Category Archives: Employment Law

The Labour Law Amendment Bill: A step in the right direction?

It may indeed be the case that South African Labour Laws are not as advanced in comparison to other countries in the world, however it is quickly developing in the right direction.

On the 15 November 2018 the president Cyril Ramaphosa in stated that he is in the process of passing various bills amongst many being, the Labour Law Amendment Bill.

BACKGROUND

On the 23 of November the President of South Africa signed the long awaited Labour Law Amendment Bill into law and was effected on 27 November 2018... Read More

Labour Relations: Important new legislation of 2018: the Labour Relations Amendment Act, Basic Conditions of Employment Amendment Act & the National Minimum Wage Act.

2018 drew to a close and as we herald in a new year, so too have we seen the signing into law of the Labour Relations Amendment Act, Basic Conditions of Employment Amendment Act and the National Minimum Wage Act. The Acts have been signed off by the President and are due to come into effect in January 2019. The below would be a brief summary of the amendments.

The Labour Relations Amendment Act significantly amends section 69 dealing with picketing... Read More

Employment Law: Benefits whilst on Maternity Leave

Every employer strives to become an employer of choice, offering a variety of employee benefits to attract and retain quality staff. A medical aid contribution is one of the most common additional benefits offered to employees, as well as a provident fund contribution being a fairly common benefit that is offered.

It all sounds good and well, however the question that arises is, whether the employee is, according to law, still entitled to these benefits during maternity leave?

According to South Africa’s Basic Conditions of Employment Act (BCEA), all employees are entitled to four consecutive months of unpaid maternity leave... Read More

Employment Law: The Constitutional Court rules on Temporary Employment Services

In the matter between Assign Services (Pty) Ltd and National Union of Metal Workers of South Africa (“NUMSA”) the Constitutional Court (the “CC”) handed down the judgement in relation to the interpretation of section 198A (3) (b) of the Labour Relations Act (the “LRA”) in terms of Temporary Employment Services (the “TES”) and employees. As of the handing down of the judgement, the conclusion in terms of TES staff has been made that after a period of three months of the employee being placed on the client site, the employee becomes a permanent employee of the client... Read More

Employment Law: Pregnancy and women in high risk areas

Introduction

Many employers operating in hazardous and high risk industries often find themselves in a predicament when they deal with pregnant employees employed in positions that are in high risk areas and are deemed hazardous. The employer in many instances is torn when faced with two contravening provisions in law.

Section 6(1) of the Employment Equity Act states that:

‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground’

Section 26 of the Basic Conditions of Employment Act further states that:

‘No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child... Read More

Employment Law: Changing perspectives on intoxication or being under the influence.

Labournet reports as follows:

I recently transferred to LabourNet East London and in the first week I received an Arbitration award from one of our consultants, as usual I read the whole case and my conclusion was that I disagree with the findings and perspective taken by the commissioner presiding over a matter relating to an employee attending work whilst under the influence.

At this point you might be thinking why I disagreed with an educated commissioner of the CCMA, the answer to that question is at the core of this article, and we however need to consider the merits of the case at hand to understand my intended change of perspectives and interpretation... Read More

Industrial Relations: Paternity, Surrogacy and Adoption Leave

Currently the Basic Conditions of Employment Act (BCEA), section 27 thereof, provides for three days’ family responsibility leave for employees to spend time with their new-born babies.

Should they require more time with their new-born children, employees have the option of applying for annual leave, in addition to their three days’ family responsibility leave entitlement (per leave cycle). The three days’ family responsibility leave for when a child is born, however, is only applicable to employees who have been employed for at least 4 months and who work at least 4 days a week for the same employer... Read More

Labour Law: Resignations and the parties’ contractual obligations

Many employers often find themselves in a predicament when employees resign without adhering to the notice periods stipulated in the contract of employment. In order to address the recourse available to employers, it is important to first look at what legislation prescribes for notice periods.

1. Notice periods

A reasonable notice period that either party in an employment relationship needs to abide by is derived from common law, however section 37 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) has specifically developed the common law and makes specific provision for notice periods... Read More

Labournet: The hidden recorder in labour matters

Labournet examines the legal consequences of the use of hidden recorders in labour proceedings and found that with ever changing and advancing technological developments that have been made readily available to the public, employers are increasingly confronted with secret audio recordings being submitted as evidence. Technology has made it easy to capture audio recordings with small and easily concealable devices, an iPod or smartphone can record lengthy discussions without detection. This trend of behaviour can be expected given South Africa’s current socio-economic climate, which has heightened the importance of job security for many South Africans... Read More

The Law of Agency: Makate and the Vodacom blunder

Kieren Sharpley considers the impact of the recent case of KN Makate v Vodacom on the law of agency in South Africa. Known as the  “The Please Call Me -case”), it sought to clarify the confusion surrounding the principles of actual authority, apparent or ostensible authority and when estoppel should be invoked as an appropriate case.

The case also narrowed the definition of debt as contained in the Prescription Act, and reaffirmed that pacta de contrahendo (agreements to agree or to contract in the future) were enforceable in South African Law... Read More

Employment Law: Are recovering losses and issuing warnings in disciplinary proceedings “double jeopardy”?

In taking disciplinary action against an employee, various factors need to be considered in order to ascertain the appropriateness of the sanction to impose against the employee for their actions. The general principle is that corrective discipline should be applied where it is possible to correct the employee’s behaviour. An employee can generally be rehabilitated where remorse is shown, the actions of the employee were not intentional or malicious, and where the trust relationship has not completely broken down. The issuing of warnings in these instances would serve to prevent any future transgressions by the employee... Read More

Employment Law: Resignation with immediate effect and the legal consequences

Labournet’s Adri Louw advises on the legal consequences of the termination of a contract of employment “with immediate effect”.

A contract of service for an indefinite period can be terminated by one party giving notice of intention to terminate the contract to the other. Notice in this instance need not be provided for in the contract itself as it is an inherent feature of an indefinite contract, and if there is no agreed notice period, the notice must be reasonable, provided that it is not less than the minimum notice prescribed in section 37 of the BCEA... Read More

Employment Law: Maternity leave and same-sex relationships

Adri Louw from Labournet examines an interesting development which has come about with the judgement handed down by the Labour Court in March this year in the case of MIA v State Information Technology Agency (Pty) Ltd. The case addressed for the first time in South Africa the question of the application of maternity leave provisions as per the BCEA in respect of same-sex partnerships.

The applicant had entered into a civil union with his spouse in terms of the Civil Union Act... Read More

Employment Law: Is there a duty on an employee to disclose pregnancy?

Labournet’s Adri Louw examines the legal position of a female employee who falls pregnant during her tenure, or is engaged by the company in the early stages of her pregnancy, without the company being aware of the fact that the employee is expecting.

Such situations often give rise to conflict in the employment relationship as the employer may feel that they have been deceived or mislead by the employee’s failure to disclose her condition to the company immediately. This reaction is understandable as the company invariably has to consider the employee’s right to maternity leave, and the unavoidable suspension of services rendered for the requisite minimum 4 month period... Read More

Employment Law: Does annual leave accrue while you are on maternity leave?

Labournet’s Bongani Khanyile takes a look at what happens to annual leave when an employee is on maternity leave.

Does the maternity leave interrupt the accrual of annual leave entitlement of the employee? Given the number of queries they are inundated with on a daily basis, this topic is far from being trite.

Perhaps the best starting point for this discourse is to revert to the Basic Conditions of Employment Act and the provision regarding annual leave therein in order to solve this apparent legal penumbra... Read More

Equality, race and equity in the workplace: the Constitutional Court speaks

After a 9 year battle, the Constitutional Court handed down the final say in the matter of the South African Police Service (SAPS) and Solidarity (a trade union) on behalf of Renate Barnard on 2 September 2014.

At the heart of the matter is the issue of equality, race and equity in the workplace.

Barnard had applied for the same post within SAPS on three occasions. On all three occasions she was the highest scoring candidate, however her appointment was always refused by the National Police Commissioner, who was the ultimate decision maker... Read More

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