Karen Ainslie (ZA)

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Crunching the numbers for employment equity – What you need to do now that the draft sectoral targets have been published

By Karen Ainslie (ZA) on May 23, 2023 Posted in South Africa

On Friday, 12 May 2023, the Minister of Employment and Labour (the Minister) published the long-promised sectoral targets. The draft sectoral targets can be viewed here. The draft sectoral targets follow on the President signing the Employment Equity Amendment Act, 2022 (the Amendment Act) into law on 14 April 2023. The Amendment Act introduces a … Continue reading

The Constitutional Court rules on derivative misconduct

By Karen Ainslie (ZA) on July 4, 2019 Posted in South Africa

In a unanimous judgment, the Constitutional Court has brought certainty to the test for derivative misconduct and what an employer who wants to rely on such conduct must prove to justify dismissal. This judgment is National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd … Continue reading

Religious practices and workplace incapacity

By Karen Ainslie (ZA) on April 29, 2019 Posted in General, South Africa

The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs. In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her … Continue reading

Family Responsibility Leave – Bereavement rights

By Karen Ainslie (ZA) on November 8, 2018 Posted in General, South Africa

South African labour law does not have any specific legislation solely dealing with compassionate leave in the event of bereavement. However, the Basic Conditions of Employment Act, 1997 (BCEA) provides for what is termed family responsibility leave. The BCEA was introduced specifically to give effect to the right to fair labour practices by establishing and … Continue reading

Dress code in the workplace

By Karen Ainslie (ZA) on September 6, 2018 Posted in South Africa

South Africa has no formal guidelines or regulations canvassing the often controversial topic of office dress code. However both the Employment Equity Act of 1998 (EEA) and the Labour Relations Act No 66 of 1995 (LRA) contain provisions outlawing discrimination and dismissals related to discrimination. What is deemed appropriate will be dictated by the industry … Continue reading

Contempt of court and protected strikes

By Karen Ainslie (ZA) on June 12, 2018 Posted in South Africa

Where employees take part in a strike, albeit protected, they run the risk of being held in contempt of court and being held personally liable for a fine or even imprisonment. This is if they step outside the realm of acceptable conduct that has been sanctioned by a court order. This applies even if employees … Continue reading

Restructuring due to AI technology

By Karen Ainslie (ZA) on June 11, 2018 Posted in General, South Africa

Technological advancements in artificial intelligence will impact heavily on the transportation industry and jobs. Artificial intelligence in the transport industry is a double-edged sword. While it will create new job opportunities, the technology will render others obsolete. The question around the use of autonomous self-driving cars is no longer hypothetical. All Tesla vehicles have the … Continue reading

When is disclosure of conciliation proceedings allowed?

By Karen Ainslie (ZA) on May 25, 2018 Posted in General, South Africa

Shortly after the dawn of our democracy, our labour law regime was completely overhauled with the enactment of the Labour Relations Act 66 of 1995 (LRA). The vision for this legislation was to provide simple procedures for the resolution of labour disputes. This was not simply for expediency; it was in the context of empowering … Continue reading

Majoritarianism: binding minority unions to collective agreements remains constitutional

By Karen Ainslie (ZA) on March 8, 2018 Posted in South Africa

The extension of collective agreements to minority union members based on the principle of majoritarianism does not unreasonably limit the constitutional right to strike. In Association of Mineworkers and Construction Union and others v Chamber of Mines of South Africa and others [2017] 7 BLLR 641 (CC). The Chamber of Mines on behalf of various … Continue reading

Warning to CEOs to do more to comply with safety laws

By Karen Ainslie (ZA) on October 17, 2017 Posted in South Africa

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

Employment Equity: proposed harsher punitive measures

By Karen Ainslie (ZA) on June 14, 2017 Posted in South Africa

“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?

By Karen Ainslie (ZA) on May 30, 2017 Posted in Discrimination and harassment, 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

How should the directors’ fees of Non-Executive Directors be treated for tax purposes?

By Karen Ainslie (ZA) on May 18, 2017 Posted in South Africa

Historically there has been some uncertainty on the tax treatment of fees paid to a Non-Executive Director (NED). SARS has recently issued two Binding General Rulings (rulings), the purpose of which is to set out SARS practice. Taxpayers are not bound by these rulings because they do not constitute law. SARS however is bound by … Continue reading

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

By Karen Ainslie (ZA) on May 18, 2017 Posted in South Africa

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

“Facially unacceptable” – An inexcusable ground for discrimination

By Karen Ainslie (ZA) on March 27, 2017 Posted in Discrimination and harassment, South Africa

This article was written by Purnel Gangiah, a Candidate Attorney at Norton Rose Fulbright South Africa The mere fact that an employer considers an employee to be disabled does not necessarily mean that the employee is in fact disabled and cannot fulfill its normal duties at work. In Smith v Kit Kat Group (Pty) Ltd. … Continue reading

Consultation is the key to employment equity

By Karen Ainslie (ZA) on March 7, 2017 Posted in South Africa

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

By Karen Ainslie (ZA) on December 19, 2016 Posted 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

By Karen Ainslie (ZA) on December 8, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on December 8, 2016 Posted in Contracts, General, South Africa

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

By Karen Ainslie (ZA) on November 9, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on November 1, 2016 Posted in South Africa

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

Recent South African arbitration rulings on “benefits”

By Karen Ainslie (ZA) on October 27, 2016 Posted in South Africa

This article was written by Shoneez Gani , a Candidate Attorney at Norton Rose Fulbright South Africa Section 186(2)(a) of the Labour Relations Act (LRA) states that “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving – (a) unfair conduct by the employer relating to the promotion, … Continue reading

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

By Karen Ainslie (ZA) on June 6, 2016 Posted in South Africa

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