Topic: South Africa

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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

The CCMA’s jurisdiction may extend beyond SA borders

This article was written by Rachel Mazower, a Candidate Attorney at Norton Rose Fulbright South Africa The jurisdiction of The Commission for Conciliation, Mediation and Arbitration (CCMA) is not geographically limited if an employment relationship that takes place outside South African borders forms part of a business undertaking based inside the country.  In a recent … Continue reading

Enforcing employee restraints of trade after termination of employment

This article was written by Steven Adams, an associate at Norton Rose Fulbright South Africa Introduction As opposed to various other jurisdictions, such as the United Kingdom, in South Africa, restraints of trade are generally enforceable unless the restraint is found to be unreasonable and contrary to public policy. The purpose of enforcing a restraint of … Continue reading

Changing the law of mass retrenchments – the Constitutional Court finds in favour of Edcon

This article was written by Verushka Reddy, a director at Norton Rose Fulbright South Africa On 22 January 2016, the Constitutional Court held that, where there is not a request for facilitation, the failure to refer a dispute to conciliation or retrenching employees before the expiry of the mandatory 30-day periods prescribed by section 189A of … Continue reading

Invalid dismissal revisited

This article was written by Jose Jorge, a director at Norton Rose Fulbright South Africa A judgment this week by the Labour Court offers interesting findings regarding the practical application of the principles of invalid versus unfair dismissals. This should be a cautionary note for employers who overturn the findings of disciplinary chairpersons. Mr James and … Continue reading

Can a failure to extend a collective wage agreement be unfair discrimination?

This article was written by Verushka Reddy, a director at Norton Rose Fulbright South Africa The most recent amendments to the Employment Equity Act permit the CCMA to consider unfair discrimination claims in certain circumstances. Exercising its newly found jurisdiction to determine ‘equal pay for equal work’ claims, the CCMA recently considered this question in the … Continue reading

Mutual separation agreements – who has jurisdiction?

This article was written by Samantha Copeman, a candidate attorney at Norton Rose Fulbright South Africa A mutual separation agreement is an agreement between an employer and employee to terminate the employment relationship. In Cook4Life CC v Commission for Conciliation, Mediation and Arbitration & others (2013) 34 ILJ 2018 (LC), the Labour Court considered whether … Continue reading
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