Most contracts of employment contain an overtime clause which states that the employee agrees to work overtime “as and when needed”. But is the overtime clause enforceable?
Being under the influence of alcohol at work cannot be tolerated in any workplace. Some employers set the bar higher by adopting a ‘zero-tolerance’ approach with regard to the mere presence of alcohol in an employee’s system. Breath-alcohol (‘breathalyser’) tests are commonly used as a measuring tool in both instances. But just how reliable are these tests?
When an employee goes on maternity leave, others almost inevitably have to fill in for her. During her absence the question may arise whether she is really needed and whether her position has become redundant. May the employer retrench her in these circumstances? Our courts have repeatedly come to the assistance of pregnant employees who have been discriminated against. But how far does that protection go? Read more…
The possession and use of dagga for private purposes may no longer be a criminal offence, but to what extent may employers control employees’ habits in the workplace? And may an employer adopt a ‘zero tolerance’ approach?
It is fairly common practice to allow employees to work beyond their retirement age. But what if such employees want to hang on to their job indefinitely? And to what extent are post-retirement employees protected against unfair dismissal?
Are vaccination mandates still appropriate? Do employees still have to be screened, wear masks, sanitise and keep a distance?
A new Code of Good Practice on the Prevention and Elimination of Harassment, came into effect on 18 March 2022. The Code, issued in terms of the Employment Equity Act (EEA), replaces the previous Code of Good Practice on Handling Sexual Harassment cases in the Workplace.
What does the future hold with regard to the wearing of masks, social distancing, vaccination and other protective measures in the workplace?
Theresa Mulderij vs Goldrush Group – After considering evidence and argument by both sides, the CCMA commissioner found that the dismissal of the employee had been fair. Read more…
Utter the words ‘mandatory vaccination’ and someone will see it as a call to arms. This causes most employers to be hesitant about implementing mandatory vaccination policies. But do employers really want to force employees to be vaccinated?
In South Africa, allegations of unfair discrimination tend to have a familiar theme – often an employee having been discriminated against on the basis of being black, female, pregnant, etc. But every now and then a white male claims to have been on the receiving end of unfair discrimination. If one adds language and culture to the mix, it makes for interesting reading.
Employers who intend to make vaccination mandatory may face an uphill battle.
Several provisions pertaining to Covid-19 vaccination have been added in the updated ‘Consolidated Directions on Occupational Health and Safety Measure in Certain Workplaces’ gazetted 11 June 2021.
Since the updated ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ was gazetted on 11 June 2021, two new categories of ‘paid time off’ or ‘sick leave’ came into being – both of these relate to Covid-19 vaccination.
Purposes of the Act The Protection of Personal Information Act of 2013 (POPIA) follows the example of similar, quite onerous legislation in the European Union aimed at protecting individuals’ right …
[Abbreviated version] Businesses are facing an uphill battle with employee attendance due to the ongoing Covid-19 pandemic. Are employees entitled to paid sick leave, annual leave, unpaid leave, UIF illness benefits or Compensation Fund benefits?
In the wake of the devastation caused by Covid-19, fast food outlets, restaurants and caterers across the country are being dealt yet another blow. The Minister of Employment and Labour has extended the terms of the Main Agreement of a newly formed Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades (‘BCFFRCAT’) to establishments across the entire country.
[Abbreviated version] The long-term effects of Covid-19 on businesses have become clearer. Short-term interventions, such as taking annual leave, temporary lay-off, short time and pay cuts, may no longer be appropriate. It may be necessary for a more permanent measure; i.e. retrenchment. But what payments are employees entitled to if they are retrenched?
The long-term effects of Covid-19 on businesses have become clearer. Short-term interventions, such as taking annual leave, temporary lay-off, short time and pay cuts, may no longer be appropriate. It may be necessary for a more permanent measure; i.e. retrenchment. But what payments are employees entitled to if they are retrenched?
As we approach the end of a very unusual year, employers are faced with multiple questions surrounding annual leave entitlement.
Many employees took annual leave during the lockdown, resulting in a significant depletion of the leave available to them. Many employees have also been laid off or had their work hours reduced. But how has leave accrued during this period and how must it be calculated?
Much confusion has arisen with the introduction of the Covid-19 temporary employee / employer relief scheme (C19 TERS)
As the economic effects of Covid-19 drag on, employers are faced with new questions surrounding the temporary lay-off of employees. Surely lay-off cannot continue forever. So, for how long may employees be laid off?
Disciplinary hearings via Skype? Consulting via Zoom? Are such processes allowed? Electronic platforms have become more accessible. The Covid-19 pandemic has alerted us to opportunities that were not obvious before. Does this mean that we may embrace these platforms in labour and employment law processes?
With a large proportion of the population likely to become infected with Covid-19 before a vaccine is available, businesses are in for a rough ride in the coming months. Some employees will have tested positive, others might simply present with symptoms. Are they entitled to paid sick leave, UIF illness benefits or Compensation Fund benefits?
Retrenchment may be the first thought that comes to mind for employers who are hard hit by Covid-19. However, in most cases rushing into the retrenchment process is not a good idea.
Aside from the adverse economic, health and social impact of the Corona crisis on people generally, employers are also confronted by complex legal issues and facing several employment challenges after lockdown.
According to an “Easy – Aid Guide for Employers”, the UIF has added a R3500 per month flat rate benefit to the existing relief measures, which it refers to as a “National Disaster Benefit”.
In a drastic measure to curb the spread of COVID-19, the SA Government has declared a lock-down as from midnight on Thursday 26 March 2020 until midnight on Thursday 16 April 2020. This will be enacted in terms of the Disaster Management Act. During this period all employees, with the exception of a few categories, will have to stay at home. Who pays their salaries? What happens after the 21-day lock-down?
Here are the announced measures by Minister of Employment and Labour to facilitate a variety of UIF claims relating to the Coronavirus.
Some businesses are under severe strain as a consequence of the severe measures implemented due to the COVID-19 having been declared a national disaster. They are resorting to emergency measures such as short time & temporary lay-off. A fairly recent amendment to the Unemployment Insurance Act of 2001 is likely to bring much needed relief to affected employees.
Now that the World Health Organisation has declared the Coronavirus (COVID-19) outbreak a pandemic and the President has declared it a national disaster, employers are under increased pressure to take action: What precautionary measures should be taken, what forms of leave apply, how must employees be accommodated, quarantine, how does one deal with a slowdown in business, etc?
The basis of every employment relationship is a contract of employment. As the parties are bound by the contract, careful thought should be given to the specific terms and conditions. But how much information should be included and how flexible can it be?
Employees are legally entitled to parental leave, adoption leave and commissioning parental leave as from 1 January 2020. This follows a proclamation issued by the President (on 23 December 2019) in terms of section 17 of the Labour Laws Amendment Act of 2018.
All too often employers are expected to be technically correct when drafting disciplinary charges. But is this fair to the employer? What if the employee has not been prejudiced?
It is the breakdown of the relationship of trust that normally justifies termination of employment in cases of employee misconduct. How serious must that breakdown be? Does the employer have to prove such breakdown of trust to justify dismissal?
When employers restructure in order to improve efficiencies, it leads to redundancies. Redundancies can lead to retrenchment, but not necessarily. This is where employers often get it wrong.
Occasionally a customer or other external party is witness to employee misconduct. It may be necessary for such person to give evidence in disciplinary proceedings. If the employee challenges the outcome of the hearing, such evidence may also be needed in arbitration proceedings. But what if the person does not want to get involved? Is hearsay evidence allowed?
When it comes to retrenchment, employers tend to make the mistake of announcing their decision to retrench before consulting with the affected employees or their union. Confronting employees with a fait accompli can be fatal to the process. But does this mean that an employer may not form any opinion before consulting?
In a disciplinary hearing an employee has the right to be heard before being judged. But does an employee have the right to be heard before being suspended pending the outcome of the hearing? Against the background of conflicting case law, the Constitutional Court has finally brought about some clarity on pre-suspension hearings.
Employers were expecting the minimum wage rates in the Wholesale and Retail Sector to be increased with effect from 1 March 2019 – this did not happen.
Adherents to certain religions are reluctant to work on their sabbath or other holy days. But what if such a refusal clashes with the employer’s operational needs?
The national minimum wage (NMW) has been signed into law. Effective 1 January 2019. What exactly does this mean to employers and employees?
A recent Labour Court judgement highlighted the importance of respecting an employee’s home language and right to an interpreter in a disciplinary hearing. But what if the disciplinary hearing is conducted in English and the employee is proficient in English?
People may no longer be prosecuted for cultivating, possessing and using small amounts of dagga for private purposes. But what are the consequences for the workplace?
Can employees escape the consequences of their actions by resigning with immediate effect? There has been uncertainty about an employer’s right to proceed with disciplinary action after an employee’s resignation ‘with immediate effect’ but a judgement of the Labour Court in Cape Town has brought about much needed clarity.
When the CCMA makes an award for the reinstatement of an employee who has been unfairly dismissed or suspended, it seldom goes down well. But what happens if the employer ignores the award?
Employers must exercise their disciplinary powers in a consistent manner. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions, is to ensure that they do not act arbitrarily. In other words, like cases must be treated alike.
South Africans were expecting that a national minimum wage (NMW) would be implemented on 1 May 2018. This did not happen, but the NMW is still likely to be implemented during the course of this year. We can also expect some other changes to labour legislation. How will this affect employers and employees?
Question: Is a statement of intent by an employee to resign enough to terminate employment?
An employee could claim additional compensation if a suspension is regarded as being unfair. In a well-publicised case, the CCMA awarded an employee five months’ remuneration in addition to the normal pay that the employee received while on suspension.
May an employer deviate from disciplinary procedures in misconduct cases?
The potential impact of the drought on the employment relationship should not be underestimated. It may affect the employee’s right to remuneration if it becomes impossible for employees to work, but it may also lead to problems with employee attendance if employees have to queue for water.
An employee resigns with immediate effect after receiving notice of a disciplinary hearing. May the employer proceed with disciplinary action?
Some businesses need water in order to function. The prevailing drought in the Western Cape has led to unpredictable interruptions due to the implementation of water rationing measures. Interruptions to water supply can also be due to a variety of other reasons. Contingency plans may be inadequate, which may result in employees not being able to work
Does setting sales targets make it easier to dismiss an employee for poor work performance?
Are Uber drivers independent contractors or employees?
Special care must be taken before dismissing an employee due to disability. What guidelines should one follow if there’s doubt?
May an employer make deductions for damage or loss caused by employee?
The Labour Relations Act protects employees against unfair dismissal. However, our law makes allowance for a contract of employment coming to an end without it amounting to a dismissal.
The distinction between incapacity due to ill health (‘medical incapacity’) and disability is from both a practical and legal perspective one of the most difficult situations for an employer to manage.
In certain exceptional circumstances it is acceptable for an employer to rely on written statements only in a disciplinary hearing.
There could be several reasons for employers ending up having ‘illegal’ foreigners in their employ. The illegal employment of a foreigner is expressly prohibited by the Immigration Act. What does an employer do if a work permit is due to expire, or has already expired?
Arbitrators will look at the following factors when deciding whether or not a dismissal for ill health was fair.
Much has been said of “the right to remain silent”. It may be raised by a defendant in criminal law, but does it mean anything in the employment relationship?
The issue of ‘plea bargaining’ arises where there are several perpetrators involved in a disciplinary transgression. The employer needs one or more co-perpetrators to give evidence at the disciplinary hearing. Can one agree to a lesser sanction in return for his testimony against the alleged accomplices?
Wilful and persistent refusal to carry out an instruction often results in summary dismissal. It becomes trickier if the employee has a good reason not to follow the instruction. So, what is a good reason to refuse to work?
May employees on probation be dismissed for lesser forms of misconduct?
Earning extra money outside of working hours (also referred to as ‘moonlighting’) may sound like a good idea. But what if the employer objects?
Where employees don’t do what is expected of them, the employer is often faced with a practical dilemma: Do I treat this as misconduct or incapacity?
How high may the employer set the bar when it comes to discipline in the workplace– may a zero tolerance approach be implemented?
The assumption is often made that people who do volunteer work are not employees. But are volunteers protected by labour legislation?
Social media has become a powerful communication tool, but using it can have far-reaching consequences. Can employees be dismissed for expressing their personal opinions outside the workplace and outside of working hours?
Drafting a proper disciplinary notice can be frustrating. Many employers would simply pass the responsibility to external advisors. Yet, provided a few fundamentals are taken care of, there is no reason why managers could not do it themselves and leave only the most complicated cases for external parties to assist with.
As a rule employers should give newly-appointed employees some time to settle in before deciding on their suitability for the job. But would it be fair to expect an employee appointed to a high level job to ‘hit the ground running’?
Time spent travelling between clients and the workplace during the working day would normally be regarded as working time. But what about time spent travelling to work, or time spent at the workplace before commencing with normal daily tasks?
Until recently, our labour legislation has made no reference to part-time employment. What has gone almost unnoticed is the specific introduction of the protection of employees that are employed on a part-time basis in contrast to fixed term contracting that has received a lot of publicity recently.
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.
The workplace is not a democracy. One of the implied terms of the contract of employment is that of subordination – the employee has to submit to the authority of the employer provided this is exercised lawfully and reasonably.
How will an organisation’s upcoming skills development submission impact on its future BBBEE ratings and what steps can be taken to maximise their scores in this element?
Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?
One of the most important changes to the Labour Relations Act , which came into effect on 1 January 2015, is the added protection afforded to employees on fixed term contracts. While some employers and employees are not directly affected, the impact will be far reaching and employers are encouraged to review their current contracts and practices to ensure compliance.
Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.
Imagine a situation where an employer does not have job vacancy, but agrees to accommodate a person as a favour. The person is employed with the clear understanding that if things do not work out, the contract may be terminated without the employee having recourse to the remedies afforded by the Labour Relations Act. Can this be done?
Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?
Do medical certificates issued by traditional healers have to be accepted by employers? While there does not appear to be an obligation to do so at present, indications are that it will be soon become a reality.
Can lapsed warnings be taken into account when an employee faces disciplinary action?
The Employment Equity Amendment Act of 2013 has finally come into effect on 1 August 2014. Not only large employers are effected and some provisions apply to all employers, irrespective of their size. The Department Labour is likely to be very active in assessing employers’ compliance in the months to come.
Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.
When employers want to terminate a fixed-term contract before the expiry date, it would seem to make sense that this could be done as long as they pay the employee for the balance of the term. However, a recent Labour Court case involving the Office of the Presidency has highlighted the fact that premature termination of employment may amount to an unfair dismissal.
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (often referred to as the “youth wage subsidy”). It appears to be a very simple process, essentially administered by SARS.
The date by which employers have to submit their Workplace Skills Plan (WSP) and the Annual Training Report (ATR) to their SETA’s is fast approaching. It has been brought forward to 30 April 2014 (having previously been 30 June of each year).
What if a fellow employee does something that causes the employer harm – is there an obligation on his/her collegues to report this to the employer?
Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?
In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.
Employers have been avoiding liability for unfair labour practice claims relating to “benefits” for some time. It has been argued, often successfully, that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. This and other barriers have since been eroded significantly.
Employees are not necessarily the only ones to blame for the abuse of sick leave in South African workplaces. It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.
It sometimes makes sense for companies to allow certain employees to continue working after the agreed or normal retirement age. The question is this: How does one go about terminating employment during that period?
May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?
It is a misconception that companies can only be reimbursed for training provided by external SETA-registered institutions. Companies can in fact also be reimbursed for structured internal, day to day training as well as Learnerships offered.
The Bill seeks to rectify anomalies and clarify uncertainties that have arisen out from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.
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