Karen Ainslie (ZA)

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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

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

Keep eyes on arbitration awards: Interest applies to “backpay”

This article was written by Mlungisi Khambule, an Associate Designate at Norton Rose Fulbright South Africa Arbitration awards in favour of employees granting a “sum of money” are bearing more resemblance to monetary debts.  They are no longer just decisions obtained by disgruntled employees which can be ignored and left to lie dead in the inbox … 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

The shelf-life of arbitration awards: For how long can an employee insist on being reinstated or compensated?

This article was written by Michaela Bolton, a candidate attorney at Norton Rose Fulbright South Africa  Arbitration awards made in terms of the Labour Relations Act (LRA) are “debts” in terms of the Prescription Act. Awards affording employees compensation with or without back pay are therefore unenforceable after a period of three years. In a … Continue reading

What protection from discrimination do employees have on the grounds of gender in South Africa?

This article was written by Douglas de Jager , an associate at Norton Rose Fulbright South Africa  Section 9 of the Constitution of the Republic of South Africa states that “[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status…” and that “[n]ational … Continue reading

Replacement labour: what happens when the strike ends, but the lockout continues?

This article was written by Lara Kerbelker, an associate at Norton Rose Fulbright South Africa  On 6 October 2015, the Labour Court handed down judgment in SACCAWU v Sun International, which clarified the use of replacement labour during a lockout. The Labour Court found that an employer’s right to use replacement labour during a lockout … Continue reading

An agreed demotion may still be unfair

This article was written by Jonathan Jones, a directors at Norton Rose Fulbright South Africa The Labour Appeal Court has confirmed that even if an employee has consented after an enquiry to a demotion as an alternative to dismissal, the demotion may still be unfair. A perception exists that when an employer and employee have … Continue reading

Salary attachment procedure declared unconstitutional

This article was written by Andre Vos, a Director at Norton Rose Fulbright South Africa and Riccardo Petersen, a Senior Associate at Norton Rose Fulbright South Africa The High Court has declared aspects of a long-established but often abused debt collection process unlawful, with potentially wide ranging consequences, as it could render hundreds of thousands of … Continue reading

What protection from discrimination do employees have on the grounds of sexual orientation?

This article was written by Yusuf Peer, an Associate at Norton Rose Fulbright South Africa South Africa has a long history of discrimination, primarily based on race, due to its former apartheid policies. In addition to race however, there is also a history of discrimination and intolerance based on other grounds such as gender and sexual … Continue reading

Would your Employer “Like” that Post?

This article was written by Caleb Jones, a Candidate Attorney at Norton Rose Fulbright South Africa Over the past decade there has been an explosion in the development of social media platforms. Facebook, Twitter, and Instagram are a few of the social media platforms that have emerged as popular sites in the public eye. More … Continue reading
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