 2018 a laptop disappeared from the Finance Department at the workplace. As a result of this and due to there being no eye-witnesses of the alleged theft, the company requested that all the employees in the Finance Department undergo a polygraph test. It is stipulated in the contract of employment of each employee that he or she must undergo a polygraph test when there are grounds for suspicion and the refusal of an employee to subject himself or herself to the test can lead to disciplinary action against the employee. Consequently, these employees all agreed to the polygraph test. Upon conclusion of the polygraph tests, it transpired that X was the only employee who failed the test and as a result of this, the company charged X with theft. In order to establish guilt in the disciplinary hearing, the company relied solely on the polygraph test results. The chairperson found X guilty and recommended a dismissal. Subsequent to the chairperson’s recommendation, the company terminated X’s employment. Was the dismissal fair? Are polygraph test results admissible in order to establish guilt?


In Amalgamated Pharmaceuticals Ltd v Grobler NO and Others (D 1719/02) [2004] ZALC 5, the Labour Court agreed with a CCMA Commissioner who found that in practice, the results of polygraph tests do not serve to prove that a person is lying, as “the questions are often too broad to exclude that which is neither intended nor sought”, and that they do not prove that someone is guilty.

Despite there being divergent views in our law on the admissibility of the results of polygraph testing, the Labour Court in Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC) accepted that the results of a properly conducted polygraph test may be used as corroborating evidence and may be taken into account as a factor in assessing the credibility of witnesses and the probabilities of versions presented to the court. This approach has been subsequently confirmed by the Labour Appeal Court.

This means that the onus placed on an employer to prove the fairness of a dismissal in terms of section 192 of the LRA is not discharged by the sole reliance on the results of a polygraph test.

It follows that:

X’s dismissal was unfair;
The polygraph test results cannot prove X’s guilt without corroborating evidence, as they alone are not conclusive proof of misconduct;
The company cannot dismiss X due to his failing the polygraph test, unless they are able to find other incriminating evidence;
The test results are inadmissible unless supported by expert evidence on how they were done and on their reliability, i.e. the person who conducted the test gives evidence to this end.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

When is non-compliance with an instruction insubordination?

The essence of insubordination is that an employee refuses, without good reason, to follow a reasonable and lawful instruction issued by the employer and/or any other authorised person. Insubordination constitutes a direct challenge to the authority of the person issuing the instruction and this challenge must be deliberate and of a serious nature. There is a duty on an employee, arising from the contract of employment, to show respect to the employer and to the employer’s agents, e.g. managers. Insubordination amounts to a breach of this duty.

If the employee merely refuses to follow certain steps or to comply with an instruction, this in itself does not necessarily constitute insubordination. However, if the employee does so either repetitively or in such a manner (conduct or language) that shows disrespect and which undermines the trust relationship, then the conduct amounts to insubordination.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Determining whether or not an employee was dismissed fairly
Ms. X is a temporary service employee of Still-Till Placing Agent (Pty) Ltd. She has been working for the latter’s client, Durville Cash and Curry, for two months. She earns R3000.00 per month. Customers who shop at the store complain that Ms. X is rude, disrespectful and has an unpleasant attitude. Mr. Z, who is the store manager, has previously addressed this issue with Ms. X on several occasions, however, despite that, Ms. X’s behaviour remained the same. One morning a heated argument occurred between Ms. X and Mr. Z and Mr. Z chased Ms. X out the building shouting “Don’t ever come back here! You are fired!” Ms. X claims unfair dismissal. Was she dismissed?

This is not a dismissal. At first glance, it might seem to be a dismissal in terms of section 186(1)(a); in particular; “an employer has terminated employment without notice”.

However, Mr. Z is not Ms. X’s employer and, therefore, he is incapable of dismissing her. Based on the given facts, only Still-Till Placing Agent (Pty) Ltd can dismiss Ms. X. The position could have been different if Ms. X; taking into consideration the amount she earns; was rendering services for the client for more than 3 months. In those circumstances she would have been deemed to be an employee of the client and the given scenario would have amounted to a dismissal.

In the current position, Ms. X’s employer is Still-Till Placing Agent (Pty) Ltd and thus the conduct of Mr. Z does not amount to a dismissal.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Using an external chairperson at a disciplinary hearing: Can he/she terminate the employee’s services on behalf of the employer?
The short answer is no. The employment contract (or relationship) exists between the employer and the employee. Only parties to the contract or relationship can terminate it unless the employee and the employer both agree to give such power to a third party. Such an agreement could arise where, for example, the employer obtains the employee’s consent to confer on the chairperson of the disciplinary hearing the power to terminate the contract (or relationship). This consent must be obtained prior to the start of the hearing, while the employee is still in the employ of the employer. Failing such agreement, the outsider may only make a finding on the relevant facts (i.e. guilty or not guilty) and a recommendation as to the sanction he/she proposes that the employer implements. It is then for the employer to decide, and communicate to the employee, whether or not it intends to implement the recommendation.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Does a verbal resignation amount to a valid resignation?

Mr. X is employed as a team leader at Corner Pocket (PTY) Ltd (“employer”). He reports to Mrs. Z who is the employer’s line manager. On 5 October 2016, Mr. X appeared to be agitated and frustrated. As per the company’s practice, Mrs. Z enquired from Mr. X about his daily tasks. In the course of this discussion, Mr. X remained agitated and told Mrs. Z that he was resigning with immediate effect. Mrs. Z advised Mr. X that if he wants to resign he needs to submit a resignation letter in writing. Mr. X refused to hand in a resignation letter and simply vacated the premises. Moreover, whilst leaving the premises Mr. X handed over his clock card. Is it possible for an employee to resign in such a manner and for an employer to rely upon such a resignation to bring about a termination of the employment relationship?

In Nathaniel Andile Mnguti v CCMA & Others (JR 349/12) [2015] ZALCJHB 277 (28 August 2015), the court held that; with reference to Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC) a resignation is a unilateral termination of employment by the employee. The employee must demonstrate a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such intention.

The court held that it is possible for an employee to resign by way of conduct, or verbally, without a written resignation being submitted. In deciding whether such a resignation does indeed exist, the conduct of the employee must also be considered in light of the following elements:

The employee clearly, unambiguously and unequivocally indicated his intention to leave employment;
The employee’s conduct is and/or was unilateral and final;
The conduct of the employee, established historically from the evidence, would leave a reasonable person to believe that the employee had the intention to bring the employment relationship to an end, and then acted accordingly; and
The nature of the evidence surrounding the circumstances of the termination of employment must also be considered.

Taking into consideration the above and the legal principles in Mnguti’s case; depending on the circumstance of each case, Mr. X’s resignation may amount to a valid resignation, despite it being verbal.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.