Legal Questions

B C D E H L M N O P R S T W 
Here you can see the questions that are frequently asked by employees. Click on a question to see the answer:


Basic Conditions of Employment Act

Basic Conditions of Employment Act

Question:

The Basic Conditions of Employment Act states that certain provisions of the Act do not apply when an employee’s income exceeds a certain level. What is this level and which provisions are excluded? As I understand it, section 10, which deals with overtime pay, is one of these provisions.

Answer:

In terms of section 6 of the Basic Conditions of Employment Act the Minister of Labour must make a determination (on the advice of the Employment Conditions Commission) that excludes the application of Chapter 2 of the Act or any provision of it to any category of employees earning above an amount stated in that determination.

On 13 May 2011 Labour Minister Mildred Oliphant increased the annual threshold earnings (the amount/point where some employees will start to be excluded) from R149 736 (R12 478 p/m) to R172 000 (R14 333, 33 p/m). The term “threshold earnings” means gross pay before deductions, that is income tax, pension, medical fund and similar payments, but excludes similar payments (contributions) made by an employer in respect of an employee.

In terms of the ministerial determination, all employees who earn more than R172 000 per annum are excluded from the following sections of the Basic Conditions of Employment Act:

• Section 9: Ordinary hours of work;
• section 10: Overtime;
• section 11: Compressed working week;
• section 12: Averaging of hours of work;
• section 13: Determination of hours of work by Minister;
• section 14: Meal intervals;
• section 15: Daily and weekly rest period;
• section 16: Pay for work on Sundays;
• section 17: Night work (concerning payment of an allowance or the reduction of working hours as well as transportation); and
• section 18(3): Work on a public holiday on which an employee ordinarily does not work.

I started work with a new employer this year, but my boss has not yet given me a written contract of employment. Isn’t a written contract required by law?

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

What records must my employer keep?

By Johan Roos

Answer

In terms of section 31 of the Basic Conditions of Employment Act, an employer must keep records that contain the following information:

• an employee’s name and occupation;
• the time worked by each employee (the duration of employment);
• remuneration paid to the employee;
• the employee’s date of birth if he or she is younger than 18 years; and
• any other prescribed information.

Sectoral determinations

By Coenie Rheeder

Question:

What does a sectoral determination involve?

Answer:

Chapter 8 of the Basic Conditions of Employment Act (No. 75 of 1997) enables the Minister of Labour to make a sectoral determination establishing basic conditions of employment for employees in a sector and area.

A sectoral determination may, with respect to the sector and area concerned,

  • set minimum terms and conditions of employment, including minimum rates of remuneration;
  • provide for the adjustment of minimum rates of remuneration;
  • regulate the manner, timing and other conditions of payment of remuneration;
  • prohibit or regulate payment of remuneration in kind;
  • require employers to keep employment records;
  • require employers to provide records to their employees;
  • prohibit or regulate piecework, home work and contract work;
  • set minimum standards for housing and sanitation for employees who reside on their employers’ premises;
  • regulate payment of travelling and other work-related allowances;
  • specify minimum conditions of employment for trainees;
  • regulate training and education schemes;
  • regulate pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds; and
  • regulate any other matter concerning remuneration or other terms or conditions of employment.

A sector is a specific industry in which employees work. The sector to which a sectoral determination applies may be divided into geographic areas or according to the type of infrastructure that is available. The terms/conditions applicable to rural areas may be different from those that apply to urban areas, even though the industry or type of service is the same.

You can find out from your nearest shop steward if a sectoral determination applies to you as an employee.

Black Empowerment

FNB and beneficiaries of their black economic empowerment

Question:
FNB said that they had obtained legal advice in 2004 and according to that advice the beneficiaries of their black economic empowerment should be exclusively black. Is this true?

Answer:
According to the Broad-Based Black Economic Empowerment Act (Act 53 of 2003) there is no indication that only black people may benefit. This interpretation takes black economic empowerment too far and falls outside of the Constitution.

FNB and BEE services charters

Question:
Different sectors have different services charters in this regard. What does the services charter of the financial sector say?

Answer:
The charter says that black people should be the primary beneficiaries but not the exclusive beneficiaries. This means that FNB is clearly acting against the charter.

Affirmative action

By Dirk Groenewald

Question:

May incompetent people be appointed under the guise of affirmative action?

Answer:

When affirmative action is applied in the case of appointments and promotions it is common for candidates with inadequate experience and/or qualifications to be appointed to the disadvantage of a better qualified person with more experience.

The question is whether this practice is in keeping with the act and whether it is actually constitutional. Sections 20(3) and (4) of the Employment Equity Act read as follows:

(3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of, that person’s -
                (a) formal qualifications;
                (b) prior learning;
                (c) relevant experience; or
                (d) capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job, an employer must-
            (a) review all the factors listed in subsection (3); and
b) determine whether that person has the ability to do the job in terms of any one of, or any
combination of those factors.

Section 20(3)(d) is especially perturbing because employers appoint people who are incompetent on paper, justifying it by claiming that such person has the capability to learn do the work within a reasonable time. This is the situation specifically in the civil service.

During public debates on the act the business sector especially objected to the inclusion of section 20(3)(d) and emphasised the following:

“It is practically impossible to determine whether a person will at some time in the future acquire the ability to do the job. This will result in an obligation to employ persons who are not in fact suitably qualified.  The concept of potential is not rejected, but it is appropriate only in the context of appointing trainees or cadets1].

We are, however, of the opinion that employers cannot apply section 20(3)(d) unconditionally. Section 195(1)(i) of the Constitution provides as follows, especially as far as the civil service is concerned:

(i)      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

The Constitution therefore makes it clear that ability, objectivity and fairness must be taken into account specifically in the case of appointments. However, we find it extremely difficult to understand how section 20(3)(d) can simply be applied in isolation to appoint a person without any qualifications and/or experience simply by reason of his or her “ability”, which is a subjective consideration .

There is, however, still a second requirement regarding this provision that applies to the civil service as well as the private sector, and that is the requirement that certain legislation specifically requires a person in a specific position to have specific qualifications.

So, for example, the Engineering Professions Act (Act 46 of 2000) prescribes that all people who perform certain engineering functions should have specific engineering qualifications and be registered with the Engineering Council of South Africa. There is a lot of other similar legislation that also applies because of safety considerations.

Our courts have also confirmed more than once that affirmative action cannot be applied to the detriment of service delivery.

To wind up, employers therefore do not have carte blanche when it comes to the application of section 20(3)(d) and they still have to make sure that the person has the  qualifications prescribed by any relevant legislation and that appointing such person will not compromise his or her safety or that of other people. As far as appointments in the civil service are concerned, the main consideration is always whether or not the appointment will promote service delivery.

Business

Selling a business

The sale of an insolvent business

When a company buys a business that is under liquidation, or when a business is sequestrated to save it from insolvency, the employees’ consent is not needed to transfer their contracts of employment to the new employer.

The contracts of all employees that were in existence immediately before the old employer’s winding-up or sequestration transfer automatically to the new employer. However, all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee. Anything done before the transfer by the old employer in respect of each employee, including the dismissal of an employee or unfair labour practice or unfair discrimination, will be considered to have been done by the new employer.

The sale of part of a business

If a company sells an entire division or part of a division, the new company that is established becomes the new employer of the employees  working in that division or part of the division. The employees’ contracts are transferred. The same regulations that apply to the sale of an entire business apply in this case.

Subcontracting as transfer of a business

Subcontracting is a process where external consultants or subcontractors are hired to take over the entire task or function of a specific division, for example, security, cleaning services, gardening services, IT services or catering, in a company. It is common practice for a company to subcontract support functions in order to focus on its core business.

There are differing views on what subcontracting entails with respect to the transfer of contracts of employment in terms of section 197 of the Labour Relations Act. However, there is general consensus that a transfer in terms of the applicable legislation can take place, even if the company who subcontracts the work has significant control over the way the subcontractor provides the service. The mere presence of some form of control is enough indication that a transfer has occurred. The only test to establish if the business was transferred as a “going concern” is to determine the substance and content. It is important to establish all the relevant facts, as a single fact in isolation cannot be regarded as sufficient.

Transfer of a business

Question: The company I work for is going to be sold and there is talk that staff may be laid off. Is the new employer permitted to lay off staff?

Answer: Employees may be laid off in these circumstances for operational reasons. The process of cutting back on staff is known as dismissal on operational grounds, or retrenchment. However, an employer may not simply lay off an employee.

Operational grounds include the following:

  • An employer’s economic requirements, for example, when the sales of the company’s product dropped drastically and the company can no longer afford a large staff component.
  • A company’s structural requirements, for example, when departments of a hardware store are merged, leading to a duplication of certain functions.
  • Technological reasons, for example, when machines are introduced to perform functions carried out by workers in the past. 
  • Other similar requirements or reasons, for example, the sale of an existing or insolvent business or part of a business. 

Therefore, there must be sufficient grounds for laying off employees.

Grievance procedure

Question:
I would like to put in a grievance at my work, but am not sure how to go about it. I would also know whether it will help me at all.

Reply:
Grievance procedures are not regulated through legislation. Employers are therefore not  compelled to have a specific grievance procedure, but most employers do have one. Grievance procedures are put in place by the employers, and in most cases the human resources division l head the grievance procedure. This division implements a grievance policy regulating the procedure.

Before one takes a case of unfair labour practices, victimisation or discrimination further, all internal solutions must have been exhausted. The grievance procedure is one of these internal solutions which has to be followed. It is important to emphasise that if you make allegations against a person about victimisation or discrimination, you must be able to prove it substantively. The person against whom a grievance has been submitted, can take civil action if you have made false accusations.

If your workplace does not have a grievance procedure in place, write letters to the employer. These must then be escalated systematically to the highest level in the organisation. These letters serve the same purpose as the grievance procedure.

Business Rescue

Cases on Business Rescue

CASES ON BUSINESS RESCUE

  1. Riaan Anton Swart / Beagles Run Investments 25 (Pty) Ltd & 3 Others – Case No. 26597/2011 (NGHC – 30 May 2011)

1.1            Business rescue application dismissed with costs

1.2            On facts, no reasonable prospect of rescue

  1. Cash on Demand (KZN) (Pty) Ltd / Mogwele Trading 284 (Pty) Ltd – Case NO. 2646/2011 (KZNHC – June 2011)

2.1            Business rescue application dismissed with costs, final liquidation order granted

2.2            On facts, no reasonable prospect of rescue

  1. Cape Point Vineyards (Pty) Ltd / Pinnacle Point Group Ltd & 2 Others – Case No. 12746/2011 ( WCHC – 11 August 2011)

3.1            Business rescue application granted

3.2            Court has power to award costs to applicant for business rescue

3.3            Court discussed ambit of obligation to “notify” affected parties and permissible methods of doing so

  1. Investec Bank Ltd / Andre Bruyns Case No. 19449/11 (WCHC 14- November 2011)

4.1            Summary judgment application granted against defendants

4.2            Section 133 (1) moratorium to principal debtor does not avail sureties

  1. Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country and Others (WG and Y Koen intervening) (27956/2010) (WCHC – 16 November 2011)  

5.1            Koens’ application to stay winding up application pending determination of BR application in ECHC dismissed with costs

5.2            Winding up application postponed for 1 week

  1. Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments 386 (Pty) Ltd (15155/2011) (WCHC – 25 November 2011)

6.1            Business rescue application dismissed with costs

6.2            Application should only be granted if “concrete and objectively ascertainable details [are given] going beyond mere speculation”

  1. William George Koen & Another / Wedgewood Village Golf & Country Estate (Pty) Ltd & 3 Others – Case No. 24850/11 & (Eastern Cape PE Case No. 2448/11) (WCHC – 9 December 2011)

7.1            Business rescue application dismissed with costs

7.2            Endorsed approach in Southern Palace – “cogent evidential foundation” required to support existence of a reasonable prospect of rescue

7.3            Fatal failure to disclose identity of “mystery potential investor”

  1. First Rand Bank Ltd v Imperial Crown Trading 143 (Pty) Ltd (12910/2011) (KZNHC – 15 December 2011)

8.1            Provisional winding up order granted, with extended return date to allow for bringing of business rescue application by an affected party

8.2            Court discussed section 131(6) – suspension of liquidation proceedings by application for business rescue

  1. Ex Parte Imperial Crown Trading 143 (Pty) Ltd (in liquidation) – Case No. 756/12 – UZNHC – 27 January 2012)

9.1            Provisional liquidators authorised to conclude a lease agreement on behalf of the company in terms of Section 386(5) of Companies Act 61 of 1973

9.2            Court has power to give such authority even in face of pending business rescue application, in terms of Section 133(1)(b) of Companies Act 71 of 2008

  1. Marley Pipe Systems (Proprietary) Limited & 1 Other / Petzetakis Africa (Pty) Ltd & 5 Others – Case No. 35891/2011 (SGHC – 6 February 2012)

10.1          Applications for postponement of business rescue application in order to supplement founding papers dismissed, provisional liquidation order granted

10.2          Court considered status of alternative object under definition of “business rescue” in section 128(1)(b)

  1. Oakdene Square Properties (Pty) Ltd & 3 Others / Farm Bothasfontein (Kyalami) (Pty) Ltd & 2 Others. Case No 35199/2011 & Case No 24545/2011 (SGHC – 17 February 2012)

11.1          Business rescue application dismissed with costs, final liquidation order granted

11.2          Court considered circumstances where liquidation preferable to business rescue – eg. company involved in major litigation, no financial records available, company’s major asset is immovable property subject to a disputed lease

(Author: Mr. Johan Engelbrecht: Icon Insolvency Practitioners (Pty) Ltd)
Email: johan@iconinsolvency.co.za
Web: www.iconinsolvency.co.za



Child Labour

Child labour

By Ilze Nieuwoudt

Question: From what age may a child be employed?

Answer: According to the Basic Conditions of Employment Act, it is a criminal offence to employ a child younger than 15 years. Moreover, a child between the ages of 15 and 18 are not allowed to be employed in a position which could either put their lives in danger or which could be considered as inappropriate for a child.

There are however a couple of exceptions. One such exception stipulates that a child of 15 years or younger may be employed in the performing arts with a valid permit from the Department of Labour.

According to legislation, a child may not be employed in a position which would be considered as exploitation, dangerous or otherwise inappropriate for the child’s age. The child’s social, physical, spiritual and moral development as well as level of education should be taken into regard to determine the appropriateness of the employment.

It is estimated that more than 115 million children worldwide are trapped in serious forms of child labour. Child labour in South Africa is mostly reported in the agricultural sector and represents approximately 60% of reported cases of child labour.

The Department of Labour announced its plans to eradicate child labour in South Africa during the National Day against Child Labour which was held on Monday, 4 April.

Automatic Unfair Dismissal (3)

What are unfair labour practices and automatic unfair dismissal?

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

  • <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
  • Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
  • A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

  •  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
  • The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
  • The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
  • Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

My contract has been terminated without warning, half a year before it would have lapsed…

Question:

I was employed at a tertiary institution with a fixed term contract for five years.

My contract has been terminated by the institution without warning, half a year before it would have lapsed.

It was alleged that my contract has been terminated due to operational requirements.

Answer:

The member’s case concerns breach of contract by the employer.

When the member entered into the service contract with the employer, the employer created an expectation with the member that the contract would be valid for a term of five years. 

A recent ruling (Buthelezi vs. Municipal Demarcation Board in die Labour Court) made it clear that in the case of a fixed term contract an employer is bound to the contract for the full term of such a contract. Should the employer cancel the service contract, it would mean that the employee has been procedurally and substantively unfairly dismissed.

Parties undertake to remain bound to a fixed term contract for the full term, which is not the case with service contracts with an indefinite term.

It is clear that when parties enter into a fixed term service contract both parties plan their financial obligations with the understanding that the contract will be honoured.

The argument that the employer may have or submit certain reasons to terminate the fixed term service contract is not a valid argument.

The fact remains that when the employer can no longer afford the employee for whatever reason he still may not unilaterally cancel the service contract.

The employer should have entered into a service agreement with the employee for an indefinite term.                           

Remedies:

The employee could refer the case to the relevant forum (CCMA or Bargaining Council) as an unfair dismissal.

Remuneration could be demanded for the outstanding part of the fixed term service contract.

Information needed for legal aid if fired

By Gerrit Visser

Question:

I have just been verbally informed of my dismissal. I am of the opinion that I have been unfairly dismissed and I need someone to assist me. I understand that the law only protects the vigilant and not those who slumber on their rights. What should I do on my part to enable a lawyer to help me?

Answer:

As is the case with any other labour law issue, the answer will depend on the circumstances. However, the following list would be useful:

1.    In terms of section 192 of the Labour Relations Act (No. 66 van 1995) (hereafter referred to as the “LRA”), the onus falls on the employee to prove that he/she had been unfairly dismissed in any unfair dismissal dispute. Therefore, you can insist on the following information from your employer:

1.1.    The written results of the hearing (if a hearing had been held);
1.2.    A notice of termination in terms of section 37 of the Basic Conditions of Employment Act (No. 75  of 1997) (hereafter called the “BCEA”);
1.3.    A certificate of service in terms of section 42 of the BCEA;
1.4.    Final payslip in terms of section 33 of the BCEA; and
1.5.    UI-19 form in terms of the Unemployment Insurance Act (No. 63 of 2001).

2.    In the event of any referral of a dispute to the CCMA or any other forum, there must first be evidence that the dispute form had been served on the employer. To assist the person who will assist you in this regard, the following information is required:

2.1.    Service contract;
2.2.    Full name of the legal entity under which name your employer conducts business;
2.3.    Fax number of employer;
2.4.    Postal address of employer;
2.5.    Physical address of employer;
2.6.    The name and preferably the particulars of the mediation or dispute resolution forum under which your employer falls; and
2.7.    The total of all outstanding monies owed to you, including how it had been calculated.

3.    If your employer does not want to provide you with the above information, you as employee must approach the Department of Labour. In terms of Chapter 10 of the BCEA, the Department of Labour can take certain actions to compel the employer to provide the required information.

4.    Depending on the dispute, this list may not necessarily be complete. However, it is the minimum needed to enable anyone to assist you.

5.    Finally, you as an employee should always bear in mind that the person assisting you is only able to litigate and take further steps on the basis of the information provided by you.

Basic Conditions of Employment Act (5)

Basic Conditions of Employment Act

Question:

The Basic Conditions of Employment Act states that certain provisions of the Act do not apply when an employee’s income exceeds a certain level. What is this level and which provisions are excluded? As I understand it, section 10, which deals with overtime pay, is one of these provisions.

Answer:

In terms of section 6 of the Basic Conditions of Employment Act the Minister of Labour must make a determination (on the advice of the Employment Conditions Commission) that excludes the application of Chapter 2 of the Act or any provision of it to any category of employees earning above an amount stated in that determination.

On 13 May 2011 Labour Minister Mildred Oliphant increased the annual threshold earnings (the amount/point where some employees will start to be excluded) from R149 736 (R12 478 p/m) to R172 000 (R14 333, 33 p/m). The term “threshold earnings” means gross pay before deductions, that is income tax, pension, medical fund and similar payments, but excludes similar payments (contributions) made by an employer in respect of an employee.

In terms of the ministerial determination, all employees who earn more than R172 000 per annum are excluded from the following sections of the Basic Conditions of Employment Act:

• Section 9: Ordinary hours of work;
• section 10: Overtime;
• section 11: Compressed working week;
• section 12: Averaging of hours of work;
• section 13: Determination of hours of work by Minister;
• section 14: Meal intervals;
• section 15: Daily and weekly rest period;
• section 16: Pay for work on Sundays;
• section 17: Night work (concerning payment of an allowance or the reduction of working hours as well as transportation); and
• section 18(3): Work on a public holiday on which an employee ordinarily does not work.

I started work with a new employer this year, but my boss has not yet given me a written contract of employment. Isn’t a written contract required by law?

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

What records must my employer keep?

By Johan Roos

Answer

In terms of section 31 of the Basic Conditions of Employment Act, an employer must keep records that contain the following information:

• an employee’s name and occupation;
• the time worked by each employee (the duration of employment);
• remuneration paid to the employee;
• the employee’s date of birth if he or she is younger than 18 years; and
• any other prescribed information.

Sectoral determinations

By Coenie Rheeder

Question:

What does a sectoral determination involve?

Answer:

Chapter 8 of the Basic Conditions of Employment Act (No. 75 of 1997) enables the Minister of Labour to make a sectoral determination establishing basic conditions of employment for employees in a sector and area.

A sectoral determination may, with respect to the sector and area concerned,

  • set minimum terms and conditions of employment, including minimum rates of remuneration;
  • provide for the adjustment of minimum rates of remuneration;
  • regulate the manner, timing and other conditions of payment of remuneration;
  • prohibit or regulate payment of remuneration in kind;
  • require employers to keep employment records;
  • require employers to provide records to their employees;
  • prohibit or regulate piecework, home work and contract work;
  • set minimum standards for housing and sanitation for employees who reside on their employers’ premises;
  • regulate payment of travelling and other work-related allowances;
  • specify minimum conditions of employment for trainees;
  • regulate training and education schemes;
  • regulate pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds; and
  • regulate any other matter concerning remuneration or other terms or conditions of employment.

A sector is a specific industry in which employees work. The sector to which a sectoral determination applies may be divided into geographic areas or according to the type of infrastructure that is available. The terms/conditions applicable to rural areas may be different from those that apply to urban areas, even though the industry or type of service is the same.

You can find out from your nearest shop steward if a sectoral determination applies to you as an employee.

Black Empowerment (3)

FNB and beneficiaries of their black economic empowerment

Question:
FNB said that they had obtained legal advice in 2004 and according to that advice the beneficiaries of their black economic empowerment should be exclusively black. Is this true?

Answer:
According to the Broad-Based Black Economic Empowerment Act (Act 53 of 2003) there is no indication that only black people may benefit. This interpretation takes black economic empowerment too far and falls outside of the Constitution.

FNB and BEE services charters

Question:
Different sectors have different services charters in this regard. What does the services charter of the financial sector say?

Answer:
The charter says that black people should be the primary beneficiaries but not the exclusive beneficiaries. This means that FNB is clearly acting against the charter.

Affirmative action

By Dirk Groenewald

Question:

May incompetent people be appointed under the guise of affirmative action?

Answer:

When affirmative action is applied in the case of appointments and promotions it is common for candidates with inadequate experience and/or qualifications to be appointed to the disadvantage of a better qualified person with more experience.

The question is whether this practice is in keeping with the act and whether it is actually constitutional. Sections 20(3) and (4) of the Employment Equity Act read as follows:

(3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of, that person’s -
                (a) formal qualifications;
                (b) prior learning;
                (c) relevant experience; or
                (d) capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job, an employer must-
            (a) review all the factors listed in subsection (3); and
b) determine whether that person has the ability to do the job in terms of any one of, or any
combination of those factors.

Section 20(3)(d) is especially perturbing because employers appoint people who are incompetent on paper, justifying it by claiming that such person has the capability to learn do the work within a reasonable time. This is the situation specifically in the civil service.

During public debates on the act the business sector especially objected to the inclusion of section 20(3)(d) and emphasised the following:

“It is practically impossible to determine whether a person will at some time in the future acquire the ability to do the job. This will result in an obligation to employ persons who are not in fact suitably qualified.  The concept of potential is not rejected, but it is appropriate only in the context of appointing trainees or cadets1].

We are, however, of the opinion that employers cannot apply section 20(3)(d) unconditionally. Section 195(1)(i) of the Constitution provides as follows, especially as far as the civil service is concerned:

(i)      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

The Constitution therefore makes it clear that ability, objectivity and fairness must be taken into account specifically in the case of appointments. However, we find it extremely difficult to understand how section 20(3)(d) can simply be applied in isolation to appoint a person without any qualifications and/or experience simply by reason of his or her “ability”, which is a subjective consideration .

There is, however, still a second requirement regarding this provision that applies to the civil service as well as the private sector, and that is the requirement that certain legislation specifically requires a person in a specific position to have specific qualifications.

So, for example, the Engineering Professions Act (Act 46 of 2000) prescribes that all people who perform certain engineering functions should have specific engineering qualifications and be registered with the Engineering Council of South Africa. There is a lot of other similar legislation that also applies because of safety considerations.

Our courts have also confirmed more than once that affirmative action cannot be applied to the detriment of service delivery.

To wind up, employers therefore do not have carte blanche when it comes to the application of section 20(3)(d) and they still have to make sure that the person has the  qualifications prescribed by any relevant legislation and that appointing such person will not compromise his or her safety or that of other people. As far as appointments in the civil service are concerned, the main consideration is always whether or not the appointment will promote service delivery.

Bonus (1)

When am I entitled to a bonus?

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer:

Definition of a bonus: A bonus is a remuneration and is described in Chapter 1 of the Basic Conditions of Service, Act 75 of 1997 (as amended) as: “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning”. It is an extra payment in addition to someone’s normal wage and overtime for good performance of targets attained.
Bonuses are discretionary:
In general it is firstly important to understand that there are no legal conditions in the Labour Law which determine or regulate the payment of bonuses; it is a matter of agreement between the employer and employee and therefore a contractual matter rather than a labour law issue. It therefore follows that if your employer is currently not paying out any bonuses of any nature, it remains discretionary. Bonuses are seldom guaranteed and it would not be expedient to expect this discretionary benefit because bonuses were paid out the previous year. Most service contracts contain conditions which indicate that bonuses are paid at the sole discretion of the employer.
Three basic kinds of bonuses
• The 13th cheque or Christmas bonus: This bonus is usually paid at the end of the year and is a form of acknowledgement and appreciation for excellent service rendered.
• Performance bonus: A performance bonus is paid for good performance and could be a non-recurrent amount which is shared among employees or be based on a percentage of an employee’s salary of wage.
• Production bonus: This kind of bonus is output and target driven and not based solely on company standards. For example the output/production of at least 100 units per employee per month meets a specific quality.
When can an employer be expected to pay out bonuses?
Whether a bonus is payable or not mainly depends on three factors:
1. The terms and conditions of an individual service contract or collective agreement. Where payment of bonuses for example is a 13th cheque is a substantial condition of a contract and is guaranteed, the bonus has to be paid out.
2. The company policy with regards to bonuses. (Note that in these two cases employers usually include exclusion clauses and conditions in their contracts and policies. Examples are the attainment of pre-determined objectives or a specific gross profit margin).
3. The third factor is especially problematic. If an employer has consistently paid out bonuses in the past and has created a substantial expectation with employees that has become an existing “habit and use”, employees have obtained a common-law right that could entitle them to an annual bonus. The problem is that employees sometimes budget for the bonus because of this expectation and it could be unfair if the expected bonus is not paid out. Because the employees have developed a strong right of expectation, it could be strengthened even further if the non-payment of bonuses (due to say a poor trade return) is not communicated to employees well in advance and in time. Although the right of expectation does not constitute an absolute right to claim a bonus, it creates a right to be consulted in advance before the employer decides not to pay out bonuses. Anything from three to six months is a fair period.
What can be done if compulsory bonuses are not paid out?
A unilateral decision not to pay out bonuses could mean breach of contract where an employee could claim damages or even claim for specific compliance in a civil suit (which will in most instances be the case). In terms of section 77(3) of the Act the labour courts enjoy concurrent jurisdiction with civil courts with regard to service contracts and the matter could be referred to them.
For further information or enquiries about bonuses, phone Solidarity’s service centre on 0861-25-24-23.

Business (3)

Selling a business

The sale of an insolvent business

When a company buys a business that is under liquidation, or when a business is sequestrated to save it from insolvency, the employees’ consent is not needed to transfer their contracts of employment to the new employer.

The contracts of all employees that were in existence immediately before the old employer’s winding-up or sequestration transfer automatically to the new employer. However, all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee. Anything done before the transfer by the old employer in respect of each employee, including the dismissal of an employee or unfair labour practice or unfair discrimination, will be considered to have been done by the new employer.

The sale of part of a business

If a company sells an entire division or part of a division, the new company that is established becomes the new employer of the employees  working in that division or part of the division. The employees’ contracts are transferred. The same regulations that apply to the sale of an entire business apply in this case.

Subcontracting as transfer of a business

Subcontracting is a process where external consultants or subcontractors are hired to take over the entire task or function of a specific division, for example, security, cleaning services, gardening services, IT services or catering, in a company. It is common practice for a company to subcontract support functions in order to focus on its core business.

There are differing views on what subcontracting entails with respect to the transfer of contracts of employment in terms of section 197 of the Labour Relations Act. However, there is general consensus that a transfer in terms of the applicable legislation can take place, even if the company who subcontracts the work has significant control over the way the subcontractor provides the service. The mere presence of some form of control is enough indication that a transfer has occurred. The only test to establish if the business was transferred as a “going concern” is to determine the substance and content. It is important to establish all the relevant facts, as a single fact in isolation cannot be regarded as sufficient.

Transfer of a business

Question: The company I work for is going to be sold and there is talk that staff may be laid off. Is the new employer permitted to lay off staff?

Answer: Employees may be laid off in these circumstances for operational reasons. The process of cutting back on staff is known as dismissal on operational grounds, or retrenchment. However, an employer may not simply lay off an employee.

Operational grounds include the following:

  • An employer’s economic requirements, for example, when the sales of the company’s product dropped drastically and the company can no longer afford a large staff component.
  • A company’s structural requirements, for example, when departments of a hardware store are merged, leading to a duplication of certain functions.
  • Technological reasons, for example, when machines are introduced to perform functions carried out by workers in the past. 
  • Other similar requirements or reasons, for example, the sale of an existing or insolvent business or part of a business. 

Therefore, there must be sufficient grounds for laying off employees.

Grievance procedure

Question:
I would like to put in a grievance at my work, but am not sure how to go about it. I would also know whether it will help me at all.

Reply:
Grievance procedures are not regulated through legislation. Employers are therefore not  compelled to have a specific grievance procedure, but most employers do have one. Grievance procedures are put in place by the employers, and in most cases the human resources division l head the grievance procedure. This division implements a grievance policy regulating the procedure.

Before one takes a case of unfair labour practices, victimisation or discrimination further, all internal solutions must have been exhausted. The grievance procedure is one of these internal solutions which has to be followed. It is important to emphasise that if you make allegations against a person about victimisation or discrimination, you must be able to prove it substantively. The person against whom a grievance has been submitted, can take civil action if you have made false accusations.

If your workplace does not have a grievance procedure in place, write letters to the employer. These must then be escalated systematically to the highest level in the organisation. These letters serve the same purpose as the grievance procedure.

Business Rescue (1)

Cases on Business Rescue

CASES ON BUSINESS RESCUE

  1. Riaan Anton Swart / Beagles Run Investments 25 (Pty) Ltd & 3 Others – Case No. 26597/2011 (NGHC – 30 May 2011)

1.1            Business rescue application dismissed with costs

1.2            On facts, no reasonable prospect of rescue

  1. Cash on Demand (KZN) (Pty) Ltd / Mogwele Trading 284 (Pty) Ltd – Case NO. 2646/2011 (KZNHC – June 2011)

2.1            Business rescue application dismissed with costs, final liquidation order granted

2.2            On facts, no reasonable prospect of rescue

  1. Cape Point Vineyards (Pty) Ltd / Pinnacle Point Group Ltd & 2 Others – Case No. 12746/2011 ( WCHC – 11 August 2011)

3.1            Business rescue application granted

3.2            Court has power to award costs to applicant for business rescue

3.3            Court discussed ambit of obligation to “notify” affected parties and permissible methods of doing so

  1. Investec Bank Ltd / Andre Bruyns Case No. 19449/11 (WCHC 14- November 2011)

4.1            Summary judgment application granted against defendants

4.2            Section 133 (1) moratorium to principal debtor does not avail sureties

  1. Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country and Others (WG and Y Koen intervening) (27956/2010) (WCHC – 16 November 2011)  

5.1            Koens’ application to stay winding up application pending determination of BR application in ECHC dismissed with costs

5.2            Winding up application postponed for 1 week

  1. Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments 386 (Pty) Ltd (15155/2011) (WCHC – 25 November 2011)

6.1            Business rescue application dismissed with costs

6.2            Application should only be granted if “concrete and objectively ascertainable details [are given] going beyond mere speculation”

  1. William George Koen & Another / Wedgewood Village Golf & Country Estate (Pty) Ltd & 3 Others – Case No. 24850/11 & (Eastern Cape PE Case No. 2448/11) (WCHC – 9 December 2011)

7.1            Business rescue application dismissed with costs

7.2            Endorsed approach in Southern Palace – “cogent evidential foundation” required to support existence of a reasonable prospect of rescue

7.3            Fatal failure to disclose identity of “mystery potential investor”

  1. First Rand Bank Ltd v Imperial Crown Trading 143 (Pty) Ltd (12910/2011) (KZNHC – 15 December 2011)

8.1            Provisional winding up order granted, with extended return date to allow for bringing of business rescue application by an affected party

8.2            Court discussed section 131(6) – suspension of liquidation proceedings by application for business rescue

  1. Ex Parte Imperial Crown Trading 143 (Pty) Ltd (in liquidation) – Case No. 756/12 – UZNHC – 27 January 2012)

9.1            Provisional liquidators authorised to conclude a lease agreement on behalf of the company in terms of Section 386(5) of Companies Act 61 of 1973

9.2            Court has power to give such authority even in face of pending business rescue application, in terms of Section 133(1)(b) of Companies Act 71 of 2008

  1. Marley Pipe Systems (Proprietary) Limited & 1 Other / Petzetakis Africa (Pty) Ltd & 5 Others – Case No. 35891/2011 (SGHC – 6 February 2012)

10.1          Applications for postponement of business rescue application in order to supplement founding papers dismissed, provisional liquidation order granted

10.2          Court considered status of alternative object under definition of “business rescue” in section 128(1)(b)

  1. Oakdene Square Properties (Pty) Ltd & 3 Others / Farm Bothasfontein (Kyalami) (Pty) Ltd & 2 Others. Case No 35199/2011 & Case No 24545/2011 (SGHC – 17 February 2012)

11.1          Business rescue application dismissed with costs, final liquidation order granted

11.2          Court considered circumstances where liquidation preferable to business rescue – eg. company involved in major litigation, no financial records available, company’s major asset is immovable property subject to a disputed lease

(Author: Mr. Johan Engelbrecht: Icon Insolvency Practitioners (Pty) Ltd)
Email: johan@iconinsolvency.co.za
Web: www.iconinsolvency.co.za

Child Labour (1)

Child labour

By Ilze Nieuwoudt

Question: From what age may a child be employed?

Answer: According to the Basic Conditions of Employment Act, it is a criminal offence to employ a child younger than 15 years. Moreover, a child between the ages of 15 and 18 are not allowed to be employed in a position which could either put their lives in danger or which could be considered as inappropriate for a child.

There are however a couple of exceptions. One such exception stipulates that a child of 15 years or younger may be employed in the performing arts with a valid permit from the Department of Labour.

According to legislation, a child may not be employed in a position which would be considered as exploitation, dangerous or otherwise inappropriate for the child’s age. The child’s social, physical, spiritual and moral development as well as level of education should be taken into regard to determine the appropriateness of the employment.

It is estimated that more than 115 million children worldwide are trapped in serious forms of child labour. Child labour in South Africa is mostly reported in the agricultural sector and represents approximately 60% of reported cases of child labour.

The Department of Labour announced its plans to eradicate child labour in South Africa during the National Day against Child Labour which was held on Monday, 4 April.

Contract of employment (8)

I accepted a job offer in the manufacturing industry and have to state in my contract of employment whether I’m a member of a trade union. Should I indicate that I’m a member of Solidarity, or could the employer penalise me because of it?

An employer has the right to ask an employer or a job applicant to indicate whether or not he/she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his/her membership of a trade union. For practical and operational reasons, employers often need to know which of their employees belong to trade unions and to which unions they belong. Employers, for example, need to know who represents their employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination. Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer, had he known about it, from entering into a contract with the applicant. An employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If an employer discriminates against a jobseeker once his/her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that the rejection of his/her application, or any discrimination to which he/she was subjected was the result of the disclosure in terms of section 5(2)(c)

In SAFDWU v. Safcor Freight (Pty) Ltd t/a Safcor Panalpina and Another (D104/08) [2010] ZALC 107; (2011) 32 ILJ 415 (LC) the court adhered to the principle that you may not be discriminated against for being a member of a trade union, as it is a violation of section 5 of the LRA and an infringement of your fundamental rights as defined in sections 9 and 23 of the Constitution of South Africa.

 

Freedom of association

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

Resignation

Question

I work for a pharmacy. My employer and I agreed in my contract of employment that I must give eight weeks’ notice if I want to resign after more than a year’s service. The contract also specifies that I must be aware of all the policies of the pharmacy and the rules that are applicable to me.

I gave eight weeks’ written notice to the employer, but the manager is insisting that I leave a month earlier, because the policy states that employees must give only 30 days’ notice. I won’t be able to leave a month earlier, as I did not make provision for it financially. What should I do now?

Answer

Section 37(1) of the Basic Conditions of Employment Act (No. 75 of 1997) states that if an employee has been employed for a year or longer, a minimum of four weeks’ notice is required upon resignation. Nothing prevents the parties from mutually agreeing on a notice period that is longer than the prescribed minimum period. Such an agreement will (subject to subsection 3 which states that the notice period for an employee may not be shorter than the notice period for the employer) will therefore be entirely valid.

In your case, you and your employer negotiated a fundamental condition of employment and reached an agreement on the provisions of resignation, namely that you mutually agreed that you must give eight weeks’ notice if you have been employed for longer than 12 months.

Conditions of employment cannot be changed one-sidedly. Merely citing the policy (which can be changed one-sidedly) would go against the stronger right obtained through bargaining.

Our advice is therefore that you invoke the provisions of your contract of employment that were negotiated beforehand, namely that you must give eight weeks’ notice. This provision is in line with section 4(c) of the Act, which states that a provision in a contract that is more beneficial for the employee must be specified as such.

Protection for South African employees abroad

By Hanlie van Vuuren

Question

Are South African employees protected in a foreign country?

Answer

South African citizens frequently work in foreign countries, especially in Africa. These employees should be aware of the fact that South African labour legislation might not offer them protection, as we do not have jurisdiction in all cases.

This is particularly true for occupational injuries and diseases, since section 23 of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) stipulates that an employee will be entitled to protection only if:

  • the employer carries on business chiefly in the Republic and an employee of his ordinarily employed in the Republic, is injured while temporarily employed outside the Republic;
  • an employee resident in South Africa is injured while employed in, on or above the continental shelf;
  • the employee is not employed outside the Republic for a continuous period longer than 12 months, save by special agreement with the Compensation Commissioner.

Many countries, especially in Africa, do not have compensation legislation, therefore employees are extremely vulnerable if injured or if they contract an occupational disease and the employer is not registered with the South African Compensation Fund.

If the other country does have compensation legislation and the South African is eligible to claim in both countries, he should notify the Compensation Commissioner of South Africa in writing which of the two countries’ compensation he will accept, since it is illegal to claim in both countries.

Some companies recruit employees in South Africa, and sometimes the applicant does not realise that employment contract is signed with a foreign company.

Applicants must ensure with whom they sign employment contracts, and whether the company is registered with the South African Compensation Fund, or whether alternative specific insurance for employees is arranged.

 

Private arbitration or arbitration under jurisdiction of a bargaining council

By Gerhard Hildebrand

Question

My service contract determines that any dispute with my employer must be referred for private arbitration. I have been dismissed and I want to refer a dispute of unfair dismissal. Can I refer the dispute to the bargaining council for the sector in which I work or is this private arbitration clause enforceable?

Answer

The general rule is that the parties to a contract are bound by the terms of that contract. However, for those terms to be valid, they may not be contrary to the law.

The terms of the private arbitration clause will determine whether the clause is enforceable or not. A few of the terms that may influence the enforceability of the clause are discussed below:

  • The clause must explicitly exclude the jurisdiction of the bargaining council.
  • Section 51(3) of the Labour Relations Act (LRA) (No. 66 van 1995) provides that the bargaining council should attempt to resolve the dispute through reconciliation. Therefore, the clause should allow conciliation of the dispute before arbitration.
  • The conciliation process for the dispute at the bargaining council is free of cost. If the private arbitration clause determines that the employee should share in the cost of the arbitrator, it will be to the detriment of the employee and the dispute may then be taken to the bargaining council.
  • In exceptional cases, the bargaining council may award costs. In terms of the Arbitration Act the arbiter may use his discretion in awarding costs if costs are not determined in the arbitration agreement. If the employer may request costs to be awarded at private arbitration, or if the clause does not explicitly restrict the arbiter’s discretion, the dispute may be referred to the bargaining council. A clause prohibiting legal counsel or union representation during arbitration, will not be enforceable.

Regardless whether the parties to the dispute have an agreement prescribing private arbitration or not, section 147(6) of the LRA determines that the Commission for Conciliation, Mediation and Arbitration (CCMA) may settle a dispute. Furthermore, the CCMA’s jurisdiction is established under section 147(6) of the LRA and not in terms of a defective agreement. Therefore, where there is no sectorial bargaining council, the CCMA may resolve a dispute regardless of a private arbitration clause.

The relevant legislation may seem complex; therefore, it is important to obtain legal advice before entering into a contract.

Dismissal

By Herman Cronjé

Question:

How do I know that I have been dismissed and what should I do next?

Answer:

Dismissal under Labour Law and the death penalty under criminal law are often compared with each other and to somebody who has already been dismissed, this comparison could make sense.

Dismissal can be described by one of the following sets of circumstances:

1.    Dismissal after a disciplinary hearing at which an employee was found guilty and the presiding officer was of the opinion that dismissal was the correct punishment.
2.    Dismissal after a retrenchment process. In such an event the procedures as set out in section 189 of the Labour Relations Act (Act 66 of 1995) must be followed.
3.    When a fixed-term contract expires. In such an event there can only be talk of dismissal if the employer gave the employee cause to expect that the contract would be renewed.

Losing one’s job is of course a traumatic experience and it is important to know what to do when it happens to you.
If you are a member of Solidarity, you must inform us the moment you notice something suspicious at work so that we can advise you throughout the process and, if necessary, support you. It is important to know what your date of dismissal is. The date of dismissal is:

1.    The day on which your service contract is terminated; or
2.    The day on which you leave your employer’s service, whichever comes first.

When somebody is dismissed, the matter must naturally be referred to the CCMA. This referral must take place within 30 days of dismissal. It is, however, important to note that if you are dismissed by way of notice, a referral may be made when the notice is received.

However, the best time for a referral is when you have already worked your last day because at that stage there can longer be any disputes about whether there was a dismissal or not.

In Labour Law (as in most divisions of our law) every case is evaluated on its merits and the facts of each case must be taken into consideration. This presumption of facts exists from the first conflict between employer and employee and it is therefore important to involve Solidarity immediately so that you can be put in the best possible legal position. .

Signing of documents

By Herman Perry

Question:

Should I sign documents forthwith that my employer has given to me for signature?

Answer:

Labour law often makes use of contracts for various purposes, including instances:

•    When an employee enters into an employment contract upon accepting a new job;
•    When an employer wishes to change an employee’s conditions of service;
•    When retrenchments have been agreed upon and a voluntary severance package has been negotiated;
•    When a conflict situation has arisen and the employee is being paid to resign in reality.

The excitement that follows a successful job application and the new employee’s signing of an employment contract without having studied it properly or having obtained legal advice about its contents often leaves a bitter aftertaste.  It is important to remember that Solidarity can be approached when a new employment contract has been received.  Solidarity can assist members to achieve a better understanding of the contract and can explain complicated clauses to members to enable them to take an informed decision about the contract and to have a proper understanding of its consequences.

It is sometimes necessary for employers to change conditions of employment. This need may arise from various circumstances, such as when the employer’s type of business has changed and employees have to adapt accordingly.

However, an employer often enforces a change in conditions of service by informing a member that the contract has to change, “or else you don’t have a job any more”.  It is important to consult Solidarity in any instance that deals with the change of conditions of service before signing the contract.  Solidarity will be able to fully inform members of their rights, thereby protecting them against wrongful doings.

When a retrenchment process is embarked upon it often offers the opportunity to apply for a voluntary severance package. That’s when employers often sneak in the controversial “full and final” clause which in effect means that almost no further claims can be brought against the employer.  The result of a “full and final” settlement clause is often that statutory monies, such as accrued leave, can no longer be claimed.

Solidarity will assist members as far as possible to deal with retrenchment procedures, but it remains important to let us have insight into severance package contracts before you sign them.

Therefore, remember:
1.    To submit contracts to Solidarity for advice;
2.    Not to sign contracts before you are not in a position to fully understand the contents of the contract in its entirety.

 

Is non-competition agreement valid?

By Alexia Vosloo

Question:

My employment contract says that if I resign, I am not allowed to work for a similar firm within a 100 km radius for the next two years. Is this restriction valid?

Answer:

When employees sign a non-competition agreement, they undertake to not take up employment at a similar business for a certain period of time and in a certain geographic area after leaving the company. There is an obligation on employees to comply with a contract that forbids competition with their employer upon termination of their employment.

The courts have ruled that a non-competition agreement cannot be adjusted just to ensure that a company does not get competition or to prevent a person from finding meaningful employment elsewhere. Such an agreement has to be based on specific reasons, for example, the protection of secret formulas, client lists, information regarding contracts and similar matters. A basic requirement for a non-competition agreement is that it has to be reasonable.

In the Appeal Court case Magna Alloys & Research v. Ellis 1984 (4) SA 874 (A) the court laid down the following principles:

  • The court rejected the position under English law, ruling that a contractual restraint of trade is valid and enforceable in principle. However, the courts will refuse to enforce this principle if an employee can prove that enforcing it will not be in the public interest.
  • Agreements that are against the public interest are not enforceable and a contract that restricts a person’s freedom of trade is against the public interest. Agreements are therefore unenforceable if enforcing them will be detrimental to the public interest.  It is in the public interest for contracts that are entered into freely to be complied with. However, it is also in the public interest for everyone to have freedom of trade. The public interest is harmed if the restriction of a person’s freedom of trade is unreasonable. The question of whether a non-competition agreement is enforceable therefore depends on the question of whether enforcing it will harm the public interest. There must also be a clear proprietary interest that needs to be protected. Moreover, a non-competition agreement may not be unreasonably broad or unreasonable with respect to time.

In the matter Marchall v. Vistech Communications 1994 15 ILJ 1365 (IC) the court ruled that an employer cannot force an employee to sign a non-competition agreement after the employee has already assumed duty.

In the matter IDB Computers v. Newby & Another 1996 17 ILJ 32 (W) the court ruled that an employer cannot invoke a non-competition agreement if he has dismissed an employee unfairly.

If the fairness of a non-competition agreement is queried, the onus rests on the employee to prove its unreasonableness.

Disability (3)

Disability

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

  1. Is the employee able to work or not?
  2. Extent to which the employee is able to work;
  3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
  4. Adjustment of the employee’s duties.

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

My employer wants to dismiss me on disability grounds. What is his obligation towards me?

By Johan Roos

Answer:
We must have a look at schedule 8 of the Labour Relations Act in order to answer this question.

Disability on the grounds of poor health or injury may be temporary or permanent. Your employer should consider the extent of your disability or injury if you are temporarily unable to work. However, if you have to be booked off “unreasonably” long, your employer should look at all alternatives (short of dismissal). He should then consider factors such as the nature of your job, the likely duration of your absenteeism, the seriousness of your illness or injury, and the possibility of appointing a temp in your place.

If you are declared permanently disabled, your employer should investigate the possibility of alternative employment or the adaptation of your duties or working conditions. You have the right to be heard during such an investigation, and a shop steward or colleague may assist you.

If indeed dismissal is on the cards, the degree of your disability should be considered in order to reach a decision about the fairness of your dismissal.

The cause of your disability may also be important. For instance, if alcoholism or drug abuse has been a factor in your disability, your employer may want to consider counselling and rehabilitation as the appropriate steps to be taken. However, if you have suffered an injury while on duty or have contracted a job-related illness such as miners’ silicosis, the courts would probably find that your employer had an even greater obligation to accommodate your disability.

If you feel that your dismissal on the grounds of poor health or an injury was unfair, the court would want to know whether your employer had tried to determine the extent to which you might have been able to continue working, regardless. In addition, the court would want to know if it were not possible to adapt your job situation and/or duties so as to accommodate your disability. And finally, the court must be satisfied that your employer were utterly unable to place you in another suitable job.

Disciplinary Hearing (16)

Yesterday I received a written warning about incompetence

Question:

Yesterday I received a written warning about incompetence. My boss has just called to let me know that my hearing is this afternoon. What are my rights? Can I take it to the Commission for Conciliation, Mediation and Arbitration (CCMA)?

Answer:

At this stage, the CCMA cannot be of much assistance because an employer must first apply and exhaust internal grievance procedures. In addition, the employer did not take unfair illegal action against the employee, since they are entitled to establishing and applying the procedures.

However, it is strange that the employer gave the employee a written warning and then still wants to conduct a hearing. A written warning is already the sanction that follows a conviction at a hearing.

Whatever the case may be, a hearing must be preceded by a written notice of the hearing as well as the charge, time and date of the hearing, and the right to be represented. The employee must also be given enough time to properly prepare for the hearing. Failing this, the employee can apply in writing for the hearing to be postponed.

I am facing disciplinary action and I don’t know what to expect in the hearing

Question:

I am facing disciplinary action and I don’t know what to expect in the hearing.

Answer:

Firstly, it is important for the employee to receive the charges against him/her in writing, in a language he/she understands. The employee must also be informed of the date, place and time of the disciplinary hearing. The employer must give the employee enough time to get a representative. Such a representative may be a colleague or a trade union representative from a trade union that is recognised at the workplace.

The employee must be asked to plead. If the employee pleads guilty, the matter cannot be taken further because the employee has already admitted guilt.

The employee must be given a reasonable period of time to prepare for the hearing. A reasonable period is measured according to the difficulty of the hearing. If the employee maintains that the time allotted is insufficient, the employee must request a postponement of the hearing. The presiding officer will decide whether or not to grant the postponement.

Disciplinary hearings

Question:

I am facing disciplinary action and I don’t know what to expect in the hearing.

Answer:

Firstly, it is important for the employee to receive the charges against him/her in writing, in a language he/she understands. The employee must also be informed of the date, place and time of the disciplinary hearing. The employer must give the employee enough time to get a representative. Such a representative may be a colleague or a trade union representative from a trade union that is recognised at the workplace.

The employee must be asked to plead. If the employee pleads guilty, the matter cannot be taken further because the employee has already admitted guilt.

The employee must be given a reasonable period of time to prepare for the hearing. A reasonable period is measured according to the difficulty of the hearing. If the employee maintains that the time allotted is insufficient, the employee must request a postponement of the hearing. The presiding officer will decide whether or not to grant the postponement.

The employee must then be given the opportunity to cross-examine the employer’s witnesses. It is also important that the employee presents his/her version of events to the employer’s witnesses. If there are conflicting statements, the employee will have to give evidence and explain why there are discrepancies.

The presiding officer must grant the employee the opportunity to relate his/her side of the case to the employer and to present evidence to the employer. After the hearing, the employer must communicate the outcome of the hearing to the employee, preferably in writing. If the employee is to be dismissed, the employer must provide reasons why it is the appropriate sanction and explain how the decision was reached by the employer.

If the employee wants to refer a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA), it must be done within 30 days.

For further information regarding disciplinary hearings, please call Solidarity’s legal experts at 0861 25 24 23.

A disciplinary enquiry was recently held in my division…

Question:

A disciplinary enquiry was recently held in my division. I found it totally unnecessary. It just upsetting to everyone and I still don’t know what the purpose of the enquiry was. Could you give me more information regarding disciplinary enquiries?

Answer:

The purpose of an enquiry is to determine:

  • Whether a rule or norm that arranges behaviour in or concerning a work place has been transgressed;
  • Whether the rule or norm is a valid of reasonable rule or norm;
  • Who has transgressed a rule or norm;
  • What the circumstances surrounding the transgression were;
  • What the nature of the work was that has been affected by the transgression of the rule or norm;
  • How serious the transgression of the rule or norm was and whether the transgression makes a continued employment relationship untenable;
  • What the circumstances of the employee(s) were who transgressed the rule or norm, and whether he/she has been aware of the norm or should reasonably have been aware of it;
  • Whether the rule or norm was applied consistently by the employer; and
  • What the suitable disciplinary sanction for the transgression of the rule or norm is.

What are the Labour Act provisions?

Question:

The company where I work is acting reasonably well within the Labour Act when it comes to disciplinary hearings. Recently there was a case where employees were uncertain whether they could get legal representation or not. What are the Labour Act provisions and could Solidarity help us?

Answer:

To answer the question fully it is important to distinguish between representation and legal representation. Any person against whom disciplinary action is taken, is

entitled to representation to comply with the audi alterem partem rule (“listen to the other side”). In the case Molope v Commissioner Mbha & others (2005) 26 ILJ 283 (LC) the Labour Court once again confirmed that the employee is entitled to representation and that it is not an allowance by the employer. A disciplinary hearing is an internal investigation and the accused is therefore entitled to internal representation. Section 4 of Schedule 8 of the Labour Relations Act determines that a person who is disciplined, is entitled to support by a shop steward or a co-worker.  In spite of the provisions of Schedule 8, the employer’s disciplinary code usually determines who could represent an accused. The conditions of the code may not be less favourable than that of Schedule 8. At employers where trade unions are recognised as bargaining agents, collective agreements are usually entered into to address the matter of representation. Once again the conditions of an agreement may not be less favourable than the provision of Schedule 8.

Legal representation is a person who practises as an attorney or advocate. As mentioned an employee is only entitled to internal representation, but such person is only entitled to external legal representation by an advocate, attorney or consultant if:

  • the employer’s disciplinary code makes provision for it;
  • the employee’s service contract makes provision for it;
  • both parties agree to it; or
  • after submission of an application by the accused and if the presiding officer allows it.

With regard to the last conditions a few salient items are emphasised. In the case MEC: Department of Finance, Economic Affairs & Tourism (Northern Province) v Mahumani (2004) 25 ILJ 2311 (SCA) the Appeal Court found that a presiding officer should not lose sight of an employee’s right to only be represented by an internal representative.

An employee requiring external legal representation should submit an application to legal representation at the presiding officer and base the application on the following:

  • the nature of the complaints against him/her;
  • the complexity of the case;
  • the gravity of the transgression;
  • the competence (or lack of competence) of available internal representatives;
  • the standard, qualifications and competence of the prosecutor and presiding officer. The presiding officer should then hear the application for legal representation and if he does not wish to grant representation, he should provide reasons for his decision.

Disciplinary hearing

By Johan Roos

Question: May Solidarity represent me in a disciplinary hearing?

Answer: According to section 14(4)(a) and section 200 of the Labour Relations Act, an employee is entitled to representation by a trade union. However, section 14(1) of the Labour Relations Act stipulates that a trade union may only represent the employee if the trade union represents more than 50% of the employees at the workplace in question. In other words, sections 200 and 14(4)(a) only apply if a trade union has majority representation or if a collective agreement is in force. If the employer gives written permission, the trade union is also allowed to represent the member

Disciplinary hearings

07 January 2011

“I’m facing a disciplinary hearing and I don’t know what to expect!”

It’s first of all important that you as employee receive the charge(s) against you in writing and in a language that you understand. Then you must be notified of the venue and time of the hearing. The employer must allow you the time to find a representative; he/she could be a colleague or a trade union representative of a recognised trade union in the workplace.

Furthermore you should be asked to plead. If you plead guilty, however, you will not be able to take the case any further.

You must be allowed a reasonable period to prepare for the hearing. “A reasonable period” is usually linked to the degree of complexity of the hearing. Should the employee insist that the allotted time was insufficient he/she must request that the hearing be postponed, which decision rests with the presiding officer.

You should have an opportunity to cross-examine the employer’s witnesses, but it’s also important that you put your account of the issue to them. You must be able to explain any difference(s) between the two accounts.

Finally, the presiding officer must allow you the opportunity to present to the employer your side of the matter — together with proof, if necessary.

After the hearing the employer must inform you of the finding of the hearing, preferably in writing. If you are dismissed, the employer must state the reason(s) for his decision. Should you regard it as unfair dismissal and you wish to refer the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration), you should do so within 30 days

Can I be suspended before a disciplinary hearing?

By Johan Roos,

20 January 2011

Question:

Can I be suspended before a disciplinary hearing is held?

Answer:

There are mainly two types of suspension.

The first type is applied as a preventative measure when an employer wants to investigate a matter involving an employee. In this case, the employer wants to remove the employee from the situation to ensure that the investigation can be carried out without any interference.

The second type occurs when an employee is found guilty of an offence and the employer applies the sanction of suspension. In this case the employee is suspended following a disciplinary hearing.

The first type of suspension occurs with pay and is not a disciplinary sanction, that is, the employer may not use it to enforce discipline. Suspension as a disciplinary action usually occurs without pay and is regarded as a means of enforcing discipline in the workplace

When an employee is at risk of being suspended, he or she must be given the opportunity to give reasons why he or she should not be suspended. It must also be determined whether the employer’s disciplinary code makes provision for suspensions and what the process entails.

An employee’s suspension may not be drawn out necessarily and a company’s policy may determine that suspensions must be reviewed after a specified period. If an employee’s suspension drags on, it could have a negative psychological impact on him or her. The employer also risks losing the respect of his or her employees, as they might assume that their colleague has been dismissed

(IM)PARTIALITY OF PRESIDING OFFICERS

Anton van der Bijl

QUESTION:

I was accused of poor work performance at my job. However, I feel that the presiding officer of the disciplinary hearing was biased since:

  • I wanted a lawyer to represent me at the disciplinary hearing. I made the proper representations to the presiding officer, but my request was unfairly dismissed; and
  • The presiding officer was continually arguing with my representative. As a result I could not argue my case properly.

What can I do in such a case? Can I ask the presiding officer to recuse him or herself and/or could I possibly approach the Labour Court to stop the disciplinary hearing due to the presiding officer’s bias?

ANSWER:

The facts as stated above played out in the Labour Court in the case of Mashiya vs Sirkhot NO (2012) 33 ILJ 420 (LC). In this case the court ruled that there were no grounds on which to grant an urgent interdict to stop the disciplinary hearing since:

  • The employer’s Senior Management Service (SMS) Handbook does not make provision for legal representation. Furthermore, the presiding officer exercised his right to refuse the employer’s application for recusing properly; and
  • The altercation between the employee’s representative and the presiding officer was nothing out of the ordinary and has occurred in many disciplinary hearings.

If you are experiencing work-related problems or if you feel that a presiding officer of a disciplinary hearing is biased and is discriminating against you, feel free to contact us for expert legal advice and assistance.

What there is to know about suspension

By Helgard Cronje

Questions:

1.    May the employer suspend me from work before I have appeared before a disciplinary hearing?
2.    Should I be paid (or not be paid) during the period of suspension?
3.    What is the purpose of suspensions?

Answers:

There are two types of suspension. The first is a preventative suspension in which case the employer suspends the employee pending a disciplinary inquiry. The second type is a punitive suspension in which case the employer accepts suspension as an alternative to dismissal.

Preventative suspension

The reasons for such a suspension are to prevent an employee from interfering with the inquiry. This type of suspension is legal and the employer is acting within his rights when an employee is suspended before the person has had a disciplinary hearing, as long as it is a preventative suspension.

This type of suspension must be accompanied by full pay. Although the employee may not go to work he must still receive his full pay, the reason being that the employee has not yet been found guilty of any possible charge against him, and the purpose of this type of suspension is not to penalise the employee.

Punitive suspension

Punitive suspension also involves the employee being instructed by the employer not to come to work. However, this type of suspension may only be used as an alternative for dismissal. In the main, it means that the employee had already been found guilty during a disciplinary hearing and dismissal was found to be the appropriate sanction, but the employer proposed suspension without pay as an alternative.

This type of suspension may therefore be without pay, for the very reason that it serves as punishment for the employee.

Conclusion

1.    The purpose of a suspension could be either preventative or punitive depending on the facts of the matter
2.    The employer may thus suspend me before I have had a disciplinary hearing.
3.    If the suspension is merely preventative in nature, I have to receive pay, but if it is punitive, it could be without pay.

Use of dagga

By Gerhard Hildebrand

Question:

After my employer became aware that I was using dagga, I underwent a blood test that showed positively that I was using dagga. May the employer now take disciplinary steps against me?

Answer:

Apart from the fact that most disciplinary codes prohibit the possession and use of drugs, the possession and use of drugs is also a criminal offense that carries a fine or imprisonment. The employer is therefore entitled to take disciplinary steps against an employee and may even contact the SAPS if drugs are found in an employee’s possession.

The usual procedural requirements for a disciplinary hearing still apply. It must be determined whether the employee is addicted to dagga and, if so, it must be handled as an addiction. If the employee is not addicted to dagga the matter will rather be handled as misconduct.

If it is ascertained that the employee is addicted to dagga the disciplinary code should make provision for the necessary action by the employer, while item 10 of Schedule 8 of the Labour Relations Act (No. 66 of 1995) also gives guidelines in this regard. Action may include counselling or rehabilitation, during which time the disciplinary hearing is suspended. If the alternative action has the desired result and the employee gives his or her full cooperation, the intervention would be deemed successful and no further disciplinary action would be necessary. If, however, the employee does not cooperate, it is pointless for an employer to consider alternative action and disciplinary action is then indicated.

Apart of the health risk that goes with the use of dagga, the possibility of dismissal and imprisonment for the possession or use of dagga are factors that any employee should seriously consider before using or possessing any prohibited substance.

Disciplinary hearing

By Hendrik van der Hoven

Question:

Are there certain cases or circumstances where an employer may request that I defend myself at a second disciplinary hearing on exactly the same charges?

Answer:

Should an employer for example discover that the process followed during the first disciplinary hearing contained serious mistakes and that a fair process was not followed, the mistakes can be rectified by starting the disciplinary hearing all over again. Rectifying the mistakes made during the first process should benefit both the employee and the employer. The second hearing should, however, not be held long after the first hearing. If, for instance, three months have already passed after the first hearing, a second hearing would probably not be fair.

Another reason for a second hearing could possibly be that the employer’s management is for some reason or other not satisfied with the sanction imposed by the presiding officer at the first hearing. Perhaps the company management is asking for a more severe punishment or even dismissal. The presiding officer could perhaps have found the employee innocent while the management is asking for a conviction and sanction. The first important point to remember, is that the management should have been involved in the first disciplinary hearing to be able to question the finding of the presiding officer. This means that the management must have been present at the hearing and have considered all relevant testimony and evidence before it could be argued that the management deviated from the finding of the presiding officer in a just manner. Normally the decision or finding of the presiding officer is final. If the management of an employer is not satisfied with the outcome or sanction of the hearing, intervention is possible only if the people who are intervening were involved in the hearing and the employer could offer a very good explanation for the deviation from the presiding officer’s decision.
One explanation by the employer could possibly be that new evidence has been found that would have changed the outcome of the hearing if it were available at the first hearing. If the effect of the new evidence will be that a lighter sanction should have been imposed on the employee or that the employee could possibly be innocent, a second hearing is of cardinal importance to let justice prevail. In certain cases it will also be justified for an employer to insist on a second hearing should the new evidence justify a much higher sanction, for instance evidence that justifies dismissal through and through.

The conclusion is therefore that in each case efforts should be made not to have to arrange a second hearing on the same charges. However, in certain exceptional cases there will be no choice and a second hearing can be held only after all facts and circumstances have been considered and it would be fair to hold a second hearing.

Dismissal

By Herman Cronjé

Question:

How do I know that I have been dismissed and what should I do next?

Answer:

Dismissal under Labour Law and the death penalty under criminal law are often compared with each other and to somebody who has already been dismissed, this comparison could make sense.

Dismissal can be described by one of the following sets of circumstances:

1.    Dismissal after a disciplinary hearing at which an employee was found guilty and the presiding officer was of the opinion that dismissal was the correct punishment.
2.    Dismissal after a retrenchment process. In such an event the procedures as set out in section 189 of the Labour Relations Act (Act 66 of 1995) must be followed.
3.    When a fixed-term contract expires. In such an event there can only be talk of dismissal if the employer gave the employee cause to expect that the contract would be renewed.

Losing one’s job is of course a traumatic experience and it is important to know what to do when it happens to you.
If you are a member of Solidarity, you must inform us the moment you notice something suspicious at work so that we can advise you throughout the process and, if necessary, support you. It is important to know what your date of dismissal is. The date of dismissal is:

1.    The day on which your service contract is terminated; or
2.    The day on which you leave your employer’s service, whichever comes first.

When somebody is dismissed, the matter must naturally be referred to the CCMA. This referral must take place within 30 days of dismissal. It is, however, important to note that if you are dismissed by way of notice, a referral may be made when the notice is received.

However, the best time for a referral is when you have already worked your last day because at that stage there can longer be any disputes about whether there was a dismissal or not.

In Labour Law (as in most divisions of our law) every case is evaluated on its merits and the facts of each case must be taken into consideration. This presumption of facts exists from the first conflict between employer and employee and it is therefore important to involve Solidarity immediately so that you can be put in the best possible legal position. .

Cost orders of referrals to CCMA or bargaining councils

By Hendrik van der Hoven

Question:

Should employees be concerned that an order as to costs could be awarded against them when a case of unfair dismissal is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or other bargaining councils?

Answer:

In the case of Moloi v Macsteel Service Centres (VRN Reef) [2014] 2 BALR 117 (MEIBC] the following happened:

Mr Moloi’s employer laid a charge of sexual harassment against him. Before his disciplinary hearing could take place, Mr Moloi sent the following email to his employer:

‘Seeing the Macsteel VRN’s future is not that bright and its business taking a nose dive and that soon enough most of its employees won’t have jobs anyway, I have decided to jump ship in order to focus on steering my own little ship which I have been privately building with the little remuneration that you have been paying me for the past 8 years of service to you. I which to thank you for the opportunity that you have given me over the years which I have used to my advantage by empowering myself with the industry knowledge while I acted like a dom[sic] garden boy. On Monday I’ll be coming to render my resignation formally and to claim what is legally mine in terms of pension pay-outs and outstanding remuneration.
It was nice doing business with you.

Jacob, CEO & Working capitalist’

The next Monday Mr Moloi changed his mind and decided to withdraw his resignation. In reply to his request to withdraw his resignation, he was informed that his request had to be referred to the employer’s head office.

Mr Moloi decided that this meant that he had been dismissed and proceeded to refer a case of unfair dismissal to the MEIBC (Metal and Engineering Industries Bargaining Council.
The employer was of the opinion that it was unnecessary for Mr Moloi to provide it with a formal resignation and that Mr Moloi’s above-mentioned email served as a voluntary resignation.

The MEIBC commissioner ruled that no dismissal took place and that Mr Moloi resigned voluntarily.

The commissioner further found that in the light of Mr Moloi’s unreasonable and annoying insistence on proceeding with this frivolous case while he knew that the services of the MEIBC were free and were funded by taxpayers’ money, it was necessary to grant an order as to costs against Mr Moloi, which meant that he was responsible for the employer’s legal costs in connection with the case.

Historic consistency regarding disciplinary action

By Adel Botha

Question:

What does historic consistency with respect to disciplinary action involve?

Answer:

The question “was the rule fair and was it applied consistently” is certainly one of the most important factors that has to be taken into account during internal disciplinary proceedings. In Hope v Petrologic (2007) 10 BALR 897 [MEIBC] the arbitrator found that an employee’s dismissal can be regarded as unfair if employees are treated differently for the same or similar offences. In this case, an employee was dismissed because of theft. However, two other employees had only been given final warnings for the same offence merely a week before. The employer was consequently ordered to reinstate the employee.
Historic consistency, as illustrated in Hope v Petrologic (2007) 10 BALR 897 [MEIBC], therefore involves that an employer has to take the same disciplinary steps when a comparison is drawn with the way in which disciplinary steps were taken in the past. The same sanction can be enforced in the case of previous, similar disciplinary offences, unless the circumstances surrounding the different incidents truly differ from each other.

In such a case the employer will at least have to prove that –

  • he (the employer) has knowledge of the previous employee’s same or similar misconduct;
  • that the person with whom a comparison is drawn can be identified;
  • that the different individuals were subject to the same circumstances; and
  • that he (the employer) has not in the intervening period communicated and implemented new workplace rules and regulations.

An employer will, however, be able to defend alleged inconsistency successfully if the decision to treat two or more employees differently can be justified by personal circumstances, the seriousness of the misconduct and other relevant factors. For more information on this topic, phone us on 0861 25 24 23.

Preparing for a disciplinary hearing

By Phil Davel

Question:

I have to attend a disciplinary hearing on a charge of misconduct. Is four days’ notice enough time to prepare?

Answer:

Four days’ notice could be enough time to prepare for a disciplinary hearing. There isn’t a set rule or law that specifies how many days before a disciplinary hearing an employee should be given notice. However, the notice period must meet the requirements of fairness and reasonableness. Your employer’s disciplinary code or policy may determine the notice period. If the code prescribes a notice period, the employer is obliged to adhere to it.

The reason for a notice period is to give effect to an employee’s right to be given the opportunity to state a case in response to the allegations that, in turn, gives effect to the audi alteram partem rule in terms of which the other party must be heard.

Should you feel that you haven’t been given enough time to prepare, you should request a postponement of the hearing in writing and provide reasons for the request. The reasons should relate to the charge and whether you need to find witnesses and collect evidence for your defence. A charge of poor work performance could, for example, need more preparation time than a charge of misconduct for coming late. The Code of Good Practice in Schedule 8 of the Labour Relations Act stipulates that an employee should be entitled to a reasonable period to prepare the defence.

If the time you have to prepare your defence is not fair and reasonable, you can raise an objection and request a postponement during the hearing. You can also appeal on the grounds of procedural unfairness.

As with any disciplinary hearing it is important to know your rights in respect of a fair procedure.

Fair procedure regarding disciplinary hearings, as set out in Schedule 8, involves, among other things, the following:

  •  The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
  • The employee should be entitled to the assistance of a trade union representative (that is, a shop steward of a representative trade union and not a union official) or a fellow employee.
  • After the enquiry, the employer should communicate the decision taken and preferably provide the employee with written notification of that decision.
  • If the employee is dismissed, he or she should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission for Conciliation, Mediation or Arbitration, or to any dispute resolution procedures established in terms of a collective agreement.

If the employer cannot reasonably be expected to meet these guidelines, they may be dispensed with.

Dismissal (23)

I work for a large hardware chain store and I have heard from colleagues that the employees in our division are going to be retrenched

1.     Question:
I work for a large hardware chain store and I have heard from colleagues that the employees in our division are going to be retrenched. The boss says we are not making money and is blaming the recession. I am worried that I might be one of the employees selected to go. Are there specific selection criteria with which my boss has to comply?

Answer:
The Labour Relations Act does not prescribe specific selection criteria, but it does give a few guidelines. 

However, if selection criteria are agreed upon during the consultation process, the employer must comply with these criteria. If there are no agreed criteria, the process must at least be fair and objective.

Two well-known measures are Lifo (last in, first out) and Fifo (first in, first out). Although Lifo is internationally recognised and applied, it could have a neutralising effect on required affirmative action in South Africa. This is because Lifo determines that the employees who were last to be employed by the company are the first to be considered for retrenchment.

2     Question:
I work for a large hardware chain store and I have heard from colleagues that the employees in our division are going to be retrenched. We have already had consultations and it seems as though there is no alternative to retrenchment and that I will in fact be retrenched. I have been working at the group for nine months. Can my boss simply give me 24 hours’ notice? Shouldn’t he at least give me some assistance?

Answer:
This is the second last part on this topic. If an employee is going to be dismissed on operational grounds, he/she at least has the right to be informed of the retrenchment in order to be able to look for new work as soon as possible.

Different notice periods apply in terms of the statutory requirements of the Basic Conditions of Employment Act (Act 75 of 1997).
They are:

  1. One week if the employee has been employed by the company for six months or less;
  2. Two weeks if the employee has been employed by the company for longer than six months but less than a year; and
  3. Four weeks if the employee has been employed by the company for more than a year.

Information that needs to be included in the employee’s letter of termination includes the reason for the retrenchment, when the consultation took place, the last day on which the employee would be required to work, as well as a description of how the severance package would be paid out.

It is important to remember that Section 189(3)(g) of the Labour Relations Act determines that the employer must state in writing what assistance the retrenched employees will receive. However, there is no legal obligation on the employer to render any assistance if it is not stated in the retrenchment agreement. They can simply take the time off or grant a few days’ leave in order to enable the employees to attend interviews. They do not need to physically help the employees to find work.

For what reasons can an employer dismiss an employee?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

1. Misconduct
Misconduct is the most common justification for dismissal in South Africa, but there is no definition for it in statutory of business law. Misconduct can take on many forms although the legal basis for dismissal is the same in most cases. The employee in some way contravened the terms of their contract, or broke the relationship of trust between him/her and the employer. Misconduct is often described as a wilful contravention of a rule laid down in the workplace by the employer.
The source of this rule is usually summarised in the employee’s contract or in a policy or disciplinary code of the company, or it is a general practice in the workplace that could perhaps justify dismissal. If the employer has not implemented his/her own disciplinary code, the Labour Relations Act (Act 66 of 1995) makes provision by means of Schedule 8 of the Code of Good Business Practice, but it is generally accepted that this is only regarded as a guideline.
Before dismissal for misconduct can take place, the following questions must be answered:
• Has a rule in the workplace been contravened and does the rule relate to the workplace or those regulating the workplace?
• Is it a valid rule?
• Was the employee aware of the rule or can it reasonably be expected that the employee was aware of the rule?
• Was dismissal the appropriate sanction for the dismissal?
2. Inability to work
Inability to work can be divided in two categories:
• Inability due to illness or similar external factors; and
• Poor job performance relating to the quality of work performed by the employer.
In the case of poor job performance, the employee can improve the quality of his/her work. The employer must also first follow the steps in the Code of Good Business Practice in the Labour Relations Act before such a dismissal can be justified.
Inability due to illness or other similar factors means that the employer cannot perform his/her duties owing to illness and the employer therefore has no other choice but to dismiss the employee. Therefore, the dismissal is due to operational requirements and not due to any fault or misconduct for which the employee himself/herself is responsible. The guideline in the legislation is also contained in the Code of Good Business Practice of the Labour Relations Act. There are also additional guidelines on the steps that need to precede dismissal:
• The employer must determine if the employer is able to do the work.
• The period of the employee’s inability to do the work must be determined.
• The employer must determine if adjustments can be made in order to make it possible for the employee to perform his/her duties.
• The employer must determine if an alternative can be found.
3. Dismissal due to operational requirements
Operational requirements refer to those requirements based on economic, technological, structural or other reasons. They could arise due to circumstances such as international economic pressure or the implementation of a new system. Circumstances such as these might place the employer in a position where he/she has to dismiss employees due to operational requirements.
The procedure for this is encapsulated in Section 189 of the Labour Relations Act (Act 66 of 1995), but Sections 40, 41 and 83 of the Basic Conditions of Employment Act (Act 75 of 1997) should also be taken into consideration. The principal factor here is that the employees are not necessarily responsible for the dismissal. The factors are out of the employee’s control and relate to the steps that the employer must take to protect his/her business against financial failure.
For more information about dismissal, please call Solidarity’s legal experts at 0861 25 24 23.

Constructive dismissal

Phil Davel

Question:

My employer is making my working my conditions unbearable. She is constantly finding fault with everything and shouts at me. This cannot carry on and I want to resign. Can I resign? Can I claim constructive dismissal because she is the reason I want to resign?

Answer:

Definition of constructive dismissal:

Constructive dismissal is “a situation in the workplace, which has been created exclusively by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign, with or without notice, or to simply leave the employment of the employer.”

In other words, the employee is compelled to resign due to unfair pressure, unreasonable instructions or unbearable behaviour caused or created by the employer (thus, “constructive dismissal”).

The Labour Relations Act (LRA) 66 of 1995 (as amended) gave statutory status to constructive dismissal. Section 186(1)(e) determine that “dismissal” means, among other things, that “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Therefore, constructive dismissal is subject to a number of requirements, which we will look at later. For now it is important to remember that if the above-mentioned statutory description applies, the Act deems the employer to have unfairly dismissed the employee, which amounts to “unfair labour practice” in terms of the LRA.

Burden of proof

With conventional dismissal, it is up to the employer to prove that the dismissal was procedurally and substantively justified and fair. With constructive dismissal, however, the burden of proof rests on the employee, who must prove constructive dismissal on a balance of probabilities (In the case of Jooste v Transnet).

Once the employee has discharged the onus of proving that he/she was constructively dismissed, the onus shifts to the employer to prove that the employees action of resigning was unreasonable (in accordance with Section 192 of the LRA).

Requirements for constructive dismissal

Since the implementation of the LRA, court cases and the authority relating to alleged constructive dismissal have established four requirements for the employee to prove before he/she could possibly be successful.

  1. The employee must demonstrate that he/she resigned or terminated the contract:
    This is mostly simple to prove and depends on the facts of each case.
  2. The reason for the resignation was because continued service was “intolerable”:
    This is an objective test of whether or not the situation can be tolerated and does not depend on the employer’s perception or personal opinion (subjective) of whether the situation was intolerable (Watt v Honeydew Dairies (Pty) (Ltd)).
    However, writers such as J Grogan believe that the test is partially subjective and partially objective provided that the employer’s perception was reasonable. Additionally, the employee must prove that he/she would have continued working if it were not for the employer’s conduct. In other words, the employee should not already have planned on resigning (Jooste v Transnet Ltd t/a SA Airways). The employee should also have reasonable believed that the employer would not have reformed and ceased the unreasonable and intolerable conduct.
  3. It was the employer’s conduct that created the intolerable situation:
    There must be a link between the employer’s conduct and the situation that caused the employee to resign. The question is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee. (Pretoria Society for the Care of the Retarded v Loots).
  4. The employee is required to have exhausted all internal procedures and that resigning was the last reasonable. This would demonstrate that the internal grievance procedure did not provide any remedy and that the employee was really left with no choice but to resign. (In Pieterse v AGI (Pty) Ltd the applicant’s claim for constructive dismissal was unsuccessful because he did not first follow the formal grievance procedure).

Disputes

Disputes regarding possible constructive dismissal must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council and the employee can request compensation or re-employment (providing, of course, the intolerable situation no longer exists).

Constructive dismissal is difficult to prove
Without providing examples of cases for possible constructive dismissal (because there are numerous examples and the facts of the individual cases are different), it must be kept in mind that most claims for constructive dismissal are rejected by the CCMA as unfounded.

Therefore, an employee must be aware of the scope and degree of difficulty involved in proving constructive dismissal. Especially in light of the fact that if an employee resigns and his/her claim for constructive dismissal is unsuccessful, the resignation remains in force. This could have serious financial implications for the employee and entail protracted legal processes.

For more information regarding constructive dismissal, contact Solidarity’s legal experts at the service centre at 0861 25 24 23.

Discharge owing to misconduct

By Phil Davel

Employees must lay down clear rules on conduct in the workplace to ensure employees know what is expected of them and what the consequences will be should they violate any of the rules.

Certain rules, for example, rules dealing with intoxication or violence in the workplace, are so common or obvious that they are not necessarily laid down in a code of conduct, although employees may be expected to obey them.

Discharge owing to misconduct may be justified ‒

• if the employee violated a rule or regulation relating to specific conduct in the workplace;

• if the rule that was violated was valid, reasonable and fair;

• if the employee was aware or can reasonably be expected to have been aware of the rule in question;

• if the rule is consistently applied in the workplace; and

• if discharge would be more suitable than a disciplinary penalty in the specific circumstances.

Discharge for a first offence is usually not acceptable, except if the offence was of such a nature that it makes a continued employee-employer relationship impossible. Examples of such offences include dishonesty, theft, malicious injury to property, assault and gross insubordination.

Every case must be judged on merit and factors such as the underlying circumstances, how long the employee has worked for the company, the nature of the work and previous warnings must be taken into consideration.

Dismissal due to poor job performance

By Phil Davel

The previous legal questions on the topic of dismissal can be read here:

• What is dismissal and how does it work?

• What does automatically unfair dismissal entail?

• Discharge owing to misconduct

What does dismissal due to poor job performance entail?

Employers regularly follow the route of dismissing employees for poor job performance. However, finding an employee guilty of poor job performance is not so simple. Dismissal owing to poor job performance must be based on reasonable grounds and can only take place once a fair procedure has been followed.

In deciding whether an employee’s dismissal due to poor job performance is justifiable, it must first be determined whether or not the employee meets the required performance standards. If the employee does not meet the required performance standards, it must be determined whether ‒

- he or she had knowledge of the required performance standards and whether it can reasonably be expected of him or her to have knowledge of them;

- he or she was given a fair chance to meet the required performance standards; and

- dismissal will be a suitable penalty for noncompliance with the required performance standards.

It is therefore important for clear performance standard guidelines to be set and for employees to be given a fair chance to comply with them. For that reason, dismissal due to poor job performance in the case of a first offence will usually constitute unfair dismissal.

For dismissal to be fair, the following procedure must be followed: - The employee must have been given sufficient training and advice;

- the employee’s job performance must have been monitored over a reasonable period; and

- the reasons for the employee’s ongoing poor performance and possible solutions to the problem must have been investigated thoroughly

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

What is misconduct?

Answer:

Misconduct is the most common justification for dismissal in South Africa, but neither the statue law, nor the law of things contains a definition of misconduct. Misconduct can take on many forms, but the legal basis for dismissal is usually the same: The employee violated the regulations of his or her contract in one way or another, or broke the relationship of trust between him or her and the employer.

Misconduct is often defined as an intentional violation of rules in the workplace. These rules are usually set out in an employee’s contract or in a policy or a disciplinary code of the company, or are general practices in the workplace that could justify dismissal. If an employer has not implemented a disciplinary code, Schedule 8 of the Code of Good Practice in the Labour Relations Act will apply, but it is generally regarded as a guideline only.

Before dismissal owing to misconduct can take place, the following questions must be answered:

• Was a workplace regulation violated and does that regulation relate to keeping order in the workplace?
• Is it a valid regulation?
• Was the employee aware of the regulation, or can it be reasonably assumed that the employee was aware of the regulation?
• Is dismissal a suitable sanction for the specific misconduct?

My employer wants to dismiss me on disability grounds. What is his obligation towards me?

By Johan Roos

Answer:
We must have a look at schedule 8 of the Labour Relations Act in order to answer this question.

Disability on the grounds of poor health or injury may be temporary or permanent. Your employer should consider the extent of your disability or injury if you are temporarily unable to work. However, if you have to be booked off “unreasonably” long, your employer should look at all alternatives (short of dismissal). He should then consider factors such as the nature of your job, the likely duration of your absenteeism, the seriousness of your illness or injury, and the possibility of appointing a temp in your place.

If you are declared permanently disabled, your employer should investigate the possibility of alternative employment or the adaptation of your duties or working conditions. You have the right to be heard during such an investigation, and a shop steward or colleague may assist you.

If indeed dismissal is on the cards, the degree of your disability should be considered in order to reach a decision about the fairness of your dismissal.

The cause of your disability may also be important. For instance, if alcoholism or drug abuse has been a factor in your disability, your employer may want to consider counselling and rehabilitation as the appropriate steps to be taken. However, if you have suffered an injury while on duty or have contracted a job-related illness such as miners’ silicosis, the courts would probably find that your employer had an even greater obligation to accommodate your disability.

If you feel that your dismissal on the grounds of poor health or an injury was unfair, the court would want to know whether your employer had tried to determine the extent to which you might have been able to continue working, regardless. In addition, the court would want to know if it were not possible to adapt your job situation and/or duties so as to accommodate your disability. And finally, the court must be satisfied that your employer were utterly unable to place you in another suitable job.

Dismissal

By Phil Davel

Question

My question is about my wife and her employer. She is being given trouble about creditors that she processed incorrectly, but she was never formally trained in the company’s creditors. She was merely shown what to do by the previous incumbent of the post before this person resigned. Her employer now wants to dismiss her.

Answer

The employer cannot dismiss your wife or disadvantage her[cause problems for her] without a fair and just procedure, especially in the case of poor performance and dismissal. The Labour Relations Act, under item 9 of Schedule 8, provides for a code of conduct that stipulates that an employee must know what the work standard or procedures entail and must be given the time and opportunity to achieve the required standard of work. Should she feel that het training was inadequate or ineffective, she could put this up as a defence.

The guidelines that must be considered before she is dismissed because she does not meet the required standard of performance are whether she knew what the required standard of performance entailed and whether she could be expected to be aware of it. She must, as was said, be granted a fair chance and time to achieve the required standard of performance. In addition, before she is dismissed, it must be clear that dismissal is the most suitable punishment for the transgression. In most cases, summary dismissal is not the most suitable punishment because the supposed problem could still be rectified by proper training and/or mentorship.

The employer therefore cannot simply dismiss her at the first transgression.

Unfair dismissal

By Gerhard Hildebrand

Question

I was unfairly dismissed by my employer and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).  However, before the dispute could be heard by the CCMA, the employer contacted me about a possible settlement.  I presented a settlement proposal to the employer and the employer addressed a letter to me in which they accepted the settlement I had proposed.  I am however no longer satisfied with the settlement and would like the dispute to come before the CCMA.  Can I continue with the dispute?

Answer

An agreement is reached when an offer is made to another party and that party accepts the offer.  Thus there is an offer and the acceptance thereof.  It is not necessary for the offer to be set out in writing and the acceptance of the offer also does not have to be in writing.

After the offer is accepted, the party who made the offer cannot retract it and the contractor can legally hold the offeror to the offer.  However, if the offeror withdraws the offer before it is accepted, no agreement is reached.  If the contractor makes a counter suggestion, no agreement is reached unless the suggestion is accepted by the other party.  After the offer is accepted, the contractor also cannot withdraw the offer.

According to the facts as set out in this legal question, an agreement was reached and the employer cannot continue with the CCMA dispute.  The dispute was settled by the agreement.  The employer will be able to content that, since a lawful agreement was entered into, the dispute no longer exists and as a result that the CCMA has no jurisdiction in the matter.

Dismissal

To justify dismissal, an employer must be able to prove that the work relationship between him/her and an employee has become unbearable.

The Code of Good Conduct contained in Schedule 8 of the Labour Relations Act (Act 66 of 1995) imposes a duty on employers to prove that an employee’s misconduct was of such a serious nature that the work relationship between the employer and employee has broken down irreparably.

This will, for instance, be the case where it can be proved that the employee has acted in a dishonest way and that the relationship of trust between the employee and employer has broken down irreparably. It is, however, important to bear in mind that even if the relationship of trust between the mentioned parties has been damaged, it does not necessarily mean that the relationship is irreparable.

It is furthermore also important to bear in mind that it is a well-known and accepted principle in South African labour law that employers have the right to expect employees in their service to act honestly and in the best interests of the employer at all times.

The following questions have to be answered when determining whether an employee’s misconduct was of such a nature that dismissal will be the only suitable sanction:

• Has the relationship of trust or the work relationship really been broken?
• Did the employee have a position in which trust is an important factor?
• Was there another remedy the employer could have used without dismissing the employee?
• Did the employer previously dismiss all other employees who committed the same misconduct?
• Did the employee try to conceal his/her dishonesty or did he/she immediately admit that his/her actions were wrong and show remorse?

Dishonesty is not the only misconduct that can break a relationship of trust; there are many other complaints that could also lead to an intolerable work relationship. Should an employer, for example, be able to prove that an employee was guilty of sexually harassing a colleague, the employer will also be able to prove that it would be impossible for the employee to continue working in the company of other employees in future (depending on the degree and seriousness of the harassment). However, should the employer, prior to taking disciplinary action against the accused, still have allowed the employee to work in the company of other employees, including the harassed employee, for a reasonable period, it will be much more difficult for the employer to prove that the accused cannot in future still work in the company of the other employees and that there isn’t a possibility that the accused’s actions can be stopped by a final warning, therefore rendering dismissal unnecessary.

An employer who feels that an employee’s actions were so serious that they preclude a future work relationship will therefore have to put his/her anger and emotions aside for the time being and bring objective proof that a work relationship with the accused would be intolerable and that dismissal is therefore justified.

Under the influence of alcohol at work: what do recent judgments say?

By Rizelle Botha

In National Union of Metalworkers of South-Africa o.b.o. Johnson/Trident Steel Ltd (2013) 22 MEIBC 8.11.3 the following facts were present:

An employee was dismissed after he had admitted guilt on a charge of being under the influence of alcohol at work or during working hours and after he had undergone a breathalyser test. The employer had a zero-tolerance policy regarding this type of offence for safety reasons and all employees had been informed of it.

The commissioner in the matter ruled that if an employer wants to rely on a breathalyser test, he must present other, substantiating evidence as well. The evidence must, among other things, show that the test was carried out in the approved manner and that the result of the test was correct. The employer can also call witnesses to testify that they were present when the test was being carried out.

In the case in question, the employee admitted that he had been drinking, the employer had carried out a valid and proper test and other employees had been dismissed for similar offences in the past.

The commissioner subsequently ruled that the employee’s dismissal had been fair.

Work after retirement age

Question:

If an employer has allowed me to keep on working after I reached the agreed or normal retirement age, is the employer then entitled to terminate my services at any time thereafter because of my age?

Answer:

In the CCMA ruling Buhai v Hotbake Systems (Pty) Ltd t/a Rich Products Corporation of South Africa – (2013) 22 CCMA 7.1.4, the employee was appointed by the employer shortly before he reached the age of 65. After the employee turned 65, the employer allowed him to keep on working for a time, but he was later told that he had to retire. The employee claimed that the employer decided to get rid of him because he had developed personal financial problems. Therefore, the employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner ruled that the employer was aware of the fact that the employee was nearly 65 years of age when he appointed him. The commissioner’s ruling was based on evidence that other employees of the employer were also allowed to keep on working after the age of 65. The Commissioner also found that the employer should have been aware of the fact that the employee had reached the age of 65 and the employer also allowed that particular employee to continue working after the age of 65. Hence, the Commissioner ruled that the employer was not in a position to argue that the real reason for the termination of the employee’s services was the fact that he had reached his ‘normal or agreed’ retirement age. The real reason for the termination was something else and the employer therefore did not follow the correct procedure associated with the real reason for termination. Therefore, the employee’s dismissal was unfair.

Termination of services when a company is going into provisional liquidation

By Anton van der Bijl

Question:

I work for a steel construction company and have been informed that my services have been terminated with immediate effect because the company has been placed under provisional liquidation. I have not previously been informed that the company would be placed under provisional liquidation, and the employer has not taken any formal steps in respect of the termination of services. Is my dismissal fair, and if not, what am I to do?

Answer:

Unfortunately as a result of the current economic climate, we encounter more and more of these cases. Section 38(5) of the Insolvency Act (No. 24 of 1936) stipulates that a liquidator must consult with the employees of a liquidated company before their services can be terminated. Moreover, section 197B of the Labour Relations Act (No. 66 of van 1995) stipulates that employers must inform employees if the workplace is to be placed under provisional liquidation. In the case, Van Zyl NO & Others v. Commission for Conciliation, Mediation and Arbitration & Others (2012) 33 ILJ 2471 (LC), the set of facts are similar to your case, the Labour Court confirmed the CCMA’s finding that the termination of the employee’s services was unfair. The CCMA ruled that provisional liquidation does not give an employer the right to terminate an employee’s services summarily.

The ruling makes it clear that an employee’s services may not be terminated summarily at the time of a company’s provisional liquidation, and that if an employee is being dismissed on such grounds, he/she would, in all likelihood, succeed with a case of unfair dismissal being brought before the CCMA.

If you have been dismissed under similar circumstances do contact your nearest Solidarity office immediately.

What there is to know about suspension

By Helgard Cronje

Questions:

1.    May the employer suspend me from work before I have appeared before a disciplinary hearing?
2.    Should I be paid (or not be paid) during the period of suspension?
3.    What is the purpose of suspensions?

Answers:

There are two types of suspension. The first is a preventative suspension in which case the employer suspends the employee pending a disciplinary inquiry. The second type is a punitive suspension in which case the employer accepts suspension as an alternative to dismissal.

Preventative suspension

The reasons for such a suspension are to prevent an employee from interfering with the inquiry. This type of suspension is legal and the employer is acting within his rights when an employee is suspended before the person has had a disciplinary hearing, as long as it is a preventative suspension.

This type of suspension must be accompanied by full pay. Although the employee may not go to work he must still receive his full pay, the reason being that the employee has not yet been found guilty of any possible charge against him, and the purpose of this type of suspension is not to penalise the employee.

Punitive suspension

Punitive suspension also involves the employee being instructed by the employer not to come to work. However, this type of suspension may only be used as an alternative for dismissal. In the main, it means that the employee had already been found guilty during a disciplinary hearing and dismissal was found to be the appropriate sanction, but the employer proposed suspension without pay as an alternative.

This type of suspension may therefore be without pay, for the very reason that it serves as punishment for the employee.

Conclusion

1.    The purpose of a suspension could be either preventative or punitive depending on the facts of the matter
2.    The employer may thus suspend me before I have had a disciplinary hearing.
3.    If the suspension is merely preventative in nature, I have to receive pay, but if it is punitive, it could be without pay.

Dismissal

By Herman Cronjé

Question:

How do I know that I have been dismissed and what should I do next?

Answer:

Dismissal under Labour Law and the death penalty under criminal law are often compared with each other and to somebody who has already been dismissed, this comparison could make sense.

Dismissal can be described by one of the following sets of circumstances:

1.    Dismissal after a disciplinary hearing at which an employee was found guilty and the presiding officer was of the opinion that dismissal was the correct punishment.
2.    Dismissal after a retrenchment process. In such an event the procedures as set out in section 189 of the Labour Relations Act (Act 66 of 1995) must be followed.
3.    When a fixed-term contract expires. In such an event there can only be talk of dismissal if the employer gave the employee cause to expect that the contract would be renewed.

Losing one’s job is of course a traumatic experience and it is important to know what to do when it happens to you.
If you are a member of Solidarity, you must inform us the moment you notice something suspicious at work so that we can advise you throughout the process and, if necessary, support you. It is important to know what your date of dismissal is. The date of dismissal is:

1.    The day on which your service contract is terminated; or
2.    The day on which you leave your employer’s service, whichever comes first.

When somebody is dismissed, the matter must naturally be referred to the CCMA. This referral must take place within 30 days of dismissal. It is, however, important to note that if you are dismissed by way of notice, a referral may be made when the notice is received.

However, the best time for a referral is when you have already worked your last day because at that stage there can longer be any disputes about whether there was a dismissal or not.

In Labour Law (as in most divisions of our law) every case is evaluated on its merits and the facts of each case must be taken into consideration. This presumption of facts exists from the first conflict between employer and employee and it is therefore important to involve Solidarity immediately so that you can be put in the best possible legal position. .

Dismissal

Gerhard Hildebrand

Question:

What is the time limit for referring a dispute after dismissal?

Answer:

In terms of section 191(1)(b)(i) of the Labour Relations Act (No. 66 of 1995), a dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council within 30 days of the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision regarding the employees dismissal.

Section 190(1) describes the date of dismissal as the date on which the contract of employment was terminated, or the date on which the employee left the service of the employer.

If an employee had been dismissed and then lodged an appeal against the dismissal, the dispute may be referred within 30 days after the outcome of the appeal. Therefore, the 30 days did not begin after dismissal; it began on the later date when the employer made the final decision at the appeal.

In calculating the 30 day period, the first day (the day of dismissal) is excluded and the last day is included. The 30 days are calendar days, therefore Saturdays, Sundays and public holidays are included. However, if the last day should fall on a Saturday, Sunday or public holiday, that Saturday, Sunday or public holiday is excluded and the 30 days are extended until the first day after the Saturday, Sunday or public holiday.

If the last day for referral falls in the period 16 December to 7 January, the period is extended to the first day after this period that does not fall on a Saturday, Sunday or public holiday.

If the referral is not referred within the 30 day period, the application for condonation must be brought with the referral, creating the risk that the CCMA or the bargaining council may deny the application.

However, it is important to contact Solidarity as soon as possible after dismissal so that any referral could be handled by Solidarity itself.

Information needed for legal aid if fired

By Gerrit Visser

Question:

I have just been verbally informed of my dismissal. I am of the opinion that I have been unfairly dismissed and I need someone to assist me. I understand that the law only protects the vigilant and not those who slumber on their rights. What should I do on my part to enable a lawyer to help me?

Answer:

As is the case with any other labour law issue, the answer will depend on the circumstances. However, the following list would be useful:

1.    In terms of section 192 of the Labour Relations Act (No. 66 van 1995) (hereafter referred to as the “LRA”), the onus falls on the employee to prove that he/she had been unfairly dismissed in any unfair dismissal dispute. Therefore, you can insist on the following information from your employer:

1.1.    The written results of the hearing (if a hearing had been held);
1.2.    A notice of termination in terms of section 37 of the Basic Conditions of Employment Act (No. 75  of 1997) (hereafter called the “BCEA”);
1.3.    A certificate of service in terms of section 42 of the BCEA;
1.4.    Final payslip in terms of section 33 of the BCEA; and
1.5.    UI-19 form in terms of the Unemployment Insurance Act (No. 63 of 2001).

2.    In the event of any referral of a dispute to the CCMA or any other forum, there must first be evidence that the dispute form had been served on the employer. To assist the person who will assist you in this regard, the following information is required:

2.1.    Service contract;
2.2.    Full name of the legal entity under which name your employer conducts business;
2.3.    Fax number of employer;
2.4.    Postal address of employer;
2.5.    Physical address of employer;
2.6.    The name and preferably the particulars of the mediation or dispute resolution forum under which your employer falls; and
2.7.    The total of all outstanding monies owed to you, including how it had been calculated.

3.    If your employer does not want to provide you with the above information, you as employee must approach the Department of Labour. In terms of Chapter 10 of the BCEA, the Department of Labour can take certain actions to compel the employer to provide the required information.

4.    Depending on the dispute, this list may not necessarily be complete. However, it is the minimum needed to enable anyone to assist you.

5.    Finally, you as an employee should always bear in mind that the person assisting you is only able to litigate and take further steps on the basis of the information provided by you.

Can the reason for my dismissal be changed?

By Gerrit Visser

Question:

My employer dismissed me. Originally, the reason given for dismissal was that I was too arrogant. Three days later, I received a letter with a host of allegations against me. Can the employer change the reason for dismissal?

Answer:

The case of Fidelity Cash Management Services v KVBA and Others ([2008] 3 BLLR 197 (AAH)) [2007] ZALAC 38, dealt with a similar dispute. The Labour Appeal Court made it very clear that if an employer wanted to claim that a dismissal was fair, the employer had to prove that the reason given was fair and justified.

Moreover, the court made it clear that it is a fundamental principle of labour law that the fairness of a dismissal has to be determined on the basis of the reason the employer put forward upon dismissal. In layman’s terms, it means that an employer is not allowed to look for reasons to justify dismissal after dismissal had taken place.

In labour law, the possible reasons for dismissal are legion; so too are the requirements of what needs to be proven. The average citizen rarely understands the requirements for or nature of dismissal. For this reason, we recommend that every employee should have access to legal advice of one kind or another. Bear in mind that the principle, “vigilantibus non dormientibus jura subveniunt” (law will only help those who are vigilant), always applies.

Who is considered to be an employee?

By Hendrik van der Hoven

Question:

Could a sidewalk vendor selling newspapers on behalf of Media 24 be defined as an employee in terms of South African labour legislation?

Answer:

The case Dyssel and Media 24 (Pty) Ltd (2014) 35 ILJ 534 (CCMA) dealt with the following events:

A sidewalk vendor who, in the past, had sold newspapers on Sundays on behalf of Media 24, referred a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The vendor used to receive commission from Media 24, based on the number of newspapers sold by him. The vendor had appointed 30 employees of his own to sell the newspapers. However, on 14 July 2013 he received no newspapers to sell and the agreement between the parties was terminated by telephone.

The vendor argued that he started working for Media 24 in the year 2000, and that he was summarily dismissed on 14 July 2013 because he owed Media 24 some money. He admitted to owing the money, but he was willing to repay the money if he could continue working. He further argued that in terms of labour legislation, he had been an employee since a number of aspects listed in section 200A of the Labour Relations Act (No. 66 of 1995) applied to his particular circumstances. Among other things, he argued that he had an area manager over him, that his working hours had been regulated by Media 24, that he had been part of the Media 24 organisation, that he was financially dependent on Media 24 and that, on average, he worked 36 hours per month for Media 24.

Media 24 argued that the vendor was not an employee. The vendor annually signed an agency agreement authorising both parties to terminate the contract by giving 24 hours’ notice. Furthermore, the vendor was obliged to pay Media 24 for the newspapers he received from Media 24, regardless whether the newspapers were sold, stolen or lost. Media 24 did not prescribe to the vendor where or how he had to sell the newspapers; therefore, Media 24 had no control over the time the vendor spent working. Media 24 argued that the vendor was not part of Media 24 and that was managing an independent agency since he appointed or subcontracted 30 employees of his own to handle sales.

The Commissioner found that the method by which the vendor sold the newspapers was not controlled by Media 24. He further found that in terms of the contract, the vendor only had financial and reporting obligations to fulfil. The vendor’s working hours were not regulated and the newspapers could be sold at any time from 05:15 to 18:30. The vendor was not at all required to work specific hours himself. The vendor was not part of Media 24 and only worked on Sundays. At the most, the vendor would have worked 39 hours per month, falling short of the 40 hours stipulated in section 200A of the Labour Relations Act. With regards to the vendor’s argument that he was financially dependent on Media 24 and only worked for Media 24, the Commissioner found that it was the vendor’s own choice not to do any other work since nothing prohibited him from doing other work as well.

Therefore, the Commissioner found that in terms of South African labour legislation, the newspaper vendor could not be defined as an employee and that a case of unfair dismissal could not be brought before the CCMA.

Constructive dismissal

By Phil Davel

Question:

My employer makes my working conditions unbearable. She constantly finds fault with everything and she yells at me. I cannot go on like this and I want to resign. Will I be able to claim for constructive dismissal because she is the reason why I want to resign?

Answer:

Definition of constructive dismissal

To be able to answer the question, one should first determine what constructive dismissal actually is: It is a situation that has developed in the workplace, entirely brought about by the employer, and that would make continued employment intolerable for the employee – to such an extent that the employee has no other reasonable option but to resign without notice, or simply to leave the employment. In other words, due to unfair pressure, unreasonable instructions or intolerable actions caused or created by the employer, the employee was forced (hence “constructive dismissal”) to resign.

The Labour Relations Act (No. 66 of 1995, as amended (LRA)) gave constructive dismissal statutory status. Section 186(1)(e) provides that “dismissal” inter alia means the following: “[An] employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Therefore, constructive dismissal is subject to a number of requirements that we will discuss later. For now, it is important to remember that if the above statutory description applies, the law states that the employee has been unfairly dismissed by the employer.

Burden of proof

In a conventional dismissal case, the burden of proof lies with the employer to prove that the dismissal was procedurally and substantively fair and reasonable. In a case of constructive dismissal, the employee has to prove constructive dismissal on a balance of probabilities (see Jooste v Transnet).

Once the employee has acquitted him/herself of the burden of proof, the burden of proof shifts to the employer to prove that the employee’s decision to resign had been unreasonable (in terms of section 192 of the LRA).

Requirements for constructive dismissal

Since the implementation of the LRA, court cases and authorities on alleged constructive dismissal basically stated four requirements:

 

  1. The employee must prove that he/she has resigned or terminated the contract of employment. This is usually fairly easy to prove and depends on the facts in each case.
  2. The reason for the employee’s resignation must be that continued employment would have been intolerable. This is an objective test on whether the situation could have been tolerated or not, and does not rely on whether the employee’s perception or personal feeling (subjective) was that the situation had become intolerable (see Watt v Honeydew Dairies (Pty) Ltd). (Authors such as J. Grogan believes that the test is partly subjective, and partly objective, provided that the employee’s perception was reasonable.) In addition, the employee has to prove that he/she would have continued working if it had not been for the employer’s actions. In other words, the employee should not have had the intention to resign beforehand (see Jooste v Transnet Ltd t/a SA Airways). The employee should also have been reasonably convinced that the employer actions would not change and that the unreasonable and intolerable practices therefore would have continued.
  3. The employer’s conduct created the intolerable situation for the employee: There has to be a connection between the employer’s actions and the situation that resulted in the employee resigning. The question is whether the employer’s conduct was of such a nature, and without any valid reason, that it resulted in breaking down or damaging the trust between the employer and the employee. The employer’s conduct as a whole is judged to determine whether the employee could have been expected to put up with it (see Pretoria Society for the Care of the Retarded v Loots).
  4. The final requirement is that the employee should have exhausted all internal procedures and that resignation was the final, reasonable option. By this, the employee would prove that the internal grievance procedure available to him/her provided no remedy and that he/she had no other option but to resign.  (In Pieterse v AGI(Pty) Ltd the applicant’s claim regarding constructive dismissal failed because he/she, among other things, did not first follow the formal grievance procedure.)

Disputes

Disputes about possible constructive dismissal should be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the appropriate bargaining council and the employee may request compensation or reemployment (if the unbearable situation has then been resolved).

Constructive dismissal is difficult to prove

There are numerous examples of possible constructive dismissal and the facts in different cases may vary but it is important to keep in mind that most of the disputes regarding constructive dismissal at the CCMA are rejected as unfounded. Therefore, an employee must be aware of the scope and degree of difficulty involved to prove constructive dismissal. If an employee resigns and his/her claim regarding constructive dismissal fails, the resignation will still be valid. This could have serious financial implications and involve lengthy legal proceedings for that person.

Can you appeal against the CCMA?

By Gerrit Visser

Question

I was dismissed and my case has already been heard by the Commission for Conciliation, Mediation and Arbitration (CCMA), but I’m not satisfied with the commission’s finding. In what cases can a person appeal a ruling of the CCMA?

Answer

Firstly: a commissioner of the CCMA makes an arbitration award. The award cannot be appealed. Section 145 of the Labour Relations Act (No. 66 of 1995, or “LRA”) allows for an arbitration award to be reviewed.  An application for a review is lodged with the Labour Court. In such an application, the party who is requesting the review is the applicant. The application must be lodged within six weeks of the date that the award was served on the applicant.

Section 145 of the LRA lays down four grounds for a review, namely:

1.    If the commissioner committed misconduct in relation to his or her duties as an arbitrator;
2.    if the commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
3.    if the commissioner exceeded his or her powers; or
4.    if the award has been improperly obtained by the commissioner.

This section of the LRA has been dealt with extensively in the courts. Sidumo & Others v. Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1907 (KH) is a leading case in this regard. In the case Herholdt v. Nedbank Ltd [2012] 9 BLLR 857 (AAH) the principles were reinforced and clarified.

Without discussing any of the two cases in depth, they demonstrate two principles: Firstly, the commissioner’s award and argument only have to fall within the scope of reasonableness. In other words, even if there are people who disagree with the arbitration award, that in itself does not render the award incorrect, as long as the argument falls within the scope of reasonableness. Secondly, if a commissioner has made an error, the error in itself does not render the award reviewable. It must first be proven that the result of the error renders the award unreasonable.

Misrepresentations in your CV

By Nicolette Greeff

Question:

Is a misrepresentation in my CV grounds for dismissal?

Answer:

Misrepresentations in your CV could lead to your dismissal. If your CV contains information that is a misrepresentation and you provide other information to an interview panel, you will not necessarily evade fair dismissal after you’ve been employed.

In the matter Department of Home Affairs & Another v. Ndlovu & Others (2014) 9 BLLR 851 (LAC) an employee claimed in his CV that he had completed and obtained a Bachelor of Technology Marketing Degree. However, he in fact obtained the degree two years later, after his appointment as area manager. The employee was dismissed because he had provided false information in his CV when he had applied for the area manager’s post.
The CCMA ruled that the employee’s dismissal had been fair, but the Labour Court set aside the arbitration award, ordering his reinstatement.

The employer took the Labour Court’s decision on review. The Labour Appeal Court ruled that the Labour Court had misinterpreted the dispute. The matter at issue was the misrepresentation that the employee had made in his CV and not whether he had disclosed to the panel that he had not obtained his degree yet. The court ruled as follows:

1.    The employee listed the degree among his academic qualifications on his CV with the intention of impressing the panellists, which was sufficient to prove gross misconduct.
2.    Even though the employee had disclosed to the panel that he had not qualified for the degree yet, the information in his CV still amounted to a misrepresentation.
3.    A misrepresentation by an employee before assumption of duty justifies dismissal, even if the misrepresentation is discovered at a later stage and even if the employee’s work performance is up to standard.
4.    Serious offences may lead to the sanction of dismissal. A ruling of dismissal can therefore be given, even if the employer did not advance arguments regarding irreparable damage to the employment relationship.

I’m pregnant and worked at a bookshop in a busy shopping centre

Question:
I work in a bookshop in a busy shopping centre. I am expected to be on my feet the entire day to assist clients who need help. I am pregnant and experience problems as a result. My manager disciplined me because my appearance is not conducive to the image of the business and I was dismissed. Could the fact that I am pregnant be a disadvantage?

Answer:

Section 187 of the Labour Relations Act lists a few cases where an employee may under no circumstances be dismissed. If an employee is dismissed because of any of the listed reasons it automatically is an unfair dismissal. This means that the employer will not have any defence or excuse and that the employee has to be reappointed, or should the employee prefer, be compensated.

How much time do I have to refer a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA)?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

When a dispute arises over the fairness of a dismissal such a case should be referred to the CCMA or relevant bargaining council within 30 days after the employer has made the final decision to dismiss the employer.
Unfair labour practice should be referred to the CCMA or relevant bargaining council within 90 days after the employee became aware of the unfair labour practice. The procedure is dealt with by Section 191 of the Labour Relations Act.
If such a matter is not referred within the determined time, an application for condonation may be made. According to Rule 9(3) of the Rules of the CCMA the following has to be included in such an application:
• How much time has lapsed.
• The reason why the application is late.
• The merit of the case.
• Any other relevant factors or parties that may be influenced.
A CCMA commissioner will then decide whether the case will be accepted or not.
Solidarity members should contact the trade union as quickly as possible after the dismissal or unfair dismissal case, so that the trade union may discuss the case and provide the member with the necessary forms.
For any further enquiries with regard to the time in which cases have to be reported, please phone Solidarity’s legal experts on 0861 25 24 23.

Unfair dismissal?

Question:

I have been working as a receptionist from 1 July 2005. I was appointed as a relief worker, as the employer’s wife was absent due to illness. On 1 February 2006 I went on maternity leave. The employer now wishes to terminate my services as his wife has returned to work and is able to continue with her duties. Are they acting fairly towards me and what is owed to me?

Answer:

The details of the enquiry are vague. I assume that there is no written service contract between the employer and the employee and that the general labour legislations principles apply.

The position of the employee and employer is as follows:

  1. She is not retrenched, as her services are terminated in terms of an agreement and not due to operational requirements.
  2. She does not get paid maternity leave.
  3. The employer may terminate her services without a notice period, as she is with unpaid maternity leave on the one hand and because the other receptionist has returned (as agreed) on the other hand.
  4. She is only entitled to remuneration, accrued leave or overtime as agreed on.

I have won my arbitration hearing and the commissioner found that I had been unfairly dismissed…

Question:

I have won my arbitration hearing at the CCMA and the commissioner found that I had been unfairly dismissed.

My employer has now indicated that he wishes to review the arbitration order. On which ground could the employer have the order reviewed in the Labour Court? 

Answer:

Any party to a dispute who is dissatisfied with an arbitration order, may have such order reviewed. Revision however is not an appeal.

An arbitration order could in terms of Section 145(2) of the Labour Relations Act be reviewed in the following instances:

  • When the commissioner is guilty of misconduct;
  • Is guilty of gross negligence irregularities during the arbitration;
  • Exceeded his authority; or 
  • When the award has been obtained in a wrongful manner.

In case of a revision application to the Labour Court the applicant should bring the Commissioner’s “misconduct” to the attention of the CCMA, and the merit of the dispute plays a negligible or no role.

“Misconduct” of the Commissioner refers to the fact that the Commissioner has not acted correctly, in the manner expected from him, during the arbitration. In other words, the Commissioner’s order is not reviewed, but rather the manner in which such a finding was made.                            

Grounds for review could include that the Commissioner has refused a party to call witnesses, cross-examine witnesses, misconstrued evidence and much more.

The powers of CCMA-commissioners are explained in Section 142 of the Labour Relations Act and should the Commissioner not adhere to said powers, such behaviour could also be grounds for a review.

Of vital importance is the fact that the Commissioner’s analysis of the evidence brought before him has led him to a reasonable and justified finding.

Whether the final order is correct, is not relevant, as long as the Commissioner’s evaluation of the evidence is without error. The evaluation could lead to an incorrect ruling, but the order will not be reviewed by the Labour Court. It is important to note that review applications are heard in the Labour Court, which is a higher court.

Legal costs in such a court are substantially higher and applications should be evaluated with circumspection.

Refusing to dismiss employees

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

When is the suspension of an employee unfair?

By Rizelle Botha

The suspension of an employee can be considered to be unfair in the following circumstances:

  • When the suspension is merely a form of punishment and the employer never intended to hold a disciplinary hearing. This rule is confirmed in  Sajid v Mohamed NO & Others (2000) 21 ILJ 1204 (LC).
  • When the employee is suspended for an unreasonable length of time, especially if periods of suspension are regulated and limited by the employer’s internal procedures.
  • When the employer does not have a prima facie case (that is, a case that appears to be based on sufficient evidence) against the employee.
  • When the employer does not follow his own disciplinary guidelines.
  • When the employer does not afford the employee an opportunity to provide reasons why he or she should not be suspended. These reasons need not be presented formally and in writing – they may also be given verbally.

If an employee is unfairly suspended, he or she may file a complaint of unfair labour practice against the employer under section 186 (2)(b) of the Labour Relations Act (No. 66 of 1995). If you are a member of Solidarity and you are of the opinion that you have been suspended unfairly, contact us as soon as possible for prompt and thorough legal advice and assistance.

Unauthorised use of vehicles and accidents

By Lelanie du Plessis

Question:

My employer dismissed me for the unauthorised use of their motor vehicle and for being in an accident at the time. They have held a disciplinary meeting beforehand. It is the employer’s policy that we may not use their vehicles after hours between 19:00 and 05:00 and that we have to obtain permission to do so from our managers. I called my manager and he refused to give me permission to use the vehicle after hours to drive back from the area where I had been working during the week. He said I had to sleep another night in the guesthouse since it was a long drive. However, I wanted to be back at the office early the next morning and left at 02:00 to drive back. There were roadworks and I rolled the vehicle shortly after I left. My employer did not reclaim the damages to the vehicle from me. I have a clean disciplinary record and I have worked at the company for two years. I am of the opinion that my dismissal was unfair, although my employer followed the correct procedure. Surely, I should have received three warnings first. If I wanted to refer the matter to the CCMA, what would my chances of success be?

Answer:

When determining the fairness of a dismissal, two aspects should be taken into account, namely the procedure followed and the substance (reason for dismissal). I conclude from the above that the procedure followed by the employer before your dismissal is not in dispute, only the substance.

In this case, you have been accused of serious misconduct, which could lead to dismissal even if it was your first offense. It is a misconception that an employer has to give an employee three warnings before dismissal could take place. The seriousness of the charge is the decisive factor. The situation was worsened by the fact that your manager explicitly forbade you to drive the vehicle back after hours and that you disobeyed his instructions. An employer is not only responsible for their vehicles, but also for their employees using the vehicles on public roads, and could therefore devise rules and regulations for safety purposes.

The fact that you made an accident with the vehicle shortly after you left, further contributes to the severity of the case and in the past the fair dismissal of several employees have been confirmed by the courts and the CCMA, especially if the unauthorized use of a vehicle resulted in a car accident or was associated with negligent driving. That was also the ruling in the case of NUM OBO Nabe v Eskom Adelaide (2012) 8 BALR 875 (CCMA).

With the information you have provided, there does not seem to be any merit in referring a case of unfair dismissal. Furthermore, you must take into account that your employer could sue you for damages caused to the vehicle because you did not obey their rules for the use of their vehicle.

Cost orders of referrals to CCMA or bargaining councils

By Hendrik van der Hoven

Question:

Should employees be concerned that an order as to costs could be awarded against them when a case of unfair dismissal is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or other bargaining councils?

Answer:

In the case of Moloi v Macsteel Service Centres (VRN Reef) [2014] 2 BALR 117 (MEIBC] the following happened:

Mr Moloi’s employer laid a charge of sexual harassment against him. Before his disciplinary hearing could take place, Mr Moloi sent the following email to his employer:

‘Seeing the Macsteel VRN’s future is not that bright and its business taking a nose dive and that soon enough most of its employees won’t have jobs anyway, I have decided to jump ship in order to focus on steering my own little ship which I have been privately building with the little remuneration that you have been paying me for the past 8 years of service to you. I which to thank you for the opportunity that you have given me over the years which I have used to my advantage by empowering myself with the industry knowledge while I acted like a dom[sic] garden boy. On Monday I’ll be coming to render my resignation formally and to claim what is legally mine in terms of pension pay-outs and outstanding remuneration.
It was nice doing business with you.

Jacob, CEO & Working capitalist’

The next Monday Mr Moloi changed his mind and decided to withdraw his resignation. In reply to his request to withdraw his resignation, he was informed that his request had to be referred to the employer’s head office.

Mr Moloi decided that this meant that he had been dismissed and proceeded to refer a case of unfair dismissal to the MEIBC (Metal and Engineering Industries Bargaining Council.
The employer was of the opinion that it was unnecessary for Mr Moloi to provide it with a formal resignation and that Mr Moloi’s above-mentioned email served as a voluntary resignation.

The MEIBC commissioner ruled that no dismissal took place and that Mr Moloi resigned voluntarily.

The commissioner further found that in the light of Mr Moloi’s unreasonable and annoying insistence on proceeding with this frivolous case while he knew that the services of the MEIBC were free and were funded by taxpayers’ money, it was necessary to grant an order as to costs against Mr Moloi, which meant that he was responsible for the employer’s legal costs in connection with the case.

What are unfair labour practices and automatic unfair dismissal?

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

  • <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
  • Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
  • A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

  •  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
  • The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
  • The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
  • Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

My contract has been terminated without warning, half a year before it would have lapsed…

Question:

I was employed at a tertiary institution with a fixed term contract for five years.

My contract has been terminated by the institution without warning, half a year before it would have lapsed.

It was alleged that my contract has been terminated due to operational requirements.

Answer:

The member’s case concerns breach of contract by the employer.

When the member entered into the service contract with the employer, the employer created an expectation with the member that the contract would be valid for a term of five years. 

A recent ruling (Buthelezi vs. Municipal Demarcation Board in die Labour Court) made it clear that in the case of a fixed term contract an employer is bound to the contract for the full term of such a contract. Should the employer cancel the service contract, it would mean that the employee has been procedurally and substantively unfairly dismissed.

Parties undertake to remain bound to a fixed term contract for the full term, which is not the case with service contracts with an indefinite term.

It is clear that when parties enter into a fixed term service contract both parties plan their financial obligations with the understanding that the contract will be honoured.

The argument that the employer may have or submit certain reasons to terminate the fixed term service contract is not a valid argument.

The fact remains that when the employer can no longer afford the employee for whatever reason he still may not unilaterally cancel the service contract.

The employer should have entered into a service agreement with the employee for an indefinite term.                           

Remedies:

The employee could refer the case to the relevant forum (CCMA or Bargaining Council) as an unfair dismissal.

Remuneration could be demanded for the outstanding part of the fixed term service contract.

Employer (37)

What records must my employer keep?

By Johan Roos

Answer

In terms of section 31 of the Basic Conditions of Employment Act, an employer must keep records that contain the following information:

• an employee’s name and occupation;
• the time worked by each employee (the duration of employment);
• remuneration paid to the employee;
• the employee’s date of birth if he or she is younger than 18 years; and
• any other prescribed information.

Resignation

Question:

Can a resignation be withdrawn?

Answer:

As is the case with most labour-law matters, there is no clear yes or no answer. In the case of Lottering & others vs Stellenbosch Municipality (2010) 31 ILJ 2923 (AH) the employees resigned without giving the required notice as stipulated in their contracts. In the Labour Court the employees argued, among other things, that their resignation had no legal force because of their neglect to comply with the period of notice as set out in the Basic Conditions of Service Act (No. 75 of 1997) and their service contracts.

The Labour Court found that a clear resignation cannot be withdrawn without the employer’s consent. An explicit acceptance by the employer is not necessary either. It was further found that a service contract ends when the period of notice expires and not when notice is given. The court confirmed that should an employee’s resignation not comply with the stipulated period of notice, this does not render the resignation invalid – it implies breach of contract and it is the employer who has an option to accept the resignation or not.

The lesson to be learned from this is not to resign on the spur of the moment. A decision to resign must be a well-considered one.

Transport to and from work

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

Outstanding statutory dues

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

Non-performance of an unlawful instruction

Disputes regarding refusal to carry out reasonable instructions are fairly common. In most of these disputes it is found that dismissal was fair. However, what is the position when an employee who refused to carry out an unlawful instruction is dismissed?

The Labour Court recently heard such a case. The employee concerned was a managing director who refused to summarily dismiss two subordinates at the instruction of the chief executive officer (CEO). She was prepared to hold a disciplinary hearing for the two employees, but the CEO insisted on immediate dismissal. When the employees still refused to dismiss them, she was dismissed.

The court came to the conclusion that the instruction that had been given to the employee to dismiss the two employees without a disciplinary hearing was unlawful, as the employees were entitled to a disciplinary hearing before dismissal could be procedurally fair. Employers cannot expect employees to perform an unlawful action. This prohibition is set out in section 5(2)(c)(iv) of the Labour Relations Act, according to which an employee or jobseeker may not be prejudiced for failure or refusal to do something that an employer may not lawfully permit or require an employee to do.

If an employer dismisses an employee on the basis of a reason set out in section 5, such dismissal is deemed automatically unfair in terms of section 187(1). In the case described above, the court ruled that the dismissal had been automatically unfair and awarded the employee compensation.

Unlawful or unreasonable instructions can take on various forms and each case will be judged on merit. Instructions to commit an offence, non-compliance with legislation and instructions to work in an unsafe or hazardous workplace or to carry out an unsafe or hazardous task are just a few examples of unlawful or unreasonable instructions. These cases will not be strictly regarded as unlawful or unreasonable instructions by the courts. After all, police officials cannot refuse to work if they are pelted with stones during unrests. A miner can refuse to work underground in an unsafe area, but the situation changes if that miner is part of a proto team who have to go and rescue miners who are trapped underground. An instruction to assault a colleague or to steal something is clearly not a lawful instruction and to assert that you carried out an instruction will not count as a defence in a criminal court.

An instruction to perform tasks that do not form part of an employee’s job description is not necessarily unreasonable. The court has previously ruled that the instruction to employees to operate two machines instead of one was not an unreasonable instruction. It is therefore crucial to not refuse to carry out an instruction right away and to get advice immediately, or to carry out the instruction, but to get advice and lodge a grievance.

The following factors must be taken into account to determine if an instruction is unlawful or unreasonable:
- Is the action following the instruction prohibited by legislation or common law?
- Is the action following the instruction regarded as being against good morals or against the public interest?
- Is the instruction issued in an emergency?
- Is the action following the instruction regarded as part of your job functions?
- If the action following the instruction is not part of your normal job functions, how far removed is it from your normal functions?
- Does the instruction promote the employer’s business without placing an undue burden on the employee?

An objective test must be applied to determine whether or not an instruction is unlawful or unreasonable.

Solidarity can offer its members advice on what to do in a specific situation. The golden rule is to contact your trade union for advice before refusing to carry out an instruction.

Health and safety

By Leigh McMaster

Question:

Should employers be held accountable for health and safety at their operations?

Answer:

Yes, all employers should be held accountable for health and safety at their operations. Ensuring healthy and safe workplaces is part of the mining industry’s social licence to mine.

Take for example the compensation battle that looms in the gold mining industry. The Mankayi v. AngloGoldAshanti case, where a landmark ruling was given in 2011, has set the precedent for a possible class action lawsuit against some 30 gold mining companies. Harmful exposure to silica dust in the South African gold mining industry has been a major risk for employees over decades of mining. The prevalence of silicosis among former and current mineworkers has been very difficult to establish, however. A 2009 report from the Health Systems Trust which evaluated various research reports suggested that the prevalence of silicosis among former employees may be between 20% and 30%. The potential number of claimants may therefore be substantial, taking into account the employment figures of the gold industry over the last eight decades.

Richard Spoor, a human rights activist and attorney, has moved to file a class action suit against more than 30 gold companies on behalf of 17 000 former miners who say they contracted silicosis, a debilitating lung disease, due to negligence in health and safety. The companies include third-largest global bullion producer AngloGold Ashanti, fourth-largest bullion producer Gold Fields and Harmony Gold. Spoor filed the application to bring a class action with the High Court in December 2012 and expects the matter to be heard in May 2013. Due to various factors it is still unclear what the extent of the claims for damages will be, but the claims will undoubtedly have a significant impact on the financial sustainability of the industry.

Solidarity is of the opinion that former and current employees suffering from occupational lung diseases should be compensated at reasonable levels, which is not the current status quo as a result of the discrepancies in the South African legislation dealing with compensation. The development of a compensation trust fund could be a more sustainable model for delivering reasonable compensation to disabled employees while at the same time ensuring sustainable employment for the current workforce.

Termination of signed contract

Question:

May an employer terminate a valid, signed contract of employment if the employee has not started working there yet?

Answer:

An employee is protected by labour legislation and case law from the moment a contract of employment has been signed, even if he or she has not yet physically started working for the employer.

In the case Wyeth SA (Pty) Ltd v Manqele, Mr Manqele had been offered a post as sales representative. The parties signed a contract of employment stipulating that Mr Manquele’s employment would commence on 1 April. Before Manquele started working there the employer informed him that they were no longer willing to employ him. Manquele referred the matter to the Commission for Conciliation, Mediation and Arbitration and the arbitrator ruled that he had become an employee the moment he accepted the employer’s offer of employment.

The employer took the arbitrator’s decision to the Labour Court on review. In the hearing of the review application the Labour Court confirmed that Manquele was a party to a valid contract of employment and therefore was an employee for purposes of the Labour Relations Act.

The employer then referred the matter to the Court of Appeal. This court confirmed that Manqele became an employee from the moment he had been contracted.

Therefore, an employer may not simply terminate a valid contract of employment, even if the employee has not yet physically started working for the employer. This rule also applies to verbal agreements.

(IM)PARTIALITY OF PRESIDING OFFICERS

Anton van der Bijl

QUESTION:

I was accused of poor work performance at my job. However, I feel that the presiding officer of the disciplinary hearing was biased since:

  • I wanted a lawyer to represent me at the disciplinary hearing. I made the proper representations to the presiding officer, but my request was unfairly dismissed; and
  • The presiding officer was continually arguing with my representative. As a result I could not argue my case properly.

What can I do in such a case? Can I ask the presiding officer to recuse him or herself and/or could I possibly approach the Labour Court to stop the disciplinary hearing due to the presiding officer’s bias?

ANSWER:

The facts as stated above played out in the Labour Court in the case of Mashiya vs Sirkhot NO (2012) 33 ILJ 420 (LC). In this case the court ruled that there were no grounds on which to grant an urgent interdict to stop the disciplinary hearing since:

  • The employer’s Senior Management Service (SMS) Handbook does not make provision for legal representation. Furthermore, the presiding officer exercised his right to refuse the employer’s application for recusing properly; and
  • The altercation between the employee’s representative and the presiding officer was nothing out of the ordinary and has occurred in many disciplinary hearings.

If you are experiencing work-related problems or if you feel that a presiding officer of a disciplinary hearing is biased and is discriminating against you, feel free to contact us for expert legal advice and assistance.

Unauthorised use of vehicles and accidents

By Lelanie du Plessis

Question:

My employer dismissed me for the unauthorised use of their motor vehicle and for being in an accident at the time. They have held a disciplinary meeting beforehand. It is the employer’s policy that we may not use their vehicles after hours between 19:00 and 05:00 and that we have to obtain permission to do so from our managers. I called my manager and he refused to give me permission to use the vehicle after hours to drive back from the area where I had been working during the week. He said I had to sleep another night in the guesthouse since it was a long drive. However, I wanted to be back at the office early the next morning and left at 02:00 to drive back. There were roadworks and I rolled the vehicle shortly after I left. My employer did not reclaim the damages to the vehicle from me. I have a clean disciplinary record and I have worked at the company for two years. I am of the opinion that my dismissal was unfair, although my employer followed the correct procedure. Surely, I should have received three warnings first. If I wanted to refer the matter to the CCMA, what would my chances of success be?

Answer:

When determining the fairness of a dismissal, two aspects should be taken into account, namely the procedure followed and the substance (reason for dismissal). I conclude from the above that the procedure followed by the employer before your dismissal is not in dispute, only the substance.

In this case, you have been accused of serious misconduct, which could lead to dismissal even if it was your first offense. It is a misconception that an employer has to give an employee three warnings before dismissal could take place. The seriousness of the charge is the decisive factor. The situation was worsened by the fact that your manager explicitly forbade you to drive the vehicle back after hours and that you disobeyed his instructions. An employer is not only responsible for their vehicles, but also for their employees using the vehicles on public roads, and could therefore devise rules and regulations for safety purposes.

The fact that you made an accident with the vehicle shortly after you left, further contributes to the severity of the case and in the past the fair dismissal of several employees have been confirmed by the courts and the CCMA, especially if the unauthorized use of a vehicle resulted in a car accident or was associated with negligent driving. That was also the ruling in the case of NUM OBO Nabe v Eskom Adelaide (2012) 8 BALR 875 (CCMA).

With the information you have provided, there does not seem to be any merit in referring a case of unfair dismissal. Furthermore, you must take into account that your employer could sue you for damages caused to the vehicle because you did not obey their rules for the use of their vehicle.

Work after retirement age

Question:

If an employer has allowed me to keep on working after I reached the agreed or normal retirement age, is the employer then entitled to terminate my services at any time thereafter because of my age?

Answer:

In the CCMA ruling Buhai v Hotbake Systems (Pty) Ltd t/a Rich Products Corporation of South Africa – (2013) 22 CCMA 7.1.4, the employee was appointed by the employer shortly before he reached the age of 65. After the employee turned 65, the employer allowed him to keep on working for a time, but he was later told that he had to retire. The employee claimed that the employer decided to get rid of him because he had developed personal financial problems. Therefore, the employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner ruled that the employer was aware of the fact that the employee was nearly 65 years of age when he appointed him. The commissioner’s ruling was based on evidence that other employees of the employer were also allowed to keep on working after the age of 65. The Commissioner also found that the employer should have been aware of the fact that the employee had reached the age of 65 and the employer also allowed that particular employee to continue working after the age of 65. Hence, the Commissioner ruled that the employer was not in a position to argue that the real reason for the termination of the employee’s services was the fact that he had reached his ‘normal or agreed’ retirement age. The real reason for the termination was something else and the employer therefore did not follow the correct procedure associated with the real reason for termination. Therefore, the employee’s dismissal was unfair.

Farmworkers’

By Lizette Oosthuizen

Question:

May deductions be made from farmworkers’ pay for accommodation provided?

Answer:

As far as farmworkers’ accommodation is concerned, the following deductions may be made in terms of Sectoral Determination 13:

An amount of no more than 10% may be deducted from a farm worker’s wages for his accommodation on condition that the dwelling complies with the following requirements:

  •  Safe water must be available inside the house; if not, safe water has to be available within 100 meter from the house.
  • The roof of the house must be durable and waterproof.
  • The house must have glass windows that can be opened.
  • A flush toilet or pit latrine must be available in or close to the house.
  • Electricity must be available inside the house if electrical infrastructure exists on the farm.
  • The house has to be at least 30 square meters in size.

An employer may not make any deductions for accommodation if a farm worker is younger than the age of 18.

Where more than two workers share accommodation, the permissible deductions for shared accommodation are calculated as follows:

  • The joint total deduction of all farm workers residing in the shared dwelling is 25% of the wage payable to an individual farm worker residing in the shared dwelling.
  • An equal amount in respect of the abovementioned amount must be deducted from each farm worker.

Deductions for loss or damage to a house may only be made if:

  • The loss or damage is caused by a mistake by the relevant worker;
  • a fair procedure has been followed in terms of which the farm worker was given a reasonable chance to indicate why such deductions should not be made;
  • the total extent of the amount owed does not exceed the amount of the actual damage; and
  • the total amount of the deduction does not exceed a quarter of the worker’s wages in net terms.

Moreover, it is important to note that a farmer may not deduct money from a farmworker for the grazing of the farmworker’s cattle, sheep or other livestock.

Should you have any enquiries in this regard, do contact our call centre on 0861 25 24 23.

Working hours of farm workers

By Gerhard Hildebrand

Question:

How are the working hours for farmworkers regulated during a state of emergency on the farm?

Answer:

If a state of emergency should arise on a farm under circumstances that the employer could not reasonably have foreseen and provided for, the normal terms and conditions for working hours, overtime, Sunday work, night work, lunch breaks and rest periods do not apply. Examples of such an emergency include fires, floods and outbreaks of disease among livestock.

Under normal working conditions, employers may not allow or expect workers to work overtime unless there is an agreement between the parties and the overtime does not exceed 15 hours a week. The total number of working hours per day, including overtime, should not exceed 12 hours. This provision does not apply during an emergency situation and an employer can then expect a worker to work longer hours, even if there is no agreement, and even if they work longer than the maximum prescribed number of hours during the emergency.

The times the employee can be expected to work, includes Sundays and at night. Night work is work performed between 20:00 and 04:00.

Workers should be granted a daily rest period of at least 12 consecutive hours and a weekly rest period of at least 36 consecutive hours, which should include a Sunday. Farm workers are also entitled to a lunch break of one hour after performing five hours of consecutive work. Again, this provision is not applicable during a state of emergency on the farm.

Although the employer can expect the workers to work longer than the prescribed number of hours, the employer is not exempt from paying them compensation for overtime, night work and work on Sundays.

During the emergency, it is reasonable to expect an employer to rotate the workers’ working hours and to make a use of additional workers on a temporary basis to get the emergency under control.

Under the influence

By Phil Davel

Question:

My husband works on a mine and was sent home because he was believed to be under the influence of alcohol when he reported for duty. Where can I obtain the official checklist of symptoms indicating that a person might be under the influence, and is the employer entitled to summarily subject him to an alcohol test?

Answer:

A high level of alcohol in the body affects vision, speech, co-ordination and response speed. Workers will not be able to control machinery or drive vehicles, and will pose a risk for themselves and for fellow workers.

As far as a list of officially recognised symptoms is concerned, it should be noted that there are no labour laws or regulations that contain a “checklist” one could simply tick off to determine whether or not a person is under the influence of alcohol or drugs. Most mines in South Africa have specific regulations and policies applicable to the use of alcohol and these provide for a breathalyser test among other provisions. Usually, a miner whose breath testing has a positive alcohol reading, is sent to the mine’s medical station for further tests, which include blood tests. Blood samples may only be taken with the employee’s permission. Mines take a zero tolerance stance on alcohol and therefore the blood specimen may not contain a trace of alcohol.

Generally, employers consider the following symptoms when determining if an employee could possibly be under the influence of alcohol:

1.    Eyes: Eyes are red and bloodshot; pupils are dilated;
2.    Speech: Speech is slurred and incoherent;
3.    Behaviour: There is a change in behaviour (the person’s behaviour is different to his normal, “sober” behaviour);
4.    Movement: The person walks with a stagger (the person tends to sidestep to the left rather than with a straight gait) and shows some disorientation;
5.    Impaired co-ordination and responses;
6.    Smell: There is a smell of alcohol on the person’s breath.

Although the above list is not a recognised test to indicate the use of alcohol or drugs, the mine can request testing if any of those symptoms are present.

No person who is under the influence of alcohol or drugs, or is in any condition that leaves him incapable of being responsible for himself or any other person under his supervision may be allowed on a mine. The regulations as determined in Chapter 4 of the Mine Health and Safety Act (No.29 of 1996), stipulate that such person who is on a mine or even near any mining activities may be arrested summarily and may be deemed guilty of an offence under these regulations. (Please also refer to the General Safety Regulations 2A as contained in the Occupational Health and Safety Act (No. 85 of 1993). In terms of those regulations it is against the law to allow any worker who seems to be under the influence of alcohol in any workplace). The mine is thus fully empowered to test any person wishing to enter its premises, and to send the person home should he/she test positive.

During disciplinary hearings, evidence about an employee who was not by his/right mind or who seemed to show symptoms of intoxication, will only be valid as circumstantial evidence, which does not carry as much weight as conclusive evidence does. The only recognised evidence for intoxication while a person is on duty will be proper alcohol testing and accompanying blood alcohol tests. Expert witness may also be used. Bear in mind that, in Labour Law, the burden of proof only vests in a balance of probabilities.

Case law also provides clear indications regarding the permissibility of such circumstantial evidence. In MTWU obo Makalima v Pulp and Paper Carriers CCMA (2012-06-21) reference is, inter alia, made to the following:

… intoxication involves an impairment of the employee’s faculties, discernible effect upon his behavior beyond the limits of sobriety, not merely the … of alcohol at the time the tests were taken. The fact that his speech was slurred is, in itself, not indicative of intoxication. It may be an indication of intoxication and it is one of the recognized methods of determining intoxication, but unless one excludes any other possibilities such as tiredness or the fact that the person has the nature of a tendency to slur his speech, it is not in itself intoxication.

Hence, it is important to contact Solidarity immediately should any charge of intoxication while on duty be made.

Mining companies should continue to adequately educate their employees on the risks associated with alcohol and drug use before or during working hours as employees still do not realise the risks it poses for them and for their fellow workers.

What there is to know about suspension

By Helgard Cronje

Questions:

1.    May the employer suspend me from work before I have appeared before a disciplinary hearing?
2.    Should I be paid (or not be paid) during the period of suspension?
3.    What is the purpose of suspensions?

Answers:

There are two types of suspension. The first is a preventative suspension in which case the employer suspends the employee pending a disciplinary inquiry. The second type is a punitive suspension in which case the employer accepts suspension as an alternative to dismissal.

Preventative suspension

The reasons for such a suspension are to prevent an employee from interfering with the inquiry. This type of suspension is legal and the employer is acting within his rights when an employee is suspended before the person has had a disciplinary hearing, as long as it is a preventative suspension.

This type of suspension must be accompanied by full pay. Although the employee may not go to work he must still receive his full pay, the reason being that the employee has not yet been found guilty of any possible charge against him, and the purpose of this type of suspension is not to penalise the employee.

Punitive suspension

Punitive suspension also involves the employee being instructed by the employer not to come to work. However, this type of suspension may only be used as an alternative for dismissal. In the main, it means that the employee had already been found guilty during a disciplinary hearing and dismissal was found to be the appropriate sanction, but the employer proposed suspension without pay as an alternative.

This type of suspension may therefore be without pay, for the very reason that it serves as punishment for the employee.

Conclusion

1.    The purpose of a suspension could be either preventative or punitive depending on the facts of the matter
2.    The employer may thus suspend me before I have had a disciplinary hearing.
3.    If the suspension is merely preventative in nature, I have to receive pay, but if it is punitive, it could be without pay.

Alcohol and drug abuse in the workplace

By Driescha Meissner

Question

What should I know about alcohol and drug abuse in the workplace?

Answer

Drug and alcohol abuse is a big contributing factor to accidents in, and absence from the workplace. The negative effects of drug and alcohol abuse on a person’s work include: low productivity; inability to meet deadlines; inappropriate behaviour; absenteeism; and poor time management.

An estimated 15% of all accidents in the workplace are alcohol or drug related. The majority of employers have clauses in their disciplinary codes that stipulate how alcohol- and drug-related behaviour should be dealt with.

 

The Occupational Health and Safety Act (No. 85 of 1993) determines that an employer must ensure that an employee –

  • who is suspected of being under the influence of alcohol or drugs does not work or enter the workplace;
  • is not under the influence of alcohol or drugs at the workplace;
  • is not in possession of any alcohol or drugs at the workplace; and
  • does not provide any alcohol or drugs to a co-worker.

Alcohol or drug testing

There is a big difference between being under the influence of alcohol or drugs and having alcohol or drugs in your system.

The presence of alcohol or drugs in a person’s bloodstream can only be determined through a blood or breathalyser test. Such a test may only be carried out by someone who is trained to do so.

Visible signs that an employee may be under the influence of alcohol or drugs include the following:

 

  • The person’s appearance – clothing; bloodshot eyes; red in the face; a liquor smell when he or she speaks; unsteady on his or her feet; and so on.
  • The person’s speech – he or she speaks louder or softer than usual; and incoherent and/or slurred speech.
  • The person’s behaviour – disorderly; very emotional; and/or behaves differently than usual.

In order to find an employee guilty of having been under the influence of alcohol or drugs during work hours, an employer has to prove that there was alcohol or drugs in the employee’s system and that it affected his or her work performance.

Can an employee refuse to undergo alcohol or drug testing?

If the workplace has a rule that makes provision for alcohol or drug testing, the employer may take disciplinary steps against an employee who refuses to undergo such a test. Refusal to undergo a drug or alcohol test in itself cannot be regarded as evidence that an employee was under the influence of alcohol or drugs, but may lead to other disciplinary charges if provided for in the employer’s disciplinary code and policy on drugs and alcohol.

When Solidarity has no representation at your place of work

By Helgard Cronjé

Question:

Why should I be a member of Solidarity if it is not the representative union at my place of work?

Answer:

When a union enters into a collective agreement with an employer, that union becomes a representative union with that specific employer.

A trade union will only be able to enter into collective agreements with employers if the members of that union constitute a large part of the employer’s labour force. The percentage of the labour force that has to belong to the union before the employer will enter into an agreement with it, may be determined by the employer, except where the union’s members constitute more than 50% of the labour force. In such a case the employer has no choice but to enter into a collective agreement with the union as it is compelled by law to do so.

If a trade union is a representative union with an employer, the union will be able to involve itself in the employer’s internal processes even if the union is a third party and an outsider. The union will, for example, be able to represent its members at disciplinary hearings without the employer being able to refuse the representation.

However, Solidarity has many members who are the only Solidarity members working for specific employers and Solidarity can therefore not enter into collective agreements with these employers. This means that Solidarity as a trade union is not the representative union at these employers and therefore does not have the right to involve itself on behalf of its members in the internal processes of these employers. The result is that Solidarity cannot represent a member should the employer refuse representation.

Many people feel that in such circumstances Solidarity membership is not worth its while. However, from a legal point of view Solidarity membership has many other benefits. Solidarity has a service centre with four qualified legal advisers who can assist members with advice in circumstances where the union cannot represent them. This may not sound like a big advantage, but to place it in perspective, just keep in mind that it will cost a person between R600 to R1 000 an hour to consult an attorney.

A further and even more valuable benefit is that Solidarity can indeed represent its members at the CCMA and other bargaining councils and in the labour court without the employer having any say in whether the member may be represented or not because the issue has then become an external matter and no longer forms part of the employer’s internal processes. It costs nothing to refer an issue to the CCMA or a bargaining council, but should a person approach a legal representative to represent him, the costs could escalate so quickly that it could become financially impossible to continue with the case. Should such a person use Solidarity’s services, the union charges no extra costs to represent him or her, provided that he or she must have been a member of the union for more than three months and the membership fees must be paid up to date.

The commissioner could still refuse that an attorney represent the individual should the employer object to it. This is within the commissioner’s discretion. The conclusion is therefore that there is no more affordable way than Solidarity membership to ensure that justice is done if your employer unfairly tries to get rid of you.

As far as value for one’s money is concerned, this kind of legal aid cannot be obtained anywhere else.

Change-rooms and showers at work

By Johan Böning

Question:

Are there any regulations that employers should provide showers and change-rooms for employees?

Answer:

The Occupational Health and Safety Act (Act 85 of 1993) contains certain regulations in this regard and the provision of change-rooms and showers are specifically included in the regulation regarding facilities.

The Act provides that, should employees have to use a shower or have to change clothes, the employer should provide a separate change-room for each sex.

In terms of the facility regulation [Regulation (4)(2)(a) there may not be a door or other opening in the change-room that leads directly to another room or rooms where exposure to dangerous substances is equal to or higher than the safety level for those substances.

Part (b) of the facility regulation states that the employer must provide sufficient seats or couches

Part (c) states that no material, tools or other goods that are not part of the change-room may be stored in change-rooms.

Part (d) states that if there are windows, opaque glass should be used.

Parts (e) and (f) states that to ensure privacy, every entrance to every change-room must be partitioned off and that there must be clear and visible indications as to which sex uses the relevant change-room.

Part (g) refers to a facility for employees to dry their wet clothes should their clothes become wet in the course of their work day.

In terms of part (h) each change-room must have the right ventilation (natural or artificial) as stipulated in the National Building Regulations.

Part (i) states that employers must make sure that employees to whom change-rooms are made available (as mentioned above) do not change clothes in places other than the change-rooms.

Subject to the requirements for dining rooms, as contemplated in regulation 5, an employer may make the change-room available for use as a dining room provided it meets the following requirements:
•    There must be a partition at least two metres high between the change-room and the place where meals are taken; and
•    there may be no direct thoroughfare between the change-room and the toilet facilities.

Should employers not comply with the regulations for facilities, the employee may report it to the safety representative, safety committee or employer. If the shortcomings are not rectified, a complaint may be lodged with the inspectorate of the Department of Labour.

Should my leave be paid out to me?

By Gerrit Visser

Question:

I have been working for the same employer for two years and have never taken leave or applied for leave. Should my employer compensate me for the two years’ leave should I resign?

Answer:

The answer can be found in the very recent case of Ludick v Rural Maintenance (Pty) Ltd – (2014) 23 LC 6.7.1. The Labour Court considered two contrasting judgements and made a finding from which we can learn the following lessons:

1.    The purpose of the Basic Conditions of Service Act (No. 75 of 1997) regarding annual leave is that the employee should take it within six months of the expiry of a 12-month cycle.

2.    An employer may not introduce a stipulation in terms of which an employee’s leave lapses before six months have passed after the expiry of a cycle

3.    An employee may (through the Department of Labour) compel an employer to grant his/her annual leave not later than six months after the expiry of a cycle.

4.    If an employee does not claim annual leave within six months of the expiry of a cycle, the employer is not obliged to pay it out upon termination of service.

5.    All outstanding leave that falls within six months of the expiry of a cycle is payable upon termination of service.

6.    Should an employer fail to pay money to which an employee is entitled, interest on the outstanding amount must be paid in terms of section 75 of the Basic Conditions of Service Act.

From the case cited above it is clear that the principle of vigilantibus et non dormientibus jura subveniunt (the law protects the wakeful and not the sleeping) is still being applied in the Labour Court. Although Solidarity does not necessarily agree with the findings of the court, these are the current guidelines and we therefore strongly advise employees to make sure that they take their annual leave.

Disciplinary hearing

By Hendrik van der Hoven

Question:

Are there certain cases or circumstances where an employer may request that I defend myself at a second disciplinary hearing on exactly the same charges?

Answer:

Should an employer for example discover that the process followed during the first disciplinary hearing contained serious mistakes and that a fair process was not followed, the mistakes can be rectified by starting the disciplinary hearing all over again. Rectifying the mistakes made during the first process should benefit both the employee and the employer. The second hearing should, however, not be held long after the first hearing. If, for instance, three months have already passed after the first hearing, a second hearing would probably not be fair.

Another reason for a second hearing could possibly be that the employer’s management is for some reason or other not satisfied with the sanction imposed by the presiding officer at the first hearing. Perhaps the company management is asking for a more severe punishment or even dismissal. The presiding officer could perhaps have found the employee innocent while the management is asking for a conviction and sanction. The first important point to remember, is that the management should have been involved in the first disciplinary hearing to be able to question the finding of the presiding officer. This means that the management must have been present at the hearing and have considered all relevant testimony and evidence before it could be argued that the management deviated from the finding of the presiding officer in a just manner. Normally the decision or finding of the presiding officer is final. If the management of an employer is not satisfied with the outcome or sanction of the hearing, intervention is possible only if the people who are intervening were involved in the hearing and the employer could offer a very good explanation for the deviation from the presiding officer’s decision.
One explanation by the employer could possibly be that new evidence has been found that would have changed the outcome of the hearing if it were available at the first hearing. If the effect of the new evidence will be that a lighter sanction should have been imposed on the employee or that the employee could possibly be innocent, a second hearing is of cardinal importance to let justice prevail. In certain cases it will also be justified for an employer to insist on a second hearing should the new evidence justify a much higher sanction, for instance evidence that justifies dismissal through and through.

The conclusion is therefore that in each case efforts should be made not to have to arrange a second hearing on the same charges. However, in certain exceptional cases there will be no choice and a second hearing can be held only after all facts and circumstances have been considered and it would be fair to hold a second hearing.

Application in the Labour Court

By Inge Labuschagne

Question:

How does an application in the Labour Court in terms of section 158(1)(c) of the Labour Relations Act work?

Answer:

In terms of section 158(1)(c) of the Labour Relations Act (Act 66 of 1995) it is within the competence of the Labour Court to make a settlement agreement and/or an arbitration order an order of the court. This application is issued and sent to the employer in the form of a notice of motion accompanied by a sworn statement. The settlement agreement or arbitration order is also attached to the statement as an appendix.

If you want to have an arbitration order made an order of the court, you must bear in mind that the employer has six weeks after receiving the arbitration order from the Commission for Conciliation, Mediation and Arbitration (CCMA) to review the order. Such a section 158(1)(c) application is normally launched after six weeks have passed without the employer reviewing the arbitration order.

Currently the position is that you have only three years after signing the agreement or receiving the arbitration order to launch a section 158(1)(c) application in the court. Superannuation therefore starts on the day you and the employer sign the agreement or on the day you receive the arbitration order from the CCMA. An application for review does not automatically stop the superannuation process.

Therefore, when you have launched the application and have sent it to the employer, the employer has ten workdays (excluding weekends and holidays) to oppose your application and this has to be done by means of an opposing affidavit by the employer. Again, should the employer oppose the application, you have five workdays after receipt of the statement to react to it by means of a further sworn statement. As soon as all the statements have been exchanged, you must number the pages chronologically and compile an index. The case is then ready to be placed on the court roll for a hearing date. The court will then inform the parties concerned (the applicant and the employer) of when they should appear before the court to argue the case. The parties will also be instructed to file their heads of argument within a certain time. The heads of argument is a document in which your whole case is set out and contains all the facts and legal principles on which your case is based. Argumentation takes place on the basis of the court documents only and no evidence is tendered. It can take between a month and a year to finalise this process.

If no opposition is received from the employer, you may proceed directly to the indexing and pagination of the court document and set it down for hearing. In such a case the court document goes to a judge and he/she will usually grant the order in chambers. It could take anything from one to eight months for such an order to be granted.

When you receive the order, it is sent to the employer with a letter of demand. Should the employer fail to pay, you may have a warrant issued by the Labour Court and sent to a sheriff for execution of the instructions. The sheriff then usually attaches the assets (if any) and sends you a report in which all the assets and their value are set out. You then give further instructions for the assets to be sold by public auction. If there are no assets, there is unfortunately no way to recover your money and all you can do is to send out the sheriff again a year or so later to see whether some assets have accrued in the meantime.

Termination of service

Question:

What must an employer give an employee upon termination of service?
(Part 1)

Answer:

One of the documents that an employer must give an employee in terms of section 42 of the Basic Conditions of Employment Act (Act 75 of 1997), is a certificate of service.

This certificate must contain the following information:

 

  • The employee’s full name;
  • The name and address of the employer;
  • The reference to any council or sector under which the employer’s business falls;
  • The date on which the employee assumed duty and the date of termination;
  • The post designation or a short explanation of what the employee’s post entailed;
  • The employee’s salary on the date his service was terminated;
  • The reason for the termination, if the employee requests it.

Privacy

By Johan Nell

Question:

How private is private?

Answer:

In this day and age we rely more and more on a multitude of electronic devices, from cell phones and laptops to tablets etc., to do our work. As an employee you are entitled to be supplied with the necessary equipment to comply with the demands of the market and your employment environment. Therefore, many employees are issued with the company’s cell phones, laptops, tablets and other electronic devices such as storage devices for storing necessary information, documentation and other electronic information necessitated by the nature of their work.

The question arises what your rights and liabilities are in utilising these devices. The trite principle is that if it belongs to the employer, everything on it belongs to the employer and all material property stored on the devices belongs to the employer. You are, therefore, entitled to utilise such devices for the purposes of your work. All emails, voicemails, messages, internet usage, communication and files stored on these devices are therefore considered part of the company’s business and client records. Such communications are therefore not considered private or personal to any individual employee. The browsing record of the device may therefore also be previewed, audited, inspected and accessed at any material time the employer deems it necessary.

The principle is that the company-based email is the property of the employer and may be used accordingly. The question, however, arises: What is the position with regard to web-based addresses like Yahoo and Gmail? Further to that, the principle of social media and Facebook is also an aspect that has to be addressed.  The principle is that no derogatory remarks may be made and posted on Facebook, but may the employer access your Facebook account and your web-based email, which are password protected?

Firstly, looking at the first principle of Facebook, which constitutes a social network, you use a username and a password.  The principle of friend indicates that a person you are friends with on the social network may have access to your Facebook page. It has been argued that an employer has the right to do background checks and familiarise himself with the employee, either prior to employment or after employment. The principle of forced friends comes to the fore when employers compel employees to invite people and accept them as friends on Facebook, whereafter they will have access to the Facebook page of the employee.

In terms of section 6 of the Employment Equity Act (Act 55 of 1998) an employer in South Africa may not unfairly discriminate against employees or applicants for employment on a number of grounds. These grounds include race, gender, pregnancy, sexual orientation, HIV status, political opinion, conscience, language, religion and similar grounds. Accessing the social network account of an employee or applicant for employment may result in the employer gaining access to information of an employee or applicant concerning one of the grounds listed in section 6. This action may, therefore, constitute unfair discrimination and unfair labour practice.

Looking at international law where the South African law remains silent on this aspect, in the United States Facebook strongly reprimanded US employers who demanded employees’ social network passwords,  saying that this practice contravened Facebook’s terms of use and was potentially illegal. As a user you should not be forced to share your private information or communication with anybody just to obtain a job or keep your employer satisfied. This would constitute an unfair labour practice and is contrary to the terms and conditions of Facebook’s user policy.

Further to the above: The Labour Relations Act also protects job applicants and employees. An instruction to divulge private information does not have a bearing on the employment relationship and is not a lawful instruction. Therefore, if an employer seeks to compel an employee to share or divulge such information, it is considered to be an unfair labour practice and may also be deemed an infringement on the right to privacy of an employee.

Only in cases where there is very reasonable suspicion that an employee or applicant has posted comments that may have a bearing on the employment relationship between the prospective employee or current employee and the employer may the employer  demand full access to the private information posted on social media by the person concerned. There are absolutely no other grounds on which an employer can demand this and failure or refusal to grant him access to it cannot be viewed as insubordination and/or refusal to obey an instruction as such an instruction would be blatantly irregular and unfair.

The other aspect is your web-based email. The service provider may be discovered through the browser by utilising your company device, but the question is whether or not the employer may peruse your private emails. The South African law is not clear on this aspect. We had to consider aspects from the Supreme Court of New Jersey as the next step in looking for an answer where South African law and case law are silent. In accordance with this international law, which I believe will shortly be followed by other countries, it was found that an employee had a certain right and expectation of privacy. In the case of Stengrad v. Loving Care Agency Incorporated, the New Jersey Supreme Court held that the employer infringed upon her privacy when it searched the former employee’s company laptop computer and in the web browser found history emails she had exchanged with her personal counsel, using her own private password protected email account.

The court found that Loving Care’s web-based policy was unclear with respect to these specific circumstances and issue because it did not address the use of personal web-based email accounts and accounts accessed through company equipment or company devices. It did not address personal accounts at all nor did it warn employees that contents sent via personal accounts could be forensically retrieved by the company.

It was therefore clear that Stengrad had an expectation of privacy with regard to emails sent via her web-based email account.

This does not, however, mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt policies relating to computer usage to protect the assets, reputation and productivity of a business and to ensure compliance with legitimate corporate policies. An employer can enforce such policies and may discipline employees if they are found to be violating these workplace rules. The employer should therefore ensure that his policies are very clear relating to the use of these electronic devices and the consequences of using them and should be extremely clear by stating that no files accessed through the company device are to be viewed as personal or private and that no expectation of privacy exists throughout.

The principle is therefore that employees should at all times acquaint themselves with the company policy and they are advised to refrain from using company devices for personal use.

Historic consistency regarding disciplinary action

By Adel Botha

Question:

What does historic consistency with respect to disciplinary action involve?

Answer:

The question “was the rule fair and was it applied consistently” is certainly one of the most important factors that has to be taken into account during internal disciplinary proceedings. In Hope v Petrologic (2007) 10 BALR 897 [MEIBC] the arbitrator found that an employee’s dismissal can be regarded as unfair if employees are treated differently for the same or similar offences. In this case, an employee was dismissed because of theft. However, two other employees had only been given final warnings for the same offence merely a week before. The employer was consequently ordered to reinstate the employee.
Historic consistency, as illustrated in Hope v Petrologic (2007) 10 BALR 897 [MEIBC], therefore involves that an employer has to take the same disciplinary steps when a comparison is drawn with the way in which disciplinary steps were taken in the past. The same sanction can be enforced in the case of previous, similar disciplinary offences, unless the circumstances surrounding the different incidents truly differ from each other.

In such a case the employer will at least have to prove that –

  • he (the employer) has knowledge of the previous employee’s same or similar misconduct;
  • that the person with whom a comparison is drawn can be identified;
  • that the different individuals were subject to the same circumstances; and
  • that he (the employer) has not in the intervening period communicated and implemented new workplace rules and regulations.

An employer will, however, be able to defend alleged inconsistency successfully if the decision to treat two or more employees differently can be justified by personal circumstances, the seriousness of the misconduct and other relevant factors. For more information on this topic, phone us on 0861 25 24 23.

Information needed for legal aid if fired

By Gerrit Visser

Question:

I have just been verbally informed of my dismissal. I am of the opinion that I have been unfairly dismissed and I need someone to assist me. I understand that the law only protects the vigilant and not those who slumber on their rights. What should I do on my part to enable a lawyer to help me?

Answer:

As is the case with any other labour law issue, the answer will depend on the circumstances. However, the following list would be useful:

1.    In terms of section 192 of the Labour Relations Act (No. 66 van 1995) (hereafter referred to as the “LRA”), the onus falls on the employee to prove that he/she had been unfairly dismissed in any unfair dismissal dispute. Therefore, you can insist on the following information from your employer:

1.1.    The written results of the hearing (if a hearing had been held);
1.2.    A notice of termination in terms of section 37 of the Basic Conditions of Employment Act (No. 75  of 1997) (hereafter called the “BCEA”);
1.3.    A certificate of service in terms of section 42 of the BCEA;
1.4.    Final payslip in terms of section 33 of the BCEA; and
1.5.    UI-19 form in terms of the Unemployment Insurance Act (No. 63 of 2001).

2.    In the event of any referral of a dispute to the CCMA or any other forum, there must first be evidence that the dispute form had been served on the employer. To assist the person who will assist you in this regard, the following information is required:

2.1.    Service contract;
2.2.    Full name of the legal entity under which name your employer conducts business;
2.3.    Fax number of employer;
2.4.    Postal address of employer;
2.5.    Physical address of employer;
2.6.    The name and preferably the particulars of the mediation or dispute resolution forum under which your employer falls; and
2.7.    The total of all outstanding monies owed to you, including how it had been calculated.

3.    If your employer does not want to provide you with the above information, you as employee must approach the Department of Labour. In terms of Chapter 10 of the BCEA, the Department of Labour can take certain actions to compel the employer to provide the required information.

4.    Depending on the dispute, this list may not necessarily be complete. However, it is the minimum needed to enable anyone to assist you.

5.    Finally, you as an employee should always bear in mind that the person assisting you is only able to litigate and take further steps on the basis of the information provided by you.

Signing of documents

By Herman Perry

Question:

Should I sign documents forthwith that my employer has given to me for signature?

Answer:

Labour law often makes use of contracts for various purposes, including instances:

•    When an employee enters into an employment contract upon accepting a new job;
•    When an employer wishes to change an employee’s conditions of service;
•    When retrenchments have been agreed upon and a voluntary severance package has been negotiated;
•    When a conflict situation has arisen and the employee is being paid to resign in reality.

The excitement that follows a successful job application and the new employee’s signing of an employment contract without having studied it properly or having obtained legal advice about its contents often leaves a bitter aftertaste.  It is important to remember that Solidarity can be approached when a new employment contract has been received.  Solidarity can assist members to achieve a better understanding of the contract and can explain complicated clauses to members to enable them to take an informed decision about the contract and to have a proper understanding of its consequences.

It is sometimes necessary for employers to change conditions of employment. This need may arise from various circumstances, such as when the employer’s type of business has changed and employees have to adapt accordingly.

However, an employer often enforces a change in conditions of service by informing a member that the contract has to change, “or else you don’t have a job any more”.  It is important to consult Solidarity in any instance that deals with the change of conditions of service before signing the contract.  Solidarity will be able to fully inform members of their rights, thereby protecting them against wrongful doings.

When a retrenchment process is embarked upon it often offers the opportunity to apply for a voluntary severance package. That’s when employers often sneak in the controversial “full and final” clause which in effect means that almost no further claims can be brought against the employer.  The result of a “full and final” settlement clause is often that statutory monies, such as accrued leave, can no longer be claimed.

Solidarity will assist members as far as possible to deal with retrenchment procedures, but it remains important to let us have insight into severance package contracts before you sign them.

Therefore, remember:
1.    To submit contracts to Solidarity for advice;
2.    Not to sign contracts before you are not in a position to fully understand the contents of the contract in its entirety.

 

Annual leave

By Helgard Cronjè

Question:

Will I forfeit my annual leave if I don’t apply for it, or will it simply accumulate?

Answer:

This issue is regulated by section 20(4) of the Basic Conditions of Employment Act (No. 75 of 1997) that stipulates that an employer must grant an employee’s annual leave not later than six months after the end of the annual leave cycle. Section 20(1) of the Act defines an annual leave cycle as the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment, or the completion of that employee’s prior leave cycle

The abovementioned provisions can have different interpretations. The first interpretation is that the employer can grant the leave only during the leave cycle and not later than six months thereafter. Consequently, the employee must apply for the leave, otherwise it will keep on accumulating.

The other interpretation is that the employee must take the leave within six months after the end of the leave cycle. The leave will therefore be forfeited after this period.

The Labour Court delivered two contradictory judgments on this issue in the past. For this reason it was unclear whether leave could be forfeited if an employee didn’t apply for it within the six months after the end of the leave cycle. However, the Labour Court recently delivered a new, decisive judgment.

In Ludick v Rural Maintenance (Pty) Ltd, 2014 2 BLLR 178 (LC) the Labour Court found that an employee is only entitled to the leave of the previous leave cycle as well as that of the current, unfinished cycle with due allowance for the 18-month period within which he or she has to apply for leave and within which the employer must grant it. Therefore, if the employee doesn’t apply for leave within six months after the end of the leave cycle, he or she forfeits the leave that accumulated during the previous cycle.

Nonetheless, it is important to bear in mind that this provision only applies to the statutory leave period of 15 working days. If an employer grants an employee more leave than this statutory minimum, the days in excess of the 15 days are contractual leave and are exempt from the abovementioned requirements. If an employee’s contract of service does not specify that such leave has to be taken within a specific period, it can be accumulated. The contract’s provisions will therefore determine whether or not leave can be accumulated.

Affirmative action

By Dirk Groenewald

Question:

May incompetent people be appointed under the guise of affirmative action?

Answer:

When affirmative action is applied in the case of appointments and promotions it is common for candidates with inadequate experience and/or qualifications to be appointed to the disadvantage of a better qualified person with more experience.

The question is whether this practice is in keeping with the act and whether it is actually constitutional. Sections 20(3) and (4) of the Employment Equity Act read as follows:

(3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of, that person’s -
                (a) formal qualifications;
                (b) prior learning;
                (c) relevant experience; or
                (d) capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job, an employer must-
            (a) review all the factors listed in subsection (3); and
b) determine whether that person has the ability to do the job in terms of any one of, or any
combination of those factors.

Section 20(3)(d) is especially perturbing because employers appoint people who are incompetent on paper, justifying it by claiming that such person has the capability to learn do the work within a reasonable time. This is the situation specifically in the civil service.

During public debates on the act the business sector especially objected to the inclusion of section 20(3)(d) and emphasised the following:

“It is practically impossible to determine whether a person will at some time in the future acquire the ability to do the job. This will result in an obligation to employ persons who are not in fact suitably qualified.  The concept of potential is not rejected, but it is appropriate only in the context of appointing trainees or cadets1].

We are, however, of the opinion that employers cannot apply section 20(3)(d) unconditionally. Section 195(1)(i) of the Constitution provides as follows, especially as far as the civil service is concerned:

(i)      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

The Constitution therefore makes it clear that ability, objectivity and fairness must be taken into account specifically in the case of appointments. However, we find it extremely difficult to understand how section 20(3)(d) can simply be applied in isolation to appoint a person without any qualifications and/or experience simply by reason of his or her “ability”, which is a subjective consideration .

There is, however, still a second requirement regarding this provision that applies to the civil service as well as the private sector, and that is the requirement that certain legislation specifically requires a person in a specific position to have specific qualifications.

So, for example, the Engineering Professions Act (Act 46 of 2000) prescribes that all people who perform certain engineering functions should have specific engineering qualifications and be registered with the Engineering Council of South Africa. There is a lot of other similar legislation that also applies because of safety considerations.

Our courts have also confirmed more than once that affirmative action cannot be applied to the detriment of service delivery.

To wind up, employers therefore do not have carte blanche when it comes to the application of section 20(3)(d) and they still have to make sure that the person has the  qualifications prescribed by any relevant legislation and that appointing such person will not compromise his or her safety or that of other people. As far as appointments in the civil service are concerned, the main consideration is always whether or not the appointment will promote service delivery.

Who is considered to be an employee?

By Hendrik van der Hoven

Question:

Could a sidewalk vendor selling newspapers on behalf of Media 24 be defined as an employee in terms of South African labour legislation?

Answer:

The case Dyssel and Media 24 (Pty) Ltd (2014) 35 ILJ 534 (CCMA) dealt with the following events:

A sidewalk vendor who, in the past, had sold newspapers on Sundays on behalf of Media 24, referred a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The vendor used to receive commission from Media 24, based on the number of newspapers sold by him. The vendor had appointed 30 employees of his own to sell the newspapers. However, on 14 July 2013 he received no newspapers to sell and the agreement between the parties was terminated by telephone.

The vendor argued that he started working for Media 24 in the year 2000, and that he was summarily dismissed on 14 July 2013 because he owed Media 24 some money. He admitted to owing the money, but he was willing to repay the money if he could continue working. He further argued that in terms of labour legislation, he had been an employee since a number of aspects listed in section 200A of the Labour Relations Act (No. 66 of 1995) applied to his particular circumstances. Among other things, he argued that he had an area manager over him, that his working hours had been regulated by Media 24, that he had been part of the Media 24 organisation, that he was financially dependent on Media 24 and that, on average, he worked 36 hours per month for Media 24.

Media 24 argued that the vendor was not an employee. The vendor annually signed an agency agreement authorising both parties to terminate the contract by giving 24 hours’ notice. Furthermore, the vendor was obliged to pay Media 24 for the newspapers he received from Media 24, regardless whether the newspapers were sold, stolen or lost. Media 24 did not prescribe to the vendor where or how he had to sell the newspapers; therefore, Media 24 had no control over the time the vendor spent working. Media 24 argued that the vendor was not part of Media 24 and that was managing an independent agency since he appointed or subcontracted 30 employees of his own to handle sales.

The Commissioner found that the method by which the vendor sold the newspapers was not controlled by Media 24. He further found that in terms of the contract, the vendor only had financial and reporting obligations to fulfil. The vendor’s working hours were not regulated and the newspapers could be sold at any time from 05:15 to 18:30. The vendor was not at all required to work specific hours himself. The vendor was not part of Media 24 and only worked on Sundays. At the most, the vendor would have worked 39 hours per month, falling short of the 40 hours stipulated in section 200A of the Labour Relations Act. With regards to the vendor’s argument that he was financially dependent on Media 24 and only worked for Media 24, the Commissioner found that it was the vendor’s own choice not to do any other work since nothing prohibited him from doing other work as well.

Therefore, the Commissioner found that in terms of South African labour legislation, the newspaper vendor could not be defined as an employee and that a case of unfair dismissal could not be brought before the CCMA.

When is someone an employee?

By Johan Roos

Question:

How can I establish if someone is an employee?

Answer:

Section 83A of the Basic Conditions of Employment Act (No. 75 of 1997) and section 200A of the Labour Relations Act (No. 66 of 1995) determine that a person has to meet the following requirements to be deemed an employee:

  • The manner in which the person works is determined by another person.
  • The person’s hours of work are determined by another person.
  • In the case of a person who works for an organisation, the person is a part of that organisation.
  • The person has worked for that other person for an average of at least 40 hours per month over the last three months.
  • The person is economically dependent on the other person for whom that person works or renders services.
  • The person is provided with tools of trade or work equipment by the other person.
  • The person only works for or renders services to one person.

The regulations do not apply to any person who earns more than the limit of R205 000 per year. If a proposed or existing work arrangement involves a person who earns an amount equal to or below this amount, any of the contracting parties may approach the Commission for Conciliation, Mediation and Arbitration for an advisory award about whether the person involved in the arrangement is an employee.

Constructive dismissal

By Phil Davel

Question:

My employer makes my working conditions unbearable. She constantly finds fault with everything and she yells at me. I cannot go on like this and I want to resign. Will I be able to claim for constructive dismissal because she is the reason why I want to resign?

Answer:

Definition of constructive dismissal

To be able to answer the question, one should first determine what constructive dismissal actually is: It is a situation that has developed in the workplace, entirely brought about by the employer, and that would make continued employment intolerable for the employee – to such an extent that the employee has no other reasonable option but to resign without notice, or simply to leave the employment. In other words, due to unfair pressure, unreasonable instructions or intolerable actions caused or created by the employer, the employee was forced (hence “constructive dismissal”) to resign.

The Labour Relations Act (No. 66 of 1995, as amended (LRA)) gave constructive dismissal statutory status. Section 186(1)(e) provides that “dismissal” inter alia means the following: “[An] employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Therefore, constructive dismissal is subject to a number of requirements that we will discuss later. For now, it is important to remember that if the above statutory description applies, the law states that the employee has been unfairly dismissed by the employer.

Burden of proof

In a conventional dismissal case, the burden of proof lies with the employer to prove that the dismissal was procedurally and substantively fair and reasonable. In a case of constructive dismissal, the employee has to prove constructive dismissal on a balance of probabilities (see Jooste v Transnet).

Once the employee has acquitted him/herself of the burden of proof, the burden of proof shifts to the employer to prove that the employee’s decision to resign had been unreasonable (in terms of section 192 of the LRA).

Requirements for constructive dismissal

Since the implementation of the LRA, court cases and authorities on alleged constructive dismissal basically stated four requirements:

 

  1. The employee must prove that he/she has resigned or terminated the contract of employment. This is usually fairly easy to prove and depends on the facts in each case.
  2. The reason for the employee’s resignation must be that continued employment would have been intolerable. This is an objective test on whether the situation could have been tolerated or not, and does not rely on whether the employee’s perception or personal feeling (subjective) was that the situation had become intolerable (see Watt v Honeydew Dairies (Pty) Ltd). (Authors such as J. Grogan believes that the test is partly subjective, and partly objective, provided that the employee’s perception was reasonable.) In addition, the employee has to prove that he/she would have continued working if it had not been for the employer’s actions. In other words, the employee should not have had the intention to resign beforehand (see Jooste v Transnet Ltd t/a SA Airways). The employee should also have been reasonably convinced that the employer actions would not change and that the unreasonable and intolerable practices therefore would have continued.
  3. The employer’s conduct created the intolerable situation for the employee: There has to be a connection between the employer’s actions and the situation that resulted in the employee resigning. The question is whether the employer’s conduct was of such a nature, and without any valid reason, that it resulted in breaking down or damaging the trust between the employer and the employee. The employer’s conduct as a whole is judged to determine whether the employee could have been expected to put up with it (see Pretoria Society for the Care of the Retarded v Loots).
  4. The final requirement is that the employee should have exhausted all internal procedures and that resignation was the final, reasonable option. By this, the employee would prove that the internal grievance procedure available to him/her provided no remedy and that he/she had no other option but to resign.  (In Pieterse v AGI(Pty) Ltd the applicant’s claim regarding constructive dismissal failed because he/she, among other things, did not first follow the formal grievance procedure.)

Disputes

Disputes about possible constructive dismissal should be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the appropriate bargaining council and the employee may request compensation or reemployment (if the unbearable situation has then been resolved).

Constructive dismissal is difficult to prove

There are numerous examples of possible constructive dismissal and the facts in different cases may vary but it is important to keep in mind that most of the disputes regarding constructive dismissal at the CCMA are rejected as unfounded. Therefore, an employee must be aware of the scope and degree of difficulty involved to prove constructive dismissal. If an employee resigns and his/her claim regarding constructive dismissal fails, the resignation will still be valid. This could have serious financial implications and involve lengthy legal proceedings for that person.

Fixed-term contracts with the possibility of permanent appointment

By Hendrik van der Hoven

Question:

I was employed on a fixed-term contract of three months with the possibility of being appointed permanently if I proved myself. Is the employer under an obligation to appoint me permanently when my fixed-term contract expires if I was never reprimanded for poor work performance?

Answer:

In the case Pretorius and Prime Product Manufacturing (Pty) Ltd (2014) 35 ILJ 305 (Commission for Conciliation, Mediation and Arbitration, or CCMA) Commissioner Jansen van Vuuren was confronted with the following set of facts:

The employee claimed that the three months he worked for the employer was just a probation period and that he would have been employed on a permanent basis if he proved himself during that period. According to the employee, his fixed-term contract of three months was a simulated contract that did not reflect the true intention of the parties or the nature of his services. To prove his argument the employee relied on a letter he had received from the employer, confirming that he had been appointed on a fixed-term contract of three months to evaluate his services and that he would receive a salary increase should he be appointed permanently.

According to the employee this meant that he had actually been appointed on a probation period, in spite of an e-mail to the recruitment agent who had recruited him, confirming that he could not expect to be employed permanently because the recruitment agency was too expensive and because his services would come to an end on 7 March 2012.

The employee argued that he at least had a reasonable expectation to be appointed permanently and that the employer’s failure to appoint him therefore amounted to unfair dismissal in terms of section 186(1)(b) of the Labour Relations Act.

The commissioner of the CCMA found that the letter did not contain any indication that the employee would definitely have been appointed permanently at the end of his fixed-term contract. The letter mentioned that he would receive an increase should he be appointed permanently and for this reason there was merely a possibility of permanent appointment and no definite guarantee. The commissioner further ruled that the e-mail between the employer and the recruitment agent provided clear proof that the employee had been effectively appointed only for a fixed period of three months.

With respect to the employee’s claim that he had a reasonable expectation to be appointed permanently, the commissioner ruled that because he had been aware of the employer’s e-mail to the recruitment agent two months before his fixed-term contract expired, he could not have had a reasonable expectation that his contract would be renewed.

The commissioner consequently ruled that the employer had been appointed on a fixed-term contract that had expired and that he had not been dismissed.

Is non-competition agreement valid?

By Alexia Vosloo

Question:

My employment contract says that if I resign, I am not allowed to work for a similar firm within a 100 km radius for the next two years. Is this restriction valid?

Answer:

When employees sign a non-competition agreement, they undertake to not take up employment at a similar business for a certain period of time and in a certain geographic area after leaving the company. There is an obligation on employees to comply with a contract that forbids competition with their employer upon termination of their employment.

The courts have ruled that a non-competition agreement cannot be adjusted just to ensure that a company does not get competition or to prevent a person from finding meaningful employment elsewhere. Such an agreement has to be based on specific reasons, for example, the protection of secret formulas, client lists, information regarding contracts and similar matters. A basic requirement for a non-competition agreement is that it has to be reasonable.

In the Appeal Court case Magna Alloys & Research v. Ellis 1984 (4) SA 874 (A) the court laid down the following principles:

  • The court rejected the position under English law, ruling that a contractual restraint of trade is valid and enforceable in principle. However, the courts will refuse to enforce this principle if an employee can prove that enforcing it will not be in the public interest.
  • Agreements that are against the public interest are not enforceable and a contract that restricts a person’s freedom of trade is against the public interest. Agreements are therefore unenforceable if enforcing them will be detrimental to the public interest.  It is in the public interest for contracts that are entered into freely to be complied with. However, it is also in the public interest for everyone to have freedom of trade. The public interest is harmed if the restriction of a person’s freedom of trade is unreasonable. The question of whether a non-competition agreement is enforceable therefore depends on the question of whether enforcing it will harm the public interest. There must also be a clear proprietary interest that needs to be protected. Moreover, a non-competition agreement may not be unreasonably broad or unreasonable with respect to time.

In the matter Marchall v. Vistech Communications 1994 15 ILJ 1365 (IC) the court ruled that an employer cannot force an employee to sign a non-competition agreement after the employee has already assumed duty.

In the matter IDB Computers v. Newby & Another 1996 17 ILJ 32 (W) the court ruled that an employer cannot invoke a non-competition agreement if he has dismissed an employee unfairly.

If the fairness of a non-competition agreement is queried, the onus rests on the employee to prove its unreasonableness.

Claims and counterclaims in the Labour Court

By Helgard Cronjé

Question

Outstanding statutory dues such as moneys that are owed for leave, salaries, notice periods and retrenchment packages are often claimed in the Labour Court. What happens when an employer brings a counterclaim for damage caused by an employee?

Answer

Employers often claim they have suffered damages and consequently withhold employees’ statutory dues in the case of retrenchment, dismissal or resignation. This practice is illegal in terms of section 34 of the Basic Conditions of Employment Act. The Act stipulates that a deduction may only be made from an employee’s remuneration with his or her consent, or if the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

What must employees do if their employer withholds or deducts money illegally? The first step is to report the matter to the Department of Labour. If the department is unable to help, the next step is to lodge a claim for the monies with the Labour Court. However, such a decision should be approached cautiously. It is important to bear in mind that an employer could succeed in a counterclaim for damage caused by an employee.

In the case Stoop and Another v. Rand Water it was ruled that the Labour Court does have jurisdiction to make judgments regarding counterclaims relating to damages in labour matters, even if such claims are not strictly labour suits. In the case in question, the employees had to compensate the employer R8 million in damages.

No one wants to win a long, expensive lawsuit, only to find out that his or her claim’s monies have to be written off against the employer’s counterclaim. Likewise, an employee would not want to pay in an amount on the employer’s claim, or be issued with an order to pay the employer’s legal costs.

The decision to lodge a claim with the Labour Court must therefore be approached with great caution, especially in cases where the employer could lodge a counterclaim. The merits of the potential counterclaim must be considered as carefully as possible before the matter is referred to the Labour Court.

When is a medical certificate suspicious?

By Lucinda Pretorius

Labour legislation may come and go, but the problem of false or forged medical certificates and suspicious absenteeism due to illness is here to stay. In present-day working conditions, employers expect employees to submit a medical certificate if they have been absent from work because of illness. Medical certificates serve as security for employers. However, the incidence of fraud in the form of forged medical certificates is on the rise in workplaces.

When is a medical certificate valid and when is it suspicious?

1. A valid medical certificate

There is no statutory definition of a valid medical certificate. Section 23(2) of the Basic Conditions of Employment Act (No. 75 of 1997) does stipulate that a medical certificate must be issued and signed by a medical practitioner or any other person who is qualified to diagnose and treat patients and who is registered with a professional council. Only medical practitioners and registered nurses are authorised to sign a valid medical certificate.

A medical certificate must contain the following information:

•    The date on which it was issued.
•    The date on which the employee was examined.
•    The name of the medical practitioner who personally examined the employee and with whom the employee shared his/her symptoms.
•    A description of the nature of the illness or condition.
•    The name, qualifications, address and phone number of the issuer.

If a certificate does not meet the abovementioned criteria, the employer has the right to refuse to make any payment to the employee for absenteeism as a result of illness or to wait until the employee provides a valid medical certificate.

2.  A valid, but suspicious medical certificate

Medical certificates are more commonly sold to employees than they are forged.

The steps that an employer should follow if he/she finds a medical certificate suspicious are outlined below:

•    Contact the medical practitioner who issued the certificate.
•    Ask if he/she examined the employee and issued the certificate.
•    If the medical practitioner cannot be contacted because the address or the telephone number is not provided on the certificate or does not exist, disciplinary steps could be taken against the employee based on alleged misconduct (fraud/dishonesty).

If an employee is unable to prove that a medical certificate is valid, disciplinary charges may be brought against him/her.

Employers must make a concerted effort to ensure that the use of false medical certificates is prevented or stopped.

Misrepresentations in your CV

By Nicolette Greeff

Question:

Is a misrepresentation in my CV grounds for dismissal?

Answer:

Misrepresentations in your CV could lead to your dismissal. If your CV contains information that is a misrepresentation and you provide other information to an interview panel, you will not necessarily evade fair dismissal after you’ve been employed.

In the matter Department of Home Affairs & Another v. Ndlovu & Others (2014) 9 BLLR 851 (LAC) an employee claimed in his CV that he had completed and obtained a Bachelor of Technology Marketing Degree. However, he in fact obtained the degree two years later, after his appointment as area manager. The employee was dismissed because he had provided false information in his CV when he had applied for the area manager’s post.
The CCMA ruled that the employee’s dismissal had been fair, but the Labour Court set aside the arbitration award, ordering his reinstatement.

The employer took the Labour Court’s decision on review. The Labour Appeal Court ruled that the Labour Court had misinterpreted the dispute. The matter at issue was the misrepresentation that the employee had made in his CV and not whether he had disclosed to the panel that he had not obtained his degree yet. The court ruled as follows:

1.    The employee listed the degree among his academic qualifications on his CV with the intention of impressing the panellists, which was sufficient to prove gross misconduct.
2.    Even though the employee had disclosed to the panel that he had not qualified for the degree yet, the information in his CV still amounted to a misrepresentation.
3.    A misrepresentation by an employee before assumption of duty justifies dismissal, even if the misrepresentation is discovered at a later stage and even if the employee’s work performance is up to standard.
4.    Serious offences may lead to the sanction of dismissal. A ruling of dismissal can therefore be given, even if the employer did not advance arguments regarding irreparable damage to the employment relationship.

Appointments

By Annika Labuschagne

Question:

I was not appointed in a post and I want reasons for my employer’s decision. What can I do?

Answer:

Internal grievance procedure

All internal remedies must have been exhausted before a case of discrimination, unfair labour practice or victimisation can be referred. The grievance procedure must be followed if a decision by an employer causes dissatisfaction. Should the grievance procedure not provide the desired information, a request for access to information/records can be submitted. Although the grievance procedure is the process through which employers must provide information to employees, it is not unusual for grievances to remain unfinalised or simply not to be dealt with at all.

The Promotion of Access to Information Act
(As contained in the guide of the Human Rights Commission)

‘The Promotion of Access to Information Act (No. 2 of 2000) (hereinafter referred to as “PAIA”, or “the Act” interchangeably) is the national legislation which was enacted to give effect to the constitutional right of access to information. PAIA came into operation on 9 March 2001, with the exception of sections 10, 14, 15 and 51, which came into operation on 15 February 2002.

PAIA gives all South Africans the right to have access to records held by the state, government institutions and private bodies.

The following are the objectives which PAIA seeks to achieve:

  • To ensure that the state takes part in promoting a human rights culture and social justice;
  • To encourage openness and to establish voluntary and mandatory mechanisms or procedures which give effect to the right of access to information in a speedy, inexpensive and effortless manner as reasonably possible; and
  • To promote transparency, accountability and effective governance of all public and private bodies by empowering and educating everyone to understand their rights in terms of PAIA so that they are able to exercise their rights in relation to public and private bodies, to understand the functions and operation of public bodies, and to
  • Effectively scrutinise, and participate in decision making by public bodies that affects their rights.

Manner of request

A requester has a right of access to a record of a public body or a private body and must be given access to a record of a public body or a private body if the requester complies with the following procedural requirements:

  • That the request is made on the request form (available on the website under the link http://www.justice.gov.za/forms/form.paia.htm) to the information officer of the public body or head of a private body;
  • That the completed request form is faxed or electronically mailed or hand delivered to the information officer of the public body or head of the private body concerned;
  • That access to the requested record is not refused in terms of any of the grounds for refusal under PAIA.

How to fill in the request form – public and private bodies

A request for access to a record of a private or public body is made by filling in a form called a request form. The request must made to the information officer of the public body or head of the private body at his address, fax number or electronic mail address.

In the request form, the requester is required to provide the following information:

  • Sufficient particulars to enable an official of the public body or the head of a private body to identify the requester.
  • Sufficient particulars to enable an official of the public body or head of a private body to identify the record, including the reference number, if that is known to the requester.
  • If the space in the request form is not adequate, the requester may continue on a separate folio and attach it to the request form. The requester must initial all additional folios.
  • Clearly indicate the form of access or nature of the record in which the record should be provided.
  • The preferred language in which the record should be provided in the case of a public body.’

Although this legislation puts an incredible amount of power in the hands of the employer, it is underutilised. It is not unusual for reasons for the non-appointment and/or promotion of individuals to be kept secret because the employer knows that should the reasons be revealed, they could possibly be faced by litigation

Can my employer deduct mandatory annual leave from my ordinary leave?

By Lizette Snyman

Question

My workplace will be closed during the Festive Season and we have to take mandatory annual leave during that period. Can the employer deduct the mandatory annual leave from my ordinary leave?

Answer

Section 20(10) of the Basic Conditions of Employment Act (No. 75 of 1997) states the following regarding annual leave:

“(10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.”

An employer can therefore determine when annual leave must be taken. An employer can moreover require employees to have enough annual leave available for the period of mandatory leave.

If you have any queries in this regard, please contact us on 0861 25 24 23 or send a query to diens@solidariteit.co.za.

Harassment (3)

My employer is making my working my conditions unbearable

Question:
My employer is making my working my conditions unbearable. She is constantly finding fault with everything and shouts at me. This cannot carry on and I want to resign. Can I resign? Can I claim constructive dismissal because she is the reason I want to resign?

Answer:
Definition of constructive dismissal

Constructive dismissal is “a situation in the workplace, which has been created exclusively by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign, with or without notice, or to simply leave the employment of the employer.”

In other words, the employee is compelled to resign due to unfair pressure, unreasonable instructions or unbearable behaviour caused or created by the employer (thus, “constructive dismissal”).

My colleague criticises my work

Question:

I have a problem with one of my colleagues. Each time I go out of the office or take a day’s leave, she criticises my work. Then she goes to my manager. My manager doesn’t do anything about it, because she is afraid of the colleague. I feel that she has discriminated against me as she had a problem with me right from the start.

Answer:

The problem described here cannot necessarily be categorized as discrimination. The worker who is aggrieved is entitled to submit a grievance against this colleague in which he says that she falsely accused him of things that he has not done. The employer will then be obliged to investigate the matter and solve the problem.

Should the employer not give attention to his grievance, it could be said that his employer discriminates against him, as everyone who has grievances should be treated equally.

The employee also has to keep in mind that his colleague is entitled to complain to the manager if things do not go smoothly in the workplace, provided her accusations are not false. Should she make false accusations, it could tantamount to libel or crimen injuria and he could take civil action against her.

The trade union can only act when a labour dispute arises between the employee and employer.

Sexual Harassment

Question:
Are there various forms of sexual harassment that need to be considered?

Reply:
Sexual harassment can include unsolicited verbal and non-verbal behaviour but is not limited to it.

The following are examples of sexual harassment:
• Unsolicited physical contact of a sexual nature, which can range from indecent assaault, rape, unsolicited physical contact to a body search by a person of the opposite sex.
• Verbal forms of sexual harassment can include unsolicited sexual innuendos, suggestions, questions, jokes or insults of a sexual nature, and remarks about a person’s body in their presence and made directly to them. Even a wolf whiste in the direction of a person or persons can in certain instances be regarded as harassment.
• Non-verbal forms of sexual harassment can include behaviour such as unsolicited signs made to the person, as well as indecent exposure. Showing pornography or even an object of a sexual nature to another person can also be regarded as sexual harassment.
• Quid pro quo harassment takes place when an employer, manager, supervisor or fellow employee tries to control processes such as appointments, promotions, training, disciplinary procedures, discharging an employee or salary raises in exchange for sexual favours.
• Sexual favouritism is when one employee is promoted or gets a raise as a result of a sexual relationship but another employee is passed over because he or she refuses to participate in such a relationship.

I would like to know when I could institute a case of sexual harassment against someone…

Question:

I would like to know when I could institute a case of sexual harassment against someone. A colleague rubs his body against mine. On more than one occasion I have subtly tried to tell him that I don’t like what he is doing. Recently he made a joke in the office and said that I am his secret lover. I have told him that he may never do it again and that he has to stay away from me. Now he is trying to make peace by sending personal gifts to me. I return them, but he doesn’t stop. What can I do to put a stop to it?

Answer:

According to the code of good practice for the handling of sexual harassment cases sexual harassment is described as any undesirable act of a sexual nature. One should however distinguish between sexual attention and sexual harassment.

Sexual attention becomes sexual harassment when:

  • the behaviour continues (although a non-recurrent incident could also be sexual harassment);
  • the aggrieved person has clearly put it to the person that his behaviour is unacceptable and offensive and that the person should stop this behaviour; and
  • the transgressor knows that his behaviour has been unacceptable and offensive.

Sexual harassment indeed is a form of unfair discrimination based on gender or sexual orientation. Section 6 of the Employment Equity Act determines that no one may directly or indirectly discriminate unfairly against a person on the basis of among other his/her gender or sexual orientation.

When a person is harassed, the person could decide to address it formally or informally, depending on how serious the harassment is.

The aggrieved person could solve the matter informally by confronting the person with his undesirable behaviour and request him to stop his behaviour. It is expedient to have a talk to the harasser in the presence of a trade union representative.  Such a person could later be called as a witness in the case. If the behaviour continues, the aggrieved could talk to the harasser’s direct manager. The person’s direct manager could then talk to the harasser.

If the informal procedure was unsuccessful or if the harassment was of a very serious nature, the aggrieved person could decide to immediately start the formal process. This could be done by following the employer’s grievance procedure and then insist that the employer should investigate the complaints and take disciplinary action against the harasser. Should the employer refuse to take action or should the grievance not be solved to the satisfaction of the aggrieved person, a dispute for unfair discrimination could be referred to the CCMA or appropriate Bargaining Council to obtain a certificate. After the appropriate forum has issued a certificate, the dispute could be referred to the Labour Court to settle the dispute.

It seems to me that my boss is harassing me sexually, but I am not sure whether it is, in fact, sexual harassment.

Before one can answer your question about sexual harassment, one first has to establish what sexual harassment is.

Sexual harassment entails unsolicited actions of a sexual nature, which have to be distinguished from sexual attention agreed to by both parties. Even if there used to be a relationship between employees, but one of the parties is no longer happy with the attention he or she is receiving, the attention can turn into harassment. As soon as one person says “no” or feels uncomfortable with the employee’s conduct or advances, it is sexual harassment.

Sexual attention becomes harassment in the following cases:

  • If the actions or attention continues after the person to whom the attention is directed has objected to it.
  • If the person to whom the attention is directed immediately objects and makes it clear that the attention is undesirable.

What must I do if I feel I have been sexually harassed?

Before taking a case of sexual harassment any further, it is important to exhaust all internal remedies. The grievance procedure is regarded as an internal remedy and must be followed. It is also important to stress that, if you make allegations about victimisation or discrimination against a person, you must be able to prove these allegations substantively. The person against whom the grievance was lodged could take civil action against you if your allegations were false.

If your workplace does not have a grievance procedure, you must write letters to the employer. These must then be escalated systematically to the highest level in the company. It then serves the same purpose as the grievance procedure.

When the internal steps have been exhausted, external remedies can be sought.

Holidays (4)

What if my leave overlaps with a public holiday?

Question 4: What if my leave overlaps with a public holiday?

Answer: If leave and a public holiday overlaps the day will not be accounted for as a day’s leave.

How much should I be paid for working on a public holiday?

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

What happens if you as an employee do not show up for work a day before and after a long weekend?

By Phil Davel

Reply:

An employee who simply stays away from work can be charged with misconduct, more specifically for being absent without leave or even for having absconded.

The consequence could be a disciplinary hearing which would in all probability result in a sanction. The sanction depends on the employer’s disciplinary code and could vary between a warning (verbal or written), a final written warning, suspension, demotion, et cetera.  Depending on whether procedure was correct, the merits of the case, extenuating and aggravating circumstances (for example, the person has already received a final, written warning for the same offence), the hearing may even result in discharge. However, the employer may not withhold the person’s salary.

Our advice is that an employee should preferably obtain permission beforehand and put in leave for the specific days.

Labour Boards and Powers (1)

Why are there different forums such as the CCMA, labour court and bargaining councils, and what powers do they have?

Answer: These forums were established in terms of the Labour Relations Act (Act 66 of 1995). These forums have the powers to hear individual disputes, such as cases relating to unfair dismissal. Forums such as the Commission for Conciliation, Mediation and Arbitration (CCMA) can also issue authorisation certificates for strikes. The labour court judge can only rule in certain disputes and the labour court’s jurisdiction is to hear applications for review, handle discrimination cases, and issue interdicts. For example, if the CCMA issues a strike certificate and the employer believes that it is an essential service and a strike should therefore not take place, the employer can submit an application to the labour court for an interdict. Bargaining councils basically have the same jurisdiction as the CCMA and certain industries establish their own bargaining council with which employers must register, where wage negotiations must take place, and where disputes regarding unfair dismissal and labour practices can be referred.

Labour Practices (20)

Unfair labour practice (Part 4)

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By Johan Roos

Johan Roos concludes his series on unfair labour practice. Click here to listen to previous inserts on this topic on Solidarity Radio.

Re-employment
A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement amounts to unfair labour practice in terms of section 186(c) of the Labour Relations Act.

An employee must also be re-employed if he was dismissed due to operational requirements and a collective agreement, contract of employment or any other written agreement determines that he will be re-employed when conditions at the company improve. Failure by the employer to comply with the provisions of such an agreement will amount to unfair labour practice.

Go to www.solidaritylegalservices.co.za for more answers to general questions on legal matters.

What are unfair labour practices and automatic unfair dismissal?

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

  • <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
  • Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
  • A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

  •  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
  • The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
  • The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
  • Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

What are the implications if I work over lunchtime and go home early?

Answer: The regulations of the Basic Conditions of Employment Act will apply. The Act states that for every five hours worked, an employee must receive a break of at least one hour.

When is a person unlawfully absent from work?

Question: When is a person unlawfully absent from work?

Answer: An employee has a fundamental duty towards the employer to provide services, and the employer has the right to expect it. A basic element of these duties is that an employee can be expected to be at work during working hours, unless the employee has a valid reason for his/her absence.

How much time do I have to institute legal in the event of unfair labour practice?

Question:
How much time do I have to institute legal in the event of unfair labour practice?

Answer:
Cases of unfair labour practice must be referred to the CCMA or relevant bargaining council within 90 of the employee becoming aware of the unfair labour practice. The procedure is regulated by Section 191 of the Labour Relations Act.

What happens if I cannot refer the case within this period?

Question:
What happens if I cannot refer the case within this period?

Answer:
If such a matter cannot be referred within the given timeframe, you can still apply for a condonation. In terms of Rule 0(3) of the CCMA’s rules, the following must be included in such an application:

  • How much time has elapsed since the incident;
  • The reason for the late submission of the application;
  • The merit of the case; and
  • Any other relevant factors or parties that might be influenced.

A commissioner of the CCMA will then decide whether the case will be accepted by the CCMA.

Solidarity members must preferably contact the trade union as soon as possible after the dismissal or the commencement of an unfair labour practice in order to discuss the matter and for the member to get the necessary forms.

I would like to know if my employer can refuse to allow me to take smoke breaks

Question: I would like to know if my employer can refuse to allow me to take smoke breaks. Isn’t he infringing on my rights? We have always taken two smoke breaks of 15 minutes each per day, but now our manager is refusing, saying that we cannot smoke on the balcony. What does the law say about this?

Answer: Permitting smoke breaks, just as tea and coffee breaks, is not currently required, prohibited or regulated by labour legislation. Although each employer shouldhave a written smoking policy in the workplace, it is subject to the discretion of the employer and it is a privilege granted to employees. It is, however, important for employers to realise that permitting smoke breaks should be evaluated in light of the working conditions and the morale and needs of employees, but smoke breaks remain a privilege and not something to which an employee is entitled. An employer can even completely prohibit smoke breaks, even if the nature of the workplace does not require it.

Not part of my job description

Question:

I am a flight attendant at a local airline. My senior gave me a form with the week’s flight schedule and asked me to check all the catering supplies for each flight. I politely pointed out to her that it is not in my job description and that I had been appointed as a flight attendant. I cannot remember the checking of supplies or administrative task being part of my duties. My senior referred me to some memorandum, which states that I have to perform such tasks and that I will face disciplinary action if I refuse. I am not aware of such a memorandum. What should I do now?

Answer:

Members often ask if their employer can force them to perform duties that are not part of their task description. We refer to such requirements as ad hoc requirements. Loosely translated, ad hoc means “for a specific purpose or circumstances”.

The first step an employee should take in this case is to refer to the service contract. Most service contracts contain a clause that states that an employee agrees to perform any additional duties, as required by the employer.

My child needs to go to the dentist and his appointment is during my working hours.

Phil Davel

Question:

I expect my employer to grant me family responsibility leave for this because my child is ill and I have to take him.

Answer:

The question is whether, in accordance with the Basic Conditions of Employment Act (Act 75 of 1997), this visit to the dentist during working hours is a case described in Section 27(2)(b):

(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—

(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of—

((i) the employee’s spouse or life partner; or
((ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2 for which the leave as required.

Although the Act does not define ‘ill’, the Oxford dictionary defines ‘illness’ as ‘a disease or period of sickness’ and ‘sick’ as ‘not in full health; unwell’.

The member believes that she is entitled to family responsibility leave in this case. However, the question is, if her employer denied the leave, whether it would be unreasonable and unfair. This is where Section 27(5) is important. So, if the doctor/dentist can provide a letter or certificate to confirm an essential or urgent procedure and the employee hands in this document, the question is whether the employer can, in fairness, deny the leave.

If the visit to the dentist is not urgent, one can argue that the leave concerned falls outside the allowance of the Act and that the employer is entitled to prevent employees from abusing the terms of the Act. Therefore, it is a matter of restrictive interpretation where we are dealing with a limitation of the meaning of general words in order to give effect to the actual intention of the lawgiver. Consequently, the word ‘ill’ has a narrower meaning and this is possibly the appropriate interpretation in this case. .

In summary, one can argue that in the case of a dentist or even specialist medical practitioner such as an optometrist, the urgency level of a visit may vary: either it is a general, regular check-up, or the visit is essential and urgent, such as an abscess or a tooth being knocked out on the playground. In such a case, a medical certificate should be sufficient proof.

Whatever the situation, the discretion rests with the employer to approve or deny a request for this special type of leave. If the employer is willing and able to grant normal leave to give the parent the opportunity to take her child to the dentist, he should still be within the boundaries of reason instead of completely refusing to allow the employee to take care of her child’s wellbeing.

For more information regarding family responsibility leave, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

My employer has decided to relocate the business

Question:

My employer has decided to relocate the business to Johannesburg. The alternative offered to me was that I could resign if I couldn’t relocate. On my salary I cannot afford the additional expense and I don’t have a drivers’ licence.

Answer:

The relocation of offices from Pretoria to Johannesburg is a management prerogative. As positions have not been done away with, the employer does not plan staff retrenchment because of operational reasons.

The provisions of Section 189 with regard to consultation therefore do not apply. It is not the employer’s intention to dismiss the employee. Should an employee not accept the relocation, the result could be that the employer unilaterally changes conditions of employment. In that case the employer will have to start a consultation process to prevent retrenchment. If there isn’t a workable alternative, the employer could dismiss the employee due to operational reasons. Whether the employee would be entitled to a retrenchment package, will depend on the circumstances, in other words whether the change has been a fair alternative for dismissal.

My employer has decided to appoint his son as a director…

Question:

My employer has decided to appoint his son as a director. Now the son dismisses all my proposals. He has also changed the formulas that I have worked on, after which I complained. Even though my salary and position have remained unchanged, I regard the situation as a demotion and unilateral change of my conditions of employment, because the son took over some of my duties.

Answer:

The member has started a grievance procedure and a meeting was held. It’s his employer’s prerogative to manage his business as he deems fit. The son is the co-owner of the business and therefore the member’s manager. The meeting was held and the employer undertook to allow the member to continue with his previous function, in collaboration with the new director. The member should keep the director informed of events.

Sleeping over at teambuilding sessions

Phil Davel
2010-08-11

Question: May an employer force an employee to sleep over for a teambuilding session?

Answer: The employer can definitely expect his/her staff to attend a teambuilding session. This is because attending a teambuilding session could be a direct order and also because it is offered in the interest of operational requirements.

Most employers offer congresses or team building session where attendance is a matter of choice for employees. In this case, employees would not be entitled to payment for overtime if they choose to attend.

If attendance of the teambuilding is compulsory, the issue of overtime payment could arise. Note that overtime is only payable in terms of an agreement. In other words, if the issue of overtime payment, travel allowance, etc. crop up, an agreement must be put in place beforehand.

If the employee is unhappy about the order to attend the teambuilding, he/she can lodge an internal grievance and follow the normal internal procedures. Because an activity such as a teambuilding is normally a once-off event and it is in operational interest, it could be regarded as a fair and legal instruction. Refusing to attend would be to your detriment.

As far as sleeping over is concerned, you cannot necessarily be forced to do so. You can be forced, however, to attend the teambuilding and/or course and to be there when it starts. If the premises where the teambuilding is held are located not too far from your normal place of residence, you could be allowed to sleep at home and return in the morning.

To summarise: The employer can instruct employees to attend the teambuilding session. If it is compulsory and no relevant internal policy or prior agreement is in place, employees can expect to be remunerated for overtime. Attending the teambuilding session does not necessarily require spending the night there.

However, it is important to add that the employer’s requirement to attend the teambuilding should be reasonable and employees’ family responsibilities could be an important factor.

Unfair labour practice (Part 2)

By Johan Roos

Section 186(2)(a) of the Labour Relations Act defines unfair labour practice as unfair conduct by an employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. Click here to read the previous article on unfair labour practice.

Can my employer be forced to promote me? According to the Labour Court, employees are not entitled to promotion, unless there is an agreement or act that determines that an employee must be promoted. In addition, an employee must be promoted if the employer created such an expectation for him or her. In terms of section 186(2)(a) of the Act, employers must act fairly towards employees. Employers must follow all the prescribed procedures when appointing employees and appoint staff according to their operational requirements. This section therefore does not give employees the right to promotion, but the right to fair labour practice.

Unfair labour practice (Part 3): Suspension

By Johan Roos

When an employer considers suspending an employee, he must act in accordance with his disciplinary code, otherwise the suspension will be deemed unfair. Suspension will also be unfair if an employee is suspended without pay, or is suspended even though the employer’s disciplinary policy does not make provision for suspension.

Further, an employee’s suspension should not be prolonged unnecessarily and some policies stipulate that a suspension should be reviewed after a certain period. If a suspension is drawn out, it could have a negative psychological impact on the employee and affect his or her reputation and dignity, as a long-term suspension is often confused with dismissal

Restraint of trade agreements

By Phil Davel

14/04/2011

The courts have defined restraint of trade agreements as a contract in terms of which one party (the employee) agrees with another party (the employer) to restrict his/her freedom to do business with a third party or to work for him or her in future. What it amounts to is that an employee undertakes inter alia not to work for the employer’s competition for a certain period and in a specified area.

Two points should be borne in mind here: Firstly, there are no hard and fast rules when it comes to restraint of trade agreements, and secondly that such agreements are not ruled by labour law but by the law of contracts.

Although parties to a contract are generally deemed bound by it, the courts will not enforce a restraint of trade agreement if it is contravening public policy. It is more than likely to be contravening public policy in the following instances:

1. If the employer does not have a protected interest. A protected interest could include trade secrets, confidential information and client lists. Such information will not be deemed confidential if it is available in the public domain such as, inter alia, the internet, or if commonly applied in practice or in industry.

2. In cases where the scope is too vague, the area too wide, and the term of the restraint of trade agreement is too long. The courts may in some instances enforce the agreement, but limit the scope, area and term thereof.

3. If the restraint of trade agreement is only aimed at preventing sound competition. Should the agreement be enforced in such a case it would be infringing on one’s fundamental right to the freedom of trade, occupation and profession.

The employee will have to prove the above and convince the court that on a preponderance of probabilities the restraint of trade agreement is unfair and unenforceable.

Are employees of a security company permitted to belong to a trade union?

By Johan Roos

Employees have the right to belong to a trade union in terms of section 5 of the Labour Relations Act as well as the Constitution (under freedom of association).

Section 187(1) of the Labour Relations Act determines that a dismissal on the basis of trade union activities is automatically unfair.

Appeal against a ruling by the CCMA

Question: When may I appeal against a ruling by a commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA)?

 

Answer: In terms of section 145 of the Labour Relations Act, a party may lodge an application with the Labour Court for leave to appeal on the basis that the commissioner had made a mistake and/or that something was wrong with the ruling (the term “defect” is used in the relevant section of legislation). If a party makes such an allegation, the party must submit an application to the Labour Court within six weeks following the award.

 

The word “defect” means that:

 

  • The commissioner committed misconduct in relation to the duties of the commissioner as an arbitrator;
  • The commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
  • The commissioner exceeded the commissioner’s powers; or
  • An award has been improperly obtained.

 

It is also important to add that the review cannot be regarded as an appeal, and therefore the conduct of the commissioner in the hearing is considered, and not the merits of the case.

What are the implications if I work over lunchtime and go home early?

Question:

What are the implications if I work over lunchtime and go home early?

 

Answer:

The regulations of the Basic Conditions of Employment Act will apply. The Act states that for every five hours worked, an employee must receive a break of at least one hour.

Voluntary work and labour legislation

By Hendrik van der Hoven

Question:

Is a person who signs a document specifying that he renders voluntary services for a church defined as an employee in terms of South African labour law?

Answer:

A pastor of the Universal Church of the Kingdom of God was dismissed by the church. The pastor, who was unhappy about being dismissed, referred a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). Because the pastor had signed a document stipulating that he rendered voluntary services for the church, the employer (the church) claimed during arbitration that he could not be defined as an employee and therefore could not refer a case to the CCMA. The commissioner of the CCMA found that the pastor did fall under the definition of an employee and that he had been unfairly dismissed.

Justice Steenkamp, in the Labour Court, ratified the ruling the commissioner had made during arbitration. He found that the pastor had led services in the name of the specific church. The pastor had held his services under the control of the church, as he had completed weekly work schedules and reported to someone. The pastor’s working hours had also been regulated by the church, as he had been expected to lead between three and four services a day. The pastor had held services under the banner of that church only and he was therefore part of the particular church. Moreover, the pastor had worked at least 40 hours a month for the church. What’s more, the pastor had not received any other income and had not rendered services to any other organisation or employer. All of these factors are listed in section 200A of the Labour Relations Act and if they are present, the person concerned is presumed to be an employee.

The pastor had moreover received an IRP5 form identifying him as an employee and the specific church as his employer. His PAYE tax number and unemployment insurance number on the IRP5 form were further indications that he had been an employee.

The citation of the abovementioned case is as follows: Universal Church of the Kingdom of God v CCMA & Others [2014] 3 BLLR 295 (LC).

Application for absolution from the instance

By Rizelle Botha

Question

What is an application for absolution from the instance and may such an application be brought in the CCMA?

Answer

Absolution from the instance is an application that can be brought when the party that does not carry the burden of proof in a case, is convinced that the party that does carry the burden of proof has presented such a weak case that he failed to make a prima facie case. The party that does not carry the burden of proof then applies for absolution from the instance after the first party has closed its case. If the application is granted, the presiding judge decides on the matter without hearing evidence from the party that does not carry the burden of proof.

In the recent case Minister of Safety and Security v. Madisha and Others (JR 161-07), Judge Basson ruled that the principle of absolution from the instance did not apply to cases before the Commission for Conciliation, Mediation and Arbitration. According to Judge Basson, the Legislator’s intent was not to burden the arbitration process with legal formalities and that both parties should be heard before a commissioner made a ruling. However, the principle does apply in cases before the Labour Court.

Leave (27)

I have been working at a firm for five years and I would like to know to how much leave I am entitled? Doesn’t leave increase the longer you work at a place?

Question: I have been working at a firm for five years and I would like to know to how much leave I am entitled? Doesn’t leave increase the longer you work at a place?

Answer: The member needs to remember that she is entitled to 15 working days’ leave per year, unless stated otherwise in the service contract. The law mentions 21 consecutive days, but of course this implies that weekends are included. As far as the increase of leave in proportion to the number of years of service: there is no such stipulation, unless determined by an employer agreement of policy.

When am I entitled to leave?

Question 1: When am I entitled to leave?

Answer: If an employee works more than 24 hours per week, he is entitled to 21 consecutive days leave, or one day’s leave for every 17 days worked or one hour for every 17 hours worked.

The Law refers to 21 consecutive days. What is meant by this?

Question 2: The Law refers to 21 consecutive days. What is meant by this?

Answer: Sometimes there may be confusion over the interpretation of the 21 consecutive days. This actually means that an employee has 15 days’ leave. In other words weekends are included in the 21 days.

What if my leave was not granted during my leave cycle?

Question 3: What if my leave was not granted during my leave cycle?

Answer: Leave must be granted at least six months after the end of the previous cycle.

What if my leave overlaps with a public holiday?

Question 4: What if my leave overlaps with a public holiday?

Answer: If leave and a public holiday overlaps the day will not be accounted for as a day’s leave.

May my employer force me to work during my leave?

Question 5: May my employer force me to work during my leave?

Answer: It is important to emphasize that the employee may not be forced to work during his leave period.

May my employer pay out my leave instead of me taking it?

Question 6: May my employer pay out my leave instead of me taking it?

Answer: An employer may not pay an employee for his leave instead of granting the employee permission to take the leave.

May the employer cancel my leave?

Question 7: May the employer cancel my leave?

Answer: The employer may cancel leave due to operational requirements.

If you don’t use your leave one year, is it carried over to the next year?

Question: If you don’t use your leave one year, is it carried over to the next year?

Answer: Most employers have clear policy guidelines regarding the accumulation of leave. The reason is that the employer could run into a financial liquidity crisis if they allowed leave to accumulate indefinitely. If an employee with a large amount of accumulated leave terminated his/her service and the employer had to pay it out within seven days, the funds might not be readily available. Therefore, it is important to note that section 20(4) of the Basic Conditions of Employment Act stipulates specifically that the employer should grant outstanding leave no later than six months following the end of the previous leave cycle (a period of 12 months at the same employer), after which the leave lapses by implication.

Family responsibility leave

Legal Question: Family responsibility leave
By Phil Davel, 3 June 2010

Apart from compulsory annual leave, sick leave and maternity leave to which an employee is entitled, the Basic Conditions of Employment Act 75 van 1997, as amended, (BCEA) makes provision in section 27 for compulsory family responsibility leave. Leave that does not have to be granted in terms of the BCEA includes study leave, unpaid leave and special leave, e.g. for sporting activities. The granting of this leave is entirely at the discretion of the employer.

If an employee has been working for the same employer for more than four months and at least four weeks per day, he/she is entitled to at least three days of paid family responsibility leave during each leave cycle. A leave cycle spans twelve months from the date on which the employee was employed or twelve months from the end of the previous leave cycle. Family responsibility leave does not apply to workers (permanent or temporary) that work less than:

• Four months for the same employer;

• Four days a week for the same employer; and

• 24 hours a month.

However, family responsibility leave is only granted in the following cases:

1. When your child is born or is ill. Note that the BCEA defines a child as a person under the age of 18 years.

2. Upon the death of the employee’s:

• Husband/wife or life partner;

• Own parent, adoptive parent or grandparent;

• Own child, adopted child or grandchild; and

• Brother or sister.

The BCEA does not make provision for in-laws, and also not for stepsiblings. The nanny of the employee’s child is also not covered.

An employer can request reasonable proof before paying the worker. In other words:

• Upon the death of the above-mentioned family member, a death certificate and proof that the deceased is a close family member may be required;

• Upon the birth of a child, a birth certificate and proof of parenthood may be required; and

• When a child is ill, a medical certificate may be required. The BCEA does not define “illness” and only stipulates that reasonable proof may be required.

An employee may take family responsibility leave for the entire day or only part of it. Family responsibility leave lapses if it is not taken in the annual leave cycle. Therefore, it cannot be accumulated.

When it comes to family responsibility leave, the employer must pay the employee the amount to which the employee would have been entitled if he/she had worked that day, and the payment must be made on the usual payday.

If a situation arises during an employee’s annual leave that makes the employee eligible for family responsibility leave, the employer must convert the annual leave to family responsibility leave.

Note that a collective agreement could change the number of days and the conditions under which family responsibility leave is granted.  

 

My child needs to go to the dentist and his appointment is during my working hours.

Phil Davel

Question:

I expect my employer to grant me family responsibility leave for this because my child is ill and I have to take him.

Answer:

The question is whether, in accordance with the Basic Conditions of Employment Act (Act 75 of 1997), this visit to the dentist during working hours is a case described in Section 27(2)(b):

(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—

(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of—

((i) the employee’s spouse or life partner; or
((ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2 for which the leave as required.

Although the Act does not define ‘ill’, the Oxford dictionary defines ‘illness’ as ‘a disease or period of sickness’ and ‘sick’ as ‘not in full health; unwell’.

The member believes that she is entitled to family responsibility leave in this case. However, the question is, if her employer denied the leave, whether it would be unreasonable and unfair. This is where Section 27(5) is important. So, if the doctor/dentist can provide a letter or certificate to confirm an essential or urgent procedure and the employee hands in this document, the question is whether the employer can, in fairness, deny the leave.

If the visit to the dentist is not urgent, one can argue that the leave concerned falls outside the allowance of the Act and that the employer is entitled to prevent employees from abusing the terms of the Act. Therefore, it is a matter of restrictive interpretation where we are dealing with a limitation of the meaning of general words in order to give effect to the actual intention of the lawgiver. Consequently, the word ‘ill’ has a narrower meaning and this is possibly the appropriate interpretation in this case. .

In summary, one can argue that in the case of a dentist or even specialist medical practitioner such as an optometrist, the urgency level of a visit may vary: either it is a general, regular check-up, or the visit is essential and urgent, such as an abscess or a tooth being knocked out on the playground. In such a case, a medical certificate should be sufficient proof.

Whatever the situation, the discretion rests with the employer to approve or deny a request for this special type of leave. If the employer is willing and able to grant normal leave to give the parent the opportunity to take her child to the dentist, he should still be within the boundaries of reason instead of completely refusing to allow the employee to take care of her child’s wellbeing.

For more information regarding family responsibility leave, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

To how many days’ annual leave am I entitled?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:
If an employee works for more than 24 hours per week, he/she is entitled to 21 days’ continuous leave, or one day for every 17 worked, or one hour for every 17 hours worked.
There is sometimes confusion over the interpretation of the 21 days’ continuous leave. What this means is that an employee has 15 working days’ leave per year. Therefore, it means that weekends are included in the 21 days’ leave.
Leave must be granted for at least six months after the termination of the previous leave cycle. If leave coincides with a public holiday, the day will not be deducted from the member’s leave.
It is also important to emphasise that an employee cannot be forced to work on his/her leave days. The employer can, however, cancel leave for operational reasons. An employer may also not compensate the employee for his/her leave days instead of granting him/her the opportunity to take leave.

Accumulated leave

By Phil Davel

Question: If you don’t use your leave one year, is it carried over to the next year?

Answer: Most employers have clear policy guidelines regarding the accumulation of leave. The reason is that the employer could run into a financial liquidity crisis if they allowed leave to accumulate indefinitely. If an employee with a large amount of accumulated leave terminated his/her service and the employer had to pay it out within seven days, the funds might not be readily available. Therefore, it is important to note that section 20(4) of the Basic Conditions of Employment Act stipulates specifically that the employer should grant outstanding leave no later than six months following the end of the previous leave cycle (a period of 12 months at the same employer), after which the leave lapses by implication.

Is the employer obliged to apply ordinary leave if I have not sick leave left?


By Phil Davel

Question: I work for a firm that imports and locally distributes farm equipment. Some time ago a was on sick leave for seven weeks, and now my employer is refusing to pay out my last week’s salary. Is the employer obliged to apply ordinary leave if I have not sick leave left?

 

Answer: Section 20(5)(a) of the Basic Conditions of Employment Act stipulates that the employer may not allow an employee to take annual leave during any other leave period to which he/she is entitled. This implies that the law does not allow your employer to grant ordinary leave as a substitute for sick leave.

 

If you both agree to relinquish your right not to use ordinary leave for this purpose, the employer may allow it, but then you cannot invoke the legislation. If you and the employer do not agree, he cannot use your ordinary leave for the period during which you were ill, and therefore you can be placed on unpaid leave.

Family responsibility leave

Apart from compulsory annual leave, sick leave and maternity leave to which an employee is entitled, the Basic Conditions of Employment Act 75 van 1997, as amended, (BCEA) makes provision in section 27 for compulsory family responsibility leave. Leave that does not have to be granted in terms of the BCEA includes study leave, unpaid leave and special leave, e.g. for sporting activities. The granting of this leave is entirely at the discretion of the employer.

 

If an employee has been working for the same employer for more than four months and at least four weeks per day, he/she is entitled to at least three days of paid family responsibility leave during each leave cycle. A leave cycle spans twelve months from the date on which the employee was employed or twelve months from the end of the previous leave cycle. Family responsibility leave does not apply to workers (permanent or temporary) that work less than:

 

  • Four months for the same employer;
  • Four days a week for the same employer; and
  • 24 hours a month.

However, family responsibility leave is only granted in the following cases:

1.     When your child is born or is ill. Note that the BCEA defines a child as a person under the age of 18 years.

2.     Upon the death of the employee’s:

  • Husband/wife or life partner;
  • Own parent, adoptive parent or grandparent;
  • Own child, adopted child or grandchild; and
  • Brother or sister.

The BCEA does not make provision for in-laws, and also not for stepsiblings. The nanny of the employee’s child is also not covered.

An employer can request reasonable proof before paying the worker. In other words:

  • Upon the death of the above-mentioned family member, a death certificate and proof that the deceased is a close family member may be required;
  • Upon the birth of a child, a birth certificate and proof of parenthood may be required; and
  • When a child is ill, a medical certificate may be required. The BCEA does not define “illness” and only stipulates that reasonable proof may be required.

An employee may take family responsibility leave for the entire day or only part of it. Family responsibility leave lapses if it is not taken in the annual leave cycle. Therefore, it cannot be accumulated.

 

When it comes to family responsibility leave, the employer must pay the employee the amount to which the employee would have been entitled if he/she had worked that day, and the payment must be made on the usual payday.

 

If a situation arises during an employee’s annual leave that makes the employee eligible for family responsibility leave, the employer must convert the annual leave to family responsibility leave.

 

Note that a collective agreement could change the number of days and the conditions under which family responsibility leave is granted.

Can the employer deduct my study leave from my annual leave?

Leave

Question:

I have worked for a company for almost two years and enrolled for part-time studies at the beginning of the year. I took a few days off to write exams. Can the employer deduct my study leave from my annual leave? The employer also wants me to take leave during December when the company closes for business.

Answer:

The Basic Conditions of Employment Act does not make provision for study leave. Therefore, your employer can use his discretion in granting study leave. You mention that you “took a few days off” to write exams. If your employer did not specifically grant study leave and you were paid for the days you took off (paid leave), the leave taken will be deducted from your annual leave. Similar leave that is granted at the discretion of the employer is leave for sport activities.

This time of the year, many companies close for business or make use of skeleton staff to keep the operational side of the business running. In this case the employer can require you to put in ordinary leave, known as compulsory leave, which is a form of paid leave. If your ordinary leave has been used up at this point, the employer can require you to make up for those the days or to take unpaid leave.

 

Sick leave

Question:
How many days’sick leave am I entitled to and do I have to hand in a medical certificate?

Reply:
Sick leave is regulated in terms of section 22 of the Basic Service Conditions Act.

Section 22 states that an employee is entitled to six weeks’ paid sick leave in a cycle of 36 months.

In the first six months after beginning his or her employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

The employee has to prove illness in terms of section 23 of the Basic Service Conditions Act. An employer can demand a medical certificate before paying an employee who is absent for more than two consecutive days or somebody who is often absent.

Granting of leave

Question
We have a policy whereby we have to apply for leave three months in advance. I applied for leave in December and it was approved. It is now almost time for me to go on leave, but I have as yet not received any indication that I will get my leave. Every day I get empty promises, but no answer. What can I do?

Answer
The granting of leave depends on the agreement between the employee and the employer, but the approval of leave ultimately lies in the discretion of the employer.

Section 20(10) of The Basic Conditions of Employment Act provides that:

20 (10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.

It would be best to contact the employer and ask whether or not the leave has been granted. You mention that it has been granted. You can therefore invoke section 20(10)(a). Unfortunately, as has been said, approving the leave lies within the discretion of the employer and the employer may even withdraw the permission based on operational requirements.

 

What process must an employee of the state follow to apply for temporary incapacity leave?

The Public Service Coordinating Bargaining Council’s Resolution 7 of 2000, as amended by Resolution 5 of 2001, regulates the process that has to be followed when an employee of the state wishes to apply for temporary incapacity leave. Paragraph 7.5.1 of the resolution reads as follows:

7.5.1.  (a)  An employee whose normal sick leave credits in a cycle have been exhausted and who, according to the relevant practitioner, requires to be absent from work due to disability which is not permanent, may be granted sick leave on full pay provided that:
i) Her or his supervisor is informed that the employee is ill; and
ii) a relevant registered medical and/or dental practitioner has duly certified such a condition in advance as temporary disability except where conditions do not allow.
(b) The employer shall, during 30 working days, investigate the extent of inability to perform normal duties, the degree of inability and the cause thereof. Investigations shall be in accordance with item 10(1) of Schedule 8 of the Labour Relations Act of 1995.
(c) The employer shall specify the level of approval in respect of applications for disability leave.
Employees of the state therefore have the privilege to apply for temporary incapacity leave if their annual sick live has been exhausted and they have been issued a medical certificate by a registered medical or dental practitioner. If such an application is approved, the employee will continue to receive his salary during his extended sick leave, even though his annual sick leave has been exhausted.

The following important aspects must be kept in mind to ensure that an application for temporary incapacity leave is successful:
1) A registered medical or dental practitioner must issue a medical certificate to the employee, stating that the employee is not fit for work and specifically indicating that temporary incapacity leave is recommended by the practitioner.
2) The employee must provide a copy of the medical certificate to his manager as soon as possible, preferably on the same day the medical certificate was issued, and obtain a receipt as proof that the medical certificate was handed over to the manager.

Furthermore, paragraph 7.5.1 of the resolution in question must be read in conjunction with paragraph 7 of the Policy and Procedure on Incapacity Leave and Ill-health Retirement (PILIR) dated April 2009 that explains the process in more detail. The most crucial aspects for an employee to remember are set out in paragraph 7.1.8 of the PILIR:
“7.1.8. An employee must submit an application form for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.”

Therefore, an employee must request a formal application form for temporary incapacity leave from his employer within five working days after the first day of absence, complete the application form, ensure that the medical or dental practitioner completes the relevant section of the form and hand over the application form together with the medical certificate to his manager. The employee must also retain proof of having handed the application form to his manager.
An employee is not entitled to temporary incapacity leave; it is merely a privilege. Therefore, the granting of temporary incapacity leave lies in the employer’s discretion. An employee is only entitled to a fair process when his application for temporary incapacity leave is being considered. If an employee does not follow the first steps as explained above, the employer will not be in a position to follow a fair process and the application will be rejected.

The different types of leave an employee is entitled to

The different types of leave that an employee is entitled to are stipulated in the Basic Conditions of Service Act (No 75 of 1997).  The relevant sections are sections 19 to 27. The types of leave are the following: • Annual leave • Sick leave • Maternity leave • Family responsibility leave Annual leave – Section 20 Annual leave applies where an employee works for more than 24 hours a month for an employer.  The leave can only be taken with the agreement of both parties as to when when such leave may be taken, in other words the employer may refuse to grant leave on a specific date/during a specific period if justified by operational requirements. Some employers also stipulate that leave has to be taken at a specific time, for example when the employer’s business closes during the festive season.

An employee must be granted at least 21 days’ leave per year, which leave is calculated from the date of commencement of employment, and not per calendar year, or 1 day’s leave for every 17 days worked, of 1 hour for every 17 hours worked. Public holidays are not considered as leave.  Should leave from the previous cycle not be used, then it can be taken within the first 6 months of the new cycle.

The employee must receive full remuneration when this type of leave is taken. Remuneration must be given before the start of annual leave, or on the employee’s normal pay day, if so agreed.

Sick Leave – Section 22 Sick leave is calculated over a cycle of three years. During the first 6 months an employee may take 1 day’s paid sick leave for every 26 days worked.  Thereafter an employee may take the number of days as sick leave equal to the number of days the person would work during a period of six weeks during a period of six weeks. (A 5-day workweek amounts to 30 days’ sick leave per 3-year cycle).

Should an employee be off sick for 2 days or longer or twice within an 8-week period, the employer may ask such person to submit a medical certificate; should such certificate not be submitted the employer may withhold payment in respect of those days the employee was not at work.

Maternity leave – Section 25 This type of leave only applies to female employees.  An employee may take at least four months’ unpaid maternity leave onbetaalde . The leave can commence at any time four weeks prior to the expected date of the birth or at a date a doctor or midwife considers to be necessary for it to be taken for the sake of the health of the mother or baby.  The employee should preferably notify the employer in writing about the date on which she intends to go on maternity leave. An employee may not return to work for a period of six weeks after the birth, unless a doctor or midwife certifies that the employee is fit to resume work. In the event of a miscarriage during the last trimester or in the case of a stillbirth the employee is entitled to six weeks’ maternity leave regardless of whether or not maternity leave has already commenced at the time of such event.

Family responsibility leave – Section 27 If an employee has been working for the same employer for more than four months and works at least four days a week or more, then the employee may take three days of paid family responsibility leave during each leave cycle.  The criteria (circumstances and persons involved in such circumstances) in terms of which an employee is eligible for this type of leave are rather restricted.  The criteria are limited to: 1) The birth of an employee’s child 2) Illness of an employee’s child 3) In the event of the death of the employee’s: (a) Spouse (b) Partner (c) Parent (d) Adoptive parent (e) Grandfather or grandmother (f) Child (g) Adopted child (h) Brother or sister

In conclusion In each instance, the leave discussed here above deals with the minimum requirements stipulated in the Act. In certain instances employers may offer more favourable conditions, and in such cases the employee has to familiarise him/herself with the facts.

Can my employer prevent me from going back to work after I’ve been on maternity leave?

Section 25 of the Basic Conditions of Employment Act (No. 75 of 1997) determines that an employee may take maternity leave for at least four uninterrupted months. The maternity leave can begin anywhere from four weeks before the delivery date, unless the parties have agreed otherwise or a medical practitioner has recommended otherwise. The maternity leave will be unpaid, unless there is an agreement for paid maternity leave between the parties.

 

The Act also determines that an employee may not go back to work within six weeks of the delivery date without the approval of a medical practitioner.

 

If an employer prevents an employee from returning to work after the employee’s maternity leave, such action will amount to automatic unfair dismissal in terms of section 186(1)(c) of the Labour Relations Act (No. 66 of 1995). However, when the dismissal is unrelated to the pregnancy or abovementioned return to work following pregnancy, it will not necessarily be automatic unfair dismissal. When an employee, for example, stays away from work for longer than her approved maternity leave and is dismissed for this reason, the dismissal will be based on misconduct and will not necessarily be unfair.

 

An employee and employer can also enter into an agreement that contains more favourable maternity benefits.

 

Annual and family responsibility leave

Question:

What does the Basic Conditions of Employment Act say about annual and family responsibility leave?

Answer:

The Basic Conditions of Employment Act (No. 75 of 1997) regulates annual leave in section 20 and family responsibility leave in section 27.

Section 20 provides for 15 working days’ annual leave during each leave cycle for employees who work five days a week. Employees who work six days a week are entitled to 18 working days’ leave in a leave cycle. An annual leave cycle means the period of 12 months’ employment with the same employer immediately following either an employee’s commencement of employment, or the completion of that employee’s prior leave cycle.

If you and your employer cannot come to an agreement about when you may or have to take leave, the employer has the final say. The employer can therefore approve or turn down your leave, depending on his operational requirements.

Section 27 provides for at least three days’ paid family responsibility leave during each leave cycle for an employee who has been in employment with an employer for longer than four months and who works for at least four days a week for that employer. Family responsibility leave therefore does not apply to employees (permanent or temporary) who work fewer than four days a week and who have been in employment with an employer for less than four months.

Moreover, family responsibility leave is granted to an employee in the following circumstances only:

(i)     When the employee’s child is born or is sick. Note that a child is defined as a person below the age of 18 years.
(ii)     In the event of the death of the employee’s –

  • spouse or life partner;
  • parent, adoptive parent or grandparent;
  • child, adopted child, grandchild; or
  • sibling.

Unfortunately, the Act does not provide for family responsibility leave in the event of the death of an employee’s father-in-law, mother-in-law, sister-in-law, brother-in-law, stepbrother or stepsister.

An employee may take family responsibility leave in respect of the whole or a part of a day. An employee’s unused family responsibility leave lapses at the end of an annual leave cycle and therefore cannot accrue.

Should my leave be paid out to me?

By Gerrit Visser

Question:

I have been working for the same employer for two years and have never taken leave or applied for leave. Should my employer compensate me for the two years’ leave should I resign?

Answer:

The answer can be found in the very recent case of Ludick v Rural Maintenance (Pty) Ltd – (2014) 23 LC 6.7.1. The Labour Court considered two contrasting judgements and made a finding from which we can learn the following lessons:

1.    The purpose of the Basic Conditions of Service Act (No. 75 of 1997) regarding annual leave is that the employee should take it within six months of the expiry of a 12-month cycle.

2.    An employer may not introduce a stipulation in terms of which an employee’s leave lapses before six months have passed after the expiry of a cycle

3.    An employee may (through the Department of Labour) compel an employer to grant his/her annual leave not later than six months after the expiry of a cycle.

4.    If an employee does not claim annual leave within six months of the expiry of a cycle, the employer is not obliged to pay it out upon termination of service.

5.    All outstanding leave that falls within six months of the expiry of a cycle is payable upon termination of service.

6.    Should an employer fail to pay money to which an employee is entitled, interest on the outstanding amount must be paid in terms of section 75 of the Basic Conditions of Service Act.

From the case cited above it is clear that the principle of vigilantibus et non dormientibus jura subveniunt (the law protects the wakeful and not the sleeping) is still being applied in the Labour Court. Although Solidarity does not necessarily agree with the findings of the court, these are the current guidelines and we therefore strongly advise employees to make sure that they take their annual leave.

Annual leave

By Helgard Cronjè

Question:

Will I forfeit my annual leave if I don’t apply for it, or will it simply accumulate?

Answer:

This issue is regulated by section 20(4) of the Basic Conditions of Employment Act (No. 75 of 1997) that stipulates that an employer must grant an employee’s annual leave not later than six months after the end of the annual leave cycle. Section 20(1) of the Act defines an annual leave cycle as the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment, or the completion of that employee’s prior leave cycle

The abovementioned provisions can have different interpretations. The first interpretation is that the employer can grant the leave only during the leave cycle and not later than six months thereafter. Consequently, the employee must apply for the leave, otherwise it will keep on accumulating.

The other interpretation is that the employee must take the leave within six months after the end of the leave cycle. The leave will therefore be forfeited after this period.

The Labour Court delivered two contradictory judgments on this issue in the past. For this reason it was unclear whether leave could be forfeited if an employee didn’t apply for it within the six months after the end of the leave cycle. However, the Labour Court recently delivered a new, decisive judgment.

In Ludick v Rural Maintenance (Pty) Ltd, 2014 2 BLLR 178 (LC) the Labour Court found that an employee is only entitled to the leave of the previous leave cycle as well as that of the current, unfinished cycle with due allowance for the 18-month period within which he or she has to apply for leave and within which the employer must grant it. Therefore, if the employee doesn’t apply for leave within six months after the end of the leave cycle, he or she forfeits the leave that accumulated during the previous cycle.

Nonetheless, it is important to bear in mind that this provision only applies to the statutory leave period of 15 working days. If an employer grants an employee more leave than this statutory minimum, the days in excess of the 15 days are contractual leave and are exempt from the abovementioned requirements. If an employee’s contract of service does not specify that such leave has to be taken within a specific period, it can be accumulated. The contract’s provisions will therefore determine whether or not leave can be accumulated.

Family responsibility leave

By Lizette Snyman

Question:

My child is older than 18 years. Will I be able to take family responsibility leave when he is sick?

Answer:

Section 27 of the Basic Conditions of Employment Act (No. 75 of 1997) provides that family responsibility leave may be taken –

“(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of –
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.”

In terms of the Basic Conditions of Employment Act, a child is defined as “a person who is under 18 years of age”.

Therefore, if your child is older than 18 years, you will not be able to take family responsibility leave when he or she is sick.

If you have any further questions, please contact our Service Centre on 0861 25 24 23, or e-mail your request to diens@solidariteit.co.za.

Claims and counterclaims in the Labour Court

By Helgard Cronjé

Question

Outstanding statutory dues such as moneys that are owed for leave, salaries, notice periods and retrenchment packages are often claimed in the Labour Court. What happens when an employer brings a counterclaim for damage caused by an employee?

Answer

Employers often claim they have suffered damages and consequently withhold employees’ statutory dues in the case of retrenchment, dismissal or resignation. This practice is illegal in terms of section 34 of the Basic Conditions of Employment Act. The Act stipulates that a deduction may only be made from an employee’s remuneration with his or her consent, or if the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

What must employees do if their employer withholds or deducts money illegally? The first step is to report the matter to the Department of Labour. If the department is unable to help, the next step is to lodge a claim for the monies with the Labour Court. However, such a decision should be approached cautiously. It is important to bear in mind that an employer could succeed in a counterclaim for damage caused by an employee.

In the case Stoop and Another v. Rand Water it was ruled that the Labour Court does have jurisdiction to make judgments regarding counterclaims relating to damages in labour matters, even if such claims are not strictly labour suits. In the case in question, the employees had to compensate the employer R8 million in damages.

No one wants to win a long, expensive lawsuit, only to find out that his or her claim’s monies have to be written off against the employer’s counterclaim. Likewise, an employee would not want to pay in an amount on the employer’s claim, or be issued with an order to pay the employer’s legal costs.

The decision to lodge a claim with the Labour Court must therefore be approached with great caution, especially in cases where the employer could lodge a counterclaim. The merits of the potential counterclaim must be considered as carefully as possible before the matter is referred to the Labour Court.

Can my employer deduct mandatory annual leave from my ordinary leave?

By Lizette Snyman

Question

My workplace will be closed during the Festive Season and we have to take mandatory annual leave during that period. Can the employer deduct the mandatory annual leave from my ordinary leave?

Answer

Section 20(10) of the Basic Conditions of Employment Act (No. 75 of 1997) states the following regarding annual leave:

“(10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.”

An employer can therefore determine when annual leave must be taken. An employer can moreover require employees to have enough annual leave available for the period of mandatory leave.

If you have any queries in this regard, please contact us on 0861 25 24 23 or send a query to diens@solidariteit.co.za.

I would like to know if a pregnant woman is entitled to three months’ maternity leave.

Question: I would like to know if a pregnant woman is entitled to three months’ maternity leave. Is the employer obliged to pay you for those three months or do you have to claim from the Unemployment Indemnity Fund (UIF)? I also want to know what I should do if my contributions to the UIF and PAYE are not paid over correctly?

Answer: During maternity leave, an employer is not obliged to remunerate an employee. In addition, the employer also does not have to pay medical and pension fund contributions. The reason is that employees can claim from the Unemployment Indemnity Fund (UIF). The procedures and requirements are available at www.labour.gov.za. Unfortunately, this is how it works, and the employee could feel compelled to return to work early from maternity leave. The Basic Conditions of Employment Act stipulates that an employee is entitled to four months of maternity leave.

Maternity leave – Part 2

Question: When must I inform my employer that I need to go on maternity leave?

Answer: The employee must inform the employer in writing of the date on which she plans to go on maternity leave and of the date on which she will return to work. The notice must be given at least four weeks before the start of the leave.

Question: To how much maternity leave am I entitled and when can I take the leave?

Answer: If an employee works for more than 24 hours per week, she is entitled to four consecutive months of maternity leave, as stipulated in section 25 of the Basic Conditions of Employment Act. The employee can go on leave any time within four weeks before the birth of the child, or on the date certified by a medical practitioner of midwife to be necessary for the safety of the employee or the unborn child.

Question: How soon after the birth of the child can I go back to work?

Answer: An employee may not work for at least six weeks after the birth of the child unless a midwife or medical practitioner certifies that the employee may go back to work. In the case of a miscarriage in the third trimester or if the child is stillborn the employee is entitled to six weeks of maternity leave.

Question: Is the employer obliged to adjust my responsibilities if there are any dangers to the unborn child?

Answer: According to section 26 of the Basic Conditions of Employment Act, the employer may not compel or allow an employee to work under conditions that pose a danger to the unborn child or to a breastfeeding woman. During a period of six months following the birth of the child the employer has to provide the employee with alternative work.

Question: Is maternity leave paid leave?

Answer: Maternity leave is in most cases unpaid leave, unless the employer has a policy or agreement that stipulates otherwise. During maternity leave the employee can, however, claim UIF as determined by the minister of labour, subject to the Unemployment Insurance Act.

Question: Is a man also entitled to maternity leave?

Answer: According to section 27 of the Basic Conditions of Employment Act, a man can take three days of family responsibility leave upon the birth of a child.

Maternity leave – Part 1

Phil Davel

Question: I have a question regarding maternity leave. Where does one draw the line between sick leave before delivery and the start of maternity leave?

Answer:

The reason why employees would rather take sick leave instead of maternity leave is because the Basic Conditions of Employment Act (BCEA) compels the employer to pay out sick leave, but not maternity leave. This is because employees can claim UIF during maternity leave. However, there may be a contractual agreement stipulating that the employer will pay the employee’s entire salary or part of it during her maternity leave. There is, however, no statutory obligation to do this.
Section 25 of the BCEA stipulates that an employee is entitled to at least 16 weeks of continuous maternity leave. She is entitled to go on maternity leave from four weeks before delivery, or from a date deemed necessary by a doctor. However, an employee may not work again before six weeks have passed since delivery. Therefore, suppose the employee only takes maternity leave a week before delivery, then it would be possible for her to only take a total of seven weeks’ maternity leave because she would be back at work six weeks after giving birth. Note that she is merely entitled to 16 weeks’ leave and is not obliged to take leave for the full period.

Can I booked off for sick leave by my doctor instead of going on maternity leave?

There needs to be a distinction between sick leave and maternity leave. Although an employee could claim that she is unfit for work due to illness (and not due to the upcoming birth), the medical doctor would have to indicate such an illness on the medical certificate. Note that an employer reserves the right to dispute the medical certificate and ask the employee to go to the employer’s own medical practitioner. As mentioned, the employee might want to claim sick leave instead, but it would be dishonest to assert that the absence is due to illness if it is not the case. A doctor can, therefore, book you off in this manner, but then it has to be due to illness.
Note that if there are complications with the pregnancy and if a doctor certifies that it is necessary for the sake of the employee or her unborn child to go on earlier maternity leave, it will not be classified as sick leave (section 25(2)(b)).

Which conditions apply to maternity leave?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
Which conditions apply to maternity leave?

Answer:
If an employee works more than 24 hours per week, she is entitled to four consecutive months’ maternity leave in terms of Section 25 of the Basic Conditions of Employment Act. The employee may go on leave at any time four weeks prior to the birth of the child or on the date certified by a medical practitioner or midwife for the safety of the employee or the unborn child. An employee may not work for a period of at least six weeks after the birth of the child, unless a midwife or medical practitioner certifies that the employee may return to work. In the case of a miscarriage during the third trimester or if the child is still-born, the employee is entitled to six weeks maternity leave from the date of the miscarriage or the still birth of the child.
In terms of Section 26 of the Basic Conditions of Employment Act an employer may not oblige or allow an employee to work under conditions which are unsafe for the unborn child or a woman who breastfeeds. During this time the employer should provide the employee with suitable alternative work for a period of six months after the birth of the child.
The employee should notify the employer in writing on which date she plans to go on maternity leave and on which date she will return to work. This notice should be given to the employer before the leave starts.
In most cases maternity leave is unpaid leave, as it is not required in terms of legislation, unless the employer is bound by a policy or agreement which determines otherwise. During maternity leave the employee may claim unemployment insurance as determined by the Minister of Labour, subject to the conditions of the Unemployment Insurance Act. In terms of Section 27 of the Basic Conditions of Employment Act a man may take three days’ family responsibility leave when his child is born.
For further information in respect of maternity leave, please phone Solidarity’s legal experts at the Service Centre, 0861 25 24 23.

How long after the birth of my child must I go back to work?

By Johan Roos

A female employee may be absent from work for at least six weeks after the birth of her child, unless a midwife or medical practitioner certifies that the employee is fit to return to work. In the case of a miscarriage during the third trimester of if the child is stillborn, the employee is also entitled to six weeks’ maternity leave.

 

How long after the birth of my child am I allowed to return to work?

An employee is not allowed to work for at least six weeks after the birth of a child unless a midwife or medical practitioner certifies otherwise. If a miscarriage occurs during the third trimester or if a child is still-born, the employee is entitled to six weeks maternity leave after any of these situations.

 

 

 

Breastfeeding breaks at work

By Alexia Vosloo

Question:

I will be going back to work soon following my maternity leave and I plan to continue breastfeeding.  Am I allowed to express milk for my baby at work?

Answer:

Yes, you are allowed to take a breastfeeding break to breastfeed or to express milk for your baby at work. If your company has an on site crèche or care facility, it is easy to take time off to attend to your baby’s needs.  However, it becomes more difficult if your baby is left with a caregiver.

What is a breastfeeding break?

A breastfeeding break is a break from work during which a breastfeeding mother either breastfeeds her child, or expresses milk at work. Breastfeeding breaks are paid time.

In terms of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child (which forms part of the Codes of the Basic Conditions of Employment Act, (No 75 of 1997), arrangements should be made for an employee who breastfeeds to have two 30-minute breaks every workday to breastfeed or to express milk during the first six months of her child’s life.

What type of space and facilities are required for breastfeeding breaks in the workplace?

Recommendation 191 of the International Labour Organisation (ILO) states that ‘where practical, provision should be made for the establishment of facilities for breastfeeding under adequate hygienic conditions at or near the workplace.’
Basically, a clean space with room to sit down; privacy; access to clean water; and a secure storage place for expressed milk is needed. Cleanliness, accessibility and security are key features.

What legislation and laws are there to protect pregnant and breastfeeding women?

The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child, issued in terms of section 87(1) (b) of the Basic Conditions of Employment Act (No. 75 of 1997), is intended to guide all employers and employees concerning the application of section 26(1) of the Act which prohibits employers from requiring or permitting pregnant or breastfeeding employees to perform work that is hazardous to their or their children’s health. The code also contains a section on the right to breastfeeding breaks.

I recommend that you discuss the issue with your HR department and ask them to provide you with a suitable location to express milk.

You can also contact our call centre on 0861 25 24 23 for further advice.

What will happen if I extend my sick leave when I am too ill to go back to work?

Question: What will happen if I extend my sick leave when I am too ill to go back to work?

Answer: The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

What will happen if I extend my sick leave when I am too ill to go back to work?

Question:

What will happen if I extend my sick leave when I am too ill to go back to work?

 

Answer:

The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Sick leave

Question:
I’m working for a company and I want to know how much sick leave I’m entitled to according to law.

Reply:
Section 22 of the Basic Conditions of Employment Act stipulates that every employee is entitled to sick leave.

If the employee has been working for the employer for less than six months, the following will apply:

“… [An] employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken.”

I would suggest that the employer count the number of days an employee has worked and divide it by 26. The following serves as an example: If 100 days were worked, 100 must be divided by 26, giving a total of 3,84 days’ sick leave which may be taken at normal pay. If the employee took more days’ sick leave (more than the 3,84 he/she is entitled to at that stage), unpaid leave will take effect, if both parties have agreed that it could be used for sick leave. Let’s assume the employee took 10 days’ sick leave, for example, while he/she was only entitled to 3,84 days’ sick leave at that stage, the balance of days used for sick leave would be subject to unpaid leave, unless another arrangement was made. Therefore, the employee would have used 6,16 days’ unpaid leave.

If the employee has been working for the employer for longer than six months, the following will apply:

A sick leave cycle means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior sick leave cycle. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

If the employee has been working for longer than six months and works according to a five- day work week, then he/she is entitled to 30 days’ paid sick leave. This allocation of 30 days is available in full after six months’ employment, and is available to the employee until the end of a 36 month term of service, whereafter a next leave cycle will commence. In practice, it means that the employee could even take 30 days’ sick leave during his/her first year of employ as long as he/she has already completed six months’ employment with the employer. The employee must, however, bear in mind that his/her sick leave for the remainder of the 36 months will then be exhausted, and that any sick leave taken within the first six months of employment will first be deducted from the 30 days.

 

My rights with sick leave days

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

When is a medical certificate suspicious?

By Lucinda Pretorius

Labour legislation may come and go, but the problem of false or forged medical certificates and suspicious absenteeism due to illness is here to stay. In present-day working conditions, employers expect employees to submit a medical certificate if they have been absent from work because of illness. Medical certificates serve as security for employers. However, the incidence of fraud in the form of forged medical certificates is on the rise in workplaces.

When is a medical certificate valid and when is it suspicious?

1. A valid medical certificate

There is no statutory definition of a valid medical certificate. Section 23(2) of the Basic Conditions of Employment Act (No. 75 of 1997) does stipulate that a medical certificate must be issued and signed by a medical practitioner or any other person who is qualified to diagnose and treat patients and who is registered with a professional council. Only medical practitioners and registered nurses are authorised to sign a valid medical certificate.

A medical certificate must contain the following information:

•    The date on which it was issued.
•    The date on which the employee was examined.
•    The name of the medical practitioner who personally examined the employee and with whom the employee shared his/her symptoms.
•    A description of the nature of the illness or condition.
•    The name, qualifications, address and phone number of the issuer.

If a certificate does not meet the abovementioned criteria, the employer has the right to refuse to make any payment to the employee for absenteeism as a result of illness or to wait until the employee provides a valid medical certificate.

2.  A valid, but suspicious medical certificate

Medical certificates are more commonly sold to employees than they are forged.

The steps that an employer should follow if he/she finds a medical certificate suspicious are outlined below:

•    Contact the medical practitioner who issued the certificate.
•    Ask if he/she examined the employee and issued the certificate.
•    If the medical practitioner cannot be contacted because the address or the telephone number is not provided on the certificate or does not exist, disciplinary steps could be taken against the employee based on alleged misconduct (fraud/dishonesty).

If an employee is unable to prove that a medical certificate is valid, disciplinary charges may be brought against him/her.

Employers must make a concerted effort to ensure that the use of false medical certificates is prevented or stopped.

Paternity Leave

Legal question: Paternity Leave
By Phil Davel

Question: What does the law say about paternity leave? How many days’ leave will I be entitled to take when my child is born?

Answer: The Basic Conditions of Employment Act (Act no. 75 of 1997), as amended, includes a provision for family responsibility leave in Section 27. Subsection 27(2)(a) determines that an employee is entitled to family responsibility leave when his or her child is born. Therefore, a father is entitled to family responsibility leave when his child is born. “Paternity leave” is merely a term that is sometimes used to refer to this subsection of the Act, although the Act uses the term “family responsibility leave”.

Nothing prohibits an employer from including a special, additional category of leave in the company’s leave policy. Such categories are quite common in the leave policies of foreign companies.

An employee who has been employed for at least four months and who works at least four days a week and 24 hours a month for the same employer, may take at least three days of paid family responsibility leave during each leave cycle.

Family responsibility leave is granted in the following cases only: 1. When the employee’s child is born or is sick. 2. In the event of the death of the employer’s – – spouse or life partner; – parent, adoptive parent, grandparent; – child, adopted child or grandchild; or – sibling.

An employer may request an employee to provide reasonable proof of such an event before the employee is paid. In other words, if the employee’s child is born, a birth certificate and, possibly, proof of paternity should be provided to the employer.

An employee may take family responsibility leave for a whole day or part of a day. The leave expires at the end of the annual leave cycle and cannot be accrued.

When an employee takes family responsibility leave, he or she must be paid the usual wages for the day(s) in question on the normal payday.

A collective agreement could revise the number of days or the circumstances in which family responsibility leave is granted and an employer may grant more than the required number of days. Such a revision will be set out in the company’s leave policy.

Responsibility leave

Question:

I have to attend a cremation service in Australia of a family member who emigrated there. I would like to know, if I have to take nine days’ leave to attend the service, could I have it deducted from my family responsibility leave over three years?

Answer:

In terms of section 27 of the Basic Conditions of Service Act, every employee has only three days’ family responsibility leave per year. It cannot be carried over to a following year and you cannot take nine days’ family responsibility leave in advance, unless, of course, the employer allows it, but you will not be entitled to it in terms of the Act.

If you took three days’ family responsibility leave during the course of the year, you have exhausted it and you will have to take ordinary leave should you need more leave in the same year. You will not be able to take nine days now and not take family responsibility leave for the next three years.

Sick leave, however, is different. Section 22 stipulates that you have 36 days’ continuous sick leave in every three-year cycle and if you take all of it during the first year, you have nothing left for the rest of the three years. Section 27 (which deals with family responsibility leave in the event of the death of a family member, as provided for in the Act), however, does not mention a three-year period/cycle.

Remember that your starting point will always be to consult your employment contract or the employer’s leave policy. It is possible that the contract or policy could be more favourable than the Basic Conditions of Service Act. You may also ask the employer for a special concession but, if the provisions of section 27 are being complied with, you have, as was mentioned, only three days’ family responsibility leave a year and you will have to take ordinary leave if you want to take the other six days.

Feel free to contact the Solidarity Call Centre on 0861 25 24 23 if you have any further enquiries about family responsibility leave.

Maternity Leave (8)

I would like to know if a pregnant woman is entitled to three months’ maternity leave.

Question: I would like to know if a pregnant woman is entitled to three months’ maternity leave. Is the employer obliged to pay you for those three months or do you have to claim from the Unemployment Indemnity Fund (UIF)? I also want to know what I should do if my contributions to the UIF and PAYE are not paid over correctly?

Answer: During maternity leave, an employer is not obliged to remunerate an employee. In addition, the employer also does not have to pay medical and pension fund contributions. The reason is that employees can claim from the Unemployment Indemnity Fund (UIF). The procedures and requirements are available at www.labour.gov.za. Unfortunately, this is how it works, and the employee could feel compelled to return to work early from maternity leave. The Basic Conditions of Employment Act stipulates that an employee is entitled to four months of maternity leave.

Maternity leave – Part 2

Question: When must I inform my employer that I need to go on maternity leave?

Answer: The employee must inform the employer in writing of the date on which she plans to go on maternity leave and of the date on which she will return to work. The notice must be given at least four weeks before the start of the leave.

Question: To how much maternity leave am I entitled and when can I take the leave?

Answer: If an employee works for more than 24 hours per week, she is entitled to four consecutive months of maternity leave, as stipulated in section 25 of the Basic Conditions of Employment Act. The employee can go on leave any time within four weeks before the birth of the child, or on the date certified by a medical practitioner of midwife to be necessary for the safety of the employee or the unborn child.

Question: How soon after the birth of the child can I go back to work?

Answer: An employee may not work for at least six weeks after the birth of the child unless a midwife or medical practitioner certifies that the employee may go back to work. In the case of a miscarriage in the third trimester or if the child is stillborn the employee is entitled to six weeks of maternity leave.

Question: Is the employer obliged to adjust my responsibilities if there are any dangers to the unborn child?

Answer: According to section 26 of the Basic Conditions of Employment Act, the employer may not compel or allow an employee to work under conditions that pose a danger to the unborn child or to a breastfeeding woman. During a period of six months following the birth of the child the employer has to provide the employee with alternative work.

Question: Is maternity leave paid leave?

Answer: Maternity leave is in most cases unpaid leave, unless the employer has a policy or agreement that stipulates otherwise. During maternity leave the employee can, however, claim UIF as determined by the minister of labour, subject to the Unemployment Insurance Act.

Question: Is a man also entitled to maternity leave?

Answer: According to section 27 of the Basic Conditions of Employment Act, a man can take three days of family responsibility leave upon the birth of a child.

Maternity leave – Part 1

Phil Davel

Question: I have a question regarding maternity leave. Where does one draw the line between sick leave before delivery and the start of maternity leave?

Answer:

The reason why employees would rather take sick leave instead of maternity leave is because the Basic Conditions of Employment Act (BCEA) compels the employer to pay out sick leave, but not maternity leave. This is because employees can claim UIF during maternity leave. However, there may be a contractual agreement stipulating that the employer will pay the employee’s entire salary or part of it during her maternity leave. There is, however, no statutory obligation to do this.
Section 25 of the BCEA stipulates that an employee is entitled to at least 16 weeks of continuous maternity leave. She is entitled to go on maternity leave from four weeks before delivery, or from a date deemed necessary by a doctor. However, an employee may not work again before six weeks have passed since delivery. Therefore, suppose the employee only takes maternity leave a week before delivery, then it would be possible for her to only take a total of seven weeks’ maternity leave because she would be back at work six weeks after giving birth. Note that she is merely entitled to 16 weeks’ leave and is not obliged to take leave for the full period.

Can I booked off for sick leave by my doctor instead of going on maternity leave?

There needs to be a distinction between sick leave and maternity leave. Although an employee could claim that she is unfit for work due to illness (and not due to the upcoming birth), the medical doctor would have to indicate such an illness on the medical certificate. Note that an employer reserves the right to dispute the medical certificate and ask the employee to go to the employer’s own medical practitioner. As mentioned, the employee might want to claim sick leave instead, but it would be dishonest to assert that the absence is due to illness if it is not the case. A doctor can, therefore, book you off in this manner, but then it has to be due to illness.
Note that if there are complications with the pregnancy and if a doctor certifies that it is necessary for the sake of the employee or her unborn child to go on earlier maternity leave, it will not be classified as sick leave (section 25(2)(b)).

Which conditions apply to maternity leave?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
Which conditions apply to maternity leave?

Answer:
If an employee works more than 24 hours per week, she is entitled to four consecutive months’ maternity leave in terms of Section 25 of the Basic Conditions of Employment Act. The employee may go on leave at any time four weeks prior to the birth of the child or on the date certified by a medical practitioner or midwife for the safety of the employee or the unborn child. An employee may not work for a period of at least six weeks after the birth of the child, unless a midwife or medical practitioner certifies that the employee may return to work. In the case of a miscarriage during the third trimester or if the child is still-born, the employee is entitled to six weeks maternity leave from the date of the miscarriage or the still birth of the child.
In terms of Section 26 of the Basic Conditions of Employment Act an employer may not oblige or allow an employee to work under conditions which are unsafe for the unborn child or a woman who breastfeeds. During this time the employer should provide the employee with suitable alternative work for a period of six months after the birth of the child.
The employee should notify the employer in writing on which date she plans to go on maternity leave and on which date she will return to work. This notice should be given to the employer before the leave starts.
In most cases maternity leave is unpaid leave, as it is not required in terms of legislation, unless the employer is bound by a policy or agreement which determines otherwise. During maternity leave the employee may claim unemployment insurance as determined by the Minister of Labour, subject to the conditions of the Unemployment Insurance Act. In terms of Section 27 of the Basic Conditions of Employment Act a man may take three days’ family responsibility leave when his child is born.
For further information in respect of maternity leave, please phone Solidarity’s legal experts at the Service Centre, 0861 25 24 23.

How long after the birth of my child must I go back to work?

By Johan Roos

A female employee may be absent from work for at least six weeks after the birth of her child, unless a midwife or medical practitioner certifies that the employee is fit to return to work. In the case of a miscarriage during the third trimester of if the child is stillborn, the employee is also entitled to six weeks’ maternity leave.

 

How long after the birth of my child am I allowed to return to work?

An employee is not allowed to work for at least six weeks after the birth of a child unless a midwife or medical practitioner certifies otherwise. If a miscarriage occurs during the third trimester or if a child is still-born, the employee is entitled to six weeks maternity leave after any of these situations.

 

 

 

Can my employer prevent me from going back to work after I’ve been on maternity leave?

Section 25 of the Basic Conditions of Employment Act (No. 75 of 1997) determines that an employee may take maternity leave for at least four uninterrupted months. The maternity leave can begin anywhere from four weeks before the delivery date, unless the parties have agreed otherwise or a medical practitioner has recommended otherwise. The maternity leave will be unpaid, unless there is an agreement for paid maternity leave between the parties.

 

The Act also determines that an employee may not go back to work within six weeks of the delivery date without the approval of a medical practitioner.

 

If an employer prevents an employee from returning to work after the employee’s maternity leave, such action will amount to automatic unfair dismissal in terms of section 186(1)(c) of the Labour Relations Act (No. 66 of 1995). However, when the dismissal is unrelated to the pregnancy or abovementioned return to work following pregnancy, it will not necessarily be automatic unfair dismissal. When an employee, for example, stays away from work for longer than her approved maternity leave and is dismissed for this reason, the dismissal will be based on misconduct and will not necessarily be unfair.

 

An employee and employer can also enter into an agreement that contains more favourable maternity benefits.

 

Breastfeeding breaks at work

By Alexia Vosloo

Question:

I will be going back to work soon following my maternity leave and I plan to continue breastfeeding.  Am I allowed to express milk for my baby at work?

Answer:

Yes, you are allowed to take a breastfeeding break to breastfeed or to express milk for your baby at work. If your company has an on site crèche or care facility, it is easy to take time off to attend to your baby’s needs.  However, it becomes more difficult if your baby is left with a caregiver.

What is a breastfeeding break?

A breastfeeding break is a break from work during which a breastfeeding mother either breastfeeds her child, or expresses milk at work. Breastfeeding breaks are paid time.

In terms of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child (which forms part of the Codes of the Basic Conditions of Employment Act, (No 75 of 1997), arrangements should be made for an employee who breastfeeds to have two 30-minute breaks every workday to breastfeed or to express milk during the first six months of her child’s life.

What type of space and facilities are required for breastfeeding breaks in the workplace?

Recommendation 191 of the International Labour Organisation (ILO) states that ‘where practical, provision should be made for the establishment of facilities for breastfeeding under adequate hygienic conditions at or near the workplace.’
Basically, a clean space with room to sit down; privacy; access to clean water; and a secure storage place for expressed milk is needed. Cleanliness, accessibility and security are key features.

What legislation and laws are there to protect pregnant and breastfeeding women?

The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child, issued in terms of section 87(1) (b) of the Basic Conditions of Employment Act (No. 75 of 1997), is intended to guide all employers and employees concerning the application of section 26(1) of the Act which prohibits employers from requiring or permitting pregnant or breastfeeding employees to perform work that is hazardous to their or their children’s health. The code also contains a section on the right to breastfeeding breaks.

I recommend that you discuss the issue with your HR department and ask them to provide you with a suitable location to express milk.

You can also contact our call centre on 0861 25 24 23 for further advice.

Medical certificate (2)

Medical certificate

By Adv. Paul Mardon

Question:

A month ago I resigned at mine A to take up a better position at another mine. I was medically examined when I left the service of the mine. The mine doctor and I regularly clashed over small things in the past and he refused to give me a certificate for this medical examination. I secured a good position at another mine, but they require a medical certificate from my previous employer for the medical examination that I underwent when I left the service of mine A. The other mine refuses to appoint me without this medical certificate. I asked my previous employer to give it to me, but the mine doctor says that it was their medical examination and they refuse to give it to me or the new mine. Is the mine obliged to give me the results of my last medical examination?

Answer:

Section 17 of the Mine Health and Safety Act (Act 29 of 1996), read with section 19, stipulates that an employer shall, at the cost of the employer, upon termination of service for whatsoever reason perform an exit medical examination on employees who are subject to medical surveillance at a mine. The occupational medical practitioner who performs the examination must prepare an exit certificate that reflects the results of all medical surveillance and it must specify whether any occupational diseases are present. A copy of this exit certificate must be filed in the empoyee’s medical surveillance record and, at the request of the employee, the employer must provide a copy of this record to the employee. Anybody who refuses to provide this exit certificate to the employee at his/her request, is guilty of a misdemeanor in terms of section 91 of the said act and, if found guilty, could be sentenced to a fine or imprisonment for a period not exceeding six months. I suggest that you report the doctor’s refusal to provide the exit certificate to your previous employer’s Human Relations Manager and that, should the employer still refuse to provide the certificate, you report it to the office of the Inspector of Mines of the Department of Minerals and Energy in your area.

When is a medical certificate suspicious?

By Lucinda Pretorius

Labour legislation may come and go, but the problem of false or forged medical certificates and suspicious absenteeism due to illness is here to stay. In present-day working conditions, employers expect employees to submit a medical certificate if they have been absent from work because of illness. Medical certificates serve as security for employers. However, the incidence of fraud in the form of forged medical certificates is on the rise in workplaces.

When is a medical certificate valid and when is it suspicious?

1. A valid medical certificate

There is no statutory definition of a valid medical certificate. Section 23(2) of the Basic Conditions of Employment Act (No. 75 of 1997) does stipulate that a medical certificate must be issued and signed by a medical practitioner or any other person who is qualified to diagnose and treat patients and who is registered with a professional council. Only medical practitioners and registered nurses are authorised to sign a valid medical certificate.

A medical certificate must contain the following information:

•    The date on which it was issued.
•    The date on which the employee was examined.
•    The name of the medical practitioner who personally examined the employee and with whom the employee shared his/her symptoms.
•    A description of the nature of the illness or condition.
•    The name, qualifications, address and phone number of the issuer.

If a certificate does not meet the abovementioned criteria, the employer has the right to refuse to make any payment to the employee for absenteeism as a result of illness or to wait until the employee provides a valid medical certificate.

2.  A valid, but suspicious medical certificate

Medical certificates are more commonly sold to employees than they are forged.

The steps that an employer should follow if he/she finds a medical certificate suspicious are outlined below:

•    Contact the medical practitioner who issued the certificate.
•    Ask if he/she examined the employee and issued the certificate.
•    If the medical practitioner cannot be contacted because the address or the telephone number is not provided on the certificate or does not exist, disciplinary steps could be taken against the employee based on alleged misconduct (fraud/dishonesty).

If an employee is unable to prove that a medical certificate is valid, disciplinary charges may be brought against him/her.

Employers must make a concerted effort to ensure that the use of false medical certificates is prevented or stopped.

Misconduct (8)

My employer has accused me of misconduct, including the assault of a client and damage of property..

Question:

I work as a cashier at a café in Bloemfontein.

My employer has accused me of misconduct, including the assault of a client and malicious damage of the employer’s property.

I feel that my employer is targeting me and I don’t think it will be worthwhile to attend the disciplinary hearing.

I would rather resign than go through the trauma of a hearing.

Answer:

The member has to realise that the employer is entitled to continue with the disciplinary hearing in the absence of the employee.

However, there is no provision in the Basic Conditions of Employment that prevents workers from resigning before the hearing.

There is furthermore no provision that prevents the employer to refuse the employee’s resignation.            

However, should the member resign she will forfeit her right to defend herself against the charges.      

She could not approach the Commission for Conciliation Mediation and Arbitration (CCMA) later and allege that she has been dismissed without the opportunity to defend herself. 

Should the employer pressure the employee to resign, the employee could resign and lay a charge of constructive dismissal at the CCMA.

Should the member resign the hearing will continue in her absence and the chairman will have to decide on the evidence presented to him whether she is guilty or not.

The member also has to keep in mind that if she should resign she still has to work her notice period and if she doesn’t do it, she will be in trouble again. 

The employer could then even add additional charges to the charge sheet or even summons her for breach of contract.                         

In short it’s the employer’s prerogative to continue with the disciplinary hearing and the ruling of the presiding chairman will be recorded in the member’s personal file.

If the member is found guilty in her absence, the employer could indicate the reason for the member’s resignation on her service record as dismissal and not resignation.

Recommendation:

The member should endeavour to come to an agreement with the employer in terms of which she would resign and the employer undertakes not to take any further action, whether according to the labour law or a civil suit or according to the criminal law, against her.

Discharge owing to misconduct

By Phil Davel

Employees must lay down clear rules on conduct in the workplace to ensure employees know what is expected of them and what the consequences will be should they violate any of the rules.

Certain rules, for example, rules dealing with intoxication or violence in the workplace, are so common or obvious that they are not necessarily laid down in a code of conduct, although employees may be expected to obey them.

Discharge owing to misconduct may be justified ‒

• if the employee violated a rule or regulation relating to specific conduct in the workplace;

• if the rule that was violated was valid, reasonable and fair;

• if the employee was aware or can reasonably be expected to have been aware of the rule in question;

• if the rule is consistently applied in the workplace; and

• if discharge would be more suitable than a disciplinary penalty in the specific circumstances.

Discharge for a first offence is usually not acceptable, except if the offence was of such a nature that it makes a continued employee-employer relationship impossible. Examples of such offences include dishonesty, theft, malicious injury to property, assault and gross insubordination.

Every case must be judged on merit and factors such as the underlying circumstances, how long the employee has worked for the company, the nature of the work and previous warnings must be taken into consideration.

What is misconduct?

Answer:

Misconduct is the most common justification for dismissal in South Africa, but neither the statue law, nor the law of things contains a definition of misconduct. Misconduct can take on many forms, but the legal basis for dismissal is usually the same: The employee violated the regulations of his or her contract in one way or another, or broke the relationship of trust between him or her and the employer.

Misconduct is often defined as an intentional violation of rules in the workplace. These rules are usually set out in an employee’s contract or in a policy or a disciplinary code of the company, or are general practices in the workplace that could justify dismissal. If an employer has not implemented a disciplinary code, Schedule 8 of the Code of Good Practice in the Labour Relations Act will apply, but it is generally regarded as a guideline only.

Before dismissal owing to misconduct can take place, the following questions must be answered:

• Was a workplace regulation violated and does that regulation relate to keeping order in the workplace?
• Is it a valid regulation?
• Was the employee aware of the regulation, or can it be reasonably assumed that the employee was aware of the regulation?
• Is dismissal a suitable sanction for the specific misconduct?

What happens if you as an employee do not show up for work a day before and after a long weekend?

By Phil Davel

Reply:

An employee who simply stays away from work can be charged with misconduct, more specifically for being absent without leave or even for having absconded.

The consequence could be a disciplinary hearing which would in all probability result in a sanction. The sanction depends on the employer’s disciplinary code and could vary between a warning (verbal or written), a final written warning, suspension, demotion, et cetera.  Depending on whether procedure was correct, the merits of the case, extenuating and aggravating circumstances (for example, the person has already received a final, written warning for the same offence), the hearing may even result in discharge. However, the employer may not withhold the person’s salary.

Our advice is that an employee should preferably obtain permission beforehand and put in leave for the specific days.

Misconduct

By Phil Davel

Question

A charge of misconduct was laid against me and I have to attend a disciplinary hearing. My employer gave me four days’ notice of the hearing. Is that enough time?

Answer

Four days’ notice could be enough time to prepare for the hearing. The number of days’ notice given to an employee before a disciplinary hearing is not prescribed in any regulation or Act, but it must be reasonable. You could consult the company’s disciplinary code to see whether or not there is a set notice period. If the disciplinary code prescribes a notice period, the employer is bound to it.

However, if you are of the opinion that you don’t have enough time to prepare for the hearing, you must request a postponement in writing, providing reasons for your request. The reasons must relate to the charge, for example, that you need time to obtain witnesses and evidence for your defence. In the case of a charge of poor performance you may need more time to prepare than, for example, in the case of a charge of misconduct (for example, if you reported late for work). The Code of Good Practice in Schedule 8 of the Labour Relations Act stipulates that an employee should be entitled to a reasonable period to prepare his or her defence.

If an employee is given an unreasonable period in which to prepare for a disciplinary hearing, he or she could object to the time given and ask for a postponement. The employee could also lodge an appeal based on procedural unfairness.

Unauthorised use of vehicles and accidents

By Lelanie du Plessis

Question:

My employer dismissed me for the unauthorised use of their motor vehicle and for being in an accident at the time. They have held a disciplinary meeting beforehand. It is the employer’s policy that we may not use their vehicles after hours between 19:00 and 05:00 and that we have to obtain permission to do so from our managers. I called my manager and he refused to give me permission to use the vehicle after hours to drive back from the area where I had been working during the week. He said I had to sleep another night in the guesthouse since it was a long drive. However, I wanted to be back at the office early the next morning and left at 02:00 to drive back. There were roadworks and I rolled the vehicle shortly after I left. My employer did not reclaim the damages to the vehicle from me. I have a clean disciplinary record and I have worked at the company for two years. I am of the opinion that my dismissal was unfair, although my employer followed the correct procedure. Surely, I should have received three warnings first. If I wanted to refer the matter to the CCMA, what would my chances of success be?

Answer:

When determining the fairness of a dismissal, two aspects should be taken into account, namely the procedure followed and the substance (reason for dismissal). I conclude from the above that the procedure followed by the employer before your dismissal is not in dispute, only the substance.

In this case, you have been accused of serious misconduct, which could lead to dismissal even if it was your first offense. It is a misconception that an employer has to give an employee three warnings before dismissal could take place. The seriousness of the charge is the decisive factor. The situation was worsened by the fact that your manager explicitly forbade you to drive the vehicle back after hours and that you disobeyed his instructions. An employer is not only responsible for their vehicles, but also for their employees using the vehicles on public roads, and could therefore devise rules and regulations for safety purposes.

The fact that you made an accident with the vehicle shortly after you left, further contributes to the severity of the case and in the past the fair dismissal of several employees have been confirmed by the courts and the CCMA, especially if the unauthorized use of a vehicle resulted in a car accident or was associated with negligent driving. That was also the ruling in the case of NUM OBO Nabe v Eskom Adelaide (2012) 8 BALR 875 (CCMA).

With the information you have provided, there does not seem to be any merit in referring a case of unfair dismissal. Furthermore, you must take into account that your employer could sue you for damages caused to the vehicle because you did not obey their rules for the use of their vehicle.

Use of dagga

By Gerhard Hildebrand

Question:

After my employer became aware that I was using dagga, I underwent a blood test that showed positively that I was using dagga. May the employer now take disciplinary steps against me?

Answer:

Apart from the fact that most disciplinary codes prohibit the possession and use of drugs, the possession and use of drugs is also a criminal offense that carries a fine or imprisonment. The employer is therefore entitled to take disciplinary steps against an employee and may even contact the SAPS if drugs are found in an employee’s possession.

The usual procedural requirements for a disciplinary hearing still apply. It must be determined whether the employee is addicted to dagga and, if so, it must be handled as an addiction. If the employee is not addicted to dagga the matter will rather be handled as misconduct.

If it is ascertained that the employee is addicted to dagga the disciplinary code should make provision for the necessary action by the employer, while item 10 of Schedule 8 of the Labour Relations Act (No. 66 of 1995) also gives guidelines in this regard. Action may include counselling or rehabilitation, during which time the disciplinary hearing is suspended. If the alternative action has the desired result and the employee gives his or her full cooperation, the intervention would be deemed successful and no further disciplinary action would be necessary. If, however, the employee does not cooperate, it is pointless for an employer to consider alternative action and disciplinary action is then indicated.

Apart of the health risk that goes with the use of dagga, the possibility of dismissal and imprisonment for the possession or use of dagga are factors that any employee should seriously consider before using or possessing any prohibited substance.

Historic consistency regarding disciplinary action

By Adel Botha

Question:

What does historic consistency with respect to disciplinary action involve?

Answer:

The question “was the rule fair and was it applied consistently” is certainly one of the most important factors that has to be taken into account during internal disciplinary proceedings. In Hope v Petrologic (2007) 10 BALR 897 [MEIBC] the arbitrator found that an employee’s dismissal can be regarded as unfair if employees are treated differently for the same or similar offences. In this case, an employee was dismissed because of theft. However, two other employees had only been given final warnings for the same offence merely a week before. The employer was consequently ordered to reinstate the employee.
Historic consistency, as illustrated in Hope v Petrologic (2007) 10 BALR 897 [MEIBC], therefore involves that an employer has to take the same disciplinary steps when a comparison is drawn with the way in which disciplinary steps were taken in the past. The same sanction can be enforced in the case of previous, similar disciplinary offences, unless the circumstances surrounding the different incidents truly differ from each other.

In such a case the employer will at least have to prove that –

  • he (the employer) has knowledge of the previous employee’s same or similar misconduct;
  • that the person with whom a comparison is drawn can be identified;
  • that the different individuals were subject to the same circumstances; and
  • that he (the employer) has not in the intervening period communicated and implemented new workplace rules and regulations.

An employer will, however, be able to defend alleged inconsistency successfully if the decision to treat two or more employees differently can be justified by personal circumstances, the seriousness of the misconduct and other relevant factors. For more information on this topic, phone us on 0861 25 24 23.

My Rights (70)

What are my rights in the workplace?

Question:

What are my rights in the workplace?

Answer:

The employee’s rights are protected by the Basic Conditions of Employment Act (Act 75 of 1997). These rights are set out in Section 78 of the legislation.

According to Section 78, an employee has the following rights:

Lodging a complaint with a trade union representative of a recognised trade union or labour inspector regarding any negligence in complying with the guidelines of the Basic Conditions of Employment Act.

Discussing his/her conditions of employment with fellow employees and also with the employer or any other person.

Ignoring an order that is in conflict with a sectoral provision or the provisions of the Basic Conditions of Employment Act.

May my employer force me to work during my leave?

Question 5: May my employer force me to work during my leave?

Answer: It is important to emphasize that the employee may not be forced to work during his leave period.

Final warning

Phil Davel

Question:

I work as a site manager for a construction company. This morning I suddenly received a final written warning because I was working in my office yesterday and not on site. I haven’t received any verbal or other warnings and I feel that I don’t deserve a final warning. Meanwhile, my project manager has written a letter to the company’s management to say that he had instructed me to complete urgent paperwork. I still feel that I was treated unfairly and I have refused to sign the warning. What are my rights?

Answer:

1. Firstly, it is important to understand that the fact that an employee does not sign a written warning does not make the warning invalid. It is still valid. By signing the warning, the employee does not necessarily acknowledge guilt, but merely acknowledges receipt of the document. Because written warnings are more formal than verbal warnings (and it is recorded in writing), it serves as proof that the warning has been issued (if it becomes necessary to follow the disciplinary steps).

2. Secondly, legislation does not stipulate that a final written warning has to be preceded by a verbal warning, then a first written warning, and only then a second written warning. It is a misconception and the steps to be taken are usually determined by the severity of the transgression. This will be recorded in the company’s disciplinary code and policy.

Schedule 8 of the Labour Relations Act (Act 66 of 1995) does provide a few guidelines. Item 3(1) stipulates, among other things, that the disciplinary rules of employers must ensure certainty and consistency for enforcing discipline. It requires that the standard according to which actions are measured is clear and that it is made available to the employee in such a way that it is easy to understand. Certain rules and standards might be common knowledge and therefore do not have to be communicated beforehand. Therefore, it is best to refer to the company’s disciplinary code.

3. Lastly, if an employee receives a warning, he/she basically has two options:

a) He/She could accept it and continue with his/her work. This is usually the best option for three reasons:

i. It is simply a warning and does not involve a change in the status quo, as would, for example, be the case with a demotion or dismissal.
ii. A warning is only temporary. Usually a warning expires after a period of six to 12 months. Once again, it depends on the company’s policy or on what is stipulated in the warning. This means that the warning is only valid for that period and only for that specific transgression. The courts have underwritten the validity period of warnings because it would be unfair to hold transgressions against employees indefinitely (ad infinitum).
iii. You are protecting your job. Although an employee has the right not to accept a warning, such conduct could portray him/her in a bad light, which would not be desirable for job protection and/or promotion. This is an important point of view to keep in mind. This also applies to lodging an internal grievance.

b) The employee may question the fairness of the warning and ask that he/she first be granted a thorough and fair hearing. The issuing of a written warning must usually be preceded by at least a thorough investigation, where the employee is given the opportunity to explain his/her side of the matter and, if necessary, to give evidence.

It seems that in this case a thorough investigation did not take place before the written warning was issued and, therefore, it was issued prematurely. This can be deduced from the employee’s argument that he had acted on the orders of his project manager and he could provide the relevant letter to management as evidence. The best option in this case would be for the employee to request a fair hearing. However, the employee should bear in mind that the chairperson of the hearing could decide to impose a harsher penalty. In other words, it would be a calculated risk.

For any further enquiries regarding written warnings, please call Solidarity’s legal experts at 0861 25 24 23.

I am a senior manager and I would like to join a trade union. Am I allowed to?

Answer:

According to Section 187(1) of the Labour Relations Act dismissal on ground of trade union membership is automatic unfair dismissal. Section 5 of the Labour Relations Act makes provision for employees to belong to a trade union and Section 18 of the Constitution also provides for freedom of association. 

Any employee, including a senior manager, is therefore allowed to join or belong to a trade union without being victimised or dismissed. 

There are cases like IMATU & others v Rustenburg Transitional Council [1999] 12 BBLR 1299 (LC) that sheds more light on the topic. In this case the employer implemented a policy whereby senior managers were forbidden to belong to a trade union. The Labour Court found that this policy stands against freedom of association, regardless of the employees’ position in the company.

The employee is protected under law for his/her trade union activities, but is still obliged to perform his/her required duties at the company. This means that the employee still has to perform his/her duties to the best of his/her ability and for the wellbeing of the company. 

It is also important to look at the case of Kelhwar v SANCA (1991) 12 ILJ 816 (IC). The case is about conflict. A manager was retrenched because she was not prepared to give up her position on a personnel forum. The employer argued that it caused conflict of interest. The Industrial Court found that her actions was not in conflict of the interests of the employer but stated that if there were conflicting interests, her dismissal would have been fair.  

For more information on immediate unfair dismissal or trade union membership, phone Solidarity’s legal experts at the Service Centre on 0861 25 24 23.

What rights does an employee working nightshift have?

Question:
What rights does an employee working nightshift have?

Answer:
Nightshift is regulated by Section 17 of the Basic Conditions of Employment Act. In terms of this section, nightshift is regarded as hours worked between18:00 and 06:00. An employee may only work nightshift if the employee receives an allowance or reduction of working hours. It has to be determined whether transport will be available between the workplace and the employee’s house.

An employer that requires his/her employees to work between 23:00 and 06:00 must inform the employees verbally or in writing, in a language they understand, of any dangers involved in the work they will have to do. The employer also has the right to insist on a medical examination to determine whether the employee would be able to cope with the dangers associated with nightshift. If the employee is found to be unfit for nightshift, the employee must be transferred to a suitable dayshift.

The guidelines regarding nightshift can also be influenced by sectoral stipulations and collective agreements.

Am I entitled to promotion?

Question: Am I entitled to promotion?

Answer: Section 186(2)(a) of the Labour Relations Act defines unfair labour practice as “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

I would like to know if my employer can refuse to allow me to take smoke breaks

Question: I would like to know if my employer can refuse to allow me to take smoke breaks. Isn’t he infringing on my rights? We have always taken two smoke breaks of 15 minutes each per day, but now our manager is refusing, saying that we cannot smoke on the balcony. What does the law say about this?

Answer: Permitting smoke breaks, just as tea and coffee breaks, is not currently required, prohibited or regulated by labour legislation. Although each employer shouldhave a written smoking policy in the workplace, it is subject to the discretion of the employer and it is a privilege granted to employees. It is, however, important for employers to realise that permitting smoke breaks should be evaluated in light of the working conditions and the morale and needs of employees, but smoke breaks remain a privilege and not something to which an employee is entitled. An employer can even completely prohibit smoke breaks, even if the nature of the workplace does not require it.

What are my rights?

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Question:
I work as a site manager for a construction company. This morning I suddenly received a final written warning because I was working in my office yesterday and not on site. I haven’t received any verbal or other warnings and I feel that I don’t deserve a final warning. Meanwhile, my project manager has written a letter to the company’s management to say that he had instructed me to complete urgent paperwork. I still feel that I was treated unfairly and I have refused to sign the warning. What are my rights?

Answer:
1. Firstly, it is important to understand that the fact that an employee does not sign a written warning does not make the warning invalid. It is still valid. By signing the warning, the employee does not necessarily acknowledge guilt, but merely acknowledges receipt of the document. Because written warnings are more formal than verbal warnings (and it is recorded in writing), it serves as proof that the warning has been issued (if it becomes necessary to follow the disciplinary steps).
2. Secondly, legislation does not stipulate that a final written warning has to be preceded by a verbal warning, then a first written warning, and only then a second written warning. It is a misconception and the steps to be taken are usually determined by the severity of the transgression. This will be recorded in the company’s disciplinary code and policy.
Schedule 8 of the Labour Relations Act (Act 66 of 1995) does provide a few guidelines. Item 3(1) stipulates, among other things, that the disciplinary rules of employers must ensure certainty and consistency for enforcing discipline. It requires that the standard according to which actions are measured is clear and that it is made available to the employee in such a way that it is easy to understand. Certain rules and standards might be common knowledge and therefore do not have to be communicated beforehand. Therefore, it is best to refer to the company’s disciplinary code.
3. Lastly, if an employee receives a warning, he/she basically has two options:
a) He/She could accept it and continue with his/her work. This is usually the best option for three reasons:
i. It is simply a warning and does not involve a change in the status quo, as would, for example, be the case with a demotion or dismissal.
ii. A warning is only temporary. Usually a warning expires after a period of six to 12 months. Once again, it depends on the company’s policy or on what is stipulated in the warning. This means that the warning is only valid for that period and only for that specific transgression. The courts have underwritten the validity period of warnings because it would be unfair to hold transgressions against employees indefinitely (ad infinitum).
iii. You are protecting your job. Although an employee has the right not to accept a warning, such conduct could portray him/her in a bad light, which would not be desirable for job protection and/or promotion. This is an important point of view to keep in mind. This also applies to lodging an internal grievance.
b) The employee may question the fairness of the warning and ask that he/she first be granted a thorough and fair hearing. The issuing of a written warning must usually be preceded by at least a thorough investigation, where the employee is given the opportunity to explain his/her side of the matter and, if necessary, to give evidence.
It seems that in this case a thorough investigation did not take place before the written warning was issued and, therefore, it was issued prematurely. This can be deduced from the employee’s argument that he had acted on the orders of his project manager and he could provide the relevant letter to management as evidence. The best option in this case would be for the employee to request a fair hearing. However, the employee should bear in mind that the chairperson of the hearing could decide to impose a harsher penalty. In other words, it would be a calculated risk.
For any further enquiries regarding written warnings, please call Solidarity’s legal experts at 0861 25 24 23.

Unauthorised access to private communication

Phil Davel

Question: I need information relating to unauthorised access to a computer and e-mail. A colleague snooped around on my computer and in my e-mail without my permission and without going through the required security channels. I have evidence of the colleague’s actions and he also admitted to gaining access to my computer.

Answer: You are absolutely correct that your colleague’s actions were inappropriate and unacceptable. Such action is not only unprofessional, but also unethical. Unfortunately, ethical and professional conduct relating to access to private communication in the workplace is not regulated by a specific act or regulation, with the possible exception of company policy.

However, legislation like section 2 of the Regulation of Interception of Communication Act (RICA) prohibits the kind of conduct that your colleague committed. This section prohibits the interception of communication inside the Republic, subject to certain exclusions. Interception includes, among other things, reading the contents of communication, as in your case.

Apart from RICA, section 14(d) of the Constitution of South Africa protects a person’s right to privacy and the privacy of your communication. The right to privacy is therefore a fundamental human right and in your case this right was violated.

Sections 5 and 6 of RICA permit the employer to intercept your communication, including private communication, in certain circumstances. In your case, however, a colleague intercepted your private communication and not the employer.

We recommend that you lodge an internal grievance against the colleague concerned. Based on the information at our disposal, it appears that you have a definite case which the employer should investigate. As mentioned earlier, your company’s policy may contain regulations that cover your specific situation.

Furthermore, information obtained in an unauthorised manner is usually not permitted as evidence in legal proceedings

Does the law protect pregnant employees?

By Johan Roos

Pregnant employees’ rights, job security and safety are protected by section 26(1) of the Basic Conditions of Employment Act and the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child as set out in the Act. The Code of Good Practice governs the working conditions of a pregnant employee, ensuring that pregnant women are not exposed to hazardous working conditions.

Furthermore, section 25 of the Basic Conditions of Employment Act makes provision for maternity leave.

Dismissal on the grounds of pregnancy is dealt with in section 187(e) of the Labour Relations Act. Dismissal is automatically unfair if it is based on an employee’s pregnancy.

Pregnancy and your interview

Question:

I would like to know if I am required to inform an employer during my interview that I am pregnant. I am expecting my first child and I am worried that I will not be appointed if I disclose my pregnancy.

Answer:

It often happens that a prospective or current employee apply for a position, but is concerned that her pregnancy may count against her.

The Basic Conditions of Employment Act only determines that an employee should inform the employer in writing within four weeks, or as soon as practically possible, that she would like to take maternity leave. There is no other legal requirement for a person to disclose her pregnancy status.

The job seeker would however be obligated to disclose her status if the employer specifically asks her if she is aware that she is pregnant. The reason is simply that, if the employer later discovers she was aware of her pregnancy and misled him/her, she could face disciplinary action for dishonesty or breach of confidence. If the job seeker discloses her pregnancy, and she is not appointed, it will be her responsibility to prove that she was discriminated against based on her status.

Payment instead of giving notice

Question:

I have been working for four years at Company A and I have given my four weeks’ notice before starting to work at Company B. The employer wants me to immediately leave the premises. Am I still entitled to the salary payment of my four weeks’ notice?

Answer:

If the employer does not want you to work your notice period, we need to look at section 38 of the Labour Relations Act. In terms of section 38, the employer is compelled to make a payment for the full notice period should he wish the employee to leave immediately. It is important to emphasise that the employee is obliged to give notice in terms of legislation and his employment contract.

Grievance procedure

Question:
I would like to put in a grievance at my work, but am not sure how to go about it. I would also know whether it will help me at all.

Reply:
Grievance procedures are not regulated through legislation. Employers are therefore not  compelled to have a specific grievance procedure, but most employers do have one. Grievance procedures are put in place by the employers, and in most cases the human resources division l head the grievance procedure. This division implements a grievance policy regulating the procedure.

Before one takes a case of unfair labour practices, victimisation or discrimination further, all internal solutions must have been exhausted. The grievance procedure is one of these internal solutions which has to be followed. It is important to emphasise that if you make allegations against a person about victimisation or discrimination, you must be able to prove it substantively. The person against whom a grievance has been submitted, can take civil action if you have made false accusations.

If your workplace does not have a grievance procedure in place, write letters to the employer. These must then be escalated systematically to the highest level in the organisation. These letters serve the same purpose as the grievance procedure.

May an employer deduct money from my salary without my consent?

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

My employer has not paid my salary this month. What can I do about it?

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

Fingerprints

By Phil Davel

Question
Our employer unexpectedly requested all of us to go to the police station to have our fingerprints taken. According to them they want to send the prints to the legal consultant. Are they within their rights?

Answer
At this stage it is more of a legal opinion than an absolute law to which we can refer. The employer may probably require as a condition for employment that every applicant should first obtain a police clearance to prove that he has never previously been found guilty of a crime, especially if he will be working with money and finance or in security. For this it will be necessary to have fingerprints taken by the police.

In your legal question you say that the employer ‘unexpectedly’ requires fingerprints. One could argue that this infringes on your fundamental right to dignity and privacy as well as the right to freedom and personal security. It would appear that Prof. Pierre de Vos agrees with this (“On finger prints and the right to privacy”, Constitutionally Speaking, 8 December 2009, by Pierre de Vos). However, he does say that infringement could perhaps be justified if the infringement is minimal.

Our opinion is that it would be unfair to force an employee to provide fingerprints. It would be the same as unfairly requiring or coercing an employee to take a polygraph test. There is sufficient authority that prevents an employer from forcing you.

Apart from being an infringement on privacy, there is also a security aspect. No person would like to have his or her fingerprints to be kept by an employer or any unauthorised person indefinitely.

Although your enquiry is labour-related, it is also relevant and informative to mention that the taking and keeping of finger prints are strictly regulated even in criminal procedure. (Refer Section 37 of the Criminal Procedure Act (No. 51 of 1977)). In our opinion the arbitrary requirement by an employer that you should have your fingerprints taken is inappropriate.

Freedom of association

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

My employer provides me with accommodation, but I have resigned and now he insists that I leave the premises immediately. What can I do about the matter?

In order to answer the question, one should look at section 39 of the Basic Conditions of Employment Act. If an employee lives on the employer’s premises and the contract of employment is terminated by either of the parties, accommodation must be provided for another month or until the contract terminates in terms of section 37 of the Basic Conditions of Employment Act. I should also mention that section 38, which deals with payment instead of notice, should also be taken into consideration. If the employer does not want you to work the notice, your salary for the notice period must be paid to you.

Transport to and from work

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

Non-performance of an unlawful instruction

Disputes regarding refusal to carry out reasonable instructions are fairly common. In most of these disputes it is found that dismissal was fair. However, what is the position when an employee who refused to carry out an unlawful instruction is dismissed?

The Labour Court recently heard such a case. The employee concerned was a managing director who refused to summarily dismiss two subordinates at the instruction of the chief executive officer (CEO). She was prepared to hold a disciplinary hearing for the two employees, but the CEO insisted on immediate dismissal. When the employees still refused to dismiss them, she was dismissed.

The court came to the conclusion that the instruction that had been given to the employee to dismiss the two employees without a disciplinary hearing was unlawful, as the employees were entitled to a disciplinary hearing before dismissal could be procedurally fair. Employers cannot expect employees to perform an unlawful action. This prohibition is set out in section 5(2)(c)(iv) of the Labour Relations Act, according to which an employee or jobseeker may not be prejudiced for failure or refusal to do something that an employer may not lawfully permit or require an employee to do.

If an employer dismisses an employee on the basis of a reason set out in section 5, such dismissal is deemed automatically unfair in terms of section 187(1). In the case described above, the court ruled that the dismissal had been automatically unfair and awarded the employee compensation.

Unlawful or unreasonable instructions can take on various forms and each case will be judged on merit. Instructions to commit an offence, non-compliance with legislation and instructions to work in an unsafe or hazardous workplace or to carry out an unsafe or hazardous task are just a few examples of unlawful or unreasonable instructions. These cases will not be strictly regarded as unlawful or unreasonable instructions by the courts. After all, police officials cannot refuse to work if they are pelted with stones during unrests. A miner can refuse to work underground in an unsafe area, but the situation changes if that miner is part of a proto team who have to go and rescue miners who are trapped underground. An instruction to assault a colleague or to steal something is clearly not a lawful instruction and to assert that you carried out an instruction will not count as a defence in a criminal court.

An instruction to perform tasks that do not form part of an employee’s job description is not necessarily unreasonable. The court has previously ruled that the instruction to employees to operate two machines instead of one was not an unreasonable instruction. It is therefore crucial to not refuse to carry out an instruction right away and to get advice immediately, or to carry out the instruction, but to get advice and lodge a grievance.

The following factors must be taken into account to determine if an instruction is unlawful or unreasonable:
- Is the action following the instruction prohibited by legislation or common law?
- Is the action following the instruction regarded as being against good morals or against the public interest?
- Is the instruction issued in an emergency?
- Is the action following the instruction regarded as part of your job functions?
- If the action following the instruction is not part of your normal job functions, how far removed is it from your normal functions?
- Does the instruction promote the employer’s business without placing an undue burden on the employee?

An objective test must be applied to determine whether or not an instruction is unlawful or unreasonable.

Solidarity can offer its members advice on what to do in a specific situation. The golden rule is to contact your trade union for advice before refusing to carry out an instruction.

Refusing to dismiss employees

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

Trauma at work

The consequences of trauma

Trauma refers to a wound or an injury to the human body caused by some form of power or violence impacting on the body. In Solidarity’s division dealing with injuries on duty, cases are often encountered of members who sustained injury or contracted disease as a result of severe trauma in the workplace, and for this reason more information is given about trauma:

General factors

The forces and violence that can cause trauma include, among others, the following:

Physical factors:
Mechanical trauma (blunt or sharp force trauma, caused by, among others, firearms, bombs, explosives), thermal trauma (heat and cold), electrical trauma, barotrauma (air pressure), trauma caused by high energy and high frequency radiation, as well as ultra sound trauma.

Chemicals:

Trauma can be caused in such cases where the body comes into external contact with chemicals and where chemicals are ingested through the mouth, the respiratory tract and lungs, through the skin, via the muscles and through intravenous injection or absorption through the rectum.

Cause or environment:
From the table it can be seen that the same type of trauma/injury can originate from a specific environment or can arise from or may be caused by several events:

Event/EnvironmentInjury Traffic Murder Sports fields Water Heights Industry Agriculture
Blunt force X X X X X
Sharp force X X X X X
Heat/cold X X X X
Barotrauma
Radiation X
Chemical agents X X X

Another example of how several causes can affect a specific system is found when the body’s enzyme system is affected. The changes brought about by the various factors are as follows:

  • Heat: destroys enzymes through denaturation
  • Cold: delays response
  • Cyanide, H20, CO2: inhibit respiratory enzymes
  • Heavy metals compound with the SH group
  • Organophosphates: Destroy the enzymes present in the central nervous system, particularly the nerves in muscles, tissues and red blood cells.
  • Fluoride and formaldehyde: respectively inhibit and destroy enzymes in general.

Contract of employment

Question

May an employer terminate a signed, valid contract of employment, even if the employee has not yet taken up the position?

Answer

An employee is protected by labour legislation and judgments from the moment that a contract of employment is concluded, even if he or she has not yet physically begun to work for the employer.

In the case Wyeth (Pty) Ltd vs Manqele Mr Manqele was offered a position as a sales representative. The parties entered into a service contract in terms of which Manqele would start working on 1 April. However, before Manqele could do this he was informed by the employer that it was no longer prepared to employ him. Manqele referred the matter to the Commission for Conciliation, Mediation and Arbitration, where the commissioner found that he became an employee the moment he accepted the employer’s offer of employment.

The employer subsequently took the matter to the Labour Court on review. The Labour Court, on hearing the review application, confirmed that Manqele was a party to a valid contract of employment and therefore was an employee for the purposes of the Labour Relations Act.

The employer then took the matter to the Appeal Court. The court once more confirmed that Manqele became an employee the moment he signed the contract of employment.

An employer therefore cannot simply terminate a valid contract of employment, even if the employee has not yet physically taken up the position in question. This rule also applies to verbal agreements.

Termination of signed contract

Question:

May an employer terminate a valid, signed contract of employment if the employee has not started working there yet?

Answer:

An employee is protected by labour legislation and case law from the moment a contract of employment has been signed, even if he or she has not yet physically started working for the employer.

In the case Wyeth SA (Pty) Ltd v Manqele, Mr Manqele had been offered a post as sales representative. The parties signed a contract of employment stipulating that Mr Manquele’s employment would commence on 1 April. Before Manquele started working there the employer informed him that they were no longer willing to employ him. Manquele referred the matter to the Commission for Conciliation, Mediation and Arbitration and the arbitrator ruled that he had become an employee the moment he accepted the employer’s offer of employment.

The employer took the arbitrator’s decision to the Labour Court on review. In the hearing of the review application the Labour Court confirmed that Manquele was a party to a valid contract of employment and therefore was an employee for purposes of the Labour Relations Act.

The employer then referred the matter to the Court of Appeal. This court confirmed that Manqele became an employee from the moment he had been contracted.

Therefore, an employer may not simply terminate a valid contract of employment, even if the employee has not yet physically started working for the employer. This rule also applies to verbal agreements.

Measures to control smoking in the workplace

By Johan Böning

Question

Are you concerned about measures to control smoking in your place of work?

Answer

Section 24 of the Constitution of the Republic of South Africa (No. 108 of 1996) determines that everyone has the right to an environment that is not harmful to their health and, in accordance with the Occupational Health and Safety Act (No. 85 of 1993) as well as the Tobacco Products Control Amendment Act (No. 83 of 1993) and other relevant regulations, all employers, owners, tenants or any person in control of a public place are morally and legally compelled to create a healthy and safe environment for those working there or making use of such premises.

The Tobacco Products Control Act (No. 83 of 1993) with amendments, among other things, determines the following:

Section 2 (1) (a) (i) en (ii)

The smoking of tobacco products in any public place, or in an area within a prescribed distance from a window, ventilation shaft, door opening or entrance to a public place is prohibited. A public place means any indoor or partially enclosed area (therefore including corridors, balconies, covered patios, et cetera) open to the public and that includes workplaces and public transport.

A workplace means any indoor or enclosed area in which employees perform the duties of their employment, including any corridor, lobby, stairwell et cetera as well as any other area frequented by such employees during the course of their employment. Private dwellings and designated smoking rooms are excluded.

Section 2(2)

The owner of or person in control of the above public place or area, or the employer in respect of a workplace, must ensure that no one smokes there.

Section 2(4)

Section 2(4) of the Tobacco Products Control Act determines that the owner of, or person in control of a public place, or employer in respect of a workplace, must display the prescribed signs and make the prescribed public announcements in order to inform any person who enters or who is in such place or area of any prohibition on smoking.

Section 2(5)

An employer must ensure that:

  • employees may object to smoking in the workplace without retaliation of any kind; and
  • employees who do not want to be exposed to tobacco smoke in the workplace are not exposed to it. Under section 2(1)(b) of the Tobacco Products Control Act, smoking may be permitted in certain designated areas of a workplace, subject to certain prescribed conditions. The conditions that a designated smoking area should comply with, are the following:
    - Although such a smoking area permits smokers to smoke at work, care should be taken that non-smokers are protected against tobacco smoke.
    - The smoking area may not comprise more than 25% of the total floor space of the workplace.
    - A solid dividing wall should separate the smoking area from the rest of the workplace and a sign clearly indicating ‘SMOKING AREA’ should be displayed at the entrances.
    - If the smoking area is not outside, it should be ventilated.
    - Regardless of whether the smoking area is outdoors or indoors, the air should be extracted from the smoking area directly and care should be taken that it is not recirculated through any other area of the workplace.
    - The following sign should also be displayed at the entrances to the smoking area: ‘THE SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AS WELL AS TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT SMOKING, PHONE 011 720 3145.’ The two above-mentioned signs should be written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background.
    - All notices demarcating where smoking is permissible and not permissible should be displayed permanently.
    - Signs indicating that smoking is not permissible should also carry the following warning: ‘ANY PERON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE.’
    - No person under the age of 18 years may be present in the smoking area.

Some people may ask: ‘Why so strict?’

Research has shown that up to 90% of all cancers are caused by environmental factors, including lifestyle factors like tobacco smoke. Furthermore, it seems that smoking is the cause of death of one in ten adults worldwide. In South Africa smoking is currently considered to be the second biggest health risk after HIV/Aids since approximately 44 000 people die of smoke-related diseases annually. This obviously places a huge burden on health systems and therefore preventative measures are necessary.

Under the influence of alcohol at work: what do recent judgments say?

By Rizelle Botha

In National Union of Metalworkers of South-Africa o.b.o. Johnson/Trident Steel Ltd (2013) 22 MEIBC 8.11.3 the following facts were present:

An employee was dismissed after he had admitted guilt on a charge of being under the influence of alcohol at work or during working hours and after he had undergone a breathalyser test. The employer had a zero-tolerance policy regarding this type of offence for safety reasons and all employees had been informed of it.

The commissioner in the matter ruled that if an employer wants to rely on a breathalyser test, he must present other, substantiating evidence as well. The evidence must, among other things, show that the test was carried out in the approved manner and that the result of the test was correct. The employer can also call witnesses to testify that they were present when the test was being carried out.

In the case in question, the employee admitted that he had been drinking, the employer had carried out a valid and proper test and other employees had been dismissed for similar offences in the past.

The commissioner subsequently ruled that the employee’s dismissal had been fair.

When does one qualify as an employee?

By Danie van Graan

The problem constantly arises that a person receives a job offer, but before he/she physically commences working, he/she is informed that the job is no longer available. The question now arises as to whether such a person is deemed to be an employee and therefore enjoys protection at the respective labour forums.

According to section 213 of the Labour Relations Act (No. 66 of 1995) an employee is:

‘(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer…’.

From this definition it would seem that a person only becomes an employee when he/she start working for the employer.

Verdicts to the contrary do however exist. In Solidarity obo Nortje v. Lydenburg Works 2009 7 BALR 673 Nortje had accepted a job offer, but before he physically commenced working, the employer terminated the contract on the grounds that Nortje had not yet repaid outstanding monies emanating from a previous work relationship, to the employer. The commissioner found that the service relationship commenced immediately after the contract was finalised, and that Nortje therefore was an employee.

In Wyeth SA (Pty) Ltd v Manqele and Others 2005 6 BLLR 523 Manqele was also fired after he had accepted the job offer but prior to his starting to work, as Mandela had made a misrepresentation regarding his company vehicle. Here the court also found that Manqele was deemed to be an employee from the moment that the contract was finalised.

It would therefore appear that the courts follow a broad interpretation regarding the definition of an employee. This is also in line with section 23 of the Constitution of the Republic of South Africa (No. 108 of 1996), which, among other things, determines that everyone has the right to fair labour practices.

Many grey areas however still exist regarding the question as to from when someone can be deemed to be an employee. Another example is where a service relationship is based on an illegal contract, as in the case of illegal immigrants or sex workers. Are they protected as employees, especially in the light of section 23 of the Constitution, as mentioned above?

You are welcome to contact us should you be in doubt as to whether you qualify as an employee.

 

Protection for South African employees abroad

By Hanlie van Vuuren

Question

Are South African employees protected in a foreign country?

Answer

South African citizens frequently work in foreign countries, especially in Africa. These employees should be aware of the fact that South African labour legislation might not offer them protection, as we do not have jurisdiction in all cases.

This is particularly true for occupational injuries and diseases, since section 23 of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) stipulates that an employee will be entitled to protection only if:

  • the employer carries on business chiefly in the Republic and an employee of his ordinarily employed in the Republic, is injured while temporarily employed outside the Republic;
  • an employee resident in South Africa is injured while employed in, on or above the continental shelf;
  • the employee is not employed outside the Republic for a continuous period longer than 12 months, save by special agreement with the Compensation Commissioner.

Many countries, especially in Africa, do not have compensation legislation, therefore employees are extremely vulnerable if injured or if they contract an occupational disease and the employer is not registered with the South African Compensation Fund.

If the other country does have compensation legislation and the South African is eligible to claim in both countries, he should notify the Compensation Commissioner of South Africa in writing which of the two countries’ compensation he will accept, since it is illegal to claim in both countries.

Some companies recruit employees in South Africa, and sometimes the applicant does not realise that employment contract is signed with a foreign company.

Applicants must ensure with whom they sign employment contracts, and whether the company is registered with the South African Compensation Fund, or whether alternative specific insurance for employees is arranged.

 

Equal pay for equal work

By AJ van der Bijl

Question:

I work for the financial department of a manufacturing company. Although I do the same work as a colleague, her salary is higher than mine. Is this difference in pay reasonable, or does it amount to some type of discrimination?

Answer:

Unequal pay for the same work is regulated by the Employment Equity Act (No. 55 of 1998) and the Labour Relations Act (No. 66 of 1995) which aim to promote equality in the workplace. This legislation does not explicitly disallow unequal pay for work of equal value and merely prohibits discriminatory practices.

In TGWU & Another v Bayete Security Holdings (1999) 20 ILJ 1117 (LC), Judge Grogan ruled as follows [own emphasis]:

It is so that to pay one employee more than another for doing the same work may have amounted to an unfair labour practice under the 1956 Act (see SA Chemical Workers Union v Sentachem Ltd (1988) 9 ILJ 410 (IC)), and would also be so under the new Act if it is done for an arbitrary reason. However, the mere fact that an employer pays one employee more than another does not in itself amount to discrimination: see Du Toit et al., The Labour Relations Act of 1995 (2nd ed.) at 436. Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, experience, skills, and the like.

The above opinion was echoed in Ntai & others v South African Breweries Ltd (2001) 22 ILJ 214 (LC) where the court stated the following [own emphasis]:

Litigants who bring discrimination cases to the Labour Court and simply allege that there was “discrimination” on some or other “arbitrary” ground, without identifying such ground, would be well advised to take note that the mere “arbitrary” actions of an employer do not, as such, amount to “discrimination” within the accepted legal definition of the concept.

It is clear from the abovementioned case law that, even though the principle of equal pay for equal work, or equal pay for work of equal value is accepted in our legislation, failure to apply this principle will only amount to unfair discrimination if the reason for distinguishing between employees’ salaries is shown to be one of the grounds referred to section 6 of the Employment Equity Act, namely race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Does my employer have a responsibility to protect my hearing?

Hearing protection in the workplace

By Anina de Beer

 

Employers have a responsibility to protect employees’ hearing in the workplace. An employer’s duties in this regard are as follows:

  • Do a noise assessment: The employer must evaluate the risk that employees run to suffer hearing damage. Hearing protection areas must be designated and employees must wear hearing protectors in those areas.
  • Reduce noise at the source: Sound absorbing material can be used to reduce noise.
  • Regulate the impact of noise: The period for which employees are exposed to noise must be limited, or noise partitions must be provided.
  • Promote hearing protection: Employees must be provided with hearing protectors. Moreover, they must receive information and training on how to correctly use, care for and store hearing protection equipment.
  • Employees must undergo regular hearing tests.

 

Employees also have a responsibility to protect their hearing:

  • Hearing protectors must be used correctly.
  • Hearing protectors must be kept in a good condition.
  • Defective hearing protection equipment must be reported.

Compensation for medical expenses resulting from occupational injuries or diseases

By Hanlie van Vuuren

Question:

Can the Compensation Commissioner be held liable for reasonable medical expenses arising from occupational injuries or diseases?

Answer:

The Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) specifies that the Compensation Commissioner is liable to pay for the reasonable medical costs resulting from an occupational injury or disease for up to two years following the accident or the diagnosis of an occupational illness. Moreover, the commissioner has the discretion to decide on the need for and the nature and amount of the treatment.

The Act further determines that the medical practitioner must issue the first medical report within 14 days of the first consultation, followed by periodic progress reports. The employee or his/her dependants are entitled to copies of these reports upon request. Importantly, section 74(4) of the Act stipulates that no remuneration is payable for the completion and furnishing of these reports by the medical practitioner.

If the commissioner accepts liability for the claim, the medical costs may not be recovered from the employee (section 76(3)).

If a service provider expects the injured employee to personally take responsibility for settling medical bills for which the Compensation Commissioner is responsible, the employee must draw the service provider’s attention to the provisions of the Act. The validity of such contracts may be queried.

Work after retirement age

Question:

If an employer has allowed me to keep on working after I reached the agreed or normal retirement age, is the employer then entitled to terminate my services at any time thereafter because of my age?

Answer:

In the CCMA ruling Buhai v Hotbake Systems (Pty) Ltd t/a Rich Products Corporation of South Africa – (2013) 22 CCMA 7.1.4, the employee was appointed by the employer shortly before he reached the age of 65. After the employee turned 65, the employer allowed him to keep on working for a time, but he was later told that he had to retire. The employee claimed that the employer decided to get rid of him because he had developed personal financial problems. Therefore, the employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner ruled that the employer was aware of the fact that the employee was nearly 65 years of age when he appointed him. The commissioner’s ruling was based on evidence that other employees of the employer were also allowed to keep on working after the age of 65. The Commissioner also found that the employer should have been aware of the fact that the employee had reached the age of 65 and the employer also allowed that particular employee to continue working after the age of 65. Hence, the Commissioner ruled that the employer was not in a position to argue that the real reason for the termination of the employee’s services was the fact that he had reached his ‘normal or agreed’ retirement age. The real reason for the termination was something else and the employer therefore did not follow the correct procedure associated with the real reason for termination. Therefore, the employee’s dismissal was unfair.

Opinion evidence

By Johan Nell

Question:

What is opinion evidence and how does it apply to legal proceedings?

Answer:

Opinion evidence falls under the law of evidence, which is not a recent development in law, but has evolved with the expansion of the judicial system that dates back to Roman law, which in turn influenced English and Roman-Dutch laws, the latter two forming the cornerstones of South African law and indeed our entire judicial system.

Opinion evidence

  1. It is the function of a court to come to a conclusion based on facts. Therefore, a witness cannot deliver an opinion as it would undermine the function of the court or the inquiry.
  2. The prerogative to draw certain inferences from facts that are presented is bestowed only on the court or the chairman of an inquiry, and no inferences may be drawn by a witness.
  3. In R vs. Van Tonder 1929 TPD 365, opinion evidence was found to be inadmissible. In R vs. Louw 1930 CPD 368 Judge Watermeyer stated that the magistrate could not accept the mere statement of a witness that, ‘in his opinion’, an obstruction had been caused. The witness had to state what he saw and it was for the court to say whether an obstruction had been caused.
  4. It is therefore clear that a witness may only state what he or she found and not what circumstances might have influenced or what a certain document was indicative of, or what he or she could deduct from certain documents and/or certain circumstances.
  5. In R vs. Ndlovu 1954 4 SA 482N 483H Judge President Broome classified the rulings in R vs. Van Tonder and R vs. Louw by stating that ‘…the objection to evidence was obvious in both cases. The witnesses themselves were deciding the question (Question of Law) upon which their (The Accused’s) innocence depended and they were thus usurping the function of the court.’
  6. It is the prerogative of the chairman in a disciplinary inquiry and the judge in a court case to decide whether or not an inference is to be drawn regarding the action of the accused (res gestae) and the consequences of such action. Legal proceedings concern facts, not the beliefs of witnesses as to the existence of facts.
  7. As it is used in law, ‘opinion’ has the meaning of inferences or conclusions drawn from facts. Opinion, be it expert opinion or not, which is expressed on an issue in respect of which a chairman or a judge can give a ruling without receiving such opinion, is in principle inadmissible because it is irrelevant. The opinion of a witness is totally irrelevant when a chairman or judge decides on the charges. (Refer to S vs. H 1981 2 SA 586 SWA.)

Therefore, a court or a chairman of a disciplinary inquiry may not subject itself/him- or herself to the opinion of a witness.

Annual and family responsibility leave

Question:

What does the Basic Conditions of Employment Act say about annual and family responsibility leave?

Answer:

The Basic Conditions of Employment Act (No. 75 of 1997) regulates annual leave in section 20 and family responsibility leave in section 27.

Section 20 provides for 15 working days’ annual leave during each leave cycle for employees who work five days a week. Employees who work six days a week are entitled to 18 working days’ leave in a leave cycle. An annual leave cycle means the period of 12 months’ employment with the same employer immediately following either an employee’s commencement of employment, or the completion of that employee’s prior leave cycle.

If you and your employer cannot come to an agreement about when you may or have to take leave, the employer has the final say. The employer can therefore approve or turn down your leave, depending on his operational requirements.

Section 27 provides for at least three days’ paid family responsibility leave during each leave cycle for an employee who has been in employment with an employer for longer than four months and who works for at least four days a week for that employer. Family responsibility leave therefore does not apply to employees (permanent or temporary) who work fewer than four days a week and who have been in employment with an employer for less than four months.

Moreover, family responsibility leave is granted to an employee in the following circumstances only:

(i)     When the employee’s child is born or is sick. Note that a child is defined as a person below the age of 18 years.
(ii)     In the event of the death of the employee’s –

  • spouse or life partner;
  • parent, adoptive parent or grandparent;
  • child, adopted child, grandchild; or
  • sibling.

Unfortunately, the Act does not provide for family responsibility leave in the event of the death of an employee’s father-in-law, mother-in-law, sister-in-law, brother-in-law, stepbrother or stepsister.

An employee may take family responsibility leave in respect of the whole or a part of a day. An employee’s unused family responsibility leave lapses at the end of an annual leave cycle and therefore cannot accrue.

Mibco

By Alexia Vosloo

Question:

What is Mibco?

Answer:

Mibco is the bargaining council for the motor industry. Bargaining councils basically have the same jurisdiction as the Commission for Conciliation, Mediation and Arbitration. Certain industries form their own bargaining councils with whom employers have to be registered, where wage negotiations have to be conducted; and to whom disputes regarding unfair dismissal and labour practices can be referred.

The Labour Relations Act (No. 66 of 1995) provides for the self-regulation of industries through the medium of bargaining councils. Mibco is a bargaining council as envisaged in the Act. Its mission is to create and maintain industrial peace and stability in the motor industry. It provides the following services to approximately 14 000 employers and 182 000 employees throughout the country:

  • A forum and facilities for collective bargaining;
  • the settlement of labour disputes; and
  • the provision of social benefits, that is, pension, provident, medical, sick, accident, maternity and holiday pay funds, for the upliftment of all persons falling within the industry.

Mibco consists of representatives from both employers and employees’ organisations and has equal representation from both groups.

The agreements negotiated by the council are, where necessary, extended by the state to cover the entire industry once it is satisfied that the parties to the council are representative of the majority. It is for this reason that all employers and employees within the motor industry fall under Mibco’s jurisdiction.

As bargaining councils are not funded by the state, all employers and their employees pay a levy for the funding of the councils.

The minimum wage for the period 5 September 2012 to 31 Augustus 2013 as outlined in the agreement reached at Mibco and in circular no. 05/2012 dated 16 August 2012 was R772,20 per week or an hourly wage of R17,16.

We are at present awaiting the announcement of the new fixed wage.

Sectors of the chemical industry

Question:

Which sectors fall under the chemical industry?

Answer:

The conditions of service in the chemical industry are regulated in terms of the collective agreement between the parties in the National Bargaining Council for the Chemical Industry (NBCCI). This collective agreement contains a detailed description of the following five sectors that fall under the chemical industry:

• The sector for chemicals-related consumer products;
• the petroleum sector;
• the glass sector;
• the industrial chemicals sector; and
• the pharmaceutical sector.

The collective agreement and detailed descriptions of the abovementioned sectors can be viewed at the NBCCI’s website, www.nbcci.org.za, under “Collective Agreement”.

Furthermore, agreements have been signed between various trade unions and employers’ organisations, separately regulating the basic conditions of service in each industry. These substantive agreements apply to the following sectors:

• The petroleum sector;
• the sector for fast-moving consumer goods;
• the glass sector;
• the industrial chemicals sector; and
• the pharmaceutical sector.

These agreements and the parties thereto can be viewed at the NBCCI’s website, www.nbcci.org.za, under “Substantive Agreements”.

The abovementioned collective agreement and, by implication, the substantive agreements are only binding on employers and employees who belong to employers’ organisations and trade unions who are parties to that agreement. The collective agreement is moreover only binding on members of employers’ organisations and trade unions operating in Gauteng.

To further determine whether an employee enjoys the protection of the abovementioned agreements, it must be established whether the employer concerned is classified under one of the abovementioned sectors and therefore falls under the chemical sector which is regulated by the mentioned collective agreement.

Lists of employers and trade unions that are parties to the specific agreements are enclosed in the agreements and can also be viewed by following the various links on the NBCCI’s website

Under the influence

By Phil Davel

Question:

My husband works on a mine and was sent home because he was believed to be under the influence of alcohol when he reported for duty. Where can I obtain the official checklist of symptoms indicating that a person might be under the influence, and is the employer entitled to summarily subject him to an alcohol test?

Answer:

A high level of alcohol in the body affects vision, speech, co-ordination and response speed. Workers will not be able to control machinery or drive vehicles, and will pose a risk for themselves and for fellow workers.

As far as a list of officially recognised symptoms is concerned, it should be noted that there are no labour laws or regulations that contain a “checklist” one could simply tick off to determine whether or not a person is under the influence of alcohol or drugs. Most mines in South Africa have specific regulations and policies applicable to the use of alcohol and these provide for a breathalyser test among other provisions. Usually, a miner whose breath testing has a positive alcohol reading, is sent to the mine’s medical station for further tests, which include blood tests. Blood samples may only be taken with the employee’s permission. Mines take a zero tolerance stance on alcohol and therefore the blood specimen may not contain a trace of alcohol.

Generally, employers consider the following symptoms when determining if an employee could possibly be under the influence of alcohol:

1.    Eyes: Eyes are red and bloodshot; pupils are dilated;
2.    Speech: Speech is slurred and incoherent;
3.    Behaviour: There is a change in behaviour (the person’s behaviour is different to his normal, “sober” behaviour);
4.    Movement: The person walks with a stagger (the person tends to sidestep to the left rather than with a straight gait) and shows some disorientation;
5.    Impaired co-ordination and responses;
6.    Smell: There is a smell of alcohol on the person’s breath.

Although the above list is not a recognised test to indicate the use of alcohol or drugs, the mine can request testing if any of those symptoms are present.

No person who is under the influence of alcohol or drugs, or is in any condition that leaves him incapable of being responsible for himself or any other person under his supervision may be allowed on a mine. The regulations as determined in Chapter 4 of the Mine Health and Safety Act (No.29 of 1996), stipulate that such person who is on a mine or even near any mining activities may be arrested summarily and may be deemed guilty of an offence under these regulations. (Please also refer to the General Safety Regulations 2A as contained in the Occupational Health and Safety Act (No. 85 of 1993). In terms of those regulations it is against the law to allow any worker who seems to be under the influence of alcohol in any workplace). The mine is thus fully empowered to test any person wishing to enter its premises, and to send the person home should he/she test positive.

During disciplinary hearings, evidence about an employee who was not by his/right mind or who seemed to show symptoms of intoxication, will only be valid as circumstantial evidence, which does not carry as much weight as conclusive evidence does. The only recognised evidence for intoxication while a person is on duty will be proper alcohol testing and accompanying blood alcohol tests. Expert witness may also be used. Bear in mind that, in Labour Law, the burden of proof only vests in a balance of probabilities.

Case law also provides clear indications regarding the permissibility of such circumstantial evidence. In MTWU obo Makalima v Pulp and Paper Carriers CCMA (2012-06-21) reference is, inter alia, made to the following:

… intoxication involves an impairment of the employee’s faculties, discernible effect upon his behavior beyond the limits of sobriety, not merely the … of alcohol at the time the tests were taken. The fact that his speech was slurred is, in itself, not indicative of intoxication. It may be an indication of intoxication and it is one of the recognized methods of determining intoxication, but unless one excludes any other possibilities such as tiredness or the fact that the person has the nature of a tendency to slur his speech, it is not in itself intoxication.

Hence, it is important to contact Solidarity immediately should any charge of intoxication while on duty be made.

Mining companies should continue to adequately educate their employees on the risks associated with alcohol and drug use before or during working hours as employees still do not realise the risks it poses for them and for their fellow workers.

Termination of services when a company is going into provisional liquidation

By Anton van der Bijl

Question:

I work for a steel construction company and have been informed that my services have been terminated with immediate effect because the company has been placed under provisional liquidation. I have not previously been informed that the company would be placed under provisional liquidation, and the employer has not taken any formal steps in respect of the termination of services. Is my dismissal fair, and if not, what am I to do?

Answer:

Unfortunately as a result of the current economic climate, we encounter more and more of these cases. Section 38(5) of the Insolvency Act (No. 24 of 1936) stipulates that a liquidator must consult with the employees of a liquidated company before their services can be terminated. Moreover, section 197B of the Labour Relations Act (No. 66 of van 1995) stipulates that employers must inform employees if the workplace is to be placed under provisional liquidation. In the case, Van Zyl NO & Others v. Commission for Conciliation, Mediation and Arbitration & Others (2012) 33 ILJ 2471 (LC), the set of facts are similar to your case, the Labour Court confirmed the CCMA’s finding that the termination of the employee’s services was unfair. The CCMA ruled that provisional liquidation does not give an employer the right to terminate an employee’s services summarily.

The ruling makes it clear that an employee’s services may not be terminated summarily at the time of a company’s provisional liquidation, and that if an employee is being dismissed on such grounds, he/she would, in all likelihood, succeed with a case of unfair dismissal being brought before the CCMA.

If you have been dismissed under similar circumstances do contact your nearest Solidarity office immediately.

Breastfeeding breaks at work

By Alexia Vosloo

Question:

I will be going back to work soon following my maternity leave and I plan to continue breastfeeding.  Am I allowed to express milk for my baby at work?

Answer:

Yes, you are allowed to take a breastfeeding break to breastfeed or to express milk for your baby at work. If your company has an on site crèche or care facility, it is easy to take time off to attend to your baby’s needs.  However, it becomes more difficult if your baby is left with a caregiver.

What is a breastfeeding break?

A breastfeeding break is a break from work during which a breastfeeding mother either breastfeeds her child, or expresses milk at work. Breastfeeding breaks are paid time.

In terms of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child (which forms part of the Codes of the Basic Conditions of Employment Act, (No 75 of 1997), arrangements should be made for an employee who breastfeeds to have two 30-minute breaks every workday to breastfeed or to express milk during the first six months of her child’s life.

What type of space and facilities are required for breastfeeding breaks in the workplace?

Recommendation 191 of the International Labour Organisation (ILO) states that ‘where practical, provision should be made for the establishment of facilities for breastfeeding under adequate hygienic conditions at or near the workplace.’
Basically, a clean space with room to sit down; privacy; access to clean water; and a secure storage place for expressed milk is needed. Cleanliness, accessibility and security are key features.

What legislation and laws are there to protect pregnant and breastfeeding women?

The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child, issued in terms of section 87(1) (b) of the Basic Conditions of Employment Act (No. 75 of 1997), is intended to guide all employers and employees concerning the application of section 26(1) of the Act which prohibits employers from requiring or permitting pregnant or breastfeeding employees to perform work that is hazardous to their or their children’s health. The code also contains a section on the right to breastfeeding breaks.

I recommend that you discuss the issue with your HR department and ask them to provide you with a suitable location to express milk.

You can also contact our call centre on 0861 25 24 23 for further advice.

Alcohol and drug abuse in the workplace

By Driescha Meissner

Question

What should I know about alcohol and drug abuse in the workplace?

Answer

Drug and alcohol abuse is a big contributing factor to accidents in, and absence from the workplace. The negative effects of drug and alcohol abuse on a person’s work include: low productivity; inability to meet deadlines; inappropriate behaviour; absenteeism; and poor time management.

An estimated 15% of all accidents in the workplace are alcohol or drug related. The majority of employers have clauses in their disciplinary codes that stipulate how alcohol- and drug-related behaviour should be dealt with.

 

The Occupational Health and Safety Act (No. 85 of 1993) determines that an employer must ensure that an employee –

  • who is suspected of being under the influence of alcohol or drugs does not work or enter the workplace;
  • is not under the influence of alcohol or drugs at the workplace;
  • is not in possession of any alcohol or drugs at the workplace; and
  • does not provide any alcohol or drugs to a co-worker.

Alcohol or drug testing

There is a big difference between being under the influence of alcohol or drugs and having alcohol or drugs in your system.

The presence of alcohol or drugs in a person’s bloodstream can only be determined through a blood or breathalyser test. Such a test may only be carried out by someone who is trained to do so.

Visible signs that an employee may be under the influence of alcohol or drugs include the following:

 

  • The person’s appearance – clothing; bloodshot eyes; red in the face; a liquor smell when he or she speaks; unsteady on his or her feet; and so on.
  • The person’s speech – he or she speaks louder or softer than usual; and incoherent and/or slurred speech.
  • The person’s behaviour – disorderly; very emotional; and/or behaves differently than usual.

In order to find an employee guilty of having been under the influence of alcohol or drugs during work hours, an employer has to prove that there was alcohol or drugs in the employee’s system and that it affected his or her work performance.

Can an employee refuse to undergo alcohol or drug testing?

If the workplace has a rule that makes provision for alcohol or drug testing, the employer may take disciplinary steps against an employee who refuses to undergo such a test. Refusal to undergo a drug or alcohol test in itself cannot be regarded as evidence that an employee was under the influence of alcohol or drugs, but may lead to other disciplinary charges if provided for in the employer’s disciplinary code and policy on drugs and alcohol.

Stress in the workplace

By Driescha Miessner

Question:

I should like to know more about stress in the workplace.

Answer:

The economic history of the past few years tells the tale of personnel cuts, decreasing productivity, loss of innovation and of businesses’ inabilty to adapt to a changing environment. Survival and growth depend directly on an organisational culture with a positive climate and value system.

Employees are faced with more career and job changes than ever before. Organisations require their employees to be more productive, to be sensitive to diversity, to work together in teams, to be innovative, to accept more responsibility, to work longer hours and to successfully handle continual changes in the workplace.

Factors such as technological development, globalisation, diversity, a shorter productive life, the volatility of consumer demands, continual and radical changes in the environment, and even just travelling to and from the workplace, make bigger demands and place more and more pressure on employees. Pressure on employees causes raised stress levels, which has an impact on the health of employees.

In short, this is how the impact of stress works: The adrenal gland secretes adrenalin and the stress hormone cortisol into the blood. Hormones secreted in stressful circumstances trigger the well-known fight-or-flee reaction, which, in the old days, ensured man’s survival – think of hunting food for supper in the stone age or running away from an attacking beast!

In the short term cortisol is beneficial to the body because it enables you to react suitably in emergencies. However, when our bodies are exposed to cortisol for extremely long periods, psychosomatic diseases develop. These are physical diseases with a psychological origin.

Research has proved that stressful emotions not only cause certain diseases, but also suppress the body’s immune system and have a negative influence on the ability to recover.

Psychosomatic diseases associated with high levels of stress are, among others, stress headaches, insomnia, spasmas in the back, neck and shoulders, allergies, ulcers, heart diseases, migraine, glandular fever, irritable-bowel disease, panic attacks, poor concentration and depression.

The central role of emotions in the stress process is receiving more and more recognition. It is alleged that individuals will experience stress and tension if they evaluate a situation as negative.

Emotional intelligence (EI) has lead to a new consciousness of the role that emotions play in the workplace. EI is made up of the expression, recognition, understanding and management of emotions.

Research has shown that EI forms a buffer against stress and those with higher levels of EI experience better health overall.

Employers must invest in employees’ wellbeing on an ongoing basis to lessen the incidence and consequences of stress in the workplace

Change-rooms and showers at work

By Johan Böning

Question:

Are there any regulations that employers should provide showers and change-rooms for employees?

Answer:

The Occupational Health and Safety Act (Act 85 of 1993) contains certain regulations in this regard and the provision of change-rooms and showers are specifically included in the regulation regarding facilities.

The Act provides that, should employees have to use a shower or have to change clothes, the employer should provide a separate change-room for each sex.

In terms of the facility regulation [Regulation (4)(2)(a) there may not be a door or other opening in the change-room that leads directly to another room or rooms where exposure to dangerous substances is equal to or higher than the safety level for those substances.

Part (b) of the facility regulation states that the employer must provide sufficient seats or couches

Part (c) states that no material, tools or other goods that are not part of the change-room may be stored in change-rooms.

Part (d) states that if there are windows, opaque glass should be used.

Parts (e) and (f) states that to ensure privacy, every entrance to every change-room must be partitioned off and that there must be clear and visible indications as to which sex uses the relevant change-room.

Part (g) refers to a facility for employees to dry their wet clothes should their clothes become wet in the course of their work day.

In terms of part (h) each change-room must have the right ventilation (natural or artificial) as stipulated in the National Building Regulations.

Part (i) states that employers must make sure that employees to whom change-rooms are made available (as mentioned above) do not change clothes in places other than the change-rooms.

Subject to the requirements for dining rooms, as contemplated in regulation 5, an employer may make the change-room available for use as a dining room provided it meets the following requirements:
•    There must be a partition at least two metres high between the change-room and the place where meals are taken; and
•    there may be no direct thoroughfare between the change-room and the toilet facilities.

Should employers not comply with the regulations for facilities, the employee may report it to the safety representative, safety committee or employer. If the shortcomings are not rectified, a complaint may be lodged with the inspectorate of the Department of Labour.

Should my leave be paid out to me?

By Gerrit Visser

Question:

I have been working for the same employer for two years and have never taken leave or applied for leave. Should my employer compensate me for the two years’ leave should I resign?

Answer:

The answer can be found in the very recent case of Ludick v Rural Maintenance (Pty) Ltd – (2014) 23 LC 6.7.1. The Labour Court considered two contrasting judgements and made a finding from which we can learn the following lessons:

1.    The purpose of the Basic Conditions of Service Act (No. 75 of 1997) regarding annual leave is that the employee should take it within six months of the expiry of a 12-month cycle.

2.    An employer may not introduce a stipulation in terms of which an employee’s leave lapses before six months have passed after the expiry of a cycle

3.    An employee may (through the Department of Labour) compel an employer to grant his/her annual leave not later than six months after the expiry of a cycle.

4.    If an employee does not claim annual leave within six months of the expiry of a cycle, the employer is not obliged to pay it out upon termination of service.

5.    All outstanding leave that falls within six months of the expiry of a cycle is payable upon termination of service.

6.    Should an employer fail to pay money to which an employee is entitled, interest on the outstanding amount must be paid in terms of section 75 of the Basic Conditions of Service Act.

From the case cited above it is clear that the principle of vigilantibus et non dormientibus jura subveniunt (the law protects the wakeful and not the sleeping) is still being applied in the Labour Court. Although Solidarity does not necessarily agree with the findings of the court, these are the current guidelines and we therefore strongly advise employees to make sure that they take their annual leave.

Disciplinary hearing

By Hendrik van der Hoven

Question:

Are there certain cases or circumstances where an employer may request that I defend myself at a second disciplinary hearing on exactly the same charges?

Answer:

Should an employer for example discover that the process followed during the first disciplinary hearing contained serious mistakes and that a fair process was not followed, the mistakes can be rectified by starting the disciplinary hearing all over again. Rectifying the mistakes made during the first process should benefit both the employee and the employer. The second hearing should, however, not be held long after the first hearing. If, for instance, three months have already passed after the first hearing, a second hearing would probably not be fair.

Another reason for a second hearing could possibly be that the employer’s management is for some reason or other not satisfied with the sanction imposed by the presiding officer at the first hearing. Perhaps the company management is asking for a more severe punishment or even dismissal. The presiding officer could perhaps have found the employee innocent while the management is asking for a conviction and sanction. The first important point to remember, is that the management should have been involved in the first disciplinary hearing to be able to question the finding of the presiding officer. This means that the management must have been present at the hearing and have considered all relevant testimony and evidence before it could be argued that the management deviated from the finding of the presiding officer in a just manner. Normally the decision or finding of the presiding officer is final. If the management of an employer is not satisfied with the outcome or sanction of the hearing, intervention is possible only if the people who are intervening were involved in the hearing and the employer could offer a very good explanation for the deviation from the presiding officer’s decision.
One explanation by the employer could possibly be that new evidence has been found that would have changed the outcome of the hearing if it were available at the first hearing. If the effect of the new evidence will be that a lighter sanction should have been imposed on the employee or that the employee could possibly be innocent, a second hearing is of cardinal importance to let justice prevail. In certain cases it will also be justified for an employer to insist on a second hearing should the new evidence justify a much higher sanction, for instance evidence that justifies dismissal through and through.

The conclusion is therefore that in each case efforts should be made not to have to arrange a second hearing on the same charges. However, in certain exceptional cases there will be no choice and a second hearing can be held only after all facts and circumstances have been considered and it would be fair to hold a second hearing.

Application in the Labour Court

By Inge Labuschagne

Question:

How does an application in the Labour Court in terms of section 158(1)(c) of the Labour Relations Act work?

Answer:

In terms of section 158(1)(c) of the Labour Relations Act (Act 66 of 1995) it is within the competence of the Labour Court to make a settlement agreement and/or an arbitration order an order of the court. This application is issued and sent to the employer in the form of a notice of motion accompanied by a sworn statement. The settlement agreement or arbitration order is also attached to the statement as an appendix.

If you want to have an arbitration order made an order of the court, you must bear in mind that the employer has six weeks after receiving the arbitration order from the Commission for Conciliation, Mediation and Arbitration (CCMA) to review the order. Such a section 158(1)(c) application is normally launched after six weeks have passed without the employer reviewing the arbitration order.

Currently the position is that you have only three years after signing the agreement or receiving the arbitration order to launch a section 158(1)(c) application in the court. Superannuation therefore starts on the day you and the employer sign the agreement or on the day you receive the arbitration order from the CCMA. An application for review does not automatically stop the superannuation process.

Therefore, when you have launched the application and have sent it to the employer, the employer has ten workdays (excluding weekends and holidays) to oppose your application and this has to be done by means of an opposing affidavit by the employer. Again, should the employer oppose the application, you have five workdays after receipt of the statement to react to it by means of a further sworn statement. As soon as all the statements have been exchanged, you must number the pages chronologically and compile an index. The case is then ready to be placed on the court roll for a hearing date. The court will then inform the parties concerned (the applicant and the employer) of when they should appear before the court to argue the case. The parties will also be instructed to file their heads of argument within a certain time. The heads of argument is a document in which your whole case is set out and contains all the facts and legal principles on which your case is based. Argumentation takes place on the basis of the court documents only and no evidence is tendered. It can take between a month and a year to finalise this process.

If no opposition is received from the employer, you may proceed directly to the indexing and pagination of the court document and set it down for hearing. In such a case the court document goes to a judge and he/she will usually grant the order in chambers. It could take anything from one to eight months for such an order to be granted.

When you receive the order, it is sent to the employer with a letter of demand. Should the employer fail to pay, you may have a warrant issued by the Labour Court and sent to a sheriff for execution of the instructions. The sheriff then usually attaches the assets (if any) and sends you a report in which all the assets and their value are set out. You then give further instructions for the assets to be sold by public auction. If there are no assets, there is unfortunately no way to recover your money and all you can do is to send out the sheriff again a year or so later to see whether some assets have accrued in the meantime.

Termination of service

Question:

What must an employer give an employee upon termination of service?
(Part 1)

Answer:

One of the documents that an employer must give an employee in terms of section 42 of the Basic Conditions of Employment Act (Act 75 of 1997), is a certificate of service.

This certificate must contain the following information:

 

  • The employee’s full name;
  • The name and address of the employer;
  • The reference to any council or sector under which the employer’s business falls;
  • The date on which the employee assumed duty and the date of termination;
  • The post designation or a short explanation of what the employee’s post entailed;
  • The employee’s salary on the date his service was terminated;
  • The reason for the termination, if the employee requests it.

Privacy

By Johan Nell

Question:

How private is private?

Answer:

In this day and age we rely more and more on a multitude of electronic devices, from cell phones and laptops to tablets etc., to do our work. As an employee you are entitled to be supplied with the necessary equipment to comply with the demands of the market and your employment environment. Therefore, many employees are issued with the company’s cell phones, laptops, tablets and other electronic devices such as storage devices for storing necessary information, documentation and other electronic information necessitated by the nature of their work.

The question arises what your rights and liabilities are in utilising these devices. The trite principle is that if it belongs to the employer, everything on it belongs to the employer and all material property stored on the devices belongs to the employer. You are, therefore, entitled to utilise such devices for the purposes of your work. All emails, voicemails, messages, internet usage, communication and files stored on these devices are therefore considered part of the company’s business and client records. Such communications are therefore not considered private or personal to any individual employee. The browsing record of the device may therefore also be previewed, audited, inspected and accessed at any material time the employer deems it necessary.

The principle is that the company-based email is the property of the employer and may be used accordingly. The question, however, arises: What is the position with regard to web-based addresses like Yahoo and Gmail? Further to that, the principle of social media and Facebook is also an aspect that has to be addressed.  The principle is that no derogatory remarks may be made and posted on Facebook, but may the employer access your Facebook account and your web-based email, which are password protected?

Firstly, looking at the first principle of Facebook, which constitutes a social network, you use a username and a password.  The principle of friend indicates that a person you are friends with on the social network may have access to your Facebook page. It has been argued that an employer has the right to do background checks and familiarise himself with the employee, either prior to employment or after employment. The principle of forced friends comes to the fore when employers compel employees to invite people and accept them as friends on Facebook, whereafter they will have access to the Facebook page of the employee.

In terms of section 6 of the Employment Equity Act (Act 55 of 1998) an employer in South Africa may not unfairly discriminate against employees or applicants for employment on a number of grounds. These grounds include race, gender, pregnancy, sexual orientation, HIV status, political opinion, conscience, language, religion and similar grounds. Accessing the social network account of an employee or applicant for employment may result in the employer gaining access to information of an employee or applicant concerning one of the grounds listed in section 6. This action may, therefore, constitute unfair discrimination and unfair labour practice.

Looking at international law where the South African law remains silent on this aspect, in the United States Facebook strongly reprimanded US employers who demanded employees’ social network passwords,  saying that this practice contravened Facebook’s terms of use and was potentially illegal. As a user you should not be forced to share your private information or communication with anybody just to obtain a job or keep your employer satisfied. This would constitute an unfair labour practice and is contrary to the terms and conditions of Facebook’s user policy.

Further to the above: The Labour Relations Act also protects job applicants and employees. An instruction to divulge private information does not have a bearing on the employment relationship and is not a lawful instruction. Therefore, if an employer seeks to compel an employee to share or divulge such information, it is considered to be an unfair labour practice and may also be deemed an infringement on the right to privacy of an employee.

Only in cases where there is very reasonable suspicion that an employee or applicant has posted comments that may have a bearing on the employment relationship between the prospective employee or current employee and the employer may the employer  demand full access to the private information posted on social media by the person concerned. There are absolutely no other grounds on which an employer can demand this and failure or refusal to grant him access to it cannot be viewed as insubordination and/or refusal to obey an instruction as such an instruction would be blatantly irregular and unfair.

The other aspect is your web-based email. The service provider may be discovered through the browser by utilising your company device, but the question is whether or not the employer may peruse your private emails. The South African law is not clear on this aspect. We had to consider aspects from the Supreme Court of New Jersey as the next step in looking for an answer where South African law and case law are silent. In accordance with this international law, which I believe will shortly be followed by other countries, it was found that an employee had a certain right and expectation of privacy. In the case of Stengrad v. Loving Care Agency Incorporated, the New Jersey Supreme Court held that the employer infringed upon her privacy when it searched the former employee’s company laptop computer and in the web browser found history emails she had exchanged with her personal counsel, using her own private password protected email account.

The court found that Loving Care’s web-based policy was unclear with respect to these specific circumstances and issue because it did not address the use of personal web-based email accounts and accounts accessed through company equipment or company devices. It did not address personal accounts at all nor did it warn employees that contents sent via personal accounts could be forensically retrieved by the company.

It was therefore clear that Stengrad had an expectation of privacy with regard to emails sent via her web-based email account.

This does not, however, mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt policies relating to computer usage to protect the assets, reputation and productivity of a business and to ensure compliance with legitimate corporate policies. An employer can enforce such policies and may discipline employees if they are found to be violating these workplace rules. The employer should therefore ensure that his policies are very clear relating to the use of these electronic devices and the consequences of using them and should be extremely clear by stating that no files accessed through the company device are to be viewed as personal or private and that no expectation of privacy exists throughout.

The principle is therefore that employees should at all times acquaint themselves with the company policy and they are advised to refrain from using company devices for personal use.

Cost orders of referrals to CCMA or bargaining councils

By Hendrik van der Hoven

Question:

Should employees be concerned that an order as to costs could be awarded against them when a case of unfair dismissal is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or other bargaining councils?

Answer:

In the case of Moloi v Macsteel Service Centres (VRN Reef) [2014] 2 BALR 117 (MEIBC] the following happened:

Mr Moloi’s employer laid a charge of sexual harassment against him. Before his disciplinary hearing could take place, Mr Moloi sent the following email to his employer:

‘Seeing the Macsteel VRN’s future is not that bright and its business taking a nose dive and that soon enough most of its employees won’t have jobs anyway, I have decided to jump ship in order to focus on steering my own little ship which I have been privately building with the little remuneration that you have been paying me for the past 8 years of service to you. I which to thank you for the opportunity that you have given me over the years which I have used to my advantage by empowering myself with the industry knowledge while I acted like a dom[sic] garden boy. On Monday I’ll be coming to render my resignation formally and to claim what is legally mine in terms of pension pay-outs and outstanding remuneration.
It was nice doing business with you.

Jacob, CEO & Working capitalist’

The next Monday Mr Moloi changed his mind and decided to withdraw his resignation. In reply to his request to withdraw his resignation, he was informed that his request had to be referred to the employer’s head office.

Mr Moloi decided that this meant that he had been dismissed and proceeded to refer a case of unfair dismissal to the MEIBC (Metal and Engineering Industries Bargaining Council.
The employer was of the opinion that it was unnecessary for Mr Moloi to provide it with a formal resignation and that Mr Moloi’s above-mentioned email served as a voluntary resignation.

The MEIBC commissioner ruled that no dismissal took place and that Mr Moloi resigned voluntarily.

The commissioner further found that in the light of Mr Moloi’s unreasonable and annoying insistence on proceeding with this frivolous case while he knew that the services of the MEIBC were free and were funded by taxpayers’ money, it was necessary to grant an order as to costs against Mr Moloi, which meant that he was responsible for the employer’s legal costs in connection with the case.

Historic consistency regarding disciplinary action

By Adel Botha

Question:

What does historic consistency with respect to disciplinary action involve?

Answer:

The question “was the rule fair and was it applied consistently” is certainly one of the most important factors that has to be taken into account during internal disciplinary proceedings. In Hope v Petrologic (2007) 10 BALR 897 [MEIBC] the arbitrator found that an employee’s dismissal can be regarded as unfair if employees are treated differently for the same or similar offences. In this case, an employee was dismissed because of theft. However, two other employees had only been given final warnings for the same offence merely a week before. The employer was consequently ordered to reinstate the employee.
Historic consistency, as illustrated in Hope v Petrologic (2007) 10 BALR 897 [MEIBC], therefore involves that an employer has to take the same disciplinary steps when a comparison is drawn with the way in which disciplinary steps were taken in the past. The same sanction can be enforced in the case of previous, similar disciplinary offences, unless the circumstances surrounding the different incidents truly differ from each other.

In such a case the employer will at least have to prove that –

  • he (the employer) has knowledge of the previous employee’s same or similar misconduct;
  • that the person with whom a comparison is drawn can be identified;
  • that the different individuals were subject to the same circumstances; and
  • that he (the employer) has not in the intervening period communicated and implemented new workplace rules and regulations.

An employer will, however, be able to defend alleged inconsistency successfully if the decision to treat two or more employees differently can be justified by personal circumstances, the seriousness of the misconduct and other relevant factors. For more information on this topic, phone us on 0861 25 24 23.

Dismissal

Gerhard Hildebrand

Question:

What is the time limit for referring a dispute after dismissal?

Answer:

In terms of section 191(1)(b)(i) of the Labour Relations Act (No. 66 of 1995), a dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council within 30 days of the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision regarding the employees dismissal.

Section 190(1) describes the date of dismissal as the date on which the contract of employment was terminated, or the date on which the employee left the service of the employer.

If an employee had been dismissed and then lodged an appeal against the dismissal, the dispute may be referred within 30 days after the outcome of the appeal. Therefore, the 30 days did not begin after dismissal; it began on the later date when the employer made the final decision at the appeal.

In calculating the 30 day period, the first day (the day of dismissal) is excluded and the last day is included. The 30 days are calendar days, therefore Saturdays, Sundays and public holidays are included. However, if the last day should fall on a Saturday, Sunday or public holiday, that Saturday, Sunday or public holiday is excluded and the 30 days are extended until the first day after the Saturday, Sunday or public holiday.

If the last day for referral falls in the period 16 December to 7 January, the period is extended to the first day after this period that does not fall on a Saturday, Sunday or public holiday.

If the referral is not referred within the 30 day period, the application for condonation must be brought with the referral, creating the risk that the CCMA or the bargaining council may deny the application.

However, it is important to contact Solidarity as soon as possible after dismissal so that any referral could be handled by Solidarity itself.

Information needed for legal aid if fired

By Gerrit Visser

Question:

I have just been verbally informed of my dismissal. I am of the opinion that I have been unfairly dismissed and I need someone to assist me. I understand that the law only protects the vigilant and not those who slumber on their rights. What should I do on my part to enable a lawyer to help me?

Answer:

As is the case with any other labour law issue, the answer will depend on the circumstances. However, the following list would be useful:

1.    In terms of section 192 of the Labour Relations Act (No. 66 van 1995) (hereafter referred to as the “LRA”), the onus falls on the employee to prove that he/she had been unfairly dismissed in any unfair dismissal dispute. Therefore, you can insist on the following information from your employer:

1.1.    The written results of the hearing (if a hearing had been held);
1.2.    A notice of termination in terms of section 37 of the Basic Conditions of Employment Act (No. 75  of 1997) (hereafter called the “BCEA”);
1.3.    A certificate of service in terms of section 42 of the BCEA;
1.4.    Final payslip in terms of section 33 of the BCEA; and
1.5.    UI-19 form in terms of the Unemployment Insurance Act (No. 63 of 2001).

2.    In the event of any referral of a dispute to the CCMA or any other forum, there must first be evidence that the dispute form had been served on the employer. To assist the person who will assist you in this regard, the following information is required:

2.1.    Service contract;
2.2.    Full name of the legal entity under which name your employer conducts business;
2.3.    Fax number of employer;
2.4.    Postal address of employer;
2.5.    Physical address of employer;
2.6.    The name and preferably the particulars of the mediation or dispute resolution forum under which your employer falls; and
2.7.    The total of all outstanding monies owed to you, including how it had been calculated.

3.    If your employer does not want to provide you with the above information, you as employee must approach the Department of Labour. In terms of Chapter 10 of the BCEA, the Department of Labour can take certain actions to compel the employer to provide the required information.

4.    Depending on the dispute, this list may not necessarily be complete. However, it is the minimum needed to enable anyone to assist you.

5.    Finally, you as an employee should always bear in mind that the person assisting you is only able to litigate and take further steps on the basis of the information provided by you.

What are your rights concerning a polygraph test?

By Inge Labuschagne

Question:

Can an employee be compelled to undergo a polygraph test and can he be dismissed if he refuses?

Answer:

No employee can be compelled to undergo a polygraph test – that would be contrary to the Constitution of the Republic of South Africa. Employees must first give their written consent before they may be subjected to polygraph testing. Written consent may be obtained in advance by including a clause in their service contract in terms of which they agree to undergo polygraph testing if required, or the employer can obtain the employee’s consent at a later stage. Then the employee will have the option agree or to refuse.

Refusal to undergo a polygraph test may not be considered to be an indication that the person is guilty, neither is it a valid reason for dismissal. In Harmse & Rainbow Farms (Pty) Ltd WE 1728, 1997, the employee refused to undergo a second polygraph test after failing the first. The employer held the refusal to be a breach of trust and dismissed the employee. The CCMA agreed with the employer and found that reasonable grounds for such a breach of trust existed. In CEPPAWU obo Modjadji & Others v. Altech Namitech (Pty) Ltd (2008) 11 BALR 1013 (SCPNPI) three employees suspected of theft refused to undergo a polygraph test although they were contractually bound to undergo tests. The employer accused them of a breach of trust and argued that they could no longer be trusted. They were found guilty and dismissed. Here the CCMA set aside the dismissal since the employer only accused the employees of a breach of trust, not of theft. The breach of trust in itself was not sufficient grounds for dismissing the employees.

The polygraph test must comply with the following:

•    The person undergoing the test must be fully informed that the examination is voluntary.
•    The test may not be conducted without the person’s written consent.
•    The polygraphist must be qualified, independent, objective and impartial.
•    The reasons for the test as well as the type of questions to be asked must be explained and, where possible, discussed with the employer in advance.
•    The person to be questioned has the right to an interpreter and may request another person to be present during the examination, provided that person does not interfere with the proceedings in any way.

The result of a polygraph test is confidential and my not be released to any person but an authorised person. An authorised person is the person that has undergone the polygraph test (the examinee) and/or someone specifically designated in writing by the employer and the examinee to receive the results.

Have you ever been compelled to undergo a polygraph test?

What was the result of that polygraph test?

Did the test meet all the requirements as listed above?

Signing of documents

By Herman Perry

Question:

Should I sign documents forthwith that my employer has given to me for signature?

Answer:

Labour law often makes use of contracts for various purposes, including instances:

•    When an employee enters into an employment contract upon accepting a new job;
•    When an employer wishes to change an employee’s conditions of service;
•    When retrenchments have been agreed upon and a voluntary severance package has been negotiated;
•    When a conflict situation has arisen and the employee is being paid to resign in reality.

The excitement that follows a successful job application and the new employee’s signing of an employment contract without having studied it properly or having obtained legal advice about its contents often leaves a bitter aftertaste.  It is important to remember that Solidarity can be approached when a new employment contract has been received.  Solidarity can assist members to achieve a better understanding of the contract and can explain complicated clauses to members to enable them to take an informed decision about the contract and to have a proper understanding of its consequences.

It is sometimes necessary for employers to change conditions of employment. This need may arise from various circumstances, such as when the employer’s type of business has changed and employees have to adapt accordingly.

However, an employer often enforces a change in conditions of service by informing a member that the contract has to change, “or else you don’t have a job any more”.  It is important to consult Solidarity in any instance that deals with the change of conditions of service before signing the contract.  Solidarity will be able to fully inform members of their rights, thereby protecting them against wrongful doings.

When a retrenchment process is embarked upon it often offers the opportunity to apply for a voluntary severance package. That’s when employers often sneak in the controversial “full and final” clause which in effect means that almost no further claims can be brought against the employer.  The result of a “full and final” settlement clause is often that statutory monies, such as accrued leave, can no longer be claimed.

Solidarity will assist members as far as possible to deal with retrenchment procedures, but it remains important to let us have insight into severance package contracts before you sign them.

Therefore, remember:
1.    To submit contracts to Solidarity for advice;
2.    Not to sign contracts before you are not in a position to fully understand the contents of the contract in its entirety.

 

Annual leave

By Helgard Cronjè

Question:

Will I forfeit my annual leave if I don’t apply for it, or will it simply accumulate?

Answer:

This issue is regulated by section 20(4) of the Basic Conditions of Employment Act (No. 75 of 1997) that stipulates that an employer must grant an employee’s annual leave not later than six months after the end of the annual leave cycle. Section 20(1) of the Act defines an annual leave cycle as the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment, or the completion of that employee’s prior leave cycle

The abovementioned provisions can have different interpretations. The first interpretation is that the employer can grant the leave only during the leave cycle and not later than six months thereafter. Consequently, the employee must apply for the leave, otherwise it will keep on accumulating.

The other interpretation is that the employee must take the leave within six months after the end of the leave cycle. The leave will therefore be forfeited after this period.

The Labour Court delivered two contradictory judgments on this issue in the past. For this reason it was unclear whether leave could be forfeited if an employee didn’t apply for it within the six months after the end of the leave cycle. However, the Labour Court recently delivered a new, decisive judgment.

In Ludick v Rural Maintenance (Pty) Ltd, 2014 2 BLLR 178 (LC) the Labour Court found that an employee is only entitled to the leave of the previous leave cycle as well as that of the current, unfinished cycle with due allowance for the 18-month period within which he or she has to apply for leave and within which the employer must grant it. Therefore, if the employee doesn’t apply for leave within six months after the end of the leave cycle, he or she forfeits the leave that accumulated during the previous cycle.

Nonetheless, it is important to bear in mind that this provision only applies to the statutory leave period of 15 working days. If an employer grants an employee more leave than this statutory minimum, the days in excess of the 15 days are contractual leave and are exempt from the abovementioned requirements. If an employee’s contract of service does not specify that such leave has to be taken within a specific period, it can be accumulated. The contract’s provisions will therefore determine whether or not leave can be accumulated.

Preparing for a disciplinary hearing

By Phil Davel

Question:

I have to attend a disciplinary hearing on a charge of misconduct. Is four days’ notice enough time to prepare?

Answer:

Four days’ notice could be enough time to prepare for a disciplinary hearing. There isn’t a set rule or law that specifies how many days before a disciplinary hearing an employee should be given notice. However, the notice period must meet the requirements of fairness and reasonableness. Your employer’s disciplinary code or policy may determine the notice period. If the code prescribes a notice period, the employer is obliged to adhere to it.

The reason for a notice period is to give effect to an employee’s right to be given the opportunity to state a case in response to the allegations that, in turn, gives effect to the audi alteram partem rule in terms of which the other party must be heard.

Should you feel that you haven’t been given enough time to prepare, you should request a postponement of the hearing in writing and provide reasons for the request. The reasons should relate to the charge and whether you need to find witnesses and collect evidence for your defence. A charge of poor work performance could, for example, need more preparation time than a charge of misconduct for coming late. The Code of Good Practice in Schedule 8 of the Labour Relations Act stipulates that an employee should be entitled to a reasonable period to prepare the defence.

If the time you have to prepare your defence is not fair and reasonable, you can raise an objection and request a postponement during the hearing. You can also appeal on the grounds of procedural unfairness.

As with any disciplinary hearing it is important to know your rights in respect of a fair procedure.

Fair procedure regarding disciplinary hearings, as set out in Schedule 8, involves, among other things, the following:

  •  The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
  • The employee should be entitled to the assistance of a trade union representative (that is, a shop steward of a representative trade union and not a union official) or a fellow employee.
  • After the enquiry, the employer should communicate the decision taken and preferably provide the employee with written notification of that decision.
  • If the employee is dismissed, he or she should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission for Conciliation, Mediation or Arbitration, or to any dispute resolution procedures established in terms of a collective agreement.

If the employer cannot reasonably be expected to meet these guidelines, they may be dispensed with.

Can the reason for my dismissal be changed?

By Gerrit Visser

Question:

My employer dismissed me. Originally, the reason given for dismissal was that I was too arrogant. Three days later, I received a letter with a host of allegations against me. Can the employer change the reason for dismissal?

Answer:

The case of Fidelity Cash Management Services v KVBA and Others ([2008] 3 BLLR 197 (AAH)) [2007] ZALAC 38, dealt with a similar dispute. The Labour Appeal Court made it very clear that if an employer wanted to claim that a dismissal was fair, the employer had to prove that the reason given was fair and justified.

Moreover, the court made it clear that it is a fundamental principle of labour law that the fairness of a dismissal has to be determined on the basis of the reason the employer put forward upon dismissal. In layman’s terms, it means that an employer is not allowed to look for reasons to justify dismissal after dismissal had taken place.

In labour law, the possible reasons for dismissal are legion; so too are the requirements of what needs to be proven. The average citizen rarely understands the requirements for or nature of dismissal. For this reason, we recommend that every employee should have access to legal advice of one kind or another. Bear in mind that the principle, “vigilantibus non dormientibus jura subveniunt” (law will only help those who are vigilant), always applies.

Affirmative action

By Dirk Groenewald

Question:

May incompetent people be appointed under the guise of affirmative action?

Answer:

When affirmative action is applied in the case of appointments and promotions it is common for candidates with inadequate experience and/or qualifications to be appointed to the disadvantage of a better qualified person with more experience.

The question is whether this practice is in keeping with the act and whether it is actually constitutional. Sections 20(3) and (4) of the Employment Equity Act read as follows:

(3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of, that person’s -
                (a) formal qualifications;
                (b) prior learning;
                (c) relevant experience; or
                (d) capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job, an employer must-
            (a) review all the factors listed in subsection (3); and
b) determine whether that person has the ability to do the job in terms of any one of, or any
combination of those factors.

Section 20(3)(d) is especially perturbing because employers appoint people who are incompetent on paper, justifying it by claiming that such person has the capability to learn do the work within a reasonable time. This is the situation specifically in the civil service.

During public debates on the act the business sector especially objected to the inclusion of section 20(3)(d) and emphasised the following:

“It is practically impossible to determine whether a person will at some time in the future acquire the ability to do the job. This will result in an obligation to employ persons who are not in fact suitably qualified.  The concept of potential is not rejected, but it is appropriate only in the context of appointing trainees or cadets1].

We are, however, of the opinion that employers cannot apply section 20(3)(d) unconditionally. Section 195(1)(i) of the Constitution provides as follows, especially as far as the civil service is concerned:

(i)      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

The Constitution therefore makes it clear that ability, objectivity and fairness must be taken into account specifically in the case of appointments. However, we find it extremely difficult to understand how section 20(3)(d) can simply be applied in isolation to appoint a person without any qualifications and/or experience simply by reason of his or her “ability”, which is a subjective consideration .

There is, however, still a second requirement regarding this provision that applies to the civil service as well as the private sector, and that is the requirement that certain legislation specifically requires a person in a specific position to have specific qualifications.

So, for example, the Engineering Professions Act (Act 46 of 2000) prescribes that all people who perform certain engineering functions should have specific engineering qualifications and be registered with the Engineering Council of South Africa. There is a lot of other similar legislation that also applies because of safety considerations.

Our courts have also confirmed more than once that affirmative action cannot be applied to the detriment of service delivery.

To wind up, employers therefore do not have carte blanche when it comes to the application of section 20(3)(d) and they still have to make sure that the person has the  qualifications prescribed by any relevant legislation and that appointing such person will not compromise his or her safety or that of other people. As far as appointments in the civil service are concerned, the main consideration is always whether or not the appointment will promote service delivery.

Who is considered to be an employee?

By Hendrik van der Hoven

Question:

Could a sidewalk vendor selling newspapers on behalf of Media 24 be defined as an employee in terms of South African labour legislation?

Answer:

The case Dyssel and Media 24 (Pty) Ltd (2014) 35 ILJ 534 (CCMA) dealt with the following events:

A sidewalk vendor who, in the past, had sold newspapers on Sundays on behalf of Media 24, referred a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The vendor used to receive commission from Media 24, based on the number of newspapers sold by him. The vendor had appointed 30 employees of his own to sell the newspapers. However, on 14 July 2013 he received no newspapers to sell and the agreement between the parties was terminated by telephone.

The vendor argued that he started working for Media 24 in the year 2000, and that he was summarily dismissed on 14 July 2013 because he owed Media 24 some money. He admitted to owing the money, but he was willing to repay the money if he could continue working. He further argued that in terms of labour legislation, he had been an employee since a number of aspects listed in section 200A of the Labour Relations Act (No. 66 of 1995) applied to his particular circumstances. Among other things, he argued that he had an area manager over him, that his working hours had been regulated by Media 24, that he had been part of the Media 24 organisation, that he was financially dependent on Media 24 and that, on average, he worked 36 hours per month for Media 24.

Media 24 argued that the vendor was not an employee. The vendor annually signed an agency agreement authorising both parties to terminate the contract by giving 24 hours’ notice. Furthermore, the vendor was obliged to pay Media 24 for the newspapers he received from Media 24, regardless whether the newspapers were sold, stolen or lost. Media 24 did not prescribe to the vendor where or how he had to sell the newspapers; therefore, Media 24 had no control over the time the vendor spent working. Media 24 argued that the vendor was not part of Media 24 and that was managing an independent agency since he appointed or subcontracted 30 employees of his own to handle sales.

The Commissioner found that the method by which the vendor sold the newspapers was not controlled by Media 24. He further found that in terms of the contract, the vendor only had financial and reporting obligations to fulfil. The vendor’s working hours were not regulated and the newspapers could be sold at any time from 05:15 to 18:30. The vendor was not at all required to work specific hours himself. The vendor was not part of Media 24 and only worked on Sundays. At the most, the vendor would have worked 39 hours per month, falling short of the 40 hours stipulated in section 200A of the Labour Relations Act. With regards to the vendor’s argument that he was financially dependent on Media 24 and only worked for Media 24, the Commissioner found that it was the vendor’s own choice not to do any other work since nothing prohibited him from doing other work as well.

Therefore, the Commissioner found that in terms of South African labour legislation, the newspaper vendor could not be defined as an employee and that a case of unfair dismissal could not be brought before the CCMA.

Air-conditioning in the workplace

By Alexia Vosloo

Question:

During winter my colleagues put the air-conditioning too high and during summer the air-conditioning is set on such a low temperature that I almost can’t work. What can I do about it?

Answer:

Most employers try to maintain a comfortable temperature in the workplace during summer and winter by means of air-conditioners.

According to the Environmental Regulations for Workplaces, 1987 2(1) that was issued in terms of the Occupational Health and Safety Act (No. 85 of 1993), an employer may not require or permit an employee to work in an environment where he or she is exposed to a minimum temperature of 6°C for longer than four hours, unless the employer takes reasonable measures to protect the employee against the cold.

Air-conditioners are like the lungs of a building. The system draws in air from outside and filters it, after which the system heats or cools the air and circulates it through the building.

The risks associated with air-conditioners in the workplace are that they can cause discomfort and can contribute to the spread of illness. An air-conditioning system must be maintained to ensure that the air stays clean and safe. Other hazards such as faulty wiring, and so on must be eliminated by means of routine inspections.

The most common complaint regarding air-conditioning deals with comfort. People differ from each other. The way in which people experience temperature depends on, among other things, their clothing, physique and individual preference, to name but a few factors. Some people will complain that it is too warm, while others will complain that it is too cold.

A comfortable temperature is influenced by the environment and the activities in the workplace. A temperature of between 21°C and 26°C is recommended:

  • Summer temperatures: 21–24°C
  • Winter temperatures: 24–26°C

When differences arise among employees regarding the air-conditioning in the office, the solution should preferably found in policy.

Regulations

The quality of the air that employees breathe in at work largely depends on the functioning of the building’s air-conditioning system. The quality of indoor air is a source of concern for most companies, because it can have a negative impact on employees’ health, comfort, wellbeing and productivity. Substandard air-conditioning can lead to poor indoor air quality and irritable and sick workers. Pollution in an office environment can raise the risk of illness. Illnesses are generally linked to bacteria and fungi that flourish in cooling towers or other parts of air-conditioning systems.

Section 8 of the Occupational Health and Safety Act stipulates that every employer must provide, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

The same section states that employers have a duty to establish, as far as is reasonably practicable, what hazards to the health or safety of workers are attached to the work that is performed and the conditions in which they work. These hazards include the risks associated with air-conditioning systems. Risks connected to air-conditioning must therefore be identified and reduced as far as possible.

How can the risks associated with indoor air quality be identified and managed?

The next factors must be taken into account:

  • Air quality test results
  • Workplace inspections
  • Complaints about air quality by employees

All complaints must be investigated. Precautionary maintenance programmes for air-conditioning systems is a good and efficient measure that can be implemented in a workplace.

You can lodge a formal complaint with the occupational health and safety representative at your workplace, or you can contact the Department of Labour to investigate the working conditions.

When is someone an employee?

By Johan Roos

Question:

How can I establish if someone is an employee?

Answer:

Section 83A of the Basic Conditions of Employment Act (No. 75 of 1997) and section 200A of the Labour Relations Act (No. 66 of 1995) determine that a person has to meet the following requirements to be deemed an employee:

  • The manner in which the person works is determined by another person.
  • The person’s hours of work are determined by another person.
  • In the case of a person who works for an organisation, the person is a part of that organisation.
  • The person has worked for that other person for an average of at least 40 hours per month over the last three months.
  • The person is economically dependent on the other person for whom that person works or renders services.
  • The person is provided with tools of trade or work equipment by the other person.
  • The person only works for or renders services to one person.

The regulations do not apply to any person who earns more than the limit of R205 000 per year. If a proposed or existing work arrangement involves a person who earns an amount equal to or below this amount, any of the contracting parties may approach the Commission for Conciliation, Mediation and Arbitration for an advisory award about whether the person involved in the arrangement is an employee.

Constructive dismissal

By Phil Davel

Question:

My employer makes my working conditions unbearable. She constantly finds fault with everything and she yells at me. I cannot go on like this and I want to resign. Will I be able to claim for constructive dismissal because she is the reason why I want to resign?

Answer:

Definition of constructive dismissal

To be able to answer the question, one should first determine what constructive dismissal actually is: It is a situation that has developed in the workplace, entirely brought about by the employer, and that would make continued employment intolerable for the employee – to such an extent that the employee has no other reasonable option but to resign without notice, or simply to leave the employment. In other words, due to unfair pressure, unreasonable instructions or intolerable actions caused or created by the employer, the employee was forced (hence “constructive dismissal”) to resign.

The Labour Relations Act (No. 66 of 1995, as amended (LRA)) gave constructive dismissal statutory status. Section 186(1)(e) provides that “dismissal” inter alia means the following: “[An] employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Therefore, constructive dismissal is subject to a number of requirements that we will discuss later. For now, it is important to remember that if the above statutory description applies, the law states that the employee has been unfairly dismissed by the employer.

Burden of proof

In a conventional dismissal case, the burden of proof lies with the employer to prove that the dismissal was procedurally and substantively fair and reasonable. In a case of constructive dismissal, the employee has to prove constructive dismissal on a balance of probabilities (see Jooste v Transnet).

Once the employee has acquitted him/herself of the burden of proof, the burden of proof shifts to the employer to prove that the employee’s decision to resign had been unreasonable (in terms of section 192 of the LRA).

Requirements for constructive dismissal

Since the implementation of the LRA, court cases and authorities on alleged constructive dismissal basically stated four requirements:

 

  1. The employee must prove that he/she has resigned or terminated the contract of employment. This is usually fairly easy to prove and depends on the facts in each case.
  2. The reason for the employee’s resignation must be that continued employment would have been intolerable. This is an objective test on whether the situation could have been tolerated or not, and does not rely on whether the employee’s perception or personal feeling (subjective) was that the situation had become intolerable (see Watt v Honeydew Dairies (Pty) Ltd). (Authors such as J. Grogan believes that the test is partly subjective, and partly objective, provided that the employee’s perception was reasonable.) In addition, the employee has to prove that he/she would have continued working if it had not been for the employer’s actions. In other words, the employee should not have had the intention to resign beforehand (see Jooste v Transnet Ltd t/a SA Airways). The employee should also have been reasonably convinced that the employer actions would not change and that the unreasonable and intolerable practices therefore would have continued.
  3. The employer’s conduct created the intolerable situation for the employee: There has to be a connection between the employer’s actions and the situation that resulted in the employee resigning. The question is whether the employer’s conduct was of such a nature, and without any valid reason, that it resulted in breaking down or damaging the trust between the employer and the employee. The employer’s conduct as a whole is judged to determine whether the employee could have been expected to put up with it (see Pretoria Society for the Care of the Retarded v Loots).
  4. The final requirement is that the employee should have exhausted all internal procedures and that resignation was the final, reasonable option. By this, the employee would prove that the internal grievance procedure available to him/her provided no remedy and that he/she had no other option but to resign.  (In Pieterse v AGI(Pty) Ltd the applicant’s claim regarding constructive dismissal failed because he/she, among other things, did not first follow the formal grievance procedure.)

Disputes

Disputes about possible constructive dismissal should be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the appropriate bargaining council and the employee may request compensation or reemployment (if the unbearable situation has then been resolved).

Constructive dismissal is difficult to prove

There are numerous examples of possible constructive dismissal and the facts in different cases may vary but it is important to keep in mind that most of the disputes regarding constructive dismissal at the CCMA are rejected as unfounded. Therefore, an employee must be aware of the scope and degree of difficulty involved to prove constructive dismissal. If an employee resigns and his/her claim regarding constructive dismissal fails, the resignation will still be valid. This could have serious financial implications and involve lengthy legal proceedings for that person.

Family responsibility leave

By Lizette Snyman

Question:

My child is older than 18 years. Will I be able to take family responsibility leave when he is sick?

Answer:

Section 27 of the Basic Conditions of Employment Act (No. 75 of 1997) provides that family responsibility leave may be taken –

“(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of –
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.”

In terms of the Basic Conditions of Employment Act, a child is defined as “a person who is under 18 years of age”.

Therefore, if your child is older than 18 years, you will not be able to take family responsibility leave when he or she is sick.

If you have any further questions, please contact our Service Centre on 0861 25 24 23, or e-mail your request to diens@solidariteit.co.za.

Can you appeal against the CCMA?

By Gerrit Visser

Question

I was dismissed and my case has already been heard by the Commission for Conciliation, Mediation and Arbitration (CCMA), but I’m not satisfied with the commission’s finding. In what cases can a person appeal a ruling of the CCMA?

Answer

Firstly: a commissioner of the CCMA makes an arbitration award. The award cannot be appealed. Section 145 of the Labour Relations Act (No. 66 of 1995, or “LRA”) allows for an arbitration award to be reviewed.  An application for a review is lodged with the Labour Court. In such an application, the party who is requesting the review is the applicant. The application must be lodged within six weeks of the date that the award was served on the applicant.

Section 145 of the LRA lays down four grounds for a review, namely:

1.    If the commissioner committed misconduct in relation to his or her duties as an arbitrator;
2.    if the commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
3.    if the commissioner exceeded his or her powers; or
4.    if the award has been improperly obtained by the commissioner.

This section of the LRA has been dealt with extensively in the courts. Sidumo & Others v. Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1907 (KH) is a leading case in this regard. In the case Herholdt v. Nedbank Ltd [2012] 9 BLLR 857 (AAH) the principles were reinforced and clarified.

Without discussing any of the two cases in depth, they demonstrate two principles: Firstly, the commissioner’s award and argument only have to fall within the scope of reasonableness. In other words, even if there are people who disagree with the arbitration award, that in itself does not render the award incorrect, as long as the argument falls within the scope of reasonableness. Secondly, if a commissioner has made an error, the error in itself does not render the award reviewable. It must first be proven that the result of the error renders the award unreasonable.

Fixed-term contracts with the possibility of permanent appointment

By Hendrik van der Hoven

Question:

I was employed on a fixed-term contract of three months with the possibility of being appointed permanently if I proved myself. Is the employer under an obligation to appoint me permanently when my fixed-term contract expires if I was never reprimanded for poor work performance?

Answer:

In the case Pretorius and Prime Product Manufacturing (Pty) Ltd (2014) 35 ILJ 305 (Commission for Conciliation, Mediation and Arbitration, or CCMA) Commissioner Jansen van Vuuren was confronted with the following set of facts:

The employee claimed that the three months he worked for the employer was just a probation period and that he would have been employed on a permanent basis if he proved himself during that period. According to the employee, his fixed-term contract of three months was a simulated contract that did not reflect the true intention of the parties or the nature of his services. To prove his argument the employee relied on a letter he had received from the employer, confirming that he had been appointed on a fixed-term contract of three months to evaluate his services and that he would receive a salary increase should he be appointed permanently.

According to the employee this meant that he had actually been appointed on a probation period, in spite of an e-mail to the recruitment agent who had recruited him, confirming that he could not expect to be employed permanently because the recruitment agency was too expensive and because his services would come to an end on 7 March 2012.

The employee argued that he at least had a reasonable expectation to be appointed permanently and that the employer’s failure to appoint him therefore amounted to unfair dismissal in terms of section 186(1)(b) of the Labour Relations Act.

The commissioner of the CCMA found that the letter did not contain any indication that the employee would definitely have been appointed permanently at the end of his fixed-term contract. The letter mentioned that he would receive an increase should he be appointed permanently and for this reason there was merely a possibility of permanent appointment and no definite guarantee. The commissioner further ruled that the e-mail between the employer and the recruitment agent provided clear proof that the employee had been effectively appointed only for a fixed period of three months.

With respect to the employee’s claim that he had a reasonable expectation to be appointed permanently, the commissioner ruled that because he had been aware of the employer’s e-mail to the recruitment agent two months before his fixed-term contract expired, he could not have had a reasonable expectation that his contract would be renewed.

The commissioner consequently ruled that the employer had been appointed on a fixed-term contract that had expired and that he had not been dismissed.

Is non-competition agreement valid?

By Alexia Vosloo

Question:

My employment contract says that if I resign, I am not allowed to work for a similar firm within a 100 km radius for the next two years. Is this restriction valid?

Answer:

When employees sign a non-competition agreement, they undertake to not take up employment at a similar business for a certain period of time and in a certain geographic area after leaving the company. There is an obligation on employees to comply with a contract that forbids competition with their employer upon termination of their employment.

The courts have ruled that a non-competition agreement cannot be adjusted just to ensure that a company does not get competition or to prevent a person from finding meaningful employment elsewhere. Such an agreement has to be based on specific reasons, for example, the protection of secret formulas, client lists, information regarding contracts and similar matters. A basic requirement for a non-competition agreement is that it has to be reasonable.

In the Appeal Court case Magna Alloys & Research v. Ellis 1984 (4) SA 874 (A) the court laid down the following principles:

  • The court rejected the position under English law, ruling that a contractual restraint of trade is valid and enforceable in principle. However, the courts will refuse to enforce this principle if an employee can prove that enforcing it will not be in the public interest.
  • Agreements that are against the public interest are not enforceable and a contract that restricts a person’s freedom of trade is against the public interest. Agreements are therefore unenforceable if enforcing them will be detrimental to the public interest.  It is in the public interest for contracts that are entered into freely to be complied with. However, it is also in the public interest for everyone to have freedom of trade. The public interest is harmed if the restriction of a person’s freedom of trade is unreasonable. The question of whether a non-competition agreement is enforceable therefore depends on the question of whether enforcing it will harm the public interest. There must also be a clear proprietary interest that needs to be protected. Moreover, a non-competition agreement may not be unreasonably broad or unreasonable with respect to time.

In the matter Marchall v. Vistech Communications 1994 15 ILJ 1365 (IC) the court ruled that an employer cannot force an employee to sign a non-competition agreement after the employee has already assumed duty.

In the matter IDB Computers v. Newby & Another 1996 17 ILJ 32 (W) the court ruled that an employer cannot invoke a non-competition agreement if he has dismissed an employee unfairly.

If the fairness of a non-competition agreement is queried, the onus rests on the employee to prove its unreasonableness.

Claims and counterclaims in the Labour Court

By Helgard Cronjé

Question

Outstanding statutory dues such as moneys that are owed for leave, salaries, notice periods and retrenchment packages are often claimed in the Labour Court. What happens when an employer brings a counterclaim for damage caused by an employee?

Answer

Employers often claim they have suffered damages and consequently withhold employees’ statutory dues in the case of retrenchment, dismissal or resignation. This practice is illegal in terms of section 34 of the Basic Conditions of Employment Act. The Act stipulates that a deduction may only be made from an employee’s remuneration with his or her consent, or if the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

What must employees do if their employer withholds or deducts money illegally? The first step is to report the matter to the Department of Labour. If the department is unable to help, the next step is to lodge a claim for the monies with the Labour Court. However, such a decision should be approached cautiously. It is important to bear in mind that an employer could succeed in a counterclaim for damage caused by an employee.

In the case Stoop and Another v. Rand Water it was ruled that the Labour Court does have jurisdiction to make judgments regarding counterclaims relating to damages in labour matters, even if such claims are not strictly labour suits. In the case in question, the employees had to compensate the employer R8 million in damages.

No one wants to win a long, expensive lawsuit, only to find out that his or her claim’s monies have to be written off against the employer’s counterclaim. Likewise, an employee would not want to pay in an amount on the employer’s claim, or be issued with an order to pay the employer’s legal costs.

The decision to lodge a claim with the Labour Court must therefore be approached with great caution, especially in cases where the employer could lodge a counterclaim. The merits of the potential counterclaim must be considered as carefully as possible before the matter is referred to the Labour Court.

Is section 189 of the Labour Relations Act a guideline or is it mandatory?

By Ettienne Pio

Question:

Are the procedural provisions contained in section 189 of the Labour Relations Act (LRA) simply guidelines or are they mandatory?

Answer:

Section 189 of the Labour Relations Act (No 66 of 1995) specifically applies to termination of service based on operational requirements. The question is whether this section merely provides a guideline, or whether employers are obliged to give effect to the provisions contemplated in the section.

Section 189(2) specifies explicitly the issues on which parties must consult in a bid to reach consensus. Section 189(3) also determines specifically that the employer must issue a written notice inviting employees to consult and that the employer must also disclose all relevant information, including the reasons for retrenchment; alternatives; the number of affected employees; the proposed selection criteria; implementation date; support; possible re-employment in the future; and the number of retrenchments out of the total workforce during the preceding 12 months.

Some employers are of the opinion that section 189 of the LRA only provides a guideline and need not be complied with in every respect. Often, certain employers try to water down the process to mere unscheduled discussions with affected employees, then claiming that the essence of the procedural provisions for retrenchment has been met as the employees have knowledge about the retrenchments as well as the reason for such, and that discussions have taken place.

In Chetty v Scotts Select A Shoe (1998) 19 ILJ 1465 (LC) the court ruled that legislature’s intention with the retrenchment procedure “… should be governed by law, rather than by guidelines,” which seemingly, imposes a stricter obligation on employers during the retrenchment process.

In De Bruin v Sunnyside Locksmith Suppliers (Pty) Ltd [1999] 8 BLLR 761 (LC) Van Niekerk AJ interpreted the Labour Appeal Court case of Johnson & Johnson (Pty) Ltd v CWIU such that section 189 “is inextricably linked to the fairness of a dismissal for operational requirements, and that a finding of non-compliance will invariably result in the dismissal being unfair for want of compliance with a proper procedure”. Thus, the test is objectively whether consultation in terms of section 189 has or has not taken place, and not what the employer’s intention was. Therefore, proving bad faith is not even a requirement.

In Wheeler v Pretoria Propshaft Centre CC [1999] 11 BLLR 1213 (LC) Stelzner AJ ruled that the explicit provisions of section 189 had to be complied with in the first instance. He also emphasised that so-called compliance with a checklist on paper should be avoided insofar as “one has to go further and check whether or not the employer has in fact fulfilled the purpose of the section”. [Emphasis in bold that of the author]

Our courts have sounded a warning that a mere mechanical checklist approach must be avoided. Employers, who interpret this warning as a relaxation of the provisions contained in section 189, are erring. As a matter of fact, our courts require a more profound inquiry to ensure that the employer complies with the purpose of section 189, namely a purposeful effort to reach consensus jointly.

Section 189 has to be strictly adhered to and that includes the following instances:

1.    Even if the employer believes compliance wouldn’t change the outcome [Mohamedy’s v CCWUSA (1992) 13 ILJ 1174 (LAC) at 1179 F-H];
2.    Even if the outlook the employer is facing is almost certain liquidation [Fouldien v House of Trucks (Pty) Ltd t/a SA Road Tankers [2002] 12 BLLR 1176 (LC); and
3.    Even if the employer claims that the manager should have been able to anticipate retrenchments [Harmsen v Alstom Electrical Machines (Pty) Ltd [2004] 2 BLLR 133 (LC).

Non-compliance with section 189 will only be tolerated in exceptional instances, for example in instances where one party makes compliance virtually impossible.

Claims for pain and suffering due to occupational injuries and diseases

By Adv. Hanlie van Vuuren

Question:

I was injured on duty and was told that I can’t claim for “pain and suffering”. Is that correct?

Answer:

People who sustain injuries on duty often ask if they can submit a claim for “pain and suffering”. The answer to this question is no, because there is a difference between compensation for occupational injuries and diseases, and claims for damages relating to injuries that occur under other circumstances.

In terms of section 35 of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) employees and their dependants are deprived of the right to institute a “civil claim” against employers. In exchange for this, the strict burden of proof that applies in other civil cases is lessened and employees do not need to “prove” their damages in a court. They therefore do not have to prove their “pain and suffering”, just that they were injured while on duty.

The mentioned Act makes provision for certain stated benefits such as reasonable medical treatment, compensation for loss of income, compensation for the next of kin if an employee dies while on duty and compensation for permanent work disablement. The latter is only awarded for the loss of body parts and bodily functions as well as for severe dismemberment, as set out in Schedule 4 of the Act. This schedule does not specify compensation for pain and suffering. Therefore, pain and suffering is not included in the prescribed conditions for which compensation can be awarded in terms of the Act. Compensation for permanent work disablement depends of the medical evidence that is submitted to the Compensation Fund in the form of medical reports. It is therefore crucial that all permanent conditions are described in the finest detail in the Final Medical Report and elucidated further by means of photographs and other reports by experts, if necessary.

The Final Medical Report must only be completed once the medical treatment has reached a plateau and the condition has stabilised. Stabilisation means that medical treatment cannot improve the person’s condition further. Compensation for permanent work disablement can only be calculated at this stage.

Members are welcome to contact us if they have questions about occupational injuries or diseases. Solidarity Legal Services protects our people!

Appointments

By Annika Labuschagne

Question:

I was not appointed in a post and I want reasons for my employer’s decision. What can I do?

Answer:

Internal grievance procedure

All internal remedies must have been exhausted before a case of discrimination, unfair labour practice or victimisation can be referred. The grievance procedure must be followed if a decision by an employer causes dissatisfaction. Should the grievance procedure not provide the desired information, a request for access to information/records can be submitted. Although the grievance procedure is the process through which employers must provide information to employees, it is not unusual for grievances to remain unfinalised or simply not to be dealt with at all.

The Promotion of Access to Information Act
(As contained in the guide of the Human Rights Commission)

‘The Promotion of Access to Information Act (No. 2 of 2000) (hereinafter referred to as “PAIA”, or “the Act” interchangeably) is the national legislation which was enacted to give effect to the constitutional right of access to information. PAIA came into operation on 9 March 2001, with the exception of sections 10, 14, 15 and 51, which came into operation on 15 February 2002.

PAIA gives all South Africans the right to have access to records held by the state, government institutions and private bodies.

The following are the objectives which PAIA seeks to achieve:

  • To ensure that the state takes part in promoting a human rights culture and social justice;
  • To encourage openness and to establish voluntary and mandatory mechanisms or procedures which give effect to the right of access to information in a speedy, inexpensive and effortless manner as reasonably possible; and
  • To promote transparency, accountability and effective governance of all public and private bodies by empowering and educating everyone to understand their rights in terms of PAIA so that they are able to exercise their rights in relation to public and private bodies, to understand the functions and operation of public bodies, and to
  • Effectively scrutinise, and participate in decision making by public bodies that affects their rights.

Manner of request

A requester has a right of access to a record of a public body or a private body and must be given access to a record of a public body or a private body if the requester complies with the following procedural requirements:

  • That the request is made on the request form (available on the website under the link http://www.justice.gov.za/forms/form.paia.htm) to the information officer of the public body or head of a private body;
  • That the completed request form is faxed or electronically mailed or hand delivered to the information officer of the public body or head of the private body concerned;
  • That access to the requested record is not refused in terms of any of the grounds for refusal under PAIA.

How to fill in the request form – public and private bodies

A request for access to a record of a private or public body is made by filling in a form called a request form. The request must made to the information officer of the public body or head of the private body at his address, fax number or electronic mail address.

In the request form, the requester is required to provide the following information:

  • Sufficient particulars to enable an official of the public body or the head of a private body to identify the requester.
  • Sufficient particulars to enable an official of the public body or head of a private body to identify the record, including the reference number, if that is known to the requester.
  • If the space in the request form is not adequate, the requester may continue on a separate folio and attach it to the request form. The requester must initial all additional folios.
  • Clearly indicate the form of access or nature of the record in which the record should be provided.
  • The preferred language in which the record should be provided in the case of a public body.’

Although this legislation puts an incredible amount of power in the hands of the employer, it is underutilised. It is not unusual for reasons for the non-appointment and/or promotion of individuals to be kept secret because the employer knows that should the reasons be revealed, they could possibly be faced by litigation

Can my employer deduct mandatory annual leave from my ordinary leave?

By Lizette Snyman

Question

My workplace will be closed during the Festive Season and we have to take mandatory annual leave during that period. Can the employer deduct the mandatory annual leave from my ordinary leave?

Answer

Section 20(10) of the Basic Conditions of Employment Act (No. 75 of 1997) states the following regarding annual leave:

“(10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.”

An employer can therefore determine when annual leave must be taken. An employer can moreover require employees to have enough annual leave available for the period of mandatory leave.

If you have any queries in this regard, please contact us on 0861 25 24 23 or send a query to diens@solidariteit.co.za.

Notice period (2)

Be informed about your notice period at work

Question:
I have resigned from my job and given notice. What must I do if my employer does not want me to work during the notice period?

Answer:
In this case, the employer must pay the employee remuneration in accordance with section 38 of the Basic Conditions of Employment Act.

If the employer refuses to pay the mentioned remuneration, the employee can lodge a complaint with the Department of Labour. The employee must provide the Department with the following information and documents:
•     A synopsis of the matter;
•     payslips; and
•     any correspondence regarding the matter between the employee and the employer, as well as the letter of resignation.

Furthermore, the employee must be willing to work during the notice period, regardless of whether the employer wants to let him/her go with immediate effect. On the other hand, the employee cannot lodge a complaint when he/she wants to stop working with immediate effect.

Claims and counterclaims in the Labour Court

By Helgard Cronjé

Question

Outstanding statutory dues such as moneys that are owed for leave, salaries, notice periods and retrenchment packages are often claimed in the Labour Court. What happens when an employer brings a counterclaim for damage caused by an employee?

Answer

Employers often claim they have suffered damages and consequently withhold employees’ statutory dues in the case of retrenchment, dismissal or resignation. This practice is illegal in terms of section 34 of the Basic Conditions of Employment Act. The Act stipulates that a deduction may only be made from an employee’s remuneration with his or her consent, or if the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

What must employees do if their employer withholds or deducts money illegally? The first step is to report the matter to the Department of Labour. If the department is unable to help, the next step is to lodge a claim for the monies with the Labour Court. However, such a decision should be approached cautiously. It is important to bear in mind that an employer could succeed in a counterclaim for damage caused by an employee.

In the case Stoop and Another v. Rand Water it was ruled that the Labour Court does have jurisdiction to make judgments regarding counterclaims relating to damages in labour matters, even if such claims are not strictly labour suits. In the case in question, the employees had to compensate the employer R8 million in damages.

No one wants to win a long, expensive lawsuit, only to find out that his or her claim’s monies have to be written off against the employer’s counterclaim. Likewise, an employee would not want to pay in an amount on the employer’s claim, or be issued with an order to pay the employer’s legal costs.

The decision to lodge a claim with the Labour Court must therefore be approached with great caution, especially in cases where the employer could lodge a counterclaim. The merits of the potential counterclaim must be considered as carefully as possible before the matter is referred to the Labour Court.

Occupational Health and Safety (14)

I work at a guesthouse in Piet Retief and live on the premises

Question:
I work at a guesthouse in Piet Retief and live on the premises. My duties include, among other things, receiving and booking in the guests, preparing breakfast, cleaning the rooms and making the beds. Although I can perform administrative tasks, my employer seldom lets me do admin. My problem is that I injured my lower back when I was younger and as a result of this injury I can’t get out of bed some days. Can my employer dismiss me because of this?

Answer:
Disability owing to ill health or injury can be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer must investigate the extent of the illness or injury.

If the employee will be absent from work for an unreasonably long period, the employer must look into all possible alternatives, except dismissal, such as appointing a temporary substitute for the incapacitated employee

In 2000 I have been diagnosed with major depression…

Question:

I would appreciate it if you could explain the following cases, and put them into perspective:

  1. In 2000 I have been diagnosed with major depression or MD, arising from underperformance at work. I am under the impression that there has been a court ruling that in certain circumstances classify depression as an injury on duty. Is this true?
  2. If this is the case, what are the processes necessary to submit such an injury to the Workmen’s Compensation Commissioner? My assumption is that it would be more complex than in the case of a physical or visible injury.I am currently working as a technical manager in the signal distribution environment with a staff of 14. As the signal distribution is done 24 hours per day for 365 days of the year and it is expected of me to be telephonically available 24 hours a day. 

    When many network errors occur, it has a very detrimental effect on my sleeping patterns and my daily functioning as a manager.

    There are escalation and follow-up procedures that I have to handle, irrespective of the time of day or night.

    This again has a negative effect on my state of depression, as I do not get sufficient sleep and the fact that I cannot use certain prescribed antidepressants, because I get sleepy when using them.

    It is therefore important to get clarity concerning these questions.

 Answer:

When reporting any occupational injury or disease the following three factors are very important:

  1. The diagnosis of the doctor.
  2. The cause of the casualty or disease.
  3. Has the condition been reported to the employer and the Compensation  Commissioner in terms of the provisions of the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993)?

 

  1. The diagnosis:
    Occupational diseases are contained in Schedule 3 of the Act and although post-traumatic stress syndrome is an acknowledged occupational disease, it does not apply to MD.The diagnosis of the disease therefore is very important.

    There have been very important court rulings about the matter in 2005 and in the case of Urquhart v Compensation Commissioner post-traumatic stress has been accepted as an occupational disease that could develop because of exposure to excessive trauma.

    The difference between major depression and post-traumatic stress are especially found in the cause of the diseases.

    MD is the most common mental illness worldwide and is regarded as a condition caused by a chemical imbalance in the brain and as there are persons inclined to heart diseases this is also true for MD.

    In contrast PTSD is the result of exposure to severe trauma that is of a life-threatening nature.

    The American Psychiatric Association established the DSM IV-criteria, with at least seven requirements that have to be met before PTSD could be diagnosed.   

    The following two should both be present and form the basis for the other five requirements:

    Exposure to a traumatic event/s including:
    a)         experience of, or confrontation with a life-threatening or serious physical injury, bodily threat
                against own or other’s person, AND
    b)         reaction to it which includes intense fear, helplessness or shock. 

  2. The cause:“Accident” is described in the Act as follows: “an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee”.

    The relevant disease should have a direct relation to and has to be the result of and should have developed from the employer’s occupation.

    Occupations exposed to violence include the SAPS, emergency and health workers, security officers, etc.

    However PTSD is not only limited to these occupations and it was granted that PTSD also is an occupational disease that could develop in the course of time.

    The applicant was a photographer who during the course of years often photographed violent scenes and who has on occasion been physically attacked.

  3. Reporting:The prescribed procedure in terms of the Act requires that the employee should report an occupational disease as soon as possible after commencement of the disease to the employer.

    He may also report it to the Compensation Commissioner.

    The employer is obliged to report it to the Commissioner within 14 days, irrespective of whether he agrees that it is an occupational disease.

    The right to claim lapses should the employee fail to report the disease to the employer or Commissioner within 12 months of the diagnosis.

    Conclusion: As the diagnosis is that of depression and it has already been diagnosed in 2000, the person who posed the question will in terms of the Act unfortunately not qualify for benefits.

    The cause of the depression, namely underperformance, in my opinion does not comply with the definition as required by the Act.

What is an employer’s obligation towards a pregnant employee if the employee’s work could pose a danger to the unborn child?

By Johan Roos

According to section 26 of the Basic Conditions of Employment Act, no employer may require or permit an employee to work under conditions which may pose a danger to the unborn child or to a woman who is nursing her child. During this time the employer must offer suitable, alternative employment to the employee for a minimum period of six months after the birth of the child.

Disability

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

  1. Is the employee able to work or not?
  2. Extent to which the employee is able to work;
  3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
  4. Adjustment of the employee’s duties.

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

Transport to and from work

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

First-aid workers

By Nikki Prinsloo

Today we look at the General Safety Regulations (Regulations (3)(1)-(4))  of the Occupational Health and Safety Act (Act 85 of 1993).

When must first aid be applied in the workplace?

The General Safety Regulations (regulation (3)(1)) compel an employer to ensure that all employees in the workplace receive first-aid treatment fast in the event of emergencies or injuries in the workplace.

When must a first-aid worker be appointed in the workplace?

The General Safety Regulations (regulation (3)(4)) stipulate that – the employer is obliged to appoint a first-aid worker in writing if more than 10 employees are employed in a workplace. The first-aid worker must be readily available to apply first aid during normal working hours in the event of an emergency.

What must the ratio of first-aid workers to employees be in the workplace?

The General Safety Regulations (regulation (3)(4)) stipulate that in the case of shops and offices there should be one first-aid worker for every 100 employees. The requirement for other workplaces is one first-aid worker for every 50 workers.

The competence of a first-aid worker

The General Safety Regulations (regulation (3)(4)) of the Occupational Health and Safety Act stipulate that a first-aid worker must have a valid certificate of competence in first aid issued by one the following bodies:

(A) The South African Red Cross Society (B) The St John’s Foundation (C)The South African First Aid League (D) A person or organisation approved by the chief inspector for this purpose

Health and safety

By Leigh McMaster

Question:

Should employers be held accountable for health and safety at their operations?

Answer:

Yes, all employers should be held accountable for health and safety at their operations. Ensuring healthy and safe workplaces is part of the mining industry’s social licence to mine.

Take for example the compensation battle that looms in the gold mining industry. The Mankayi v. AngloGoldAshanti case, where a landmark ruling was given in 2011, has set the precedent for a possible class action lawsuit against some 30 gold mining companies. Harmful exposure to silica dust in the South African gold mining industry has been a major risk for employees over decades of mining. The prevalence of silicosis among former and current mineworkers has been very difficult to establish, however. A 2009 report from the Health Systems Trust which evaluated various research reports suggested that the prevalence of silicosis among former employees may be between 20% and 30%. The potential number of claimants may therefore be substantial, taking into account the employment figures of the gold industry over the last eight decades.

Richard Spoor, a human rights activist and attorney, has moved to file a class action suit against more than 30 gold companies on behalf of 17 000 former miners who say they contracted silicosis, a debilitating lung disease, due to negligence in health and safety. The companies include third-largest global bullion producer AngloGold Ashanti, fourth-largest bullion producer Gold Fields and Harmony Gold. Spoor filed the application to bring a class action with the High Court in December 2012 and expects the matter to be heard in May 2013. Due to various factors it is still unclear what the extent of the claims for damages will be, but the claims will undoubtedly have a significant impact on the financial sustainability of the industry.

Solidarity is of the opinion that former and current employees suffering from occupational lung diseases should be compensated at reasonable levels, which is not the current status quo as a result of the discrepancies in the South African legislation dealing with compensation. The development of a compensation trust fund could be a more sustainable model for delivering reasonable compensation to disabled employees while at the same time ensuring sustainable employment for the current workforce.

Compensation for medical expenses resulting from occupational injuries or diseases

By Hanlie van Vuuren

Question:

Can the Compensation Commissioner be held liable for reasonable medical expenses arising from occupational injuries or diseases?

Answer:

The Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) specifies that the Compensation Commissioner is liable to pay for the reasonable medical costs resulting from an occupational injury or disease for up to two years following the accident or the diagnosis of an occupational illness. Moreover, the commissioner has the discretion to decide on the need for and the nature and amount of the treatment.

The Act further determines that the medical practitioner must issue the first medical report within 14 days of the first consultation, followed by periodic progress reports. The employee or his/her dependants are entitled to copies of these reports upon request. Importantly, section 74(4) of the Act stipulates that no remuneration is payable for the completion and furnishing of these reports by the medical practitioner.

If the commissioner accepts liability for the claim, the medical costs may not be recovered from the employee (section 76(3)).

If a service provider expects the injured employee to personally take responsibility for settling medical bills for which the Compensation Commissioner is responsible, the employee must draw the service provider’s attention to the provisions of the Act. The validity of such contracts may be queried.

Alcohol and drug abuse in the workplace

By Driescha Meissner

Question

What should I know about alcohol and drug abuse in the workplace?

Answer

Drug and alcohol abuse is a big contributing factor to accidents in, and absence from the workplace. The negative effects of drug and alcohol abuse on a person’s work include: low productivity; inability to meet deadlines; inappropriate behaviour; absenteeism; and poor time management.

An estimated 15% of all accidents in the workplace are alcohol or drug related. The majority of employers have clauses in their disciplinary codes that stipulate how alcohol- and drug-related behaviour should be dealt with.

 

The Occupational Health and Safety Act (No. 85 of 1993) determines that an employer must ensure that an employee –

  • who is suspected of being under the influence of alcohol or drugs does not work or enter the workplace;
  • is not under the influence of alcohol or drugs at the workplace;
  • is not in possession of any alcohol or drugs at the workplace; and
  • does not provide any alcohol or drugs to a co-worker.

Alcohol or drug testing

There is a big difference between being under the influence of alcohol or drugs and having alcohol or drugs in your system.

The presence of alcohol or drugs in a person’s bloodstream can only be determined through a blood or breathalyser test. Such a test may only be carried out by someone who is trained to do so.

Visible signs that an employee may be under the influence of alcohol or drugs include the following:

 

  • The person’s appearance – clothing; bloodshot eyes; red in the face; a liquor smell when he or she speaks; unsteady on his or her feet; and so on.
  • The person’s speech – he or she speaks louder or softer than usual; and incoherent and/or slurred speech.
  • The person’s behaviour – disorderly; very emotional; and/or behaves differently than usual.

In order to find an employee guilty of having been under the influence of alcohol or drugs during work hours, an employer has to prove that there was alcohol or drugs in the employee’s system and that it affected his or her work performance.

Can an employee refuse to undergo alcohol or drug testing?

If the workplace has a rule that makes provision for alcohol or drug testing, the employer may take disciplinary steps against an employee who refuses to undergo such a test. Refusal to undergo a drug or alcohol test in itself cannot be regarded as evidence that an employee was under the influence of alcohol or drugs, but may lead to other disciplinary charges if provided for in the employer’s disciplinary code and policy on drugs and alcohol.

Safety and health at nursery schools and other educational institutions

By Paul Mardon

Question:

Do nursery schools have safety and health rules?

Answer:

Most of us think of our workplace when we talk about occupational health and safety, but sometimes we forget about the safety and health at the places where our most precious loved ones spend the major part of their time, viz. the schools etc. where we leave our children every day.  Unfortunately it is also true that nursery schools, schools and universities often fall short when it comes to applying health and safety principles, the observance of the best practices and observing the employer’s caretaking obligation.

There are no specific or dedicated legislation that regulates safety and health at schools and other educational institutions. Because schools and other educational institutions are also workplaces, the Occupational Health and Safety Act (Act 85 of 1993) also applies to these places. In terms of the Act an employer is responsible for the safety and health of all employees and all other people on the premises.  In the case of, for example, schools, the “employees” include all teachers, cleaners and gardeners, while “all other people on the premises” include the learners, contractors who work on the premises as well as visitors such as parents. The Act stipulates that an “employer” is, inter alia, any person who employs somebody or supplies him with work and who pays that person or explicitly or by implication undertakes to pay him. This definition of “employer” is therefore broad enough to include the Department of Education as well as the governing bodies of schools and these governing bodies can therefore be held liable by criminal as well as civil law should they fail to observe the provisions of the Occupational Health and Safety Act and somebody is injured at the school as a result of that. Governing bodies often blame the state for a lack of funds to maintain state schools properly, but they also have a responsibility to ensure that these schools are safe and healthy for everybody on the premises. The inspectors of the Department of Labour may in terms of the applicable legislation close any school and impose fines where the provisions of the Occupational Health and Safety Act are not observed by schools and other educational institutions. This recently happened in the Northern Cape when two schools were closed because of dangerous wiring and the presence of dangerous asbestos-containing material on the premises.

Although it is not always easy to get funds from the state for the proper maintenace of state schools, school governing bodies can do a lot to meet their responsibilities in terms of the act, such as implementing health and safety systems at schools that deal with all relevant aspects, such as, but not limited to, the following elements:

  • A health and safety policy
  • A register with all relevant legislation, regulations and standards
  • A health and safetycommittee
  • A risk analysis programme
  • An audit programme to do a regular audit of the observance of the safety and health legislation
  • The use of external health and safety advisors and auditors
  • Adequate insurance for legal liability
  • The integration of the health and safety management system into the activities of the governing body by, for example, considering elements such as access control and security, traffic safety in and around the school, water, sewage, first-aid training, safety equipment, emergency planning and reaction, including the practising of emergency plans, command and control during emergencies, safety at mass assemblies, procedures for thorough investigation of incidents, and interaction with emergency services such as ambulance and fire services

 

Stress in the workplace

By Driescha Miessner

Question:

I should like to know more about stress in the workplace.

Answer:

The economic history of the past few years tells the tale of personnel cuts, decreasing productivity, loss of innovation and of businesses’ inabilty to adapt to a changing environment. Survival and growth depend directly on an organisational culture with a positive climate and value system.

Employees are faced with more career and job changes than ever before. Organisations require their employees to be more productive, to be sensitive to diversity, to work together in teams, to be innovative, to accept more responsibility, to work longer hours and to successfully handle continual changes in the workplace.

Factors such as technological development, globalisation, diversity, a shorter productive life, the volatility of consumer demands, continual and radical changes in the environment, and even just travelling to and from the workplace, make bigger demands and place more and more pressure on employees. Pressure on employees causes raised stress levels, which has an impact on the health of employees.

In short, this is how the impact of stress works: The adrenal gland secretes adrenalin and the stress hormone cortisol into the blood. Hormones secreted in stressful circumstances trigger the well-known fight-or-flee reaction, which, in the old days, ensured man’s survival – think of hunting food for supper in the stone age or running away from an attacking beast!

In the short term cortisol is beneficial to the body because it enables you to react suitably in emergencies. However, when our bodies are exposed to cortisol for extremely long periods, psychosomatic diseases develop. These are physical diseases with a psychological origin.

Research has proved that stressful emotions not only cause certain diseases, but also suppress the body’s immune system and have a negative influence on the ability to recover.

Psychosomatic diseases associated with high levels of stress are, among others, stress headaches, insomnia, spasmas in the back, neck and shoulders, allergies, ulcers, heart diseases, migraine, glandular fever, irritable-bowel disease, panic attacks, poor concentration and depression.

The central role of emotions in the stress process is receiving more and more recognition. It is alleged that individuals will experience stress and tension if they evaluate a situation as negative.

Emotional intelligence (EI) has lead to a new consciousness of the role that emotions play in the workplace. EI is made up of the expression, recognition, understanding and management of emotions.

Research has shown that EI forms a buffer against stress and those with higher levels of EI experience better health overall.

Employers must invest in employees’ wellbeing on an ongoing basis to lessen the incidence and consequences of stress in the workplace

Section 91 hearings under the COID Act

By Adv. Hanlie van Vuuren

Question

My claim for an occupational injury and/or disease has been turned down. What should I do now?

Answer

Every person affected by a ruling of the Compensation Commissioner (hereafter referred to as “CC”) in terms of the Compensation for Occupational Injuries and Diseases Act (Act 130 of 1993, hereafter referred to as “the Act”) has the right to lodge a complaint against such ruling in the prescribed manner within 180 days of the date of the ruling. If the complaint meets the requirements, the CC will register such complaint, after which the CC will re-evaluate the ruling internally during a re-evaluation process and, if it so decides, amend the ruling by making the complainant an offer. However, should the CC abide by its ruling the matter will be heard by a tribunal.

The tribunal: The tribunal is independent and in terms of section 91 of the Act it consists of three persons, that is, a chairman and two assessors – one representing employers and one representing employees. If the case deals with a medical matter, the tribunal may call for the services of a medical assessor. The chairman usually has a legal background and controls the process to be followed during the hearing and he will hand down the verdict at the close of the hearing and after considering the evidence. These hearings are similar to a civil hearing and the chairman also has the power to issue an order as to costs against the complainant. In this regard Solidarity protects its members by doing a merit rating beforehand with recommendations regarding the continuation or not of a complaint, hearing or appeal.

Verbal evidence: As a general rule, evidence at such a hearing is given verbally and under oath and the complainant is usually heard first. The language medium is usually English but provision is made for interpreting services so that a witness may give evidence in the language of his choice if such a request is made to the CC beforehand. To make sure that the interpreter is present, the arrangements must be made beforehand. Although documentary evidence is important, it cannot replace verbal evidence.

What evidence is to be given: The complainant must be familiar with the purpose of his complaint and must be able to say what he expects of the tribunal, whether it be compensation for medical costs and/or compensation for permanent work disability and/or compensation for temporary work disability. The appearance and behaviour of the complainant, for example the presence of lesions as a result of accident, during the hearing will be observed by the tribunal and the legal teams and should support the evidence. Regardless of the wishes of the complainant, the complainant would be wise to familiarise himself beforehand with the provisions of the Act in connection with what he requires because the tribunal does not have inherent jurisdiction like the High Court but is obliged to stay strictly within the ambit of the Act. The complainant must answer questions honestly, to the point and as clearly as possible.

The role of the legal teams: The legal representatives as well as the members of the tribunal may all put questions to the witness. My legal representative’s task is to advance my case as complainant by means of opening and closing arguments and leading evidence to try and prove the CC’s ruling wrong, while the CC’s legal representative must, through correct application and interpretation of the law, defend the CC’s ruling if it is factually correct.

Expert witnesses: Because these cases often deal with the complainant’s medical condition and/or the physical consequences of an accident, it is advisable that relevant expert evidence be given. It is a general rule in law that the best evidence should be submitted to the court in support of a case. As mentioned above, the tribunal can only consider the evidence before it. The complainant should therefore identify a relevant expert or experts beforehand, especially a medical expert who is familiar with his condition, and then make arrangements with that person or persons regarding his/their willingness to testify in the case. The name/names of such witness/witnesses must be given to the CC on the prescribed objection form beforehand so that the CC can subpoena the witness/witnesses to testify. People may, however, also testify without having been subpoenaed beforehand but it will then have a cost implication for the person calling such witnesses to testify.

The tribunal’s ruling: After having heard the evidence the tribunal will consider the case. The chairman must either confirm, or set aside the ruling objected to and replace it with a ruling that he considers fair, subject to at least one of the assessors agreeing with him. If neither of the assessors agrees with him, the matter must be referred to the High Court. The medical assessor has no right to vote. If the complainant is not satisfied with the tribunal’s ruling, he is in certain circumstances entitled to appeal to the High Court.

Claims for pain and suffering due to occupational injuries and diseases

By Adv. Hanlie van Vuuren

Question:

I was injured on duty and was told that I can’t claim for “pain and suffering”. Is that correct?

Answer:

People who sustain injuries on duty often ask if they can submit a claim for “pain and suffering”. The answer to this question is no, because there is a difference between compensation for occupational injuries and diseases, and claims for damages relating to injuries that occur under other circumstances.

In terms of section 35 of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) employees and their dependants are deprived of the right to institute a “civil claim” against employers. In exchange for this, the strict burden of proof that applies in other civil cases is lessened and employees do not need to “prove” their damages in a court. They therefore do not have to prove their “pain and suffering”, just that they were injured while on duty.

The mentioned Act makes provision for certain stated benefits such as reasonable medical treatment, compensation for loss of income, compensation for the next of kin if an employee dies while on duty and compensation for permanent work disablement. The latter is only awarded for the loss of body parts and bodily functions as well as for severe dismemberment, as set out in Schedule 4 of the Act. This schedule does not specify compensation for pain and suffering. Therefore, pain and suffering is not included in the prescribed conditions for which compensation can be awarded in terms of the Act. Compensation for permanent work disablement depends of the medical evidence that is submitted to the Compensation Fund in the form of medical reports. It is therefore crucial that all permanent conditions are described in the finest detail in the Final Medical Report and elucidated further by means of photographs and other reports by experts, if necessary.

The Final Medical Report must only be completed once the medical treatment has reached a plateau and the condition has stabilised. Stabilisation means that medical treatment cannot improve the person’s condition further. Compensation for permanent work disablement can only be calculated at this stage.

Members are welcome to contact us if they have questions about occupational injuries or diseases. Solidarity Legal Services protects our people!

Overtime (12)

What remuneration is an employee entitled to if he works on public holidays or Sundays?

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

What does the law state regarding overtime and work on Sundays?

Question:

What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off.

Answer:

Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers.

A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally.

Overtime payment for senior managers

Legal question: Overtime payment for senior managers
Phil Davel, Solidarity Legal Services, Service Centre

Question:

What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off.

Answer:

Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers.

A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income threshold on the application of Sections 10 and 16, among others. Government Notice R.100 of number 30720 increased the threshold from R115 572 to R149 736 on 1 February 2008. This means that if an employee earns a salary of more than R149 736 per year, he/she would be excluded from the specific sections in question.

In this case, senior managers’ service contracts will determine what remuneration they are entitled to, and also whether overtime payment applies to them and at what rate.

Overtime work and work on Sundays are not, however, unlimited for senior managers. Section 48 of the Basic Conditions of Employment Act prohibits forced labour. The employer cannot, therefore, force the employee to do any labour. The merits of the case will determine if the required labour is in fact forced labour.

Therefore, in answer to the legal question: The financial manager needs to realise that he/she may be expected to work overtime without payment, provided that it does not constitute forced labour. This is because his/her remuneration package already makes provision for overtime and also because the Act excludes him/her from the required payment for overtime and for work on Sundays.

For more information regarding remuneration and overtime, please call Solidarity’s legal experts on 0861 25 24 23.  

 
 

How much should I be paid for working on a public holiday?

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

How does payment on Sundays work?

Question: How does payment on Sundays work?

Answer: In cases where an employee is expected to work on a Sunday, the employee must receive double payment for the day. This payment is determined by Section 16 of the Basic Conditions of Employment Act. If the employee normally works on a Sunday, payment should be one and a half times the normal rate. An agreement can be reached that the employee will receive time off instead of extra payment.

How does overtime payment work?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
How does overtime payment work?

Answer:
If an employee earns less than R149 736 per year and is not in a management position, he/she is entitled to overtime payment. If the employee is in a management position or earns more than R149 736 per year, his/her service contract must be examined to determine whether the person is entitled to overtime payment.
Section 10 of Basic Conditions of Employment determines that an employee may not work more than ten hours of overtime per week unless a collective agreement is in place. If there is such an agreement, the weekly overtime can be increased to 15 hours. The agreement will only be valid for two months. No agreement may oblige an employee to work more than 12 hours overtime per day. Payment for overtime must be made at one and a half times the normal wage. On Sundays, the employee must be remunerated at twice the normal wage. In lieu of extra remuneration, the employee may agree to 30 minutes’ time off for every fully paid hour of overtime worked. The time off must be granted at least one month after the employee became entitled to it.

Overtime

Question:
If I earn less than 172K, what are my basic rights regarding overtime, among other things?

Reply:
Employees earning less than this amount are fully protected by the Basic Conditions of Service Act.

If the employee earns less than R172 000 a year and is not in a managerial position, he or she is entitled to overtime pay. If the employee is in a management position or earns more than R172 000 a year, that person’s service contract has to be perused to determine whether he or she is entitled to overtime pay.

Sectionl 10 of the Basic Conditions of Service Act determines that an employee may not work more than ten hours’ overtime a week, unless there is a collective agreement to this effect. However, if there is such an agreement, weekly overtime could increase to a maximum of 15 hours a week. The agreement may only be valid for two months. No agreement may oblige an employee to work more than 12 hours a day.

Payment for overtime must take place at one and a half times the usual payment. On Sundays the employee has to be remunerated at twice the usual payment. An agreement can also be reached that, instead of extra payment, the employee gets 30 minutes off for every fully paid hour of overtime worked. The time off must be granted within one month after the employee is entitled to it.

In general an employee can refuse to work more than 45 normal hours a week and 10 hours overtime. Or to work more than 12 hours a day, consisting of nine normal working hours and three overtime hours. However, there are cases such as emergency overtime hours that an employer can expect of an employee. This is usually the case where operational requirements demand it.

Please note that overtime can only be expected of an employee and that an employee can expect overtime payment of an employer if there is an agreement determining that overtime is worked..

Overtime

Question:
My annual income is far more than R172 000.  My employer informed me that I am compelled to work overtime without payment and to work overtime on Sundays because she believes my salary is so high.  According to her the Basic Conditions of Service Act (BCSA) does not apply to me and she can force me to work free of charge. I did not enter into any agreement to work overtime or on Sundays. Is there any protection for me?

Reply:
The employer is correct that sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) do not apply to such an employee. The reason is, as stated, that the Minister of Labour did not make this applicable to such an employee. The reason is, as stated, that the Minister of Labour fixed a limit (at present an income ceiling of R172 000 a year) in terms of which these sections in Chapter 2 of the Act or any provision relating to it do not apply to employees earning more than this amount.

But the fact that an employee earns above this ceiling, does not entitle the employer to free overtime.

First, the reason why an employer cannot simply enforce overtime is contained in section 48 of the Act.
Section 48: Prohibition of forced labour
1. Subject to the Constitution, all forced labour is prohibited.
2. No person may for his or her own  benefit or for the benefit of someone else cause, demand or impose forced labour in cobravention of subsection 1.
3. A person who contravenes subsection (1) or (2), commits an offence.

Secondly, as far as the arrangement of working hours is concerned, the employer is further compelled to take section 7 of the Act into consideration.

Section 7: Regulation of working time
Each employer must regulate the working time of each employee
1.  In accordance with the provisions of any Act regulating occupational health and safety;
2. with due regard to the health and safety of employees;
3. with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87 (1)(a); and
4. with due regard to employees’ family responsibilities.

Although an employee can therefore not claim overtime in terms of section 10, an employee is entitled to negotiate. It is therefore important for an employer and employee to agree beforehand on the number of normal hours and the number of overtime hours that will be worked. They must also agree on the tariff for the hours overtime or work on Sundays and this can differ completely from the tariffs mentioned in the BCEA.

In the workplace contracts of service are generally drawn up very broadly and can be interpreted accordingly. Clauses such as:  “The employee hereby agrees to work overtime from time to time, as well as on Sundays and public holidays”, or   “…as the operational requirements demand ”  occur regularly and should be approached with caution.

It is therefore advisable that conditions in a service contract be stated clearly and specifically before it is ratified – particularly as far as overtime terms and work on Sundays are concerned if an employee earns more than the remuneration ceiling.

To summarise, the following:
• If an employee earns more than R172 000 a year, the provisions of sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) do not apply to his of her service contract. This means that both an employer and the employee cannot appeal to it or set demands in terms of these sections.
• The fact that an employee earns more than R172 000 a year, does not automatically compel him or her to work overtime, and vice versa it does not make an employer automatically entitled to overtime.
• The service contract that has been agreed upon will determine what the specific terms and conditions are and therefore it is important that it be drawn up clearly and specifically.
• Even if an employee earns more than R172 000 a year, an employer is still bound to sections 7 en 48 of the Basic Conditions of Service Act.

What does the law say about working hours?

Answer:

Ordinary working hours are set out in section 12 of the Basic Conditions of Employment Act. In terms of this section, the average number of ordinary hours of work in a week is 45, which comes to nine hours a day for a five-day workweek.

Lunch breaks are not included in ordinary hours of work, as they represent unpaid time. Moreover, an employer and an employee can agree on fewer than 45 hours a week, in which case it is crucial for the agreement to be put in writing.

Any time that is worked over and above 45 hours a week or the agreed number of hours, will be deemed overtime. Section 10 of the Act states that an employer may not require or permit an employee to work overtime, except in accordance with an agreement, or more than 10 hours’ overtime a week. In terms of such an agreement, the weekly overtime may be increased to a maximum of 15 hours. The agreement will apply for two months only. This type of agreement may not require or permit an employee to work more than 12 hours on any day.

Overtime and working on Sundays

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R149 736 to R172 000 per year by Government Gazette 34287 3. This means that if an employee earns a gross salary of more than R172 000, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that this does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

 

Overtime and working on Sundays

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R172 000 to R183 008 per year by Government Notice No. R.429 in Government Gazette No. 34287 3. This means that if an employee earns a gross salary of more than R183 008, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that there is an agreement and the unpaid overtime consequently does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

Please note: This is a revision of a previous Legal Question and indicates the new income limit.

Working hours of farm workers

By Gerhard Hildebrand

Question:

How are the working hours for farmworkers regulated during a state of emergency on the farm?

Answer:

If a state of emergency should arise on a farm under circumstances that the employer could not reasonably have foreseen and provided for, the normal terms and conditions for working hours, overtime, Sunday work, night work, lunch breaks and rest periods do not apply. Examples of such an emergency include fires, floods and outbreaks of disease among livestock.

Under normal working conditions, employers may not allow or expect workers to work overtime unless there is an agreement between the parties and the overtime does not exceed 15 hours a week. The total number of working hours per day, including overtime, should not exceed 12 hours. This provision does not apply during an emergency situation and an employer can then expect a worker to work longer hours, even if there is no agreement, and even if they work longer than the maximum prescribed number of hours during the emergency.

The times the employee can be expected to work, includes Sundays and at night. Night work is work performed between 20:00 and 04:00.

Workers should be granted a daily rest period of at least 12 consecutive hours and a weekly rest period of at least 36 consecutive hours, which should include a Sunday. Farm workers are also entitled to a lunch break of one hour after performing five hours of consecutive work. Again, this provision is not applicable during a state of emergency on the farm.

Although the employer can expect the workers to work longer than the prescribed number of hours, the employer is not exempt from paying them compensation for overtime, night work and work on Sundays.

During the emergency, it is reasonable to expect an employer to rotate the workers’ working hours and to make a use of additional workers on a temporary basis to get the emergency under control.

Paternity Leave (1)

Paternity Leave

Legal question: Paternity Leave
By Phil Davel

Question: What does the law say about paternity leave? How many days’ leave will I be entitled to take when my child is born?

Answer: The Basic Conditions of Employment Act (Act no. 75 of 1997), as amended, includes a provision for family responsibility leave in Section 27. Subsection 27(2)(a) determines that an employee is entitled to family responsibility leave when his or her child is born. Therefore, a father is entitled to family responsibility leave when his child is born. “Paternity leave” is merely a term that is sometimes used to refer to this subsection of the Act, although the Act uses the term “family responsibility leave”.

Nothing prohibits an employer from including a special, additional category of leave in the company’s leave policy. Such categories are quite common in the leave policies of foreign companies.

An employee who has been employed for at least four months and who works at least four days a week and 24 hours a month for the same employer, may take at least three days of paid family responsibility leave during each leave cycle.

Family responsibility leave is granted in the following cases only: 1. When the employee’s child is born or is sick. 2. In the event of the death of the employer’s – – spouse or life partner; – parent, adoptive parent, grandparent; – child, adopted child or grandchild; or – sibling.

An employer may request an employee to provide reasonable proof of such an event before the employee is paid. In other words, if the employee’s child is born, a birth certificate and, possibly, proof of paternity should be provided to the employer.

An employee may take family responsibility leave for a whole day or part of a day. The leave expires at the end of the annual leave cycle and cannot be accrued.

When an employee takes family responsibility leave, he or she must be paid the usual wages for the day(s) in question on the normal payday.

A collective agreement could revise the number of days or the circumstances in which family responsibility leave is granted and an employer may grant more than the required number of days. Such a revision will be set out in the company’s leave policy.

Payment (12)

Can my employer deduct money from my salary without my permission?

Question: Can my employer deduct money from my salary without my permission?  

Answer: In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employer’s salary in the following circumstances:  

The only circumstances in which an employer may deduct money in terms of section 34 is when an employee has given his/her permission in writing for the deduction to be made. An employer may also deduct money in accordance with a collective agreement, act, court order or arbitration.

Deductions in respect of damage or loss may only be made with the permission of an employee after a fair procedure has been followed.

Payment when retrenched

Johan Roos

Question:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.

Answer:

Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.

Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.

Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.

The Basic Conditions of Employment Act states the following:

  1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
  2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
  3. Four weeks’ notice if the employee has been working at the company for more than a year.

The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.

For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Overtime payment for senior managers

Legal question: Overtime payment for senior managers
Phil Davel, Solidarity Legal Services, Service Centre

Question:

What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off.

Answer:

Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers.

A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income threshold on the application of Sections 10 and 16, among others. Government Notice R.100 of number 30720 increased the threshold from R115 572 to R149 736 on 1 February 2008. This means that if an employee earns a salary of more than R149 736 per year, he/she would be excluded from the specific sections in question.

In this case, senior managers’ service contracts will determine what remuneration they are entitled to, and also whether overtime payment applies to them and at what rate.

Overtime work and work on Sundays are not, however, unlimited for senior managers. Section 48 of the Basic Conditions of Employment Act prohibits forced labour. The employer cannot, therefore, force the employee to do any labour. The merits of the case will determine if the required labour is in fact forced labour.

Therefore, in answer to the legal question: The financial manager needs to realise that he/she may be expected to work overtime without payment, provided that it does not constitute forced labour. This is because his/her remuneration package already makes provision for overtime and also because the Act excludes him/her from the required payment for overtime and for work on Sundays.

For more information regarding remuneration and overtime, please call Solidarity’s legal experts on 0861 25 24 23.  

 
 

How much should I be paid for working on a public holiday?

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

How does payment on Sundays work?

Question: How does payment on Sundays work?

Answer: In cases where an employee is expected to work on a Sunday, the employee must receive double payment for the day. This payment is determined by Section 16 of the Basic Conditions of Employment Act. If the employee normally works on a Sunday, payment should be one and a half times the normal rate. An agreement can be reached that the employee will receive time off instead of extra payment.

My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

Am I entitled to interest on pension?

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

Temporary positions

Phil Davel

Question: I was appointed in a temporary position at a private school for the last two terms of the year. My salary is R7 000 per month, before deductions. The teacher who occupied this position before me was only paid until the start of the July holiday. So, despite having rendered years of service to the school, the principal only paid her until the last day of school. I think that this will happen to me as well, and I would like to know what the law says in this regard.

Answer: According to your e-mail, you were only appointed for the last two terms. This means that your employment contract is linked to a fixed term. Therefore, on the last day of the last school term your employment contract automatically comes to an end. Consequently, unless stipulated otherwise, neither of the parties to the employment contract needs to give the other notice of termination of service. Both parties are already aware of it and have agreed on when the employment period will end.

You will only be entitled to payment as calculated in terms of section 35 of the Basic Conditions of Employment Act (Act 75 of 1997) and as agreed in the employment contract (whether in writing or verbally). In other words, years of service do not come into play. The number of years of service only becomes a statutory factor with severance packages in terms of section 41(2) of the same Act. It only applies in two cases: In the case of dismissal due to operational requirements (retrenchments) or if the employment contract is terminated in terms of section 38 of the Insolvency Act (Act 24 of 1936) (liquidations). In other words, when you reach the end of your fixed period of employment, a severance package is not payable.

We are not aware of the terms of your predecessor’s employment contract, but it appears that, as in your case, the contract also automatically ran out on the last day of the term.

Upon termination of your service you will, therefore, only be entitled to the following: your agreed monthly salary, any overtime worked in terms of the agreement, your outstanding leave days and any other money owed to you in terms of legislation or an agreement.

Late deposit of salaries

Question:
I have a problem with my employer. We have an agreement that my salary will be paid in in time for my debit orders to be deducted at the end of the month. April was the umpteenth time that my salary was not available in time for my debit orders to be deducted. The last time that my salary was not paid in timeously I requested a meeting with my employer so that we could discuss the matter. What can I do?

Answer:
The Basic Conditions of Employment Act (Act 75 of 1997) stipulates in Section 32(3)(a) that the employer must pay your salary or wages within seven days after the end of the period in respect of which it was payable. This means that the Act grants the employer seven days’ respite after the pay date agreed upon to pay his employees’ remuneration. If, however, this is not done, the next step would be to lodge an internal grievance against the employer. This can be followed by a letter of demand to your employer. When all the internal steps have been exhausted you must contact the Department of Labour because your employer fails to pay in salaries within the appointed time. Regarding the costs such as bank charges and interest that you unnecessarily incurred as a result of the employer’s neglect, you can bring a claim for damages against the employer if you can prove the damages. Depending on the amount, the correct forum will be either the small-claims court or the magistrate’s court. A further point of advice is that, should the empoloyer make a habit of not paying your salary in time, you could move the deduction date of your debit orders to the seventh or even the tenth day of each month. This would only be a positive step to protect yourself even further.

If there are any further questions regarding the late payment of salaries, feel free to call the legal experts at Solidarity’s call centre on 0861 25 24 23.

 

 

My husband works for an air-conditioning company. He wants to resign and wants to know which moneys will be due to him by the company.

By Phil Davel

Answer:

On terminating his service your husband will be entitled to the following remuneration:

- His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Service Act (Act 75 of 1997) and as agreed in his employment contract (whether in writing or verbally);
- any overtime worked in terms of an agreement;
- his outstanding leave; and
- any other moneys owing to him in terms of an agreement or legislation.

It is also advisable to, on voluntary termination of service, take note of among others the following: Should your husband decide to resign, take into account the agreed period of notice as stated in the employment contract. The employer may not demand that he work a longer notice period. If no agreement was entered into concerning the notice period, or should the company’s policy not contain a stipulation in this regard, the normal regulation regarding notice periods as contained in section 37 of the Act will apply. The employment contract also needs to be reviewed to see if it has a prohibition of competition clause. This aspect will be of importance, especially if your husband intends to enter the employ of a similar employer in the same industry. A prohibition of competition clause can, among others, stipulate that your husband may, for a certain period and within a certain radius, not work for the competition.

Equal pay for equal work

By AJ van der Bijl

Question:

I work for the financial department of a manufacturing company. Although I do the same work as a colleague, her salary is higher than mine. Is this difference in pay reasonable, or does it amount to some type of discrimination?

Answer:

Unequal pay for the same work is regulated by the Employment Equity Act (No. 55 of 1998) and the Labour Relations Act (No. 66 of 1995) which aim to promote equality in the workplace. This legislation does not explicitly disallow unequal pay for work of equal value and merely prohibits discriminatory practices.

In TGWU & Another v Bayete Security Holdings (1999) 20 ILJ 1117 (LC), Judge Grogan ruled as follows [own emphasis]:

It is so that to pay one employee more than another for doing the same work may have amounted to an unfair labour practice under the 1956 Act (see SA Chemical Workers Union v Sentachem Ltd (1988) 9 ILJ 410 (IC)), and would also be so under the new Act if it is done for an arbitrary reason. However, the mere fact that an employer pays one employee more than another does not in itself amount to discrimination: see Du Toit et al., The Labour Relations Act of 1995 (2nd ed.) at 436. Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, experience, skills, and the like.

The above opinion was echoed in Ntai & others v South African Breweries Ltd (2001) 22 ILJ 214 (LC) where the court stated the following [own emphasis]:

Litigants who bring discrimination cases to the Labour Court and simply allege that there was “discrimination” on some or other “arbitrary” ground, without identifying such ground, would be well advised to take note that the mere “arbitrary” actions of an employer do not, as such, amount to “discrimination” within the accepted legal definition of the concept.

It is clear from the abovementioned case law that, even though the principle of equal pay for equal work, or equal pay for work of equal value is accepted in our legislation, failure to apply this principle will only amount to unfair discrimination if the reason for distinguishing between employees’ salaries is shown to be one of the grounds referred to section 6 of the Employment Equity Act, namely race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Mibco

By Alexia Vosloo

Question:

What is Mibco?

Answer:

Mibco is the bargaining council for the motor industry. Bargaining councils basically have the same jurisdiction as the Commission for Conciliation, Mediation and Arbitration. Certain industries form their own bargaining councils with whom employers have to be registered, where wage negotiations have to be conducted; and to whom disputes regarding unfair dismissal and labour practices can be referred.

The Labour Relations Act (No. 66 of 1995) provides for the self-regulation of industries through the medium of bargaining councils. Mibco is a bargaining council as envisaged in the Act. Its mission is to create and maintain industrial peace and stability in the motor industry. It provides the following services to approximately 14 000 employers and 182 000 employees throughout the country:

  • A forum and facilities for collective bargaining;
  • the settlement of labour disputes; and
  • the provision of social benefits, that is, pension, provident, medical, sick, accident, maternity and holiday pay funds, for the upliftment of all persons falling within the industry.

Mibco consists of representatives from both employers and employees’ organisations and has equal representation from both groups.

The agreements negotiated by the council are, where necessary, extended by the state to cover the entire industry once it is satisfied that the parties to the council are representative of the majority. It is for this reason that all employers and employees within the motor industry fall under Mibco’s jurisdiction.

As bargaining councils are not funded by the state, all employers and their employees pay a levy for the funding of the councils.

The minimum wage for the period 5 September 2012 to 31 Augustus 2013 as outlined in the agreement reached at Mibco and in circular no. 05/2012 dated 16 August 2012 was R772,20 per week or an hourly wage of R17,16.

We are at present awaiting the announcement of the new fixed wage.

When am I entitled to a bonus?

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer:

Definition of a bonus: A bonus is a remuneration and is described in Chapter 1 of the Basic Conditions of Service, Act 75 of 1997 (as amended) as: “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning”. It is an extra payment in addition to someone’s normal wage and overtime for good performance of targets attained.
Bonuses are discretionary:
In general it is firstly important to understand that there are no legal conditions in the Labour Law which determine or regulate the payment of bonuses; it is a matter of agreement between the employer and employee and therefore a contractual matter rather than a labour law issue. It therefore follows that if your employer is currently not paying out any bonuses of any nature, it remains discretionary. Bonuses are seldom guaranteed and it would not be expedient to expect this discretionary benefit because bonuses were paid out the previous year. Most service contracts contain conditions which indicate that bonuses are paid at the sole discretion of the employer.
Three basic kinds of bonuses
• The 13th cheque or Christmas bonus: This bonus is usually paid at the end of the year and is a form of acknowledgement and appreciation for excellent service rendered.
• Performance bonus: A performance bonus is paid for good performance and could be a non-recurrent amount which is shared among employees or be based on a percentage of an employee’s salary of wage.
• Production bonus: This kind of bonus is output and target driven and not based solely on company standards. For example the output/production of at least 100 units per employee per month meets a specific quality.
When can an employer be expected to pay out bonuses?
Whether a bonus is payable or not mainly depends on three factors:
1. The terms and conditions of an individual service contract or collective agreement. Where payment of bonuses for example is a 13th cheque is a substantial condition of a contract and is guaranteed, the bonus has to be paid out.
2. The company policy with regards to bonuses. (Note that in these two cases employers usually include exclusion clauses and conditions in their contracts and policies. Examples are the attainment of pre-determined objectives or a specific gross profit margin).
3. The third factor is especially problematic. If an employer has consistently paid out bonuses in the past and has created a substantial expectation with employees that has become an existing “habit and use”, employees have obtained a common-law right that could entitle them to an annual bonus. The problem is that employees sometimes budget for the bonus because of this expectation and it could be unfair if the expected bonus is not paid out. Because the employees have developed a strong right of expectation, it could be strengthened even further if the non-payment of bonuses (due to say a poor trade return) is not communicated to employees well in advance and in time. Although the right of expectation does not constitute an absolute right to claim a bonus, it creates a right to be consulted in advance before the employer decides not to pay out bonuses. Anything from three to six months is a fair period.
What can be done if compulsory bonuses are not paid out?
A unilateral decision not to pay out bonuses could mean breach of contract where an employee could claim damages or even claim for specific compliance in a civil suit (which will in most instances be the case). In terms of section 77(3) of the Act the labour courts enjoy concurrent jurisdiction with civil courts with regard to service contracts and the matter could be referred to them.
For further information or enquiries about bonuses, phone Solidarity’s service centre on 0861-25-24-23.

Teachers’ salaries

Question: I was appointed in a temporary position at a private school for the last two terms of the year. My salary is R7 000 per month, before deductions. The teacher who occupied this position before me was only paid until the start of the July holiday. So, despite having rendered years of service to the school, the principal only paid her until the last day of school. I think that this will happen to me as well, and I would like to know what the law says in this regard.

Answer: According to your e-mail, you were only appointed for the last two terms. This means that your employment contract is linked to a fixed term. Therefore, on the last day of the last school term your employment contract automatically comes to an end. Consequently, unless stipulated otherwise, neither of the parties to the employment contract needs to give the other notice of termination of service. Both parties are already aware of it and have agreed on when the employment period will end.

You will only be entitled to payment as calculated in terms of section 35 of the Basic Conditions of Employment Act (Act 75 of 1997) and as agreed in the employment contract (whether in writing or verbally). In other words, years of service do not come into play. The number of years of service only becomes a statutory factor with severance packages in terms of section 41(2) of the same Act. It only applies in two cases: In the case of dismissal due to operational requirements (retrenchments) or if the employment contract is terminated in terms of section 38 of the Insolvency Act (Act 24 of 1936) (liquidations). In other words, when you reach the end of your fixed period of employment, a severance package is not payable.

We are not aware of the terms of your predecessor’s employment contract, but it appears that, as in your case, the contract also automatically ran out on the last day of the term.

Upon termination of your service you will, therefore, only be entitled to the following: your agreed monthly salary, any overtime worked in terms of the agreement, your outstanding leave days and any other money owed to you in terms of legislation or an agreement.

Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Question: Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Answer: As in the case of bonuses, salary increases are granted at the discretion of the employer, unless such increases are determined and guaranteed according to agreement. The employee is not entitled to a salary increase. The employee may make enquiries and request that the employer adjust the salary structure. Increases linked with the current inflation rate plus 2% are usually sufficient. The inflation rate is currently 5,1%. 

What remuneration is an employee entitled to if he works on public holidays or Sundays?

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

I am experiencing problems regarding the payment of my salary

Question: I am experiencing problems regarding the payment of my salary. I have an agreement with my employer that my salary will be deposited into my bank account in time for my debit orders at the end of the month. However, my salary was deposited too late for my debit orders in April, which has happened before. The last time this happened, I requested to have a meeting with my employer to discuss the matter. What should I do now?

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer: The Basic Conditions of Employment Act, no. 75 of 1997, determines in section 32(3)(a) that employers must pay employees’ salaries/wages within seven days of the period for which the salaries/wages are payable. Therefore, the Act gives employers a grace period of seven days after the agreed date of payment to disburse employees’ salaries.

If your employer does not pay your salary within this grace period, you can lodge an internal grievance against the employer. The grievance can be followed by a prompt note to the employer. Once you have followed all internal procedures, you can contact the Department of Labour, since your employer has failed to disburse salaries within the determined period.

With respect to charges such as bank charges and interest that may have accrued unnecessarily owing to your employer’s failure to pay your salary on the agreed date, you can lodge a claim for damages against your employer, provided that you are able to prove the damages. Depending on the amount involved, the appropriate forum will be the small claims court or the magistrate’s court. If your employer continues to pay your salary late, you can have the date of your debit orders moved to the seventh or even the tenth day of the month to protect yourself further.

If you have any further questions about the late payment of salaries/wages, please contact the legal experts at Solidarity’s service centre on 0861 25 24 23.

Must I receive a pay slip

By Johan Roos

Question: Must I receive a pay slip?

Answer: The day on which an employee receives payment, the employer must provide him or her with the following information in writing:

The employer’s name and address.
The employee’s name and job title.
The period for which the payment is made.
The employee’s earnings.
Any deductions made from the employee’s salary.
The net income of the employee.
Any other relevant calculations.

May an employer deduct money from my salary without my consent?

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

My employer has not paid my salary this month. What can I do about it?

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

Which information should appear on my salary slip?

By Johan Roos

Answer

In accordance with Article 33 of the Labour Relations Act (Act 66 of 1995) the following information should appear on a salary slip: employer’s name and address; employee’s name and occupation; period of payment; payment in cash; any deductions from the remuneration; the actual amount paid out; if relevant to the calculation of the employee’s remuneration, the employee’s remuneration and overtime rate; the number of ordinary and overtime hours worked during the period of payment; the number of hours worked on a Sunday or public holiday during the period; and, if it was agreed to calculate the average working time, the total number of ordinary and overtime hours worked during the period.

My rights with sick leave days

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

Outstanding statutory dues

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

Resign (5)

My husband works for an air-conditioning company. He wants to resign and wants to know which moneys will be due to him by the company.

By Phil Davel

Answer:

On terminating his service your husband will be entitled to the following remuneration:

- His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Service Act (Act 75 of 1997) and as agreed in his employment contract (whether in writing or verbally);
- any overtime worked in terms of an agreement;
- his outstanding leave; and
- any other moneys owing to him in terms of an agreement or legislation.

It is also advisable to, on voluntary termination of service, take note of among others the following: Should your husband decide to resign, take into account the agreed period of notice as stated in the employment contract. The employer may not demand that he work a longer notice period. If no agreement was entered into concerning the notice period, or should the company’s policy not contain a stipulation in this regard, the normal regulation regarding notice periods as contained in section 37 of the Act will apply. The employment contract also needs to be reviewed to see if it has a prohibition of competition clause. This aspect will be of importance, especially if your husband intends to enter the employ of a similar employer in the same industry. A prohibition of competition clause can, among others, stipulate that your husband may, for a certain period and within a certain radius, not work for the competition.

Notice

By Johan Roos

Question

I have given a month’s notice in accordance with my contract. My employee asked me to leave immediately because someone else had already been found to fill my post. Can I insist on working for the duration of the month’s notice? What payments should be made to me?

Answer

To answer the question the Basic Conditions of Employment Act (Act 75 of 1997) and specifically article 38 must be consulted. According to article 38 the employer must pay out your month’s notice even if they do not want you to work out the month.

In the case of termination of employment, an employee’s remaining yearly leave must also be paid out in accordance with section 40 of the Basic Conditions of Employment Act. Yearly leave can be calculated on a pro rata basis – for every 17 days worked, one day’s leave must be granted.

Medical certificate

By Adv. Paul Mardon

Question:

A month ago I resigned at mine A to take up a better position at another mine. I was medically examined when I left the service of the mine. The mine doctor and I regularly clashed over small things in the past and he refused to give me a certificate for this medical examination. I secured a good position at another mine, but they require a medical certificate from my previous employer for the medical examination that I underwent when I left the service of mine A. The other mine refuses to appoint me without this medical certificate. I asked my previous employer to give it to me, but the mine doctor says that it was their medical examination and they refuse to give it to me or the new mine. Is the mine obliged to give me the results of my last medical examination?

Answer:

Section 17 of the Mine Health and Safety Act (Act 29 of 1996), read with section 19, stipulates that an employer shall, at the cost of the employer, upon termination of service for whatsoever reason perform an exit medical examination on employees who are subject to medical surveillance at a mine. The occupational medical practitioner who performs the examination must prepare an exit certificate that reflects the results of all medical surveillance and it must specify whether any occupational diseases are present. A copy of this exit certificate must be filed in the empoyee’s medical surveillance record and, at the request of the employee, the employer must provide a copy of this record to the employee. Anybody who refuses to provide this exit certificate to the employee at his/her request, is guilty of a misdemeanor in terms of section 91 of the said act and, if found guilty, could be sentenced to a fine or imprisonment for a period not exceeding six months. I suggest that you report the doctor’s refusal to provide the exit certificate to your previous employer’s Human Relations Manager and that, should the employer still refuse to provide the certificate, you report it to the office of the Inspector of Mines of the Department of Minerals and Energy in your area.

Resignation

Question:

Can a resignation be withdrawn?

Answer:

As is the case with most labour-law matters, there is no clear yes or no answer. In the case of Lottering & others vs Stellenbosch Municipality (2010) 31 ILJ 2923 (AH) the employees resigned without giving the required notice as stipulated in their contracts. In the Labour Court the employees argued, among other things, that their resignation had no legal force because of their neglect to comply with the period of notice as set out in the Basic Conditions of Service Act (No. 75 of 1997) and their service contracts.

The Labour Court found that a clear resignation cannot be withdrawn without the employer’s consent. An explicit acceptance by the employer is not necessary either. It was further found that a service contract ends when the period of notice expires and not when notice is given. The court confirmed that should an employee’s resignation not comply with the stipulated period of notice, this does not render the resignation invalid – it implies breach of contract and it is the employer who has an option to accept the resignation or not.

The lesson to be learned from this is not to resign on the spur of the moment. A decision to resign must be a well-considered one.

Resignation

Question

I work for a pharmacy. My employer and I agreed in my contract of employment that I must give eight weeks’ notice if I want to resign after more than a year’s service. The contract also specifies that I must be aware of all the policies of the pharmacy and the rules that are applicable to me.

I gave eight weeks’ written notice to the employer, but the manager is insisting that I leave a month earlier, because the policy states that employees must give only 30 days’ notice. I won’t be able to leave a month earlier, as I did not make provision for it financially. What should I do now?

Answer

Section 37(1) of the Basic Conditions of Employment Act (No. 75 of 1997) states that if an employee has been employed for a year or longer, a minimum of four weeks’ notice is required upon resignation. Nothing prevents the parties from mutually agreeing on a notice period that is longer than the prescribed minimum period. Such an agreement will (subject to subsection 3 which states that the notice period for an employee may not be shorter than the notice period for the employer) will therefore be entirely valid.

In your case, you and your employer negotiated a fundamental condition of employment and reached an agreement on the provisions of resignation, namely that you mutually agreed that you must give eight weeks’ notice if you have been employed for longer than 12 months.

Conditions of employment cannot be changed one-sidedly. Merely citing the policy (which can be changed one-sidedly) would go against the stronger right obtained through bargaining.

Our advice is therefore that you invoke the provisions of your contract of employment that were negotiated beforehand, namely that you must give eight weeks’ notice. This provision is in line with section 4(c) of the Act, which states that a provision in a contract that is more beneficial for the employee must be specified as such.

Responsibility leave (2)

Responsibility leave

Question:

I have to attend a cremation service in Australia of a family member who emigrated there. I would like to know, if I have to take nine days’ leave to attend the service, could I have it deducted from my family responsibility leave over three years?

Answer:

In terms of section 27 of the Basic Conditions of Service Act, every employee has only three days’ family responsibility leave per year. It cannot be carried over to a following year and you cannot take nine days’ family responsibility leave in advance, unless, of course, the employer allows it, but you will not be entitled to it in terms of the Act.

If you took three days’ family responsibility leave during the course of the year, you have exhausted it and you will have to take ordinary leave should you need more leave in the same year. You will not be able to take nine days now and not take family responsibility leave for the next three years.

Sick leave, however, is different. Section 22 stipulates that you have 36 days’ continuous sick leave in every three-year cycle and if you take all of it during the first year, you have nothing left for the rest of the three years. Section 27 (which deals with family responsibility leave in the event of the death of a family member, as provided for in the Act), however, does not mention a three-year period/cycle.

Remember that your starting point will always be to consult your employment contract or the employer’s leave policy. It is possible that the contract or policy could be more favourable than the Basic Conditions of Service Act. You may also ask the employer for a special concession but, if the provisions of section 27 are being complied with, you have, as was mentioned, only three days’ family responsibility leave a year and you will have to take ordinary leave if you want to take the other six days.

Feel free to contact the Solidarity Call Centre on 0861 25 24 23 if you have any further enquiries about family responsibility leave.

Family responsibility leave

By Lizette Snyman

Question:

My child is older than 18 years. Will I be able to take family responsibility leave when he is sick?

Answer:

Section 27 of the Basic Conditions of Employment Act (No. 75 of 1997) provides that family responsibility leave may be taken –

“(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of –
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.”

In terms of the Basic Conditions of Employment Act, a child is defined as “a person who is under 18 years of age”.

Therefore, if your child is older than 18 years, you will not be able to take family responsibility leave when he or she is sick.

If you have any further questions, please contact our Service Centre on 0861 25 24 23, or e-mail your request to diens@solidariteit.co.za.

Retirement (3)

What guidelines are there regarding retirement age?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

Getting older is something that no employee can avoid. In most cases employees accept it, but sometimes there are employees who feel that they can still work for a few extra years. In many cases it is true that they can in fact work for a number of years more. Nevertheless, the employer could argue that older staff members must make way for younger ones, or employees are told that their service will be terminated when they reach retirement age.
In terms of Section 186(2)(b) of the Labour Relations Act, dismissal is justified when the employee reaches the agreed retirement age or the age at which employees in that capacity normally retire.
Nevertheless, an employee can still not be dismissed because he/she is getting older, even if he/she is losing his/her ability to work.
If there is not an agreed retirement age and the employer questions the employee’s ability to do his/her work, the employer can address the issue. However, the onus will be on the employer to prove the employee’s inability.
The employee can be obliged to retire if there is an agreed retirement age in writing. In most cases, the employee is protected by Section 186(2)(b) of the Labour Relations Act.
For further enquiries regarding retirement age and the law, call Solidarity’s legal experts on 0861 25 24 23.

Am I entitled to interest on pension?

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

Work after retirement age

Question:

If an employer has allowed me to keep on working after I reached the agreed or normal retirement age, is the employer then entitled to terminate my services at any time thereafter because of my age?

Answer:

In the CCMA ruling Buhai v Hotbake Systems (Pty) Ltd t/a Rich Products Corporation of South Africa – (2013) 22 CCMA 7.1.4, the employee was appointed by the employer shortly before he reached the age of 65. After the employee turned 65, the employer allowed him to keep on working for a time, but he was later told that he had to retire. The employee claimed that the employer decided to get rid of him because he had developed personal financial problems. Therefore, the employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner ruled that the employer was aware of the fact that the employee was nearly 65 years of age when he appointed him. The commissioner’s ruling was based on evidence that other employees of the employer were also allowed to keep on working after the age of 65. The Commissioner also found that the employer should have been aware of the fact that the employee had reached the age of 65 and the employer also allowed that particular employee to continue working after the age of 65. Hence, the Commissioner ruled that the employer was not in a position to argue that the real reason for the termination of the employee’s services was the fact that he had reached his ‘normal or agreed’ retirement age. The real reason for the termination was something else and the employer therefore did not follow the correct procedure associated with the real reason for termination. Therefore, the employee’s dismissal was unfair.

Retrenchments and procedures (8)

Our company is busy with retrenchments. What can I expect to get out?

Legal question about retrenchments
Answered by Phil Davel, Solidarity Legal Services, Service Centre

Question: Our company is busy with retrenchments. What can I expect to get out?

If an employer is going through a retrenchment process, the retrenchments must – in terms of Section 41 of the Basic Conditions of Employment Act (Act 75 of 1997, as amended), Section 189 of the Labour Relations Act (Act 66 of 1995) and the code of conduct regarding retrenchments – be based on operational requirements. It is at this stage that the trade unions try to avoid, prevent or delay the retrenchment process, or try to find ways of reducing the extent of the retrenchments. If it seems that retrenchments are inevitable, the trade unions step in on behalf of their members to negotiate the best severance packages possible with the employer.

Severance packages are regulated by Section 41 of the Basic Conditions of Employment Act. This act determines that a severance package is payable if the employee is retrenched:

• Due to the employer’s operational requirements; or

• If the employer is liquidated in terms of Section 38 of the Insolvency Act (Act 24 of 1936).

Operational requirements are defined in Section 41(1) of the Basic Conditions of Employment Act as well as the above-mentioned code of conduct as requirements based on:

• Economic requirements, e.g. the employer is experiencing financial difficulty due to a drop in the demand for of the selling price of its products;

• Structural requirements, e.g. the entire department becomes obsolete or is contracted out;

• Technological requirements, e.g. machinery is acquired that can carry out the manufacturing or processes more cheaply; and

• Similar requirements – this type of situation arises if, for example, the employer moves away and has to close the business.

Determining severance packages

The minimum severance package payable to the employee is equal to one week’s salary or wage for every year of service the employee completed at the employer. In the case of a collective agreement, a service contract or a sectoral stipulation this stipulation can, however, differ.

Note that this is only the minimum requirement and the employee is free to negotiate, on his/her own or through a trade union (if there is a collective agreement), for a better package, for example two weeks’ salary for every completed year or four months’ salary.

The employee is in an especially favourable position to negotiate if it is a voluntary retrenchment process, in other words the employee is first given the choice to accept a severance package and therefore to be retrenched voluntarily. This usually happens before a forced retrenchment process begins. Previous service at the same employer interrupted for a period of less than one year is regarded as continuous service unless there was a previous retrenchment.

Right to remuneration remains untouched

The pay-out of a severance does not affect the employee’s right to any other remuneration. Therefore, the pay-out of outstanding leave and the required notice period is still in force.

Employee can forfeit severance package

Something that could be to the employee’s detriment is if the employer, in order to avoid retrenchment, offers the employee alternative employment (even at a lower salary or at another employer) and the employee unreasonably declines. In such a case the employer is not obliged to pay a severance package.

Resolution of disputes

If a dispute arises regarding a severance package, it can be referred, in writing, to the appropriate negotiation or statutory board or to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and arbitration. If the dispute remains unresolved, it can be referred to the Labour Court. The Labour Court can then issue any order regarding the amount payable and also order the employer to make such payment.

For further information regarding severance packages, please call Solidarity’s legal experts at the service centre at 0861 25 24 23.

 

Payment when retrenched

Johan Roos

Question:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.

Answer:

Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.

Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.

Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.

The Basic Conditions of Employment Act states the following:

  1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
  2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
  3. Four weeks’ notice if the employee has been working at the company for more than a year.

The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.

For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Retrenchments

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:

There are talks of retrenchment at the company where I work. I would like to know what payment I am entitled to when I am retrenched?

Answer:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.
Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.
Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.
Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.
The Basic Conditions of Employment Act states the following:
1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
3. Four weeks’ notice if the employee has been working at the company for more than a year.
The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.
For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Retrenchments

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Question:
Our company is busy with retrenchments. What can I expect to get out?

Answer:
If an employer is going through a retrenchment process, the retrenchments must – in terms of Section 41 of the Basic Conditions of Employment Act (Act 75 of 1997, as amended), Section 189 of the Labour Relations Act (Act 66 of 1995) and the code of conduct regarding retrenchments – be based on operational requirements. It is at this stage that the trade unions try to avoid, prevent or delay the retrenchment process, or try to find ways of reducing the extent of the retrenchments. If it seems that retrenchments are inevitable, the trade unions step in on behalf of their members to negotiate the best severance packages possible with the employer.
Severance packages are regulated by Section 41 of the Basic Conditions of Employment Act. This act determines that a severance package is payable if the employee is retrenched:
• Due to the employer’s operational requirements; or
• If the employer is liquidated in terms of Section 38 of the Insolvency Act (Act 24 of 1936).
Operational requirements are defined in Section 41(1) of the Basic Conditions of Employment Act as well as the above-mentioned code of conduct as requirements based on:
• Economic requirements, e.g. the employer is experiencing financial difficulty due to a drop in the demand for of the selling price of its products;
• Structural requirements, e.g. the entire department becomes obsolete or is contracted out;
• Technological requirements, e.g. machinery is acquired that can carry out the manufacturing or processes more cheaply; and
• Similar requirements – this type of situation arises if, for example, the employer moves away and has to close the business.
Determining severance packages
The minimum severance package payable to the employee is equal to one week’s salary or wage for every year of service the employee completed at the employer. In the case of a collective agreement, a service contract or a sectoral stipulation this stipulation can, however, differ.
Note that this is only the minimum requirement and the employee is free to negotiate, on his/her own or through a trade union (if there is a collective agreement), for a better package, for example two weeks’ salary for every completed year or four months’ salary.
The employee is in an especially favourable position to negotiate if it is a voluntary retrenchment process, in other words the employee is first given the choice to accept a severance package and therefore to be retrenched voluntarily. This usually happens before a forced retrenchment process begins. Previous service at the same employer interrupted for a period of less than one year is regarded as continuous service unless there was a previous retrenchment.
Right to remuneration remains untouched
The pay-out of a severance does not affect the employee’s right to any other remuneration. Therefore, the pay-out of outstanding leave and the required notice period is still in force.
Employee can forfeit severance package
Something that could be to the employee’s detriment is if the employer, in order to avoid retrenchment, offers the employee alternative employment (even at a lower salary or at another employer) and the employee unreasonably declines. In such a case the employer is not obliged to pay a severance package.
Resolution of disputes
If a dispute arises regarding a severance package, it can be referred, in writing, to the appropriate negotiation or statutory board or to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and arbitration. If the dispute remains unresolved, it can be referred to the Labour Court. The Labour Court can then issue any order regarding the amount payable and also order the employer to make such payment.
For further information regarding severance packages, please call Solidarity’s legal experts at the service centre at 0861 25 24 23.

Disability

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

  1. Is the employee able to work or not?
  2. Extent to which the employee is able to work;
  3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
  4. Adjustment of the employee’s duties.

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

Dismissal

By Herman Cronjé

Question:

How do I know that I have been dismissed and what should I do next?

Answer:

Dismissal under Labour Law and the death penalty under criminal law are often compared with each other and to somebody who has already been dismissed, this comparison could make sense.

Dismissal can be described by one of the following sets of circumstances:

1.    Dismissal after a disciplinary hearing at which an employee was found guilty and the presiding officer was of the opinion that dismissal was the correct punishment.
2.    Dismissal after a retrenchment process. In such an event the procedures as set out in section 189 of the Labour Relations Act (Act 66 of 1995) must be followed.
3.    When a fixed-term contract expires. In such an event there can only be talk of dismissal if the employer gave the employee cause to expect that the contract would be renewed.

Losing one’s job is of course a traumatic experience and it is important to know what to do when it happens to you.
If you are a member of Solidarity, you must inform us the moment you notice something suspicious at work so that we can advise you throughout the process and, if necessary, support you. It is important to know what your date of dismissal is. The date of dismissal is:

1.    The day on which your service contract is terminated; or
2.    The day on which you leave your employer’s service, whichever comes first.

When somebody is dismissed, the matter must naturally be referred to the CCMA. This referral must take place within 30 days of dismissal. It is, however, important to note that if you are dismissed by way of notice, a referral may be made when the notice is received.

However, the best time for a referral is when you have already worked your last day because at that stage there can longer be any disputes about whether there was a dismissal or not.

In Labour Law (as in most divisions of our law) every case is evaluated on its merits and the facts of each case must be taken into consideration. This presumption of facts exists from the first conflict between employer and employee and it is therefore important to involve Solidarity immediately so that you can be put in the best possible legal position. .

Claims and counterclaims in the Labour Court

By Helgard Cronjé

Question

Outstanding statutory dues such as moneys that are owed for leave, salaries, notice periods and retrenchment packages are often claimed in the Labour Court. What happens when an employer brings a counterclaim for damage caused by an employee?

Answer

Employers often claim they have suffered damages and consequently withhold employees’ statutory dues in the case of retrenchment, dismissal or resignation. This practice is illegal in terms of section 34 of the Basic Conditions of Employment Act. The Act stipulates that a deduction may only be made from an employee’s remuneration with his or her consent, or if the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

What must employees do if their employer withholds or deducts money illegally? The first step is to report the matter to the Department of Labour. If the department is unable to help, the next step is to lodge a claim for the monies with the Labour Court. However, such a decision should be approached cautiously. It is important to bear in mind that an employer could succeed in a counterclaim for damage caused by an employee.

In the case Stoop and Another v. Rand Water it was ruled that the Labour Court does have jurisdiction to make judgments regarding counterclaims relating to damages in labour matters, even if such claims are not strictly labour suits. In the case in question, the employees had to compensate the employer R8 million in damages.

No one wants to win a long, expensive lawsuit, only to find out that his or her claim’s monies have to be written off against the employer’s counterclaim. Likewise, an employee would not want to pay in an amount on the employer’s claim, or be issued with an order to pay the employer’s legal costs.

The decision to lodge a claim with the Labour Court must therefore be approached with great caution, especially in cases where the employer could lodge a counterclaim. The merits of the potential counterclaim must be considered as carefully as possible before the matter is referred to the Labour Court.

Salary (12)

Teachers’ salaries

Question: I was appointed in a temporary position at a private school for the last two terms of the year. My salary is R7 000 per month, before deductions. The teacher who occupied this position before me was only paid until the start of the July holiday. So, despite having rendered years of service to the school, the principal only paid her until the last day of school. I think that this will happen to me as well, and I would like to know what the law says in this regard.

Answer: According to your e-mail, you were only appointed for the last two terms. This means that your employment contract is linked to a fixed term. Therefore, on the last day of the last school term your employment contract automatically comes to an end. Consequently, unless stipulated otherwise, neither of the parties to the employment contract needs to give the other notice of termination of service. Both parties are already aware of it and have agreed on when the employment period will end.

You will only be entitled to payment as calculated in terms of section 35 of the Basic Conditions of Employment Act (Act 75 of 1997) and as agreed in the employment contract (whether in writing or verbally). In other words, years of service do not come into play. The number of years of service only becomes a statutory factor with severance packages in terms of section 41(2) of the same Act. It only applies in two cases: In the case of dismissal due to operational requirements (retrenchments) or if the employment contract is terminated in terms of section 38 of the Insolvency Act (Act 24 of 1936) (liquidations). In other words, when you reach the end of your fixed period of employment, a severance package is not payable.

We are not aware of the terms of your predecessor’s employment contract, but it appears that, as in your case, the contract also automatically ran out on the last day of the term.

Upon termination of your service you will, therefore, only be entitled to the following: your agreed monthly salary, any overtime worked in terms of the agreement, your outstanding leave days and any other money owed to you in terms of legislation or an agreement.

Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Question: Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Answer: As in the case of bonuses, salary increases are granted at the discretion of the employer, unless such increases are determined and guaranteed according to agreement. The employee is not entitled to a salary increase. The employee may make enquiries and request that the employer adjust the salary structure. Increases linked with the current inflation rate plus 2% are usually sufficient. The inflation rate is currently 5,1%. 

What remuneration is an employee entitled to if he works on public holidays or Sundays?

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

I am experiencing problems regarding the payment of my salary

Question: I am experiencing problems regarding the payment of my salary. I have an agreement with my employer that my salary will be deposited into my bank account in time for my debit orders at the end of the month. However, my salary was deposited too late for my debit orders in April, which has happened before. The last time this happened, I requested to have a meeting with my employer to discuss the matter. What should I do now?

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer: The Basic Conditions of Employment Act, no. 75 of 1997, determines in section 32(3)(a) that employers must pay employees’ salaries/wages within seven days of the period for which the salaries/wages are payable. Therefore, the Act gives employers a grace period of seven days after the agreed date of payment to disburse employees’ salaries.

If your employer does not pay your salary within this grace period, you can lodge an internal grievance against the employer. The grievance can be followed by a prompt note to the employer. Once you have followed all internal procedures, you can contact the Department of Labour, since your employer has failed to disburse salaries within the determined period.

With respect to charges such as bank charges and interest that may have accrued unnecessarily owing to your employer’s failure to pay your salary on the agreed date, you can lodge a claim for damages against your employer, provided that you are able to prove the damages. Depending on the amount involved, the appropriate forum will be the small claims court or the magistrate’s court. If your employer continues to pay your salary late, you can have the date of your debit orders moved to the seventh or even the tenth day of the month to protect yourself further.

If you have any further questions about the late payment of salaries/wages, please contact the legal experts at Solidarity’s service centre on 0861 25 24 23.

Must I receive a pay slip

By Johan Roos

Question: Must I receive a pay slip?

Answer: The day on which an employee receives payment, the employer must provide him or her with the following information in writing:

The employer’s name and address.
The employee’s name and job title.
The period for which the payment is made.
The employee’s earnings.
Any deductions made from the employee’s salary.
The net income of the employee.
Any other relevant calculations.

May an employer deduct money from my salary without my consent?

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

Late deposit of salaries

Question:
I have a problem with my employer. We have an agreement that my salary will be paid in in time for my debit orders to be deducted at the end of the month. April was the umpteenth time that my salary was not available in time for my debit orders to be deducted. The last time that my salary was not paid in timeously I requested a meeting with my employer so that we could discuss the matter. What can I do?

Answer:
The Basic Conditions of Employment Act (Act 75 of 1997) stipulates in Section 32(3)(a) that the employer must pay your salary or wages within seven days after the end of the period in respect of which it was payable. This means that the Act grants the employer seven days’ respite after the pay date agreed upon to pay his employees’ remuneration. If, however, this is not done, the next step would be to lodge an internal grievance against the employer. This can be followed by a letter of demand to your employer. When all the internal steps have been exhausted you must contact the Department of Labour because your employer fails to pay in salaries within the appointed time. Regarding the costs such as bank charges and interest that you unnecessarily incurred as a result of the employer’s neglect, you can bring a claim for damages against the employer if you can prove the damages. Depending on the amount, the correct forum will be either the small-claims court or the magistrate’s court. A further point of advice is that, should the empoloyer make a habit of not paying your salary in time, you could move the deduction date of your debit orders to the seventh or even the tenth day of each month. This would only be a positive step to protect yourself even further.

If there are any further questions regarding the late payment of salaries, feel free to call the legal experts at Solidarity’s call centre on 0861 25 24 23.

 

 

My employer has not paid my salary this month. What can I do about it?

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

Which information should appear on my salary slip?

By Johan Roos

Answer

In accordance with Article 33 of the Labour Relations Act (Act 66 of 1995) the following information should appear on a salary slip: employer’s name and address; employee’s name and occupation; period of payment; payment in cash; any deductions from the remuneration; the actual amount paid out; if relevant to the calculation of the employee’s remuneration, the employee’s remuneration and overtime rate; the number of ordinary and overtime hours worked during the period of payment; the number of hours worked on a Sunday or public holiday during the period; and, if it was agreed to calculate the average working time, the total number of ordinary and overtime hours worked during the period.

My rights with sick leave days

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

Outstanding statutory dues

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

Equal pay for equal work

By AJ van der Bijl

Question:

I work for the financial department of a manufacturing company. Although I do the same work as a colleague, her salary is higher than mine. Is this difference in pay reasonable, or does it amount to some type of discrimination?

Answer:

Unequal pay for the same work is regulated by the Employment Equity Act (No. 55 of 1998) and the Labour Relations Act (No. 66 of 1995) which aim to promote equality in the workplace. This legislation does not explicitly disallow unequal pay for work of equal value and merely prohibits discriminatory practices.

In TGWU & Another v Bayete Security Holdings (1999) 20 ILJ 1117 (LC), Judge Grogan ruled as follows [own emphasis]:

It is so that to pay one employee more than another for doing the same work may have amounted to an unfair labour practice under the 1956 Act (see SA Chemical Workers Union v Sentachem Ltd (1988) 9 ILJ 410 (IC)), and would also be so under the new Act if it is done for an arbitrary reason. However, the mere fact that an employer pays one employee more than another does not in itself amount to discrimination: see Du Toit et al., The Labour Relations Act of 1995 (2nd ed.) at 436. Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, experience, skills, and the like.

The above opinion was echoed in Ntai & others v South African Breweries Ltd (2001) 22 ILJ 214 (LC) where the court stated the following [own emphasis]:

Litigants who bring discrimination cases to the Labour Court and simply allege that there was “discrimination” on some or other “arbitrary” ground, without identifying such ground, would be well advised to take note that the mere “arbitrary” actions of an employer do not, as such, amount to “discrimination” within the accepted legal definition of the concept.

It is clear from the abovementioned case law that, even though the principle of equal pay for equal work, or equal pay for work of equal value is accepted in our legislation, failure to apply this principle will only amount to unfair discrimination if the reason for distinguishing between employees’ salaries is shown to be one of the grounds referred to section 6 of the Employment Equity Act, namely race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Sexual Harassment (4)

I would like to know when I could institute a case of sexual harassment against someone…

Question:

I would like to know when I could institute a case of sexual harassment against someone. A colleague rubs his body against mine. On more than one occasion I have subtly tried to tell him that I don’t like what he is doing. Recently he made a joke in the office and said that I am his secret lover. I have told him that he may never do it again and that he has to stay away from me. Now he is trying to make peace by sending personal gifts to me. I return them, but he doesn’t stop. What can I do to put a stop to it?

Answer:

According to the code of good practice for the handling of sexual harassment cases sexual harassment is described as any undesirable act of a sexual nature. One should however distinguish between sexual attention and sexual harassment.

Sexual attention becomes sexual harassment when:

  • the behaviour continues (although a non-recurrent incident could also be sexual harassment);
  • the aggrieved person has clearly put it to the person that his behaviour is unacceptable and offensive and that the person should stop this behaviour; and
  • the transgressor knows that his behaviour has been unacceptable and offensive.

Sexual harassment indeed is a form of unfair discrimination based on gender or sexual orientation. Section 6 of the Employment Equity Act determines that no one may directly or indirectly discriminate unfairly against a person on the basis of among other his/her gender or sexual orientation.

When a person is harassed, the person could decide to address it formally or informally, depending on how serious the harassment is.

The aggrieved person could solve the matter informally by confronting the person with his undesirable behaviour and request him to stop his behaviour. It is expedient to have a talk to the harasser in the presence of a trade union representative.  Such a person could later be called as a witness in the case. If the behaviour continues, the aggrieved could talk to the harasser’s direct manager. The person’s direct manager could then talk to the harasser.

If the informal procedure was unsuccessful or if the harassment was of a very serious nature, the aggrieved person could decide to immediately start the formal process. This could be done by following the employer’s grievance procedure and then insist that the employer should investigate the complaints and take disciplinary action against the harasser. Should the employer refuse to take action or should the grievance not be solved to the satisfaction of the aggrieved person, a dispute for unfair discrimination could be referred to the CCMA or appropriate Bargaining Council to obtain a certificate. After the appropriate forum has issued a certificate, the dispute could be referred to the Labour Court to settle the dispute.

It seems to me that my boss is harassing me sexually, but I am not sure whether it is, in fact, sexual harassment.

Before one can answer your question about sexual harassment, one first has to establish what sexual harassment is.

Sexual harassment entails unsolicited actions of a sexual nature, which have to be distinguished from sexual attention agreed to by both parties. Even if there used to be a relationship between employees, but one of the parties is no longer happy with the attention he or she is receiving, the attention can turn into harassment. As soon as one person says “no” or feels uncomfortable with the employee’s conduct or advances, it is sexual harassment.

Sexual attention becomes harassment in the following cases:

  • If the actions or attention continues after the person to whom the attention is directed has objected to it.
  • If the person to whom the attention is directed immediately objects and makes it clear that the attention is undesirable.

Sexual Harassment

Question:
Are there various forms of sexual harassment that need to be considered?

Reply:
Sexual harassment can include unsolicited verbal and non-verbal behaviour but is not limited to it.

The following are examples of sexual harassment:
• Unsolicited physical contact of a sexual nature, which can range from indecent assaault, rape, unsolicited physical contact to a body search by a person of the opposite sex.
• Verbal forms of sexual harassment can include unsolicited sexual innuendos, suggestions, questions, jokes or insults of a sexual nature, and remarks about a person’s body in their presence and made directly to them. Even a wolf whiste in the direction of a person or persons can in certain instances be regarded as harassment.
• Non-verbal forms of sexual harassment can include behaviour such as unsolicited signs made to the person, as well as indecent exposure. Showing pornography or even an object of a sexual nature to another person can also be regarded as sexual harassment.
• Quid pro quo harassment takes place when an employer, manager, supervisor or fellow employee tries to control processes such as appointments, promotions, training, disciplinary procedures, discharging an employee or salary raises in exchange for sexual favours.
• Sexual favouritism is when one employee is promoted or gets a raise as a result of a sexual relationship but another employee is passed over because he or she refuses to participate in such a relationship.

What must I do if I feel I have been sexually harassed?

Before taking a case of sexual harassment any further, it is important to exhaust all internal remedies. The grievance procedure is regarded as an internal remedy and must be followed. It is also important to stress that, if you make allegations about victimisation or discrimination against a person, you must be able to prove these allegations substantively. The person against whom the grievance was lodged could take civil action against you if your allegations were false.

If your workplace does not have a grievance procedure, you must write letters to the employer. These must then be escalated systematically to the highest level in the company. It then serves the same purpose as the grievance procedure.

When the internal steps have been exhausted, external remedies can be sought.

Sick Leave (7)

What will happen if I extend my sick leave when I am too ill to go back to work?

Question: What will happen if I extend my sick leave when I am too ill to go back to work?

Answer: The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Is the employer obliged to apply ordinary leave if I have not sick leave left?


By Phil Davel

Question: I work for a firm that imports and locally distributes farm equipment. Some time ago a was on sick leave for seven weeks, and now my employer is refusing to pay out my last week’s salary. Is the employer obliged to apply ordinary leave if I have not sick leave left?

 

Answer: Section 20(5)(a) of the Basic Conditions of Employment Act stipulates that the employer may not allow an employee to take annual leave during any other leave period to which he/she is entitled. This implies that the law does not allow your employer to grant ordinary leave as a substitute for sick leave.

 

If you both agree to relinquish your right not to use ordinary leave for this purpose, the employer may allow it, but then you cannot invoke the legislation. If you and the employer do not agree, he cannot use your ordinary leave for the period during which you were ill, and therefore you can be placed on unpaid leave.

What will happen if I extend my sick leave when I am too ill to go back to work?

Question:

What will happen if I extend my sick leave when I am too ill to go back to work?

 

Answer:

The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Sick leave

Question:
How many days’sick leave am I entitled to and do I have to hand in a medical certificate?

Reply:
Sick leave is regulated in terms of section 22 of the Basic Service Conditions Act.

Section 22 states that an employee is entitled to six weeks’ paid sick leave in a cycle of 36 months.

In the first six months after beginning his or her employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

The employee has to prove illness in terms of section 23 of the Basic Service Conditions Act. An employer can demand a medical certificate before paying an employee who is absent for more than two consecutive days or somebody who is often absent.

Sick leave

Question:
I’m working for a company and I want to know how much sick leave I’m entitled to according to law.

Reply:
Section 22 of the Basic Conditions of Employment Act stipulates that every employee is entitled to sick leave.

If the employee has been working for the employer for less than six months, the following will apply:

“… [An] employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken.”

I would suggest that the employer count the number of days an employee has worked and divide it by 26. The following serves as an example: If 100 days were worked, 100 must be divided by 26, giving a total of 3,84 days’ sick leave which may be taken at normal pay. If the employee took more days’ sick leave (more than the 3,84 he/she is entitled to at that stage), unpaid leave will take effect, if both parties have agreed that it could be used for sick leave. Let’s assume the employee took 10 days’ sick leave, for example, while he/she was only entitled to 3,84 days’ sick leave at that stage, the balance of days used for sick leave would be subject to unpaid leave, unless another arrangement was made. Therefore, the employee would have used 6,16 days’ unpaid leave.

If the employee has been working for the employer for longer than six months, the following will apply:

A sick leave cycle means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior sick leave cycle. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

If the employee has been working for longer than six months and works according to a five- day work week, then he/she is entitled to 30 days’ paid sick leave. This allocation of 30 days is available in full after six months’ employment, and is available to the employee until the end of a 36 month term of service, whereafter a next leave cycle will commence. In practice, it means that the employee could even take 30 days’ sick leave during his/her first year of employ as long as he/she has already completed six months’ employment with the employer. The employee must, however, bear in mind that his/her sick leave for the remainder of the 36 months will then be exhausted, and that any sick leave taken within the first six months of employment will first be deducted from the 30 days.

 

My rights with sick leave days

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

When is a medical certificate suspicious?

By Lucinda Pretorius

Labour legislation may come and go, but the problem of false or forged medical certificates and suspicious absenteeism due to illness is here to stay. In present-day working conditions, employers expect employees to submit a medical certificate if they have been absent from work because of illness. Medical certificates serve as security for employers. However, the incidence of fraud in the form of forged medical certificates is on the rise in workplaces.

When is a medical certificate valid and when is it suspicious?

1. A valid medical certificate

There is no statutory definition of a valid medical certificate. Section 23(2) of the Basic Conditions of Employment Act (No. 75 of 1997) does stipulate that a medical certificate must be issued and signed by a medical practitioner or any other person who is qualified to diagnose and treat patients and who is registered with a professional council. Only medical practitioners and registered nurses are authorised to sign a valid medical certificate.

A medical certificate must contain the following information:

•    The date on which it was issued.
•    The date on which the employee was examined.
•    The name of the medical practitioner who personally examined the employee and with whom the employee shared his/her symptoms.
•    A description of the nature of the illness or condition.
•    The name, qualifications, address and phone number of the issuer.

If a certificate does not meet the abovementioned criteria, the employer has the right to refuse to make any payment to the employee for absenteeism as a result of illness or to wait until the employee provides a valid medical certificate.

2.  A valid, but suspicious medical certificate

Medical certificates are more commonly sold to employees than they are forged.

The steps that an employer should follow if he/she finds a medical certificate suspicious are outlined below:

•    Contact the medical practitioner who issued the certificate.
•    Ask if he/she examined the employee and issued the certificate.
•    If the medical practitioner cannot be contacted because the address or the telephone number is not provided on the certificate or does not exist, disciplinary steps could be taken against the employee based on alleged misconduct (fraud/dishonesty).

If an employee is unable to prove that a medical certificate is valid, disciplinary charges may be brought against him/her.

Employers must make a concerted effort to ensure that the use of false medical certificates is prevented or stopped.

Strikes (1)

What should I do if strikers prevent me from going to work?

By Phil Davel

Question: What should I do if strikers prevent me from going to work? What are my rights with respect to my salary? We have to fax an attendance register to head office every morning. As we work on the basis of no work, no pay, can money be deducted from my salary if strikers prevent me from reporting for work?

Answer: It is important to remember that your safety is the first concern during a strike. If you feel unsafe or are intimidated by strikers, you can lodge an internal grievance with the employer and request him to come up with a workable solution. The employer is required by law to ensure a safe working environment.

The employer is also required to pay you if you are willing to work and tender your services in circumstances where you are prevented from going to work.

If you are prevented from signing the attendance register, it is advisable to make a statement at the employer’s security company or the police office to the effect that you did report for duty and that you were intimidated or prevented from going to work. The statement can be faxed to the employer.

Terminations (11)

Severance package after eight years service

Question:

I am a salesman at a large paint company with eight years of service. My employer recently retrenched me and I have to receive a severance package of eight weeks’ salary. My employer says that he bases the calculation on my basic salary, but I feel it should include my commission and medical benefit as well. Am I right?

Answer:

Section 35(5) of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA) provides that the Labour Minister can determine, following a consultation process and by means of a notice in the Government Gazette, which categories of remuneration are included in and which are excluded from the calculation of, among other things, an employee’s severance package in terms of Section 41 of the BCEA.

Does an employer have to provide me with a certificate of service when I resign?

Question: Does an employer have to provide me with a certificate of service when I resign?

Answer: In terms of section 42 of the Basic Conditions of Employment Act, the employee has to be provided with a certificate of service.
In terms of section 42, it must contain the following:

  • The employee’s full name;
  • The employer’s name and address;
  • Any bargaining council under which the member falls;
  • The date on which the employee started working there and the date on which his/her service was terminated;
  • The employee’s job title and job description; and
  • The last payment date and, if requested by the employee, a reason for the termination of service.

What is the minimum notice period for termination of service?

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Members often ask what the legal requirements are for notice periods before they hand in their resignation. If an employee works 24 hours or more for an employer and no contractual terms are applicable, the Basic Conditions of Employment Act (Act 75 of 1997, as amended) requires minimum notice periods before employment can be terminated in writing.
The notice period applies to both the employer and employee and is determined by the employee’s length of service. If the employee has been employed for:
- Six months or less, one week’s notice is required;
- Six months but less than a year, two weeks’ notice is required; and
- One year or more, four weeks’ notice is required.
As far as domestic workers and farm workers are concerned, the principle of four weeks’ notice also applies if they have been employed for more than six months.
Notice period during leave
An employee’s notice period cannot coincide with his/her annual leave. If an employee gives notice of termination of service, it cannot be done during any leave period and, with the exception of sick leave, it also cannot coincide with any leave period.
Longer or shorter notice periods than required by law
If a two-week notice period is required from the employer, the employer cannot agree with the employee on a notice period of, for example, four weeks. Although an employee is obliged to work through a notice period, the employer and the employee can agree that shorter notice can be given. However, the employer is still obliged to pay out the statutory notice period.

Could my service contract be terminated after expiry of the term without further notice?

Question:

I have entered into a service contract with my employer in terms of which I have to work for a probationary period of three months. Could my service contract be terminated after expiry of the term without further notice?

Answer:

Item 8 of Schedule 8 of the Labour Relations Act determines the manner in which employers should act against employees during the probationary period.

Probationary periods are determined according to the nature of the job and could be extended by the employer, at his discretion.  

Grounds for the extension of the probationary period could include that the employer is not entirely satisfied with the service rendered by the employee. It is expected from the employer to provide clear guidelines to the employee concerning the minimum required standards that the employee has to meet.                

The employer should also inform employees on a regular basis what is expected during the probationary period, indicate mistakes to the employee and render assistance to correct such mistakes. 

Should the employer decide to dismiss the employee after the probationary period, the employee should at least be afforded the opportunity to make presentations regarding areas where he could improve his service.

An employer however has the authority to dismiss an employee after expiry or even during the probationary period.

Schedule 8 of the Labour Relations Act makes provision that employees who have been appointed with a probationary period and who are disciplined due to work performance are normally judged more leniently.

Implications of givin notice

By Phil Davel

Question: I have worked at a retail bookstore for the past eight months and want to given notice. What will the implications be if I give more than two weeks’ notice? Can the employer force me to give two weeks’ notice?

Answer: Section 37(1)(b) of the Basic Conditions of Employment Act stipulates that you must give notice of at least two weeks. Unless your contract of service specifies that a maximum notice period of two weeks applies, the employer cannot force you to give only two weeks’ notice.

What must my employer pay me if I resign

By Johan Roos

Question: What must my employer pay me if I resign?

Answer: Section 40 of the Basic Conditions of Employment Act stipulates that an employer must pay an employee for any paid time off that he has not taken, if the employee has been in employment longer than four months.

Resigning from work

25 November 2010

Question: My husband works for an air-conditioning company and wants to resign. What compensation must he get when he resigns?

Answer: On resignation, your husband will be entitled to the following compensation: His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Employment Act 75 of 1997 and as agreed in his contract of employment (whether in writing, or verbally); any overtime worked in terms of an agreement; his remaining leave; and any other compensation owed to him in terms of an agreement or legislation.

In the case of resignation, the following aspects must also be taken into consideration: When your husband decides to resign, the agreed notice period as mentioned in the contract of employment must be adhered to. The employee may not expect him to work a longer notice period. In the absence of an agreed notice period, or if the company’s policy does not cover this aspect, the usual regulations regarding notice periods as set out in section 37 of the Act will apply. The contract of employment must also be checked for a prohibition of competition, that is, a non-competition clause, especially if your husband intends to find employment at a similar employer in the same industry. A non-competition clause may, among other things, prevent your husband from going to work for the competition for a specific period and within a certain radius

Dismissal due to illness

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

  • The employer must determine whether or not the employee is capable of performing his duties.
  • The employer must determine for how long the employee will be absent from work owing to illness.
  • The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
  • The employer must establish whether or not the employee can be reassigned.

Termination of services when a company is going into provisional liquidation

By Anton van der Bijl

Question:

I work for a steel construction company and have been informed that my services have been terminated with immediate effect because the company has been placed under provisional liquidation. I have not previously been informed that the company would be placed under provisional liquidation, and the employer has not taken any formal steps in respect of the termination of services. Is my dismissal fair, and if not, what am I to do?

Answer:

Unfortunately as a result of the current economic climate, we encounter more and more of these cases. Section 38(5) of the Insolvency Act (No. 24 of 1936) stipulates that a liquidator must consult with the employees of a liquidated company before their services can be terminated. Moreover, section 197B of the Labour Relations Act (No. 66 of van 1995) stipulates that employers must inform employees if the workplace is to be placed under provisional liquidation. In the case, Van Zyl NO & Others v. Commission for Conciliation, Mediation and Arbitration & Others (2012) 33 ILJ 2471 (LC), the set of facts are similar to your case, the Labour Court confirmed the CCMA’s finding that the termination of the employee’s services was unfair. The CCMA ruled that provisional liquidation does not give an employer the right to terminate an employee’s services summarily.

The ruling makes it clear that an employee’s services may not be terminated summarily at the time of a company’s provisional liquidation, and that if an employee is being dismissed on such grounds, he/she would, in all likelihood, succeed with a case of unfair dismissal being brought before the CCMA.

If you have been dismissed under similar circumstances do contact your nearest Solidarity office immediately.

Termination of service

Question:

What must an employer give an employee upon termination of service?
(Part 1)

Answer:

One of the documents that an employer must give an employee in terms of section 42 of the Basic Conditions of Employment Act (Act 75 of 1997), is a certificate of service.

This certificate must contain the following information:

 

  • The employee’s full name;
  • The name and address of the employer;
  • The reference to any council or sector under which the employer’s business falls;
  • The date on which the employee assumed duty and the date of termination;
  • The post designation or a short explanation of what the employee’s post entailed;
  • The employee’s salary on the date his service was terminated;
  • The reason for the termination, if the employee requests it.

Is section 189 of the Labour Relations Act a guideline or is it mandatory?

By Ettienne Pio

Question:

Are the procedural provisions contained in section 189 of the Labour Relations Act (LRA) simply guidelines or are they mandatory?

Answer:

Section 189 of the Labour Relations Act (No 66 of 1995) specifically applies to termination of service based on operational requirements. The question is whether this section merely provides a guideline, or whether employers are obliged to give effect to the provisions contemplated in the section.

Section 189(2) specifies explicitly the issues on which parties must consult in a bid to reach consensus. Section 189(3) also determines specifically that the employer must issue a written notice inviting employees to consult and that the employer must also disclose all relevant information, including the reasons for retrenchment; alternatives; the number of affected employees; the proposed selection criteria; implementation date; support; possible re-employment in the future; and the number of retrenchments out of the total workforce during the preceding 12 months.

Some employers are of the opinion that section 189 of the LRA only provides a guideline and need not be complied with in every respect. Often, certain employers try to water down the process to mere unscheduled discussions with affected employees, then claiming that the essence of the procedural provisions for retrenchment has been met as the employees have knowledge about the retrenchments as well as the reason for such, and that discussions have taken place.

In Chetty v Scotts Select A Shoe (1998) 19 ILJ 1465 (LC) the court ruled that legislature’s intention with the retrenchment procedure “… should be governed by law, rather than by guidelines,” which seemingly, imposes a stricter obligation on employers during the retrenchment process.

In De Bruin v Sunnyside Locksmith Suppliers (Pty) Ltd [1999] 8 BLLR 761 (LC) Van Niekerk AJ interpreted the Labour Appeal Court case of Johnson & Johnson (Pty) Ltd v CWIU such that section 189 “is inextricably linked to the fairness of a dismissal for operational requirements, and that a finding of non-compliance will invariably result in the dismissal being unfair for want of compliance with a proper procedure”. Thus, the test is objectively whether consultation in terms of section 189 has or has not taken place, and not what the employer’s intention was. Therefore, proving bad faith is not even a requirement.

In Wheeler v Pretoria Propshaft Centre CC [1999] 11 BLLR 1213 (LC) Stelzner AJ ruled that the explicit provisions of section 189 had to be complied with in the first instance. He also emphasised that so-called compliance with a checklist on paper should be avoided insofar as “one has to go further and check whether or not the employer has in fact fulfilled the purpose of the section”. [Emphasis in bold that of the author]

Our courts have sounded a warning that a mere mechanical checklist approach must be avoided. Employers, who interpret this warning as a relaxation of the provisions contained in section 189, are erring. As a matter of fact, our courts require a more profound inquiry to ensure that the employer complies with the purpose of section 189, namely a purposeful effort to reach consensus jointly.

Section 189 has to be strictly adhered to and that includes the following instances:

1.    Even if the employer believes compliance wouldn’t change the outcome [Mohamedy’s v CCWUSA (1992) 13 ILJ 1174 (LAC) at 1179 F-H];
2.    Even if the outlook the employer is facing is almost certain liquidation [Fouldien v House of Trucks (Pty) Ltd t/a SA Road Tankers [2002] 12 BLLR 1176 (LC); and
3.    Even if the employer claims that the manager should have been able to anticipate retrenchments [Harmsen v Alstom Electrical Machines (Pty) Ltd [2004] 2 BLLR 133 (LC).

Non-compliance with section 189 will only be tolerated in exceptional instances, for example in instances where one party makes compliance virtually impossible.

Terms of Service (13)

How do I determine who is an employee?

Question:

How do I determine who is an employee?

Answer:

Section 83A of the Basic Conditions of Employment Act (Act 75 of 1997) as well as Section 200A of the Labour Relations Act (Act 66 of 1995) provides the following guidelines for determining whether or not someone is regarded as an employee:

  • In what way is the person under the control of another person? In other words: does the person have to carry out orders given to him/her by another person?
  • Are the person’s working hours determined by the employer?
  • Is the person part of the organisation for which he/she works?
  • Does the person work for the organisation or employer for at least 40 hours per month and for an average of at least three months?
  • Is the person financially dependent on the employer to which he/she provides services?
  • Does the employer supply the necessary resources to the person to perform the work?
  • Does the person only work for the employer, not providing other services to other people?

The guidelines above do not, however, include all employees. The stipulations do not apply to employees who earn more than R149 000 per year. If, however, the person earns more than this amount and a dispute arises regarding the person’s contract, any of the parties may refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for a ruling.

May my employer pay out my leave instead of me taking it?

Question 6: May my employer pay out my leave instead of me taking it?

Answer: An employer may not pay an employee for his leave instead of granting the employee permission to take the leave.

May the employer cancel my leave?

Question 7: May the employer cancel my leave?

Answer: The employer may cancel leave due to operational requirements.

What is the remuneration for an employee who works at night?

Answer:

Night work is regulated in terms of Section 17 of the Basic Conditions of Employment Act. In terms of the Act, night work is regarded as service hours between 18:00 and 06:00. An employee may only perform night work if the employee receives an allowance or if his/her service hours are reduced. It must also be determined whether transport will be available between the workplace and the employee’s home.

An employer who requires employees to work between 23:00 and 06:00 must inform the employees verbally or in writing of this requirement. If the employee is illiterate, he/she must be informed in a language that he/she understands so that the employee can comprehend that there are certain dangers associated with night work. The employer also has the right to insist on a check-up by a medical doctor with regard to any dangers that could possibly be associated with the work. If the employee is in fact found to be unfit for night work, the employee can be transferred to a suitable day shift.

Night work could also be influenced by sectoral terms and collective agreements.

For more information regarding night work, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

What remuneration is an employee entitled to if he works on public holidays or Sundays?

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

Not part of my job description

Question:

I am a flight attendant at a local airline. My senior gave me a form with the week’s flight schedule and asked me to check all the catering supplies for each flight. I politely pointed out to her that it is not in my job description and that I had been appointed as a flight attendant. I cannot remember the checking of supplies or administrative task being part of my duties. My senior referred me to some memorandum, which states that I have to perform such tasks and that I will face disciplinary action if I refuse. I am not aware of such a memorandum. What should I do now?

Answer:

Members often ask if their employer can force them to perform duties that are not part of their task description. We refer to such requirements as ad hoc requirements. Loosely translated, ad hoc means “for a specific purpose or circumstances”.

The first step an employee should take in this case is to refer to the service contract. Most service contracts contain a clause that states that an employee agrees to perform any additional duties, as required by the employer.

My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

Is an employer entitled to change my conditions of employment…

Question: 

Is an employer entitled to change my conditions of employment unilaterally and what are my rights in this regard?

Answer:

If the employee benefits from such a change, nobody will be aggrieved.

However should the employer take away certain benefits from the employee, pay him less, and give him additional work, etcetera, the employee won’t be satisfied. Changed working conditions, technology, supply and demand and the financial success of an employer are all factors that could lead to a situation where the employer could have no choice but to restructure the employee’s conditions of employment.

A business could be in serious financial trouble and to prevent possible retrenchment of employees, an employer could change employees’ conditions of employment.  Employees’ benefits could be taken away and they could take on more tasks, etc.

In short nothing prevents the employer in such a case to change the conditions of employment of his employees, provided the changes are limited.

Changes to conditions of employment take place by means of a consultation process in terms of the Labour Relations Act to ensure that it is procedurally fair.

An employer cannot change the agreed on provisions of a service contract unilaterally. 

An employer cannot fail to pay a 13th cheque to an employee when the service contract contains a clause that explicitly determines that an employee should receive such remuneration.

The parties should negotiate a change to the service contract and when an agreement has been reached, the employer would be authorised not to pay the employee’s 13th cheque.

Employees should realise that refusal to accept such unilateral change to accept conditions of employment could lead to the danger of retrenchment. An employer could present amended conditions of employment to his employees as an alternative for dismissal during restructuring because of the employer’s operational requirements.

Should the employee refuse a fair alternative the employee could be dismissed. The employer should however follow the procedures, as contained in Section 189 of the Labour Relations Act.

Should the employer unilaterally change an employee’s conditions of employment for reasons other than the abovementioned, the Labour Court could be approached to issue an order against the employer in terms of Section 77A(e) of the Basic Conditions of Employment Act.

When does demotion take place?

Question:

When does demotion take place?

Answer:

Demotion takes place when an employer unilaterally changes an employee’s conditions of employment with a reduction in salary or status or responsibility.     

Demotion has to be unfair to constitute an unfair labour practice. If there is agreement between the parties, it will still be demotion, but the demotion will not be unfair.   

Demotion could be regarded as not unfair in the following instances:

  • Firstly to prevent service termination due to operational requirements. Should an employee not accept demotion, it has a negative effect on his entitlement to a severance wage.     
  • Secondly as alternative to dismissal due to incompetence or misconduct.

Reduction in salary is not a prerequisite for demotion and even an unfair reduction in status or responsibility could constitute unfair demotion.

Pension fund and medical aid benefits

Phil Davel -

26-08-2010

Question: Is the employer obliged to provide pension fund and medical aid benefits?

Answer: Employers might be required to do so in terms of sectoral determinations and collective agreements, but in general pension funds and medical schemes are benefits that do not form part of the employee’s remuneration. Offering such benefits is at the discretion of the employer, who can also decide what percentage to contribute. It could, however, form part on an employee’s cost to company package. The employer and employee can also contractually negotiate for the pension fund and medical aid benefits to form part of the employee’s remuneration.

Although labour legislation does not specifically regulate pension funds and medical aid funds, Section 34A of the Basic Conditions of Employment Act does stipulate that if the employer deducts money for a benefit fund from an employee’s salary or pays over any money on behalf of an employee, the employer has to pay over the money within seven days after the deduction or the end of the period for which the payment has to be made. For the purposes of Section 34A, a benefit fund includes a provident fund, a pension fund, a retirement fund, a medical aid scheme or a similar fund.

The employee can also be compelled to join a pension fund and medical aid scheme. The employee can also be required to join a specific fund in terms of the conditions of employment in his/her service contract. In other words, except for the two above-mentioned cases, an employer does not have to provide pension fund and/or medical aid benefits. In such cases the employee will have to make provision for his/her own pension fund and medical aid scheme by applying to a financial services provider

Transfer of service contracts

The law

When a company is transferred or sold to a new owner as a going concern, employee contracts are transferred automatically without any amendment. The rights and responsibilities agreed upon between the former employer and the employees are transferred to the new employer, and include the duration of the term of employment, unless both parties agree to the terms of the contract.

The purchase of a going concern

When a new company purchases or takes over an existing company, the new employer assumes the responsibility for the rights and responsibilities in respect of the previous company’s employees. In this instance no agreement from the employees is required before transfer of their service contracts takes place.

Any measures taken before transfer by or in connection with the former employer, including the dismissal of an employee or the implementation of an unfair labour practice or unfair discrimination, will be regarded as being taken by the new employer.

Unless otherwise agreed to, the new employer is similarly bound by any collective agreement that was reached with a union or a bargaining council. The new employer is also bound by any arbitration award made in terms of the Act on Labour Relations, unless otherwise agreed upon.

An agreement between the former and the new employer regarding the transfer of the company must be reached, and all relevant information must be made public. The agreement must be in writing and must contain the date of transfer, as well as the following:

  • Employees’ accrued leave with the former employer;
  • the severance packages that would have been due to the transferred employees in the event of dismissal on the grounds of operational requirements;
  • any other payments that would have been due to the employees by the former employer;
  • which employer is responsible for which payments, and which employees would be entitled to any such payments; and
  • the terms of the agreement between the former and the new employer.

Should the new employer wish to make any amendments to the conditions of service and the terms of employment contracts, the employer must first consult with the relevant employees and prior consensus must be reached about the amendments. Any conditions in the new contract not thus amended must remain as they stood in the former contract.

Should the new employer wish to retrench the employees who have been transferred, he/she will have to take into account the employees’ years of service with the former employer.

I started work with a new employer this year, but my boss has not yet given me a written contract of employment. Isn’t a written contract required by law?

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

I’ve started working with a new employer and have to sign a contract. What should be in the contract?

An employment contract should state the following:

  • The employer’s full name and address
  • A description of the employee’s duties
  • The site of the workplace as well as an indication of where the employee is expected to work, and where not
  • Appointment date
  • The employee’s working days and hours
  • The employee’s remuneration and the way it is calculated
  • Details of overtime payment
  • Any other payments the employee may receive
  • Any non-monetary remuneration the employee may receive and its value
  • The date(s) on which the above payments are made
  • Any deduction(s) from the employee’s remuneration
  • Details of leave to which the employee is entitled
  • The mutual notice period of termination of service and, if the person is engaged for a fixed term, his contract term
  • A description of any commission or sectoral determination under which the employee may fall
  • A list of any readily accessible documents in respect of the employee’s employment

Trade union (7)

Trade union memebership

Question:

I accepted a job offer in the medical industry and have to answer a question about trade union membership in my contract of employment. Should I indicate that I’m a member of Solidarity, or could the employer penalise me because of it/discriminate against me because of it?

Answer:

An employer has the right to ask an employer or a job applicant to indicate whether or not he or she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his or her membership of a trade union.

For practical and operational reasons, employers often need to know which of their employees belong to trade unions. An employer has to know who represents its employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination.

Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer from entering into a contract with the applicant if the employer had been privy to it. The employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If the employer discriminates against the jobseeker once his or her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that his or her application was turned down or that any discrimination to which he or she was subjected was the result of the disclosure in terms of section 5(2)(c)

Freedom of association

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

I accepted a job offer in the manufacturing industry and have to state in my contract of employment whether I’m a member of a trade union. Should I indicate that I’m a member of Solidarity, or could the employer penalise me because of it?

An employer has the right to ask an employer or a job applicant to indicate whether or not he/she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his/her membership of a trade union. For practical and operational reasons, employers often need to know which of their employees belong to trade unions and to which unions they belong. Employers, for example, need to know who represents their employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination. Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer, had he known about it, from entering into a contract with the applicant. An employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If an employer discriminates against a jobseeker once his/her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that the rejection of his/her application, or any discrimination to which he/she was subjected was the result of the disclosure in terms of section 5(2)(c)

In SAFDWU v. Safcor Freight (Pty) Ltd t/a Safcor Panalpina and Another (D104/08) [2010] ZALC 107; (2011) 32 ILJ 415 (LC) the court adhered to the principle that you may not be discriminated against for being a member of a trade union, as it is a violation of section 5 of the LRA and an infringement of your fundamental rights as defined in sections 9 and 23 of the Constitution of South Africa.

 

When Solidarity has no representation at your place of work

By Helgard Cronjé

Question:

Why should I be a member of Solidarity if it is not the representative union at my place of work?

Answer:

When a union enters into a collective agreement with an employer, that union becomes a representative union with that specific employer.

A trade union will only be able to enter into collective agreements with employers if the members of that union constitute a large part of the employer’s labour force. The percentage of the labour force that has to belong to the union before the employer will enter into an agreement with it, may be determined by the employer, except where the union’s members constitute more than 50% of the labour force. In such a case the employer has no choice but to enter into a collective agreement with the union as it is compelled by law to do so.

If a trade union is a representative union with an employer, the union will be able to involve itself in the employer’s internal processes even if the union is a third party and an outsider. The union will, for example, be able to represent its members at disciplinary hearings without the employer being able to refuse the representation.

However, Solidarity has many members who are the only Solidarity members working for specific employers and Solidarity can therefore not enter into collective agreements with these employers. This means that Solidarity as a trade union is not the representative union at these employers and therefore does not have the right to involve itself on behalf of its members in the internal processes of these employers. The result is that Solidarity cannot represent a member should the employer refuse representation.

Many people feel that in such circumstances Solidarity membership is not worth its while. However, from a legal point of view Solidarity membership has many other benefits. Solidarity has a service centre with four qualified legal advisers who can assist members with advice in circumstances where the union cannot represent them. This may not sound like a big advantage, but to place it in perspective, just keep in mind that it will cost a person between R600 to R1 000 an hour to consult an attorney.

A further and even more valuable benefit is that Solidarity can indeed represent its members at the CCMA and other bargaining councils and in the labour court without the employer having any say in whether the member may be represented or not because the issue has then become an external matter and no longer forms part of the employer’s internal processes. It costs nothing to refer an issue to the CCMA or a bargaining council, but should a person approach a legal representative to represent him, the costs could escalate so quickly that it could become financially impossible to continue with the case. Should such a person use Solidarity’s services, the union charges no extra costs to represent him or her, provided that he or she must have been a member of the union for more than three months and the membership fees must be paid up to date.

The commissioner could still refuse that an attorney represent the individual should the employer object to it. This is within the commissioner’s discretion. The conclusion is therefore that there is no more affordable way than Solidarity membership to ensure that justice is done if your employer unfairly tries to get rid of you.

As far as value for one’s money is concerned, this kind of legal aid cannot be obtained anywhere else.

Trade union access to workplace

By Etienne Pio

Question:

How can Solidarity obtain access to our workplace?

Answer:

Employees often ask that Solidarity also bargain for better benefits, conditions of service, and salary increases, as well as about other matters of mutual interest within their workplace. Although access to the workplace is not a prerequisite for collective bargaining it is, in most cases, the logical first step to organise properly within the workplace with a view to bargaining. The question is how a trade union, that is Solidarity, can obtain access to your workplace and what it entails.

Section A of Chapter 3 of the Labour Relations Act, (No 66 of 1995) (LRA) deals with collective bargaining, and section 12 more specifically deals with how trade union access to the workplace can be obtained. This right to access to the workplace is primarily embodied in the constitutional right of freedom of association, as well as in section 12(1) of the LRA, which reads as follows: ‘Any office-bearer or official of a representative trade union is entitled to enter the employer’s premises in order to recruit members or communicate with members, or otherwise serve members’ interests.’

Except to note that section 213 of the LRA defines the workplace we will, for the purposes of this article, not discuss the definition of workplace in depth. To have a better understanding of the right to access, section 11 defines a “representative trade union” as a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace. Furthermore, sufficient representation is distinguished from majority representation, where representation not only needs to be sufficient, but where the trade union represents the majority of employees (50% +1) in the workplace.

For example, in NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA), it was held that only 17% representivity of the total workplace was sufficient as it represented almost two thirds of the plant in question. Employers must also act consistently when granting organisational rights. For example, in Organisation of Labour Affairs (OLA) v Old Mutual Life Assurance Company (SA) [2003] 9 BALR1052 (CCMA), it was ruled that only 2%-representation of the total workers’ corps was deemed sufficient simply because the employer had already granted organisational rights to trade unions with even less members.

In UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) and in SACTWU v Sheraton Textiles (Pty) Ltd[1997] 5 BLLR662 (CCMA) 22% and 30% were deemed as sufficient representation. Factors such as involvement of other trade unions; period of organising; the ability to influence negotiations; financial interests of the parties involved; and stability within the industry have also been taken into consideration instead of only referring to numbers. In die Sheraton case supra it was also ruled that the commissioner could determine reasonable conditions regarding time and place of access in order to minimise unnecessary interruption.

Requirements for registration with the Registrar of Labour Relations are contained in section 96 of the LRA. Solidarity fully complies with all registration requirements in terms of section 96.

In general, access would entitle the trade union to hold meetings with employees “outside their working hours” at the employer’s premises (for example during lunch times as well) [section 12(2)] (phrase in brackets my insertion). ‘The members of a representative trade union are entitled to vote at the employer’s premises in any election or ballot contemplated in that trade union’s constitution [section 12(2)]. Section 12(4) also deals with the conditions according to which such rights are granted: ‘The rights conferred by this section are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work.’ [Section 12(4)].

In practice, employees who want a trade union to have access to their workplace should make a decision to join that particular union and to organise themselves so that at least a sufficient number of other employees also join.

Then, the nearest office of the trade union should be contacted and the organiser of that union informed of the employees’ intentions. At the same time, an indication needs to be given of the union’s membership at the employer to enable the organiser to immediately lodge the prescribed application for organisational rights, including the right to access.

Please contact any Solidarity office for more information.

Dismissal

Gerhard Hildebrand

Question:

What is the time limit for referring a dispute after dismissal?

Answer:

In terms of section 191(1)(b)(i) of the Labour Relations Act (No. 66 of 1995), a dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council within 30 days of the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision regarding the employees dismissal.

Section 190(1) describes the date of dismissal as the date on which the contract of employment was terminated, or the date on which the employee left the service of the employer.

If an employee had been dismissed and then lodged an appeal against the dismissal, the dispute may be referred within 30 days after the outcome of the appeal. Therefore, the 30 days did not begin after dismissal; it began on the later date when the employer made the final decision at the appeal.

In calculating the 30 day period, the first day (the day of dismissal) is excluded and the last day is included. The 30 days are calendar days, therefore Saturdays, Sundays and public holidays are included. However, if the last day should fall on a Saturday, Sunday or public holiday, that Saturday, Sunday or public holiday is excluded and the 30 days are extended until the first day after the Saturday, Sunday or public holiday.

If the last day for referral falls in the period 16 December to 7 January, the period is extended to the first day after this period that does not fall on a Saturday, Sunday or public holiday.

If the referral is not referred within the 30 day period, the application for condonation must be brought with the referral, creating the risk that the CCMA or the bargaining council may deny the application.

However, it is important to contact Solidarity as soon as possible after dismissal so that any referral could be handled by Solidarity itself.

Can labour broking be banned?

By Danie van Graan

Question:

Can labour broking be banned in South Africa?

Answer:

One increasingly hears that unions such as Cosatu are calling on government to ban labour broking. The reason why they want it outlawed is because there is a general perception that workers who are in the employ of labour brokers can be exploited easily. Before we answer the above question, it is important to know how an employment relationship involving a labour broker works. A worker is in the employ of the labour broker who then places that worker with a client to do specific work. If the client no longer needs the worker’s services, he simply informs the labour broker accordingly and the worker will stop working for him. The problem is that the worker will not have a legal remedy against the client, seeing that he is not an employee of the client.

Section 39(1) of the South African Constitution stipulates that when a court of law interprets the Bill of Rights, it must consider international law. The Constitution therefore places our courts under an obligation to consider, among other things, the conventions of the International Labour Organisation (ILO), of which South Africa is a member. Convention 181 of the ILO specifically deals with regulating labour broking and stipulates that it should not be banned, but regulated to protect the employees in their work. Our Constitution also protects the right of citizens to exercise their free choice when doing business.

In Namibia, whose constitution is similar to that of South Africa, the court in Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia ruled that the ban on labour broking was unconstitutional in terms of Convention 181 of the ILO. The court found that less drastic measures could be implemented to protect workers’ rights.

It is therefore clear that the existence of labour brokers is protected by the Constitution and that labour broking cannot be banned in South Africa. The latest amendments in the Labour Relations Act are in line with Convention 181 of the ILO, in that they are aimed at regulating labour brokers better and protecting the workers they place with clients better.

Unfair Dismissal (13)

I’m pregnant and worked at a bookshop in a busy shopping centre

Question:
I work in a bookshop in a busy shopping centre. I am expected to be on my feet the entire day to assist clients who need help. I am pregnant and experience problems as a result. My manager disciplined me because my appearance is not conducive to the image of the business and I was dismissed. Could the fact that I am pregnant be a disadvantage?

Answer:

Section 187 of the Labour Relations Act lists a few cases where an employee may under no circumstances be dismissed. If an employee is dismissed because of any of the listed reasons it automatically is an unfair dismissal. This means that the employer will not have any defence or excuse and that the employee has to be reappointed, or should the employee prefer, be compensated.

How much time do I have to refer a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA)?

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

When a dispute arises over the fairness of a dismissal such a case should be referred to the CCMA or relevant bargaining council within 30 days after the employer has made the final decision to dismiss the employer.
Unfair labour practice should be referred to the CCMA or relevant bargaining council within 90 days after the employee became aware of the unfair labour practice. The procedure is dealt with by Section 191 of the Labour Relations Act.
If such a matter is not referred within the determined time, an application for condonation may be made. According to Rule 9(3) of the Rules of the CCMA the following has to be included in such an application:
• How much time has lapsed.
• The reason why the application is late.
• The merit of the case.
• Any other relevant factors or parties that may be influenced.
A CCMA commissioner will then decide whether the case will be accepted or not.
Solidarity members should contact the trade union as quickly as possible after the dismissal or unfair dismissal case, so that the trade union may discuss the case and provide the member with the necessary forms.
For any further enquiries with regard to the time in which cases have to be reported, please phone Solidarity’s legal experts on 0861 25 24 23.

Unfair dismissal?

Question:

I have been working as a receptionist from 1 July 2005. I was appointed as a relief worker, as the employer’s wife was absent due to illness. On 1 February 2006 I went on maternity leave. The employer now wishes to terminate my services as his wife has returned to work and is able to continue with her duties. Are they acting fairly towards me and what is owed to me?

Answer:

The details of the enquiry are vague. I assume that there is no written service contract between the employer and the employee and that the general labour legislations principles apply.

The position of the employee and employer is as follows:

  1. She is not retrenched, as her services are terminated in terms of an agreement and not due to operational requirements.
  2. She does not get paid maternity leave.
  3. The employer may terminate her services without a notice period, as she is with unpaid maternity leave on the one hand and because the other receptionist has returned (as agreed) on the other hand.
  4. She is only entitled to remuneration, accrued leave or overtime as agreed on.

I have won my arbitration hearing and the commissioner found that I had been unfairly dismissed…

Question:

I have won my arbitration hearing at the CCMA and the commissioner found that I had been unfairly dismissed.

My employer has now indicated that he wishes to review the arbitration order. On which ground could the employer have the order reviewed in the Labour Court? 

Answer:

Any party to a dispute who is dissatisfied with an arbitration order, may have such order reviewed. Revision however is not an appeal.

An arbitration order could in terms of Section 145(2) of the Labour Relations Act be reviewed in the following instances:

  • When the commissioner is guilty of misconduct;
  • Is guilty of gross negligence irregularities during the arbitration;
  • Exceeded his authority; or 
  • When the award has been obtained in a wrongful manner.

In case of a revision application to the Labour Court the applicant should bring the Commissioner’s “misconduct” to the attention of the CCMA, and the merit of the dispute plays a negligible or no role.

“Misconduct” of the Commissioner refers to the fact that the Commissioner has not acted correctly, in the manner expected from him, during the arbitration. In other words, the Commissioner’s order is not reviewed, but rather the manner in which such a finding was made.                            

Grounds for review could include that the Commissioner has refused a party to call witnesses, cross-examine witnesses, misconstrued evidence and much more.

The powers of CCMA-commissioners are explained in Section 142 of the Labour Relations Act and should the Commissioner not adhere to said powers, such behaviour could also be grounds for a review.

Of vital importance is the fact that the Commissioner’s analysis of the evidence brought before him has led him to a reasonable and justified finding.

Whether the final order is correct, is not relevant, as long as the Commissioner’s evaluation of the evidence is without error. The evaluation could lead to an incorrect ruling, but the order will not be reviewed by the Labour Court. It is important to note that review applications are heard in the Labour Court, which is a higher court.

Legal costs in such a court are substantially higher and applications should be evaluated with circumspection.

Dismissal

By Phil Davel

Question

My question is about my wife and her employer. She is being given trouble about creditors that she processed incorrectly, but she was never formally trained in the company’s creditors. She was merely shown what to do by the previous incumbent of the post before this person resigned. Her employer now wants to dismiss her.

Answer

The employer cannot dismiss your wife or disadvantage her[cause problems for her] without a fair and just procedure, especially in the case of poor performance and dismissal. The Labour Relations Act, under item 9 of Schedule 8, provides for a code of conduct that stipulates that an employee must know what the work standard or procedures entail and must be given the time and opportunity to achieve the required standard of work. Should she feel that het training was inadequate or ineffective, she could put this up as a defence.

The guidelines that must be considered before she is dismissed because she does not meet the required standard of performance are whether she knew what the required standard of performance entailed and whether she could be expected to be aware of it. She must, as was said, be granted a fair chance and time to achieve the required standard of performance. In addition, before she is dismissed, it must be clear that dismissal is the most suitable punishment for the transgression. In most cases, summary dismissal is not the most suitable punishment because the supposed problem could still be rectified by proper training and/or mentorship.

The employer therefore cannot simply dismiss her at the first transgression.

Unfair dismissal

By Gerhard Hildebrand

Question

I was unfairly dismissed by my employer and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).  However, before the dispute could be heard by the CCMA, the employer contacted me about a possible settlement.  I presented a settlement proposal to the employer and the employer addressed a letter to me in which they accepted the settlement I had proposed.  I am however no longer satisfied with the settlement and would like the dispute to come before the CCMA.  Can I continue with the dispute?

Answer

An agreement is reached when an offer is made to another party and that party accepts the offer.  Thus there is an offer and the acceptance thereof.  It is not necessary for the offer to be set out in writing and the acceptance of the offer also does not have to be in writing.

After the offer is accepted, the party who made the offer cannot retract it and the contractor can legally hold the offeror to the offer.  However, if the offeror withdraws the offer before it is accepted, no agreement is reached.  If the contractor makes a counter suggestion, no agreement is reached unless the suggestion is accepted by the other party.  After the offer is accepted, the contractor also cannot withdraw the offer.

According to the facts as set out in this legal question, an agreement was reached and the employer cannot continue with the CCMA dispute.  The dispute was settled by the agreement.  The employer will be able to content that, since a lawful agreement was entered into, the dispute no longer exists and as a result that the CCMA has no jurisdiction in the matter.

Refusing to dismiss employees

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

When is the suspension of an employee unfair?

By Rizelle Botha

The suspension of an employee can be considered to be unfair in the following circumstances:

  • When the suspension is merely a form of punishment and the employer never intended to hold a disciplinary hearing. This rule is confirmed in  Sajid v Mohamed NO & Others (2000) 21 ILJ 1204 (LC).
  • When the employee is suspended for an unreasonable length of time, especially if periods of suspension are regulated and limited by the employer’s internal procedures.
  • When the employer does not have a prima facie case (that is, a case that appears to be based on sufficient evidence) against the employee.
  • When the employer does not follow his own disciplinary guidelines.
  • When the employer does not afford the employee an opportunity to provide reasons why he or she should not be suspended. These reasons need not be presented formally and in writing – they may also be given verbally.

If an employee is unfairly suspended, he or she may file a complaint of unfair labour practice against the employer under section 186 (2)(b) of the Labour Relations Act (No. 66 of 1995). If you are a member of Solidarity and you are of the opinion that you have been suspended unfairly, contact us as soon as possible for prompt and thorough legal advice and assistance.

Unauthorised use of vehicles and accidents

By Lelanie du Plessis

Question:

My employer dismissed me for the unauthorised use of their motor vehicle and for being in an accident at the time. They have held a disciplinary meeting beforehand. It is the employer’s policy that we may not use their vehicles after hours between 19:00 and 05:00 and that we have to obtain permission to do so from our managers. I called my manager and he refused to give me permission to use the vehicle after hours to drive back from the area where I had been working during the week. He said I had to sleep another night in the guesthouse since it was a long drive. However, I wanted to be back at the office early the next morning and left at 02:00 to drive back. There were roadworks and I rolled the vehicle shortly after I left. My employer did not reclaim the damages to the vehicle from me. I have a clean disciplinary record and I have worked at the company for two years. I am of the opinion that my dismissal was unfair, although my employer followed the correct procedure. Surely, I should have received three warnings first. If I wanted to refer the matter to the CCMA, what would my chances of success be?

Answer:

When determining the fairness of a dismissal, two aspects should be taken into account, namely the procedure followed and the substance (reason for dismissal). I conclude from the above that the procedure followed by the employer before your dismissal is not in dispute, only the substance.

In this case, you have been accused of serious misconduct, which could lead to dismissal even if it was your first offense. It is a misconception that an employer has to give an employee three warnings before dismissal could take place. The seriousness of the charge is the decisive factor. The situation was worsened by the fact that your manager explicitly forbade you to drive the vehicle back after hours and that you disobeyed his instructions. An employer is not only responsible for their vehicles, but also for their employees using the vehicles on public roads, and could therefore devise rules and regulations for safety purposes.

The fact that you made an accident with the vehicle shortly after you left, further contributes to the severity of the case and in the past the fair dismissal of several employees have been confirmed by the courts and the CCMA, especially if the unauthorized use of a vehicle resulted in a car accident or was associated with negligent driving. That was also the ruling in the case of NUM OBO Nabe v Eskom Adelaide (2012) 8 BALR 875 (CCMA).

With the information you have provided, there does not seem to be any merit in referring a case of unfair dismissal. Furthermore, you must take into account that your employer could sue you for damages caused to the vehicle because you did not obey their rules for the use of their vehicle.

Cost orders of referrals to CCMA or bargaining councils

By Hendrik van der Hoven

Question:

Should employees be concerned that an order as to costs could be awarded against them when a case of unfair dismissal is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or other bargaining councils?

Answer:

In the case of Moloi v Macsteel Service Centres (VRN Reef) [2014] 2 BALR 117 (MEIBC] the following happened:

Mr Moloi’s employer laid a charge of sexual harassment against him. Before his disciplinary hearing could take place, Mr Moloi sent the following email to his employer:

‘Seeing the Macsteel VRN’s future is not that bright and its business taking a nose dive and that soon enough most of its employees won’t have jobs anyway, I have decided to jump ship in order to focus on steering my own little ship which I have been privately building with the little remuneration that you have been paying me for the past 8 years of service to you. I which to thank you for the opportunity that you have given me over the years which I have used to my advantage by empowering myself with the industry knowledge while I acted like a dom[sic] garden boy. On Monday I’ll be coming to render my resignation formally and to claim what is legally mine in terms of pension pay-outs and outstanding remuneration.
It was nice doing business with you.

Jacob, CEO & Working capitalist’

The next Monday Mr Moloi changed his mind and decided to withdraw his resignation. In reply to his request to withdraw his resignation, he was informed that his request had to be referred to the employer’s head office.

Mr Moloi decided that this meant that he had been dismissed and proceeded to refer a case of unfair dismissal to the MEIBC (Metal and Engineering Industries Bargaining Council.
The employer was of the opinion that it was unnecessary for Mr Moloi to provide it with a formal resignation and that Mr Moloi’s above-mentioned email served as a voluntary resignation.

The MEIBC commissioner ruled that no dismissal took place and that Mr Moloi resigned voluntarily.

The commissioner further found that in the light of Mr Moloi’s unreasonable and annoying insistence on proceeding with this frivolous case while he knew that the services of the MEIBC were free and were funded by taxpayers’ money, it was necessary to grant an order as to costs against Mr Moloi, which meant that he was responsible for the employer’s legal costs in connection with the case.

Dismissal

Gerhard Hildebrand

Question:

What is the time limit for referring a dispute after dismissal?

Answer:

In terms of section 191(1)(b)(i) of the Labour Relations Act (No. 66 of 1995), a dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council within 30 days of the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision regarding the employees dismissal.

Section 190(1) describes the date of dismissal as the date on which the contract of employment was terminated, or the date on which the employee left the service of the employer.

If an employee had been dismissed and then lodged an appeal against the dismissal, the dispute may be referred within 30 days after the outcome of the appeal. Therefore, the 30 days did not begin after dismissal; it began on the later date when the employer made the final decision at the appeal.

In calculating the 30 day period, the first day (the day of dismissal) is excluded and the last day is included. The 30 days are calendar days, therefore Saturdays, Sundays and public holidays are included. However, if the last day should fall on a Saturday, Sunday or public holiday, that Saturday, Sunday or public holiday is excluded and the 30 days are extended until the first day after the Saturday, Sunday or public holiday.

If the last day for referral falls in the period 16 December to 7 January, the period is extended to the first day after this period that does not fall on a Saturday, Sunday or public holiday.

If the referral is not referred within the 30 day period, the application for condonation must be brought with the referral, creating the risk that the CCMA or the bargaining council may deny the application.

However, it is important to contact Solidarity as soon as possible after dismissal so that any referral could be handled by Solidarity itself.

Information needed for legal aid if fired

By Gerrit Visser

Question:

I have just been verbally informed of my dismissal. I am of the opinion that I have been unfairly dismissed and I need someone to assist me. I understand that the law only protects the vigilant and not those who slumber on their rights. What should I do on my part to enable a lawyer to help me?

Answer:

As is the case with any other labour law issue, the answer will depend on the circumstances. However, the following list would be useful:

1.    In terms of section 192 of the Labour Relations Act (No. 66 van 1995) (hereafter referred to as the “LRA”), the onus falls on the employee to prove that he/she had been unfairly dismissed in any unfair dismissal dispute. Therefore, you can insist on the following information from your employer:

1.1.    The written results of the hearing (if a hearing had been held);
1.2.    A notice of termination in terms of section 37 of the Basic Conditions of Employment Act (No. 75  of 1997) (hereafter called the “BCEA”);
1.3.    A certificate of service in terms of section 42 of the BCEA;
1.4.    Final payslip in terms of section 33 of the BCEA; and
1.5.    UI-19 form in terms of the Unemployment Insurance Act (No. 63 of 2001).

2.    In the event of any referral of a dispute to the CCMA or any other forum, there must first be evidence that the dispute form had been served on the employer. To assist the person who will assist you in this regard, the following information is required:

2.1.    Service contract;
2.2.    Full name of the legal entity under which name your employer conducts business;
2.3.    Fax number of employer;
2.4.    Postal address of employer;
2.5.    Physical address of employer;
2.6.    The name and preferably the particulars of the mediation or dispute resolution forum under which your employer falls; and
2.7.    The total of all outstanding monies owed to you, including how it had been calculated.

3.    If your employer does not want to provide you with the above information, you as employee must approach the Department of Labour. In terms of Chapter 10 of the BCEA, the Department of Labour can take certain actions to compel the employer to provide the required information.

4.    Depending on the dispute, this list may not necessarily be complete. However, it is the minimum needed to enable anyone to assist you.

5.    Finally, you as an employee should always bear in mind that the person assisting you is only able to litigate and take further steps on the basis of the information provided by you.

Can the reason for my dismissal be changed?

By Gerrit Visser

Question:

My employer dismissed me. Originally, the reason given for dismissal was that I was too arrogant. Three days later, I received a letter with a host of allegations against me. Can the employer change the reason for dismissal?

Answer:

The case of Fidelity Cash Management Services v KVBA and Others ([2008] 3 BLLR 197 (AAH)) [2007] ZALAC 38, dealt with a similar dispute. The Labour Appeal Court made it very clear that if an employer wanted to claim that a dismissal was fair, the employer had to prove that the reason given was fair and justified.

Moreover, the court made it clear that it is a fundamental principle of labour law that the fairness of a dismissal has to be determined on the basis of the reason the employer put forward upon dismissal. In layman’s terms, it means that an employer is not allowed to look for reasons to justify dismissal after dismissal had taken place.

In labour law, the possible reasons for dismissal are legion; so too are the requirements of what needs to be proven. The average citizen rarely understands the requirements for or nature of dismissal. For this reason, we recommend that every employee should have access to legal advice of one kind or another. Bear in mind that the principle, “vigilantibus non dormientibus jura subveniunt” (law will only help those who are vigilant), always applies.

Warnings (1)

Several warnings for the same incident

Question:

My son overslept one day and was late for work. His employer gave him three warnings for this one incident. They said the first two warnings were issued because he had been late for work and because they had been unable to contact him as his cell phone had been switched off. The third warning was given to him because they claimed he had lied about why he had been late for work. Does his employer have the right to give him three warnings?

Answer:

An employer is entitled to issue different warnings to an employee for violations that relate to the same incident. In such cases, the legal principle of double jeopardy should be taken into consideration, however. According to this principle, a person cannot be prosecuted or punished twice for the same offence.

Within the law it is not uncommon for various offences to result from one action. In criminal law, someone may, for example, be charged with murder, illegal possession of a firearm and illegal possession of ammunition if he is suspected of having killed another person with a firearm. Although this is an extreme example, the same principle applies across the board.

The employer acted fairly by giving your son more than one warning for related offences that emanated from the same incident – a warning because he was late for work, a warning because the employer could not reach him on his cell phone – if his conditions of service stipulate that the employer must be able to contact him at all times – and a warning for dishonesty. Further, the employer was within his rights if the warnings were issued in keeping with the company’s disciplinary policy and code and if a fair procedure was followed.

Work Contract (20)

What information must the employer give to me in writing?

Question:

What information must the employer give to me in writing?

Answer:

When an employee is employed, his/her new employer must provide him/her with the following information:

  1. Full name and address of the employer;
  2. A description of the employee’s duties;
  3. The address of the workplace and other places where the employee has to work;
  4. The date of employment;
  5. Information regarding work hours and work days;
  6. Information about the remuneration package and how it is calculated;
  7. Information about overtime payment;
  8. Information about all other payments;
  9. Information about any non-monetary remuneration as well as other benefits the employee will receive and the value of the benefits;
  10. The date of payment;
  11. Any deductions that will be made from the employee’s salary;
  12. The leave to which the employee is entitled;
  13. The notice period;
  14. Information about council or sectoral determination; and
  15. A list of any other documentation that is relevant to the employee’s contract of employment.

If any amendments are made to the documentation, the amendments must be made in writing and the employee must be informed. If the employee does not understand the documentation, it must be conveyed to him/her in a language he/she will understand. The employer must also keep all documentation for a period of three years following the termination of the employee’s services.

Does an employment contract have to be in writing?

Phil Davel

Question:

I have been working as a graphic designer for the same boss for six months. To date she still has not given me an employment contract to sign and now I am worried that she’ll let me go at any point. Can I force her to give me a contract?

Answer:

The question is whether an employment contract is still valid in the absence of a written agreement. Stated differently: does the fact that the employment contract is not in writing make it invalid?

Firstly, it is important to define an “employment contract” in broad terms. An employment contract is:

1. a voluntary agreement;

2. between two parties (employer and employee), according to which –

a. one party (the employee) undertakes to render his/her personal services, subordinate to the other party (the employer);

b. in return for determinable remuneration in money or in value.

Nowhere does it state the requirement for a written contract. The above four points are the substantial elements of an employment contract and come to bear as soon as an agreement regarding the above has been reached. It is therefore clear that such an agreement can be verbal or even unspoken (an agreement can also be deduced based on behaviour) and does not necessarily have to be in writing.

Note that the common-law requirements of a contract still apply. These requirements are:

  • Both parties must have reached a consensus;
  • But must have contractual capacity – in other words, be legally capable of performing a binding act, such as concluding a contract;
  • The agreement should not be contrary to any law or good morals;
  • It should be possible to fulfil the rights and obligations of the agreement; and
  • If there are any formal legal requirements, these must be fulfilled.

It is important to remember that although a written contract is not a prerequisite for a valid employment contract, it is definitely advisable to record the contract in writing. This could be done for the sake of clarity as well as to avoid any disputes or to make it easier to settle such disputes. However, an employee cannot force an employer to provide a written contract.

Nevertheless, an employer or employee is not without any remedy. In the absence of a written contract, the Basic Conditions of Employment Act (Act 75 of 1997) still applies and the employment relationship is regulated within this framework. That is why knowledge of this and other labour legislation is very important for our members.

Section 29 of the Basic Conditions of Employment Act stipulates that the employer is obliged to furnish certain details to the employee when his/her employment commences. This includes, among other things, details about remuneration or wages, the leave to which he/she is entitled, the date on which employment commenced, and payment for overtime.

Confusion could arise because these mandatory details are sometimes deemed to be equivalent to an employment contract. Although this could constitute an employment contract, it should be remembered that section 29 of the Act only places an obligation on the employer and that it does not arise from a voluntary mutual agreement between two parties. Therefore it is not an employment contract.

My parents advised me to request a service contract…

Question:

I recently started working at our town’s bakery. I work as the cash register and keep the shop shelves tidy. My parents advised me to request a service contract. Unfortunately it seems that the owner does not have such a contract.  He doesn’t regard it as essential. What should I say to him to get a contract from him?

Answer:

It is important that the employee obtains a service contract as soon as possible as this is the basis of the employment relationship. This is a voluntary agreement between two parties.

The employee could agree to make certain competencies available to the employer for a fixed or indefinite term. The employer agrees to remunerate the employee in a certain manner. The employer has the right to exercise control over the manner in which the employee’s competencies are used.

A service contract should meet certain requirements before it is valid:

  • The parties should agree on the content of the contract
  • The parties should have contractual capacity
  • The contract should be legally practicable
  • The contract should also be physically practicable.

My contract determines that a performance contract be drafted…

Question:

My contract determines that a performance contract be drafted which determines what my performance bonus will be. The appraisal is done every six months.

This year we again had to draft a contract for our various projects. I have been told to stipulate in my contract that I would transfer my skills to my colleagues.

I would like to know whether this is legally acceptable. I am the only White person who has been instructed to do this. My contract lapses in February 2007.

I feel that I am an exception. I am one of a few people here who make a difference and I have just been informed that I have to take over a colleague’s work whose contract has been terminated. 

Answer:

In terms of the service contract it seems that the employee could scarcely refuse to transfer his skills or help out temporarily with his colleague’s work. Certain clauses in the contract authorise his employer to expand his job functions within reasonable limits.

The performance bonus is furthermore at the sole discretion of the employer and should the employee refuse to cooperate, he would have trouble qualifying for it.

In short: the content of the service contract is the definitive agreement between the employee and employer and there is no legal limitation on the content or meaning of the aforementioned clauses in these specific circumstances.

I don’t have a contract of appointment and receive a monthly salary…

Question:

I have been working as a manager at a restaurant for a year. I don’t have a contract of appointment and receive a monthly salary from which tax and unemployment insurance are deducted. The employer now wants me to sign a contract as an independent contractor.

Answer:

The employee must not sign that contract, as the labour laws will no longer apply to him. He will not be able to claim leave, overtime payment and unemployment insurance and he would not be able to refer a case of unfair dismissal.

Am I entitled to interest on pension?

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

My employer pressured me to sign a blank contract of appointment…

Question:

My employer pressured me to sign a blank contract of appointment. I was not satisfied with the following clauses:

  1. “The employee shall not, within a period of 12 months after the termination date, for any cause whatsoever in connection with any business similar to that conducted by The Company at the date of such termination, directly, or indirectly offer employment to or cause employment to be offered to or cause to be employed any person who is employed by The Company at the termination date or who was so employed at any time within 12 months immediately preceding the termination date”;
  2. “The employee shall not, for a period of 12 months after the termination date, for any cause whatsoever either solely or jointly or together with or as employee, director, shareholder, member, manager, trustee or agent for any entity, directly or indirectly canvass business in competition with The Company from any person or entity forming part of the client base.”

Answer:

If the employee has been appointed permanently by his current employer, the employer cannot force him to accept the “Restraint of trade” part of the contract or agree to it if it has not been included in the initial conditions of employment.

When the employee leaves the employer’s service, he may for a period of 12 months not get involved in any competitive business. If he has agreed to it at the time of his employment, it is not unfair of the employer to expect that he signs a document of such a nature.

The employee has to remember that he is not obliged to sign any contract if he doesn’t agree with the content. The employer can therefore not force him to sign something that he does not wish to sign. To establish a valid contract there should be an offer and an acceptance, and it should not corrupt the morals of the community. When he accepts the offer, a valid contract comes into being.

The employee could discuss the fact that his details have not been entered on the contract and insist that it should first be completed before he signs it. He should also ensure that he initials next to the completed parts and get a copy of the signed contract to prevent changes to the contract without his knowledge.

“I signed, because I needed the job…”


Restraint of trade agreements

Compiled and written by Phil Davel

January 2011

Contents

1. Introduction

2. Definition and purpose

3. How the validity of restraint of trade agreements should be treated

4. Reasonableness: Two competing policies: The maxim pacta sunt servanda and section 22 of the Constitution

5. The onus of proof

6. Guidance on approaching the value judgment

7. Criteria the courts consider when determining the enforceability of a restraint of trade agreement

8. Restraint of trade and the Constitution

9. Remedies and procedural issues

10. Conclusion

 

The following is an example of a restraint of trade clause in a contract of service:

 

Restraint of trade

 

1.1   The EMPLOYEE agrees and undertakes that he shall not for a period of 12 months, and within a 100 km radius of the premises of the EMPLOYER, after the termination of his employment with the EMPLOYER, either jointly or alone or together with or as agent for any reason, company or association of any nature whatsoever directly or indirectly ‒

 

1.1.1      carry on the business or activity of the manufacture or distribution of hair and skin care cosmetic or related products;

1.1.2      be in any way interested in any such business or activity whether as principal, agent, shareholder or otherwise; or be associated or engaged in or in any way concern himself in such activity; or

1.1.3      finance or guarantee the obligations of any such business or activity.

1. Introduction

A restraint of trade clause is commonly included in an employment contract to enable an employer to protect his business from competition from ex-employees. In terms of a restraint of trade agreement, an employee is prevented from starting his own business in competition with his employer, or working for competitors for a specified period in a specified geographical area after termination of his employment contract.

 

At the outset it must be noted that restraint of trade arguments are not governed by hard and fast rules and are not regulated by labour law, but by the law of contract.

 

2.         Definition and purpose

 

In the matter of Petrofina (Great Britain) Ltd v. Martin, (1966) 1 Ch. 146, the court defined a restraint of trade as a contract in which one party (the employee) agrees with another (the employer) to limit or restrict his freedom in the future to trade with another external party who was not a party to the initial contract.

 

The Appellate Division (now the Supreme Court of Appeal) has described the objects and purpose of restraint of trade as follows:        

The legitimate object of a restraint is to protect the employer’s goodwill and customer connections (or trade secrets) and the restraint accordingly remains effective for a specified period (which must be reasonable) after the employment relationship has come to an end. The need for protection exists therefore independently of the manner in which the contract of employment is terminated and even if this occurs within consequence of a breach of contract by the employer. (Reeves and another v. Marfield Insurance Brokers CC and another 1996 (3) SA 766 (A))

In most cases the employee is in the weaker bargaining position and is not really able to negotiate the terms of the contract. The terms of the restraint clause may even be harsh and unfair and may restrict the employee from following her occupation even when she would not be competing with her former employer. The courts are aware of this problem and have formulated rules relating the validity and reasonableness of restraint of trade.

 

3.         How the validity of restraint of trade agreements should be treated

 

In common law, a contract is unenforceable if it is contrary to good morals (contra bonos mores) or against public policy. Despite there having been a lack of clarity at one stage as to how agreements in restraint of trade should be treated, the Appellate Division decided in Magna Alloys and Research (SA) (Pty) Ltd v. Ellis 1984 (4) SA 874 (A) that, in South African law, an restraint of trade agreement is prima facie valid and enforceable and will only be invalid and unenforceable if it is contrary to public policy on account of it unreasonably restricting a person’s right to trade or to work.

 

In arriving at the conclusion that restraint of trade agreements are prima facie valid, Magna Alloys rejected the English law approach, as reflected in the famous  judgment of Lord Macnaghten in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 (HL), which had been applied in a number of South African cases, that agreements in restraint of trade are prima facie against public policy and are therefore presumed to be invalid and unenforceable.

 

The result of Magna Alloys was summarised by Didcott J in J Louw and Co (Pty) Ltd v. Richter and others 1987 (2) SA 237 (N) as follows:

 

Covenants in restraint of trade are valid. Like all other contractual stipulations, however, they are unenforceable when, and to the extent that, their enforcement would be contrary to public policy. It is against public policy to enforce a covenant which is unreasonable, one which unreasonably restricts the covenanter’s freedom to trade or to work. In so far as it has that effect, the covenant will not therefore be enforced. Whether it is indeed unreasonable must be determined with reference to the circumstances of the case. Such circumstances are not limited to those that existed when the parties entered into the covenant. Account must also be taken of what has happened since then and, in particular, of the situation prevailing at the time enforcement is sought.

 

4.         Reasonableness: Two competing policies: The maxim pacta sunt servanda and section 22 of the Constitution

In determining the reasonableness or otherwise of agreements in restraint of trade, two competing considerations come into play. The first is that it is in the public interest that people should be held to their agreements. The second is that it is also in the public interest that people should be free to engage in economic activity. (See Sunshine Records (Pty) Ltd v. Flohing & others 1990 (4) SA 782 (A) at 794). The Constitution of the Republic of South Africa, Act 108 of 1996 protects the right to choose a “trade, occupation or profession freely”. It has been held, however, that the common-law rules relating to restraint of trade are not unconstitutional (discussed below). When a court considers whether to enforce a restraint of trade, it is required to exercise a value judgment on its assessment of the facts seen in the light of both common-law principles as well as constitutional values, the first essentially embodied in the maxim pacta sunt servanda (“agreements must be kept”), the second essentially reflected in the provision in section 22 of the Constitution that every citizen has the right to freely choose his occupation.

 

5.         The onus of proof

 

In Magna Alloys the following was determined when it is alleged that an agreement in restraint of trade is unreasonable: As with any other agreement, when a party to an agreement in restraint of trade attacks its validity, he bears the onus of establishing that it is unreasonable. Thus, in this case, the employee bears the onus of proving that the clause is contrary to public policy. Once the employer has established that (a) the restraint of trade existed and (b) it has been breached, the employee has to prove that the restraint of trade is unreasonable. The court will then consider the circumstances that prevail when the enforcement of the clause is sought and not when the contract of employment was concluded. If the court is unable to make up its mind on the point, the restraint will be enforced.

 

6.         Guidance on approaching the value judgment

Guidance on how to approach the value judgment in question can be found in the judgments of the Appellate Division in Basson v. Chilwan and others 1993 (3) SA 742 (A) and of the Supreme Court of Appeal in Reddy v. Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA). In the latter case, Malan AJA held:

 

In applying these two principal considerations, the particular interests must be examined. A restraint would be unenforceable if it prevents a party after termination of his or her employment from partaking in trade or commerce without a corresponding interest of the other party deserving of protection. Such a restraint is not in the public interest.
Townsend Productions (Pty) Ltd v Leech and Others 2001 (4) SA 33 (C) ([2001] 2 All SA 255) at 50J – 51B (SA); CTP Ltd and Others v Argus Holdings Ltd and Another 1995 (4) SA 774 (A) at 784A – C.

Moreover, a restraint which is reasonable as between the parties may for some other reason be contrary to the public interest. In Basson v Chilwan and Others,
1993 (3) SA 742 (A) at 767G – H.

Nienaber JA identified four questions that should be asked when considering the reasonableness of a restraint:

 

(a) Does the one party have an interest that deserves protection after termination of the agreement?

(b) If so, is that interest threatened by the other party?

(c) In that case, does such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive?

(d) Is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected? Where the interest of the party sought to be restrained weighs more than the interest to be protected, the restraint is unreasonable and consequently unenforceable. The enquiry which is undertaken at the time of enforcement covers a wide field and includes the nature, extent and duration of the restraint and factors peculiar to the parties and their respective bargaining powers and interests. Secondly, he stated that in order to properly reflect s 36 of the Constitution in cases involving restraints of trade, a fifth question had to be asked, namely

(e) ‘whether the restraint goes further than necessary to protect the interest’.

 

The court will not be limited to finding that the entire restraint of trade clause is enforceable or unenforceable. It may decide that part of the clause is enforceable or unenforceable and cut out the unreasonable parts of the clause and enforce the rest, without redesigning the restraint and developing an entirely different contract. In Den Braven SA (Pty) Ltd v. Pillay & another 2008 (6) SA 229 (D), after engaging in comprehensive legal research and considering  a number of earlier judgments, the High Court came to the conclusion that the principles of severability applicable in other contractual situations should also apply to restraint of trade clauses.

 

7.         Criteria the courts consider when determining the enforceability of a restraint of trade agreement

A restraint will conflict with public policy if its effect is unreasonable. In determining the validity and enforceability of restraint of trade agreements, a court considers a number of factors, a few of which are mentioned here:

 

i)          Proprietary and protectable interest

An employer who relies on a restraint of trade agreement in order to protect trade secrets and confidential information must show that the information or methods are unique and peculiar to his business and that such information is not public property or in the public domain (for example, through the internet). In this regard the Court in Hirt & Carter (Pty) Ltd v. Mansfield & Another 2008 (3) SA 512 (D) pointed out that the information which a former employer wishes to protect “must be objectively useful to a competitor in order to be confidential as between ex-employee and an ex-employer”. (See Rectron (Pty) Ltd v. Govender [2006] 2 All SA 301 (D) for a legal formulation of “confidential information”).

 

The essence and purpose of any restraint of trade agreement is to prevent the use of confidential information by a former employee to the detriment of the employer. In Reddy v. Siemens Telecommunications (Pty) Ltd the court held that it was not necessary to find that Reddy did or would actually use trade secrets and confidential information in his new employment – but that is was sufficient if he could do so.

 

However the court in Arrow Altech Distribution (Pty) Ltd v. Byrne and Others (9661\2007) [2007] ZAKZHC 33; [2008] 1 All SA 356 (D) agreed that there may be information that is so trivial or so easily accessible from public sources that it cannot be regarded as confidential:

 

I am of the view that the legal protection afforded to this type of confidential information is limited to a certain extent. It seems clear that the law, whilst prohibiting an employee from taking his employer’s customer list, or deliberately committing its contents to memory, nevertheless recognises that, on termination of an employee’s employment, some knowledge of his former employer’s customers will inevitably remain in the employee’s memory. This leaves the employee free to use and disclose such recollected knowledge, in his own interests, or in the interests of anyone else, including a new employer who competes with the old one.

 

Another such interest which may legitimately be protected by a restraint of trade is an employer’s trade connections. The position is summarised by Van Rensburg J in Branco and another t/a Mr Cool v. Gale 1996 (1) SA 163 (E):

 

As I see the position, when an employee has access to the customers of a business and is in a position to build up a particular relationship with customers, with the result that when he leaves his employer’s service he could easily influence customers to follow him and trade with him at the expense of his erstwhile employer, there is no reason why, in principle, a restraint should not be enforced to protect the employer’s trade connections.

 

In David Crouch Marketing CC v. Mark (J2499/08) [2009] ZALC 63, the Labour Court found that there had to be such a strong customer relationship and “attachment” that customers would “easily be induced” to follow the employee to the former employer’s rival, before enforcing the restraint. The court held the following:

 

Customer goodwill and trade connections may likewise be regarded as a protectable interest in circumstances where the former employee has built up a relationship with a customer to the extent that the customer will easily be induced to forsake the business of the former employer and follow the employee to his/her new business or employment. If the authorities referred to by the Court in Hirt (supra) is perused, it appears that the employer will have to show that there is a strong attachment between the customer and the former employee to such an extent “that when the employee quits and joins a rival he automatically carries the customer with him in his pocket”.

Before arriving at such a conclusion the court will consider several factors including ‒

  • the frequency and duration of interactions with the clients;
  • the employee’s personality;
  • where the contact takes place; and
  • the knowledge that the employee gained with regard to the clients’ needs and requirements.

Such a strong relationship was found to be the case in Bergh NO and Another v. Van der Vyver and Another (EL 526/2010)  [2010]  ZAECGHC 73 where the court ruled as follows: “[Therapists] develop relationships with their clients which are easily transported in the event that the therapist should, for whatever reason, take up employment elsewhere.” In this case, the first and second respondents, both beauty therapists, were interdicted from carrying on business in breach of their restraint agreement after the court found that the restraint was not unreasonable and contrary to public policy.

 

Other protectable interests can include goodwill, client lists (Bergh NO and Another v. Van der Vyver and Another), trade agreements and technological information.

 

ii)         Scope, area and duration of restraint

If the scope of a restraint of trade clause is broader than necessary, it will not be enforced. In the above case of Den Braven SA (Pty) Ltd, the court held that the two-year period of restraint was too long and that compliance with the geographical area provisions would enable the employee to work in Angola, Tanzania or the DRC only (these countries being the closest to home outside the area of restraint). The court also found that the terms, that is, the definition of a “customer”, were very wide. The restraint was consequently limited to a period of eight months and to KwaZulu-Natal only.

 

The court will judge the reasonableness of a restraint of trade according to merit. A period of three years was found to be reasonable in Dickinson Holdings Group (Pty) Ltd and Others v. Du Plessis and Another (7351/06) [2006] ZAKZHC 10 due to the nature of the employer’s activities.

 

In general, the weight of the onus on the person seeking to have a restraint declared unenforceable decreases as the stringency of the restraint increases with regard to the period of time or area over which the restraint operates.

 

iii)        Vagueness and the “one size fits all” approach

If a restraint of trade clause is found to be too vague, it will not be enforced. The courts will not enforce a blanket restraint that makes it impossible for an employee to work in any related industry. The more specific a restraint of trade is, the more likely the breach can be proved and the more likely the restraint will be enforced.

 

Also “standard form” or “one size fits all” restraint clauses may easily tip the scales in favour of the employee. Spilg J in Interpark (South Africa) Ltd v. Joubert and Another (09/29946) [2010] ZAGPJHC 39 concluded:

 

I am alive to the considerations favouring extensive severing of overbroad restraints mentioned in Den Braven. Nonetheless courts should be slow to indirectly sanction clear cases of over-reaching by reason of unequal bargaining strengths and where draftsmen demonstrate scant regard for rational provisions. The one size fits all approach may also expose the restraint as fundamentally flawed because no rational basis exists for the period, area or scope of the restraint being the same for both a key executive and for an administrative staff member.

 

iv)        Prevention of competition

When considering the criterion of public policy and in assessing the nature of a restraint to determine reasonableness, one needs to weigh up what the restraint of trade clause seeks to protect against what is seeks to prevent.

 

A restraint of trade will not be enforceable if its sole purpose is to prevent mere competition. Such a clause will be void. The party seeking to enforce the restraint must have a protectable interest. A person is entitled to take his skill away w