Topic: South Africa

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Employment law under COVID-19 lockdown: 10 things to know

The government enforced 21 day lockdown raises many issues relating to employee rights, including concerns around whether leave (for workers who cannot work from home) will be paid or unpaid, whether UIF (Unemployment Insurance Fund) applies and what the rights of essential workers are.

Here are ten things to know about employment law during the COVID-19 lockdown.

  1. If employees are able to work from home, they should do so.
  2. If employees cannot work from home, employers can request that staff take their annual paid leave during this time. The Basic Conditions of Employment Act allows an employer to determine when
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Five cost cutting measures to sustain your business and safeguard your employees

This article was written with the assistance of Kriyanka Reddi, Candidate Attorney, Norton Rose Fulbright South Africa Inc

The declaration of a state of national disaster due to COVID-19 and the resulting nationwide lockdown has left employers and employees in a precarious situation. The lockdown has had a devastating impact on employment throughout the country, with many employees feeling the financial pinch of not having worked throughout the lockdown. What is clear is that employers are legally not obliged to remunerate employees, in instances where their employees are not able to work on account of the lockdown. The impact on … Continue Reading

Ten essential terms of secondment agreements

This article was written with the assistance of Kriyanka Reddi, Candidate Attorney, Norton Rose Fulbright South Africa Inc

Secondment agreements allow for an employer to assign an employee to another organisation for a specified duration, for purposes of developing good business relationships; enhancing an employee’s particular skill set or for sharing the particular expertise of that employee with the host company.

The employer and host company are required to enter into a secondment agreement in order to regulate the terms and conditions of the secondment. Generally, secondment agreements should be reduced to writing, signed by the parties. It is particularly … Continue Reading

Employment law under COVID-19 lockdown: 10 things to know

The government enforced 21 day lockdown raises many issues relating to employee rights, including concerns around whether leave (for workers who cannot work from home) will be paid or unpaid, whether UIF (Unemployment Insurance Fund) applies and what the rights of essential workers are.

Here are ten things to know about employment law during the COVID-19 lockdown.

  1. If employees are able to work from home, they should do so.
  2. If employees cannot work from home, employers can request that staff take their annual paid leave during this time. The Basic Conditions of Employment Act allows an employer to determine when
Continue Reading

Permits required for persons leaving home to perform essential services during South African lockdown

Submitted by Christina Pretorius, Director, Norton Rose Fulbright South Africa Inc

Further regulations regarding the implementation of South Africa’s COVID-19 lockdown were released on the evening of 25 March, just over a day before the lockdown takes effect at 24:59 on 26 March. The lockdown applies to everyone within the borders of South Africa, and seeks to slow the spread of the COVID-19 virus.

The new regulations require every person to confine themselves to their place of residence unless strictly for the purpose of:

  • performing an essential service,
  • obtaining essential goods or services,
  • collecting a social grant, or seeking
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Service Provider or Labour Broker? How to tell the difference

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. In circumstances where the service is rendered by a labour broker, the employees involved in rendering the service may be deemed to be in the client’s employ if the employees earn less than R205 433.30 a year and rendered services to … Continue Reading

The Constitutional Court rules on derivative misconduct

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 and Others [2019] ZACC 25. The burden of proving all these requirements will not easily be met.

The concept of derivative misconduct was created by our courts to overcome difficulties when identifying all the guilty parties involved in group misconduct. Where members of a group … Continue Reading

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

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 to the variation of their contractual agreed terms and conditions of employment.

The Company embarked on a restructuring exercise to increase profitability and issued a notice to NUMSA that it contemplated possible retrenchments. During the consultation process, the parties agreed to the re-grading of certain … Continue Reading

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

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 date yet to be decided by the President.

AARTO is geared toward changing driving behaviour and increasing safety on the roads, but it may have significant implications on South Africa’s transport industry, employers and employees at every level.

How it will work 

  • The
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Religious practices and workplace incapacity

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 religion prohibited working over the Sabbath. The employer dismissed her for ‘incapacity’.

Faris approached the Labour Court with an automatically unfair dismissal dispute owing to her religious beliefs. It found the dismissal automatically unfair because she was discriminated against for religious compliance.

Monthly … Continue Reading

Representations no longer required before precautionary suspension

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. The employee was responsible for the operations in that region, which included ensuring that SAB’s fleet of vehicles, met all legal requirements. In December 2012, SAB came to know of fraudulent activities in respect of the licensing of its vehicles, and that certain … Continue Reading

Premature termination of fixed term contracts of employment

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 entered into being fulfilled (for example the return of a permanent employee who was on maternity leave).

The question that often arises is whether the fixed term contract of employment can be terminated prior to the agreed termination date or the happening of the agreed-upon … Continue Reading

Minority trade unions make good bedfellows

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) allows an employer and a majority trade union to conclude a collective agreement establishing a representivity threshold which effectively excludes minority trade unions from gaining organisational rights at the employer’s workplace.  This is part of the principle of majoritarianism endorsed by … Continue Reading

“Daddy day-care” some highlights on paternity leave

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 the President.

What is the current leave entitlement?

As it stands, adoptive parents and commissioning parents are not included in the definition of parents in terms of the family responsibility leave provisions of  section 27 of the Basic Conditions of Employment Continue Reading

Family Responsibility Leave – Bereavement rights

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 enforcing basic conditions of employment and also regulating the variation of the basic conditions of employment.

Section 27 of the BCEA provides that an employee who has been in employment with his/her employer for a period longer than four months and who works … Continue Reading

Dress code in the workplace

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 and the individual nuances of the company itself but is always subject to anti-discrimination laws. Companies are permitted to introduce a company policy in respect of grooming and clothing standards required by employees in the workplace. This policy may be required … Continue Reading

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

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 workers, or R20 per hour for any number of hours worked per day.

The national minimum wage will exclude any payment made to enable an employee to work including transport, equipment, food or accommodation allowance, any payment in kind, which includes board or … Continue Reading

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 cannot be individually identified and linked to particular acts or omissions. Similarly, unions may be held in contempt of court and liable for a fine where they do not take reasonable steps to monitor and control their members’ behaviour during strikes.

In KPMM Road & 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 hardware needed for full self-driving capability. Volvo, which appears to be leading the pack, aims to have fully autonomous vehicles on the road by 2021. (Volvo is reportedly scaling back its ambitious self-driving car experiment)

Autonomous cars, could provide significant opportunities for freight … Continue Reading

When is disclosure of conciliation proceedings allowed?

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 those only recently franchised to have better access to justice. The concept was revolutionary in our formalistic legal system: there would be an emphasis on dispute resolution mechanisms such as conciliation, there would be no automatic right to legal representation and arbitrators could … 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 gold mining companies concluded a collective wage agreement with major trade unions (NUM, Solidarity and UASA) who together represented a majority of workers in the gold mining sector. The Association of Mineworkers and Construction Union (AMCU) refused to sign the agreement and gave notice that … 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 risk, whether legal, financial or reputational.

We have launched a new interactive online version of our Global employment law guide first published in 2015.

Featuring 28 jurisdictions, our interactive guide helps clients navigate the often disparate and diverse national employment and labour laws, in particular … 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 voluntary agreement by all National Economic Development and Labour Council members (NEDLAC), a multilateral social dialogue forum on social, economic and labour policy.  All banks in the country, local and international are required to adhere to the NEDLAC charter.

The FSC … 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 was an act of fraudulent non-disclosure, and found her dismissal to be substantively unfair.

Fipaza was previously dismissed by the employer for alleged misconduct.  Some 18 months later, she applied for another post within the same parastatal and during the selection process, failed to disclose … Continue Reading

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