Topic: South Africa

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Warning to CEOs to do more to comply with safety laws

Dealing with employees and contractors comes with risk and compliance with the many commercial and employment laws – including health and safety – can be burdensome. While accidents in the workplace are often not completely avoidable, employers need to show they have done enough to avoid them. The Occupational Health & Safety Act, 1993, and … Continue reading

Employees who resign to avoid the consequences of disciplinary action

Employees who commit misconduct and are issued with a notification of disciplinary enquiry, commonly tender their resignation in an attempt to avoid the consequences of disciplinary action and the stigma attached to a dismissal if found guilty. In order to fully understand whether such resignation deprives an employer of the right to pursue the disciplinary … Continue reading

Dismissal for racist slurs in the workplace

An employer who dismisses an employee for making derogatory comments in the workplace must prove both that the employee made the comments, and that the comments are objectively derogatory. In South African Breweries (Pty) Ltd v Heindrich Hansen and others (30 May 2017, CA06/2016) the Labour Appeal Court (LAC) dealt specifically with the use of … Continue reading

Employment Equity: proposed harsher punitive measures

 “Whilst we have made some progress, there is still a long way to go as there are many who are still holding on to outdated historic tendencies … ‘Apartheid hangover’, others call it.” These were the words of Minister of Labour, Nelisiwe Mildred Oliphant, when she launched the 17th Commission for Employment Equity Annual Report … Continue reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in South Africa?

Under South African Labour Law, employees who are pregnant or on maternity leave enjoy extensive protection from discriminatory conduct and dismissal if such discrimination or dismissal is directly or indirectly based on their pregnancy. In terms of section 187(1)(e) of the Labour Relations Act, 1995 (LRA), any dismissal based on pregnancy is an automatically unfair … Continue reading

Negative vetting as a ground for automatic termination of a contract of employment

Employers are entitled to include a condition in a contract of employment that a person’s appointment is subject to a positive vetting and screening process and, if the outcome is negative, the contract will terminate automatically. In the Labour Appeal Court decision of Nogcantsi v Mnquma Local Municipality and Others (2017) 38 ILJ 595 (LAC), … Continue reading

Consultation is the key to employment equity

This article was written by Mlungisi Khambule, an Associate Designate at Norton Rose Fulbright South Africa The duty to consult appears throughout labour law.  It is also an important pillar to achieving employment equity in South Africa.  With the wave of department of labour inspections for employment equity compliance persisting, it is important to understand how … Continue reading

Twelve things to know about rights that workers have to rest breaks in South Africa

This article was written by Verushka Reddy, a Director and Erwyn Durman, a Candidate Attorney at Norton Rose Fulbright South Africa Employers and employees should be aware of the following twelve main principles in relation to rest breaks at work.        Rest Breaks Rest breaks are regulated by the Basic Conditions of Employment Act, 1997. The Act … Continue reading

Constitutional Court takes a vehement stance against racism in the workplace

This article was written by Erwyn Durman, a Candidate Attorney at Norton Rose Fulbright South Africa Employers now have the authority to sanction serious cases of racism with a dismissal. The Constitutional Court by overturning contrary judgments of the Labour Court and the Labour Appeal Court: ruled categorically that a dismissal is an appropriate remedy for … Continue reading

Where winning is everything: the renewal of fixed-term contracts in professional sports

This article was written by Lee Crisp, an Associate  at Norton Rose Fulbright South Africa Fixed term contracts are favoured by employers in the sports industry. As professional sport is heavily performance driven, fixed term contracts give employers a measure of flexibility in contracting with employees.  While fixed-term contracts have benefits, both employees and employers … Continue reading

Snitch…or you could lose your job

This article was written by Anè Potgieter, an Associate  at Norton Rose Fulbright South Africa A striking employee can be guilty of derivative misconduct and fairly dismissed if the employee fails to come forward and assist the employer to identify the perpetrators of misconduct during a strike. Derivative misconduct includes the failure to disclose information … Continue reading

Protecting the vulnerable: Rights and protections for part-time employees

This article was written by Jonathan Arumugam , a Candidate Attorney at Norton Rose Fulbright South Africa Managing a workplace and employees is a lot different nowadays than it used to be two decades ago. Today, many employers struggle to recruit and retain employees by offering a strict nine to five work day.  Your typical staff complement … Continue reading

Is the extension of bargaining council agreements to non-parties Constitutional?

This article was written by Abongile Swana , a Candidate Attorney at Norton Rose Fulbright South Africa Bargaining councils have a long history in South African labour law and industrial relations.  They play a significant role in collective bargaining, especially with regards to matters of mutual agreement such as wages which affect the vast majority of employees … Continue reading

Revisiting Edcon v Pillemer

This article was written by Amelia Berman, a Senior Associate and Shenaaz Munga, a Candidate Attorney at Norton Rose Fulbright South Africa Whilst it is prudent for employers to lead evidence regarding the breakdown of the trust relationship at disciplinary hearings and during arbitration proceedings, particularly evidence from the accused’s line manager, the Woolworths judgment is … Continue reading

Nepotism creates a conflict of interest

This article was written by Shenaaz Munga, a Candidate Attorney at Norton Rose Fulbright South Africa The non-disclosure of a close personal relationship with someone being interviewed for employment results in a conflict of interest between an employee and an employer and is a dismissible offence. In Coega Development Corporation (Pty) Ltd v Commissioner for Conciliation, … Continue reading

Vicarious liability for sexual harassment

This article was written by Steven Adams, an Associate and Hermann Nieuwoudt, a Director at Norton Rose Fulbright South Africa The Eastern Cape High Court has developed the common law and expanded the circumstances in which an employer may be held vicariously liable for its employee’s sexual harassment of another employee. Phil-Ann Erasmus was employed by … Continue reading

Lock-out scope reduced by Constitutional Court

This article was written by Sabu Sangoni, a Director at Norton Rose Fulbright South Africa The Constitutional Court has ruled that an employer may not lock out a minority union that was not party to the dispute at bargaining council level. The case of Transport and Allied Workers Union of South Africa v PUTCO Ltd … Continue reading

The pay differential war

This article was written by Jose Jorge, a Director and Steven Adams, an Associate at Norton Rose Fulbright South Africa On 19 April 2016 the Labour Court (Court) handed down judgment in one of the first appeals to be decided in terms of the newly enacted section 10(8) of the Employment Equity Act, 1998 (EEA). … Continue reading

Variation of employment contracts

This article was written by Lee Crisp , an Associate Designate at Norton Rose Fulbright South Africa Under the common law, employers are not entitled to unilaterally vary the terms of an employee’s employment contract.  If terms and conditions are unilaterally varied, the employee has an election to resile from the contract or to sue for … Continue reading
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