Topic: South Africa

Service Provider or Labour Broker? How to tell the difference

By Karen Ainslie (ZA) on September 27, 2019 Posted in General, South Africa

In January 2019 the Labour Court decided a contractor,that was appointed in terms of a service level agreement, operated as an independent service provider not as a labour broker. The distinction is critical because the deeming provisions in section 198A of the Labour Relations Act, 1995 (LRA), applies to labour brokers but not to independent service providers. … 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

Employees must accept contract changes that avoid dismissals despite s187(1)(c)

By Karen Ainslie (ZA) on July 1, 2019 Posted in South Africa

Section 187(1)(c) of the LRA provides that it is automatically unfair for an employer to dismiss an employee where the reason for that dismissal is the employee’s refusal to accept a demand in respect of any matter of mutual interest. In other words, seemingly an employer may not dismiss an employee who refuses to agree … Continue reading

AARTO ‘Demerit Points’ System – Roadblock for South African Businesses?

By Karen Ainslie (ZA) on June 14, 2019 Posted in South Africa

A demerit points system will be implemented under the controversial Administrative Adjudication of Road Traffic Offences Bill (AARTO) which could cause both drivers and owners of vehicles to be prohibited from driving altogether for traffic violations. AARTO has been sent to the President to be signed into law and will officially take effect on a … 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

Representations no longer required before precautionary suspension

By Karen Ainslie (ZA) on March 12, 2019 Posted in South Africa

On 19 February 2019, the Constitutional Court upheld the Labour Court’s finding that an employer need not afford an employee an opportunity to be heard before implementing a precautionary suspension. This important development arose from the following facts. The employer, the South African Breweries (Pty) Ltd (SAB) employed a district manager for the Border region. … Continue reading

Premature termination of fixed term contracts of employment

By Karen Ainslie (ZA) on December 10, 2018 Posted in General, South Africa

Fixed term contracts of employment are becoming a common practice in the workplace. A fixed term contract is typically entered into for a specific duration (defined by time) or purpose (for a particular project) and would ordinarily expire either with the effluxion of the agreed time or upon the purpose for which it had been … Continue reading

Minority trade unions make good bedfellows

By Karen Ainslie (ZA) on November 29, 2018 Posted in General, South Africa

In UASA, Solidaity and NUM v Lonmin Platinum PLC and AMCU (HO1312-18), the CCMA was tasked with determining the question of whether three minority trade unions, acting jointly, could obtain organisational rights at Lonmin in order to challenge the influence of the majority union (AMCU). Section 18 of the Labour Relations Act, 1995 (the LRA) … Continue reading

“Daddy day-care” some highlights on paternity leave

By Karen Ainslie (ZA) on November 14, 2018 Posted in General, South Africa

In November 2015 the Labour Laws Amendment Bill (the Bill) was tabled to parliament. The Bill was adopted with the intention of amongst others, regulating (and extending) paternity leave. As of 22 August 2018, the Bill has been passed by the National Assembly and the National Council of Provinces. All that remains is authorisation and signature by … 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

National Minimum Wage Exemptions: employers to heave a sigh of relief

By Karen Ainslie (ZA) on June 28, 2018 Posted in South Africa

On 30 May 2018, the Minimum Wage Bill (the Bill) was approved by Parliament with a margin of 50% plus 1 vote. The Bill will now be sent to the National Council of Provinces for confirmation, before being signed into law. It will enforce a national minimum wage of R3 500 per month for full-time … 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

Norton Rose Fulbright’s online guide to global employment law is now available

By Sally Woodward and Joanna MacKenzie on February 15, 2018 Posted in Asia Pacific, Contracts, Data privacy and GDPR, Europe, Latin America, Middle East, North America, South Africa, Uncategorized, United States, Whistleblowing

More and more organisations are growing their global footprint and need to move their people around the world. In this global environment, it is essential to know, understand and comply with employment and labour laws in place across all of the jurisdictions in which organisations engage people. This will help to protect business from unnecessary … Continue reading

Banking on your talent: Financial Sector Charter and transformation in the workplace

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

There have been recent discussions around the lack of transformation in the financial services industry in South Africa. This has led to discussions of potentially reviewing and codifying the Financial Sector Charter (FSC) in an effort to fast-track transformation in the workplace and ownership in the financial services sector. The Financial Sector Charter is a … Continue reading

When the past comes knocking: when is a job candidate under a duty to disclose essential information?

By Karen Ainslie (ZA) on October 25, 2017 Posted in South Africa

An employee’s failure to disclose essential information regarding their employment history during a job interview may not always constitute a dismissible offence. In Fipaza v Eskom Holdings Limited & Others (2010) 31 ILJ 2903, the Labour court set aside an arbitration award that held that an employee’s failure to volunteer information to her prospective employer … 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

Employees who resign to avoid the consequences of disciplinary action

By Karen Ainslie (ZA) on August 30, 2017 Posted in South Africa

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

By Verushka Reddy on June 22, 2017 Posted in South Africa

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

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