May employers exclude candidates for employment based on the fact that they have a criminal record, or may an employee be dismissed if the employer discovers that an employee has a criminal record?
STRIKING A DEAL TO AVOID THE RETRENCHMENT PROCESS?
If an employer contemplates dismissing employees based on operational requirements (retrenchment), the Labour Relations Act (LRA) requires the employer to follow certain procedures. However, may an employer approach employees informally and strike a deal by signing a mutual separation agreement, thereby avoiding the legal technicalities of the LRA?
DISMISSING EMPLOYEES FOR SUBMITTING IRREGULAR SICK NOTES
The challenge of dealing with irregular or ‘fake’ sick notes continues. Taking disciplinary action against employees may backfire, as happened in the case of Woolworths vs Maseko and others (2024) LAC.
ZERO-TOLERANCE APPROACH SHOT DOWN
The Labour Appeal Court recently overturned the decision of the Labour Court in a cannabis-related case, with very costly consequences for the employer.
DAGGA BAN AND RELIGIOUS DISCRIMINATION
Since the decriminalisation of the cultivation, possession and use of cannabis for private purposes, there have been several cases in which employees have challenged their employers regarding the banning or restriction of cannabis. The Labour Court recently considered a case of alleged discrimination for religious reasons.
DISCIPLINARY AND CRIMINAL PROCEEDINGS
A case of serious misconduct may also amount to a criminal offence. Does the employer have to wait until the disciplinary proceedings have run their course before laying a criminal charge? And if the employer decides to lay a criminal charge, should the disciplinary proceedings be halted pending the finalisation of the criminal case?
IS AN OVERTIME CLAUSE ENFORCEABLE?
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?
JUST HOW RELIABLE ARE BREATH-ALCOHOL (‘BREATHALYSER’) TESTS?
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?
RETRENCHMENT AND THE PREGNANT EMPLOYEE
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…
DISMISSAL AFTER REACHING RETIREMENT AGE
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?
DO WE REALLY STILL NEED VACCINE MANDATES?
Are vaccination mandates still appropriate? Do employees still have to be screened, wear masks, sanitise and keep a distance?
CODE OF GOOD PRACTICE – WORKPLACE HARASSMENT
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.
CODE OF GOOD PRACTICE: Managing Covid-19 in the workplace (after the State of Disaster)
What does the future hold with regard to the wearing of masks, social distancing, vaccination and other protective measures in the workplace?
DISMISSAL FOR REFUSAL TO BE VACCINATED UPHELD
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…
MISCONCEPTIONS ABOUT MANDATORY VACCINATIONS
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?
LANGUAGE DISCRIMINATION: UNABLE TO SPEAK CHINESE!
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.
MANDATORY VACCINATION IN THE WORKPLACE
Employers who intend to make vaccination mandatory may face an uphill battle.
VACCINATION AND EMPLOYMENT
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.
VACCINATION AND ‘SICK LEAVE’
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.
PROTECTION OF PERSONAL INFORMATION ACT (POPIA) – AN EMPLOYER’S PERSPECTIVE
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 …
BOMBSHELL FOR RESTAURANTS AND RELATED ESTABLISHMENTS
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.
RETRENCHMENT PAYOUTS IN THE COVID-19 CONTEXT [Abbreviated version]
[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?
ANNUAL LEAVE IN THE COVID-19 CONTEXT
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?
Guide to UIF and other Covid-19 options
Much confusion has arisen with the introduction of the Covid-19 temporary employee / employer relief scheme (C19 TERS)
INDEFINITE LAY-OFF WITHOUT PAY?
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?
CONSULTATIONS AND HEARINGS VIA ELECTRONIC PLATFORMS
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?
COVID-19 SICK LEAVE CRISIS LOOMING
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?
THINK TWICE BEFORE RETRENCHING!
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.
EMPLOYMENT CHALLENGES AFTER LOCKDOWN
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.
UIF – NEW “NATIONAL DISASTER BENEFIT”
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”.
WHO PAYS SALARIES DURING 21-DAY LOCK-DOWN?
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?
UIF OPTIONS IN CORONAVIRUS CONTEXT
Here are the announced measures by Minister of Employment and Labour to facilitate a variety of UIF claims relating to the Coronavirus.
COVID-19 & UIF – SHORT TIME & TEMPORARY LAY-OFF
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.
CORONAVIRUS IMPACT IN THE WORKPLACE
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?
FLEXIBLE EMPLOYMENT CONTRACTS
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?
MINIMUM WAGE INCREASE FROM 1 MARCH 2020
The national minimum wage (NMW), as well as minimum wages in some other sectors, will increase with effect from 1 March 2020.
PARENTAL LEAVE – EMPLOYEE RIGHTS AS FROM 1 JANUARY 2020
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.
FIXED-TERM CONTRACTS AND SEVERANCE PAY
Is an employee whose fixed-term contract comes to an end entitled to severance pay?
MINIMUM WAGE IN WHOLESALE & RETAIL SECTOR – CORRECTION
The minimum wages for the Wholesale & Retail that were published in the Government Gazette on 2 August 2019 were incorrect. These have now been corrected in a ‘Correction Notice’ dated 14 October 2019. The corrections have retrospective effect from 2 August 2019.
DRAFTING OF DISCIPLINARY CHARGES
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?
DISMISSAL DUE TO BREAKDOWN OF TRUST
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?
REDUNDANCY VS RETRENCHMENT
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.
HEARSAY EVIDENCE IN DISCIPLINARY AND ARBITRATION HEARINGS
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?
THE DECISION TO RETRENCH
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?
THE RIGHT TO A PRE-SUSPENSION HEARING
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.
MINIMUM WAGE IN WHOLESALE & RETAIL SECTOR (MARCH 2019)
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.
RELIGION AND DISCRIMINATION AT WORK
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?
DOMESTIC WORKER MINIMUM WAGE EFFECTIVE 3 DECEMBER 2018
The minimum wages in the Domestic Worker Sector will increase with effect from 3 December 2018.
NATIONAL MINIMUM WAGE EFFECTIVE 1 JANUARY 2019
The national minimum wage (NMW) has been signed into law. Effective 1 January 2019. What exactly does this mean to employers and employees?
The right to an interpreter in a disciplinary hearing
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?
DAGGA IN THE WORKPLACE
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?
Disciplinary action after resignation with immediate effect
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.
Ignoring CCMA Awards
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?
CONSISTENCY IN DISCIPLINARY CASES
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.
ANTICIPATED CHANGES TO LABOUR LEGISLATION 2018
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?
NEW MINIMUM RATES FOR HOSPITALITY – WHAT ABOUT THE NATIONAL MINIMUM WAGE?
The minimum wage rates in the hospitality sector have been increased with effect from 1 July 2018. The minimum rates are still below the National Minimum Wage (NMW) which is expected to be implemented during the course of 2018. How will employers be affected?
THE INTENTION TO RESIGN
Question: Is a statement of intent by an employee to resign enough to terminate employment?
COMPENSATION FOR UNFAIR SUSPENSION PENDING A DISCIPLINARY HEARING
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.
DEVIATING FROM DISCIPLINARY PROCEDURES IN MISCONDUCT CASES
May an employer deviate from disciplinary procedures in misconduct cases?
DROUGHT AND THE EMPLOYMENT RELATIONSHIP
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.
DISCIPLINARY ACTION AFTER EMPLOYEE RESIGNATION
An employee resigns with immediate effect after receiving notice of a disciplinary hearing. May the employer proceed with disciplinary action?
NO WATER, NO WORK – MUST EMPLOYEES BE PAID?
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
WORK PERFORMANCE AND SALES TARGETS
Does setting sales targets make it easier to dismiss an employee for poor work performance?
INDEPENDENT CONTRACTOR OR EMPLOYEE – THE UBER CASE
Are Uber drivers independent contractors or employees?
DISMISSING AN EMPLOYEE DUE TO DISABILITY
Special care must be taken before dismissing an employee due to disability. What guidelines should one follow if there’s doubt?
DEDUCTIONS FOR DAMAGE OR LOSS
May an employer make deductions for damage or loss caused by employee?
CONDITIONAL CONTRACT OF EMPLOYMENT
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.
HOW TO DEAL WITH DISABILITY VS. MEDICAL INCAPACITY
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.
RELYING ON WRITTEN STATEMENTS ONLY IN A DISCIPLINARY HEARING
In certain exceptional circumstances it is acceptable for an employer to rely on written statements only in a disciplinary hearing.