Topic: South Africa

Majoritarianism: binding minority unions to collective agreements remains constitutional

By Karen Ainslie 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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

Revisiting Edcon v Pillemer

By Karen Ainslie 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 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 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