Topic: South Africa

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Contempt of court and protected strikes

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

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

Majoritarianism: binding minority unions to collective agreements remains constitutional

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

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

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?

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

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

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

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

 “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?

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

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

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

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

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

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

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

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

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

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