Karen Ainslie (ZA)

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Launch of the new Global Workplace Report

By Barbara D'Aquila, Margaret Rudolph (US), John Mastoras, Claire Darbourne (UK), Amanda Sanders (UK), Annette van Beers, Maartje Govaert and Karen Ainslie (ZA) on June 2, 2016 Posted in General, Whistleblowing

The Global Workplace Report is a monthly summary of our most popular blog articles from our Global Workplace Insider blog. This report provides concise commentary and insight essential for employers that want to stay current on the legal and business developments and trends impacting employment and labor matters globally. Global employment and labor trends United … Continue reading

Revisiting Edcon v Pillemer

By Karen Ainslie (ZA) on June 2, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on May 24, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on May 9, 2016 Posted in Discrimination and harassment, South Africa

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

By Karen Ainslie (ZA) on May 3, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on April 22, 2016 Posted in Discrimination and harassment, South Africa

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

By Karen Ainslie (ZA) on April 5, 2016 Posted in Contracts, South Africa

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

Health and Safety ranks high on the DMR’s priorities for 2016

By Karen Ainslie (ZA) on April 5, 2016 Posted in South Africa

This article was written by Tladi Marumo , an Associate at Norton Rose Fulbright South Africa The new Minister of Mineral Resources, Mosebenzi Zwane, in his official opening address at the Annual Investing in African Mining Indaba, on 8 February 2016, ranked health and safety as one of the paramount industry priorities of 2016. This statement … Continue reading

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

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

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

By Karen Ainslie (ZA) on March 2, 2016 Posted in South Africa

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

By Karen Ainslie (ZA) on February 2, 2016 Posted in South Africa

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

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

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

By Karen Ainslie (ZA) on December 17, 2015 Posted in General, South Africa

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?

By Karen Ainslie (ZA) on December 7, 2015 Posted in Discrimination and harassment, General, South Africa

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?

By Karen Ainslie (ZA) on December 2, 2015 Posted in General, South Africa

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

What are the employment implications of the transfer of a business?

By Karen Ainslie (ZA) on December 2, 2015 Posted in General, South Africa

This article was written by Amelia Berman , a senior associate at Norton Rose Fulbright South Africa Section 197 of the Labour Relations Act, 1995 (the LRA) was enacted to regulate the employment consequences where the whole or a part of a business or service is transferred as a going concern. The section is essentially … Continue reading

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

By Karen Ainslie (ZA) on November 20, 2015 Posted in South Africa

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?

By Karen Ainslie (ZA) on November 4, 2015 Posted in Discrimination and harassment, General, 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?

By Karen Ainslie (ZA) on October 26, 2015 Posted in South Africa

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

By Karen Ainslie (ZA) on October 20, 2015 Posted in South Africa

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

Labour broker employees are not solely employed by the client

By Karen Ainslie (ZA) on September 11, 2015 Posted in South Africa

This article was written by Jonathan Jones and Jose Jorge , Directors at Norton Rose Fulbright South Africa Despite the deeming provisions contained in the amendments to the Labour Relations Act (LRA) an employee of a labour broker placed with a client for three months will not be considered to be transferred to the client and will remain … Continue reading

Salary attachment procedure declared unconstitutional

By Karen Ainslie (ZA) on July 22, 2015 Posted in South Africa

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?

By Karen Ainslie (ZA) on June 26, 2015 Posted in Discrimination and harassment, South Africa

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?

By Karen Ainslie (ZA) on June 10, 2015 Posted in South Africa

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