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The Employment Law is law regulating the workplace in respect of Employer and Employee relations, i.e collective bargaining, establishment of trade unions and employer organisations, establishment of specialised tribunals for dispute resolution, dismissal, retrenchment, unfair labour practices, restructuring etc

A) DISMISSAL

Dismissal occurs when the Employer has terminated the contract of employment with or without notice, when an Employee reasonably expected the employer to renew a fixed term contract of employment on the same terms and has failed to do so, when an Employee resigns because the Employer made continued employment intolerable, when the Employer refuses to allow the Employee to resume work after returning from maternity leave etc.

Requirements of Dismissal

• The Dismissal has to be effected in accordance with the correct procedures (Procedural Fairness).

• The Dismissal has to in relation to a fair and legally acceptable reason (Substantive Fairness).

• Dismissal must be appropriate in the circumstances.

Procedural Fairness

The Employer must follow the correct procedures when dismissing an Employee for whatever reason.

DISMISSAL ON FAILED POLYGRAPH TEST

Workplace dismissal based on results of a failed polygraph test alone.

In the case of Mustek Ltd v Tsabadi NO & Others the Labour Court heard a case of dismissal based solely on polygraph test results.

If an employee is dismissed, after a disciplinary hearing was held, based on polygraph test results, the question arises whether such dismissal was fair.

Substantial fairness must prevail, meaning that all the facts / evidence of the case must be properly entertained (holistic view) by the presiding officer in a disciplinary hearing. A polygraph does not directly measure deception or lying. Instead it relies on the examiner drawing an inference from the physiological activity that it records.